“Neither the absence of resistance nor the unwilling submission implies consent in any Language”: HP HC

“Neither the absence of resistance nor the unwilling submission implies consent in any Language”: HP HC

“No means no- the simplest of sentences has become the most difficult for some men to understand”, remarked the Hon’ble Himachal Pradesh High Court on Wednesday (5th May 2021) while rejecting the bail to a 26-year-old man accused of raping a 17-year-old minor girl. 

Additionally, while rejecting the bail application of a rape accused in the instant case, Hon’ble Justice Anoop Chitkara noted that ‘No’ does not mean ‘yes, it does not mean that girl is afraid, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word ‘no’ doesn’t need any further explanation or justification. It ends there, and the man has to stop. Be that as it may, the victim, in this case, said ‘no’ to the accused when he started touching her, but he continued. It nowhere implies consent, or zeal and desire to explore and feel each other in romantic love.”

Subsequently, the accused in the instant case has been charged under Section 4 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act, 2012”) and under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”) and has been in judicial custody since 18 December 2020.

At the outset, the victim girl in the instant case alleged that the accused, who was her friend, offered to drop her at home. She boarded the vehicle, but the accused took a detour on the way and went to an isolated place. Soon afterward, he raped her despite categorically “NO” from the side of the victim.

In the due course, the accused in his defense argued that the victim’s statement, given under section 164 Criminal Procedure Code, 1973 (hereinafter referred to as “Cr. P.C, 1973”) in which she stated that he was the friend of her, and taking the lift without any protest proved that the friendship was cordial and hence sexual intercourse took place with active consent and without any force on her by the accused.

However, the Hon’ble court dismissed the claims and stated that “the revealing of the incident to the mother of the victim by her is prima facie points towards the genuineness of the incident”. The Hon’ble court reasoned that if the sexual intercourse was done by the consent of the victim, she would try to conceal the incident, not revealed the same to her mother.

Finally, upon observing the fact and circumstances of the instant case, the Hon’ble court rejected the bail application of the accused. 

Paramjeet Singh
Hello Everyone, I am Paramjeet Singh, a first year B.A.LL.B. student from Rajiv Gandhi National University of Law,Patiala. Being a law student, I love to do writing and researching upon different legal related issues. I have a keen interest in Contract, Constitution, Competition and Human Right law. Also, I have a great interest in participating in various National or International moots and Debating competitions.