New Delhi: In a departure from a long line of precedents and established law, the Punjab and Haryana High Court last week “inferred” consent from lack of injury on the body of an alleged rape survivor.
In doing so, the court relied on medical evidence which did not find any injuries on the woman’s body, and also indicated “chances of recent sexual intercourse with the prosecutrix”.
“In cross- examination, this medical expert has testified that no injury on the private part of the prosecutrix was noticed. Meaning thereby, the doctor did not find any injury on the person of the prosecutrix, from which, it can be inferred that she was a consenting party to the sexual intercourse,” it observed.
The remarks were made by a bench comprising Justices Jaswant Singh and Lalit Batra, while acquitting four men who were charged with the abduction and rape of an 18-year-old woman.
The Chandigarh administration had approached the court to seek permission to appeal against the acquittal of the men in the rape case.
According to the complaint filed by the woman’s father, the four accused men abducted his daughter at knifepoint from a jaagran and then gangraped her for two days in a jhuggi.
During the trial, one of the accused contended that he was romantically involved with the woman, and that her family had now filed a false case against him “in order to teach him a lesson”.
The men were acquitted by the trial court in January last year, with the court observing that the prosecution had failed to prove the allegations beyond any reasonable doubt.
Prosecution story ‘highly improbable’
The Punjab and Haryana High Court then upheld the trial court’s order, opining that the prosecution’s story was “highly improbable”, and pointing out several unexplained contentions put forth by the woman.
Apart from the lack of injuries on her body, the court expressed its scepticism about her abduction from a crowded jaagran.
The court was also of the view that in the absence of any intoxication, the woman could have raised a hue and cry in case she was kept confined forcibly for two days.
Additionally, Justice Singh examined the scope of the powers of an appellate court while dealing with an order of acquittal, noting that generally a higher court should not interfere with a trial court’s order of acquittal, unless it is unreasonable or perverse.
It, therefore, ruled that the trial court had appreciated the entire evidence correctly and that the prosecution had failed to prove its case beyond any reasonable doubt.
Supreme Court’s established stand
There has been a long line of cases where the Supreme Court has abandoned the requirement to show presence of injuries on a rape survivor’s body.
For instance, Justice Krishna Iyer had, way back in 1980, refused to accept the absence of injury as a reason to acquit to accused. He had, in fact, called insistence on corroborative testimony a “fossil formula”.
In another judgment in 2011, the Supreme Court set aside an Allahabad High Court ruling that had acquitted a rape accused, noting that the woman was “habitual to sexual intercourse”, and that no internal or external injury was found on her.
The apex court did not agree with the high court’s finding and observed that “it is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal part of the victim”.
This position has since been followed in various judgments, with Section 375 of the Indian Penal Code expressly stating that “a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”.