The Kerala High Court said on Tuesday that a victim in a sex case not protesting or remaining passive does not mean that she had consented to sexual intercourse. The remark gains importance in the context of the Suryanelli case where a 2005 High Court order had said that the victim had made no attempt to escape. Justice P Bhavadasan made the observation while considering the rape case of a Malappuram-based girl.
The court upheld the conviction and 10-year rigorous imprisonment of all the accused and a fine of Rs 25,000 by the Manjeri Additional Sessions Court. The prosecution case is that the girl was gang-raped by her lover and other accused from various places in Malappuram district.
The first accused Pillathottathu Muhammed Ali alias Ali — was a close friend of Sharafuddin who was in love with the victim. Sharafuddin asked the victim to come along with Ali and promised that he (Sharafuddin) would marry her. She left the house with Ali in an autorickshaw.
On the way, the autorickshaw was parked near a compound wall and the accused allegedly raped her and she was taken to a lodge. The court observed that the victim reposed faith in the first accused Ali who was her neighbour.
Not even in her dreams could she think that the accused would sexually abuse her. “It was indeed a sudden attack and she has been deprived of her senses to react, for which she could not be found fault with,” the court said.
Consent means ‘informed conscious consent,’ it said. “Consent has to be viewed in the facts and circumstances of the case and the evidence adduced in the case. In the case, she was taken from one place to other.
She could have reacted to or made a hue and cry to attract people so as to escape.
Based on the mere fact that she did not react, it could not be said that she consented to the act committed by the accused.
Probably she was frightened to react,” the court said. The accused persons argued that there was no resistance from her part so that those who approached her could discern that she was willing for intercourse or there was consent from her part.
The prosecution pointed out that the victim kept silent out of fear or some other reason. The court observed that the accused had tricked the girl and led her into a trap.