State of U.P. v. Chhoteylal (2011)

This is the decision that explains the difference between "against her will" and "without her consent", and that settles what a court is to make of a woman who did not scream. The proposition a student needs from it is that submission is not consent: a woman held under threat in a strange place who keeps quiet has made a sensible decision, not a willing one.

It is also a warning about appellate practice — an acquittal reversed because the High Court had disposed of a serious case in a few sentences.

On the evening of 19 September 1989 the prosecutrix had gone out to relieve herself. Two men came up behind her; one caught hold of her, and when she raised an alarm he showed her a firearm and gagged her mouth. They took her to another village, kept her overnight in a house there, and in the early hours of the next day took her by bus to Shahjahanpur, where she was kept in a rented room for several days. There the first accused had forcible intercourse with her. Whenever she asked to be taken home, he gagged her mouth and threatened her.

Her brother complained to the Superintendent of Police on 28 September; the First Information Report was registered on 30 September; she was recovered by the police on 13 October and medically examined the same day. Her statement was recorded by a Judicial Magistrate on 17 October.

The trial court found she was about seventeen and a half years old, convicted the first accused and sentenced him to seven years' rigorous imprisonment for rape. The High Court acquitted him on three grounds: a ten-day delay in lodging the report; medical evidence putting her at seventeen and possibly nineteen; and the absence of any injury on her body coupled with a finding that she was habituated to intercourse.

The acquittal was set aside and the trial court's conviction restored. The Supreme Court recorded that it was surprised by the casual approach of the High Court, whose judgment it described as cryptic and perfunctory and as having ignored crucial evidence: a man convicted of a serious crime had been acquitted on flimsy grounds with no application of mind to the evidence of the prosecutrix at all.

Because she was found to be above sixteen though below eighteen, the clause making age alone decisive was not attracted, and the case turned on whether the intercourse was against her will or without her consent. It was held to be both.

1. Do not add years to a medical estimate. There is no rule, much less an absolute one, that two years must be added to the age a doctor gives. The High Court's leap to nineteen had no foundation.

1. Take the two clauses separately. "Against her will" ordinarily means intercourse despite the woman's resistance and opposition. "Without her consent" reaches further: consent is an act of reason accompanied by deliberation, the mind weighing the good and the evil on either side, and it supposes a physical power, a mental power, and a free and serious use of both. Consent obtained by intimidation, force, imposition, circumvention, surprise or undue influence is a delusion, not a free act of mind.

1. Read the general provision on tainted consent alongside. A consent given under fear of injury or under a misconception of fact is no consent for any section of the Code where the person doing the act knows or has reason to believe that it was so given.

1. Submission under fear is not consent. Following earlier authority, submission of the body under the fear of terror cannot be construed as a consented sexual act; consent requires voluntary participation after the choice between resistance and assent has been fully exercised. Whether there was consent is ascertained only on a careful study of all the relevant circumstances, and there is no straitjacket formula.

1. The victim is not an accomplice. Her evidence is not to be tested with suspicion as an accomplice's; it stands on the footing of an injured witness, and the law requires no corroboration in prosecutions for rape. Corroboration is looked for only by way of abundant caution.

1. Explain the silence by the situation. The argument that she raised no alarm at the bus stand overlooked the position she was in: kidnapped by two adult men, one of them armed and threatening her, taken away from her village. Not raising an alarm in an unknown place was a sensible decision, since it might have endangered her life. The circumstances made her a submissive victim; that does not mean she was willing. She had no free act of the mind throughout, being under constant fear.

1. Minor contradictions in a rustic witness are natural. Her omissions were on immaterial points; an illiterate young woman's recollection and narration of a chain of events need not be precise.

It opens the whole consent discussion: set out the two clauses, then apply this case to show that fear, confinement and dependence negate consent even where there is no injury and no outcry. It is also the authority for refusing to treat the absence of physical injury, or evidence that the woman was sexually experienced, as proof of consent.

It disposes of the defence that she never raised an alarm, the defence of delay in lodging the report, and the practice of inflating a girl's age to take her out of a protective clause.

It does not decide what happens where consent is obtained by a promise of marriage — that question is worked out in the line of cases on misconception of fact. Nor does it disturb the position for a victim below the protected age, where consent is irrelevant altogether. The provisions have since been replaced, so give the Sanhita position alongside.