SC: Absence of external injuries can’t declare rape to be a consensual act always

STATE OF MADHYA PRADESH V PREETAM CRIMINAL APPEAL No(s). 2229 OF 2011 Decided on 29/08/2018 BENCH: A two-judge bench of the Apex Court decided this case, headed by:

• Justice R. BANUMATHI
• Justice VINEET SARAN

FACTS: The prosecutrix along 2 with her two sisters i.e. Hirkanbai and Anitabai had gone outside the village to a field to attend nature’s call and while returning back, the respondent (accused) allegedly raped her. There was a delay in filing FIR as her uncle was not in the village. Later she was examined where it was observed that her hymen was torn and there was swelling on the edges of torn hymen. Doctor had opined that the prosecutrix was subjected to sexual intercourse. The trial court convicted the respondent under Section 376 I.P.C. based upon the doctor’s report and other evidences and he was sentenced to undergo imprisonment for a period of seven years. When appeal was made by the accused, the High Court reversed the verdict of conviction on the grounds:-

• There was no external injury on the body of prosecutrix which is indicative of her consent for the sexual intercourse not amounting to rape;
• There was delay in registration of the FIR.

As a result prosecutrix approached the Supreme Court through the way of appeal. CONTENTIONS OF THE RESPONDENT:

1. It was a consensual act because there were no external injuries on the body of the victim.
2. The victim was not below the age of 16 years, at the time of occurrence of such act, which is an essential requirement to be liable under section 376 of IPC.
3. There was a delay in filing of FIR which shows that victim planned and plotted all this against him.

OBSERVATIONS OF THE SUPREME COURT: Court observed that:

1. It was not correct on the part of the High Court to declare this act as a consensual one because of absence of external injuries. It is fairly well-settled that in the absence of external injury on the person of the prosecutrix cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case.
2. Evidence given by the doctor observed that the victim must be of the age between 13-17 yrs and he opined the age to be 17 yrs but by considering the submission of school certificate by the head master of the school of the victim, the age of the victim would be 12 yrs at the time of the occurrence of the act. So the court decided the age below 16 yrs only so her consent was immaterial.
3. It was submitted by the prosecutrix that her uncle wasn’t in the village which resulted in the delay of filing of FIR which was ignored by the High Court.

CONCLUSION: The appeal was allowed and court concluded that:

1. The conviction of the respondent under Section 376 I.P.C. as passed by the trial court was restored but the period of sentence of seven years was reduced to four years.
2. And further directed the respondent to surrender to custody within a period of 4 weeks to serve the remaining sentence failing which he shall be taken to custody if the respondent had not already undergone the sentence of imprisonment of four years.

For full judgement refer:  https://www.supremecourt.gov.in/supremecourt/2011/6817/6817_2011_Judgement_29-Aug-2018.pdf