Supreme Court objects to expression of “being accustomed to sexual intercourse”

The apex court raised the objection in medical report to claim consent in rape cases.

New Delhi: The Supreme Court has taken exception to the medical report in rape cases which used an expression of “being accustomed to sexual intercourse” to advance a contention of the sexual act to be consensual in nature.

"This is nothing but an archaic notion of sexual purity which intends to morally shame the victim and downplay the role of consent, or the lack thereof, in an offence of rape," a bench of Justices Vikram Nath and Sanjay Karol said, objecting to the use of the terms.

The court dismissed an appeal filed by Raju alias Nripendra Singh and two others against the Madhya Pradesh High Court's judgment, which upheld conviction and sentence of 10 years awarded to them for repeated gang rape of a 17-year-old girl after enticing her away to various places to facilitate her employment.   

Rejecting claim of consent by the appellants, the bench said, "Once the age of the prosecutrix at the time of the incident is established to be that of minority, the question of consent per se becomes irrelevant and the act shall qualify as statutory rape nevertheless". 

The appellants claimed the girl had left her home with them willingly without informing her guardian and that she remained in their company for a period of two months and during this period, she visited many places like Siddhi, Rewa, Allahabad and Delhi using public transport where she could have easily raised call or alarm for help, but she did not do so, clearly showing that she was a consenting party.

"Even if the argument of consent is to be considered, we cannot lose sight of the fact that the accused appellants were men who had held the prosecutrix, who was of a tender age, captive for a prolonged period of time by threatening her life," the bench said. 

It would be illogical to rule out the role played by constant fear that the prosecutrix was operating under as she was being subjected to rape by the accused persons over the period of two months. Such a subjection to sexual intercourse under fear of accused persons can in no way be understood to mean as consent on part of the prosecutrix, the bench said. 

The court also said, the lack of injuries on her body should also not be an important factor in the facts of the case since the offence continued for a period of two months and the medical investigation was conducted much after the first incidence of rape was committed. 

The appellants also raised the issue of delay in lodging the FIR. The bench, however, said, the issue of delay would also be inconsequential to the case since firstly, the normal rule of delay does not apply to rape cases and further, the girl was held captive by the appellants for a period of two months and had no means to register the FIR earlier.    

"We find it of utmost importance to note here that the statement of the prosecutrix made in the chief-examination regarding sexual assaults committed by the accused persons remained totally unimpeached even after being subjected to a lengthy cross-examination. It is to be noted that none of the so-called discrepancies in the evidence of the prosecutrix with reference to her case diary statement shook the veracity of the prosecution case," the bench said.

The appellants also argued for reducing the sentence awarded to the period already undergone as they have been enlarged on bail for a considerable period of time now. Their sentence was suspended on May 9, 2014 by the apex court.

Finding no mitigating circumstances to reduce the punishment, the bench said, "We are in no way inclined to trivialize the misery and exploitation that has been suffered by the prosecutrix, a young girl from a village who was kidnapped on the pretext of securing her a job by men in whom she imposed some level of trust, and then subjected to an offence as heinous as gang rape for an elongated period of two months".

Upon considering the facts and circumstances of the case, the statements of the witnesses and the findings on record, the bench said, "We find that the appellants have not made any good ground on the basis of which the concurrent findings of the two courts below could be interfered with".

The court pointed out in view of the report of the dental surgeon, school records, the date of birth of the girl was shown as August 10, 1988 and the date of the incident was July 06, 2005, therefore she was aged less than 17 years of age at the starting date of the continuing offence. Her guardian also said the girl was below 18 years in the missing person report.

The court said the ends of justice would be met only when the accused-appellants suffered the entire period of sentence of 10 years. It directed the appellants to surrender within eight weeks.