In CRA-D-653-DB-2017 (O&M)-PUNJ HC- Mere absence of physical resistance cannot be regarded as 'consent' and if prosecutrix has no option but to submit, mere submission on her part will not constitute 'consent' and case will fall within Sec.375 IPC, rules P&H HC while upholding conviction of 2 accused in Jindal University rape case
Justices Tejinder Singh Dhindsa & Pankaj Jain [30-09-2022]

Read Order: Karan v. State of Haryana

Monika Rahar

Chandigarh, October 3, 2022: While dealing with appeals by former students of O.P. Jindal University, against their conviction in a rape case where a fellow student was subjected to multiple acts of forced sexual intercourse and continuous blackmailing regarding publishing her intimate/obscene pictures, the High Court of Punjab and Haryana has held that the mere absence of physical resistance to the act cannot be regarded as 'consent' because the question of consent will arise only where the prosecutrix has an option to say 'no'. 

"In a situation where she has no option but to submit, mere submission on her part will not constitute 'consent' and the case will fall within Section 375… 'Submission' does not amount to 'consent' and the same is further made clear from the reading of Explanation 2 appended to Section 375 along with the proviso appended thereto", held the Bench of Justices Tejinder Singh Dhindsa and Pankaj Jain. 

While noting the bawdiness with which the prosecutrix was treated by Hardik (main accused), the Division Bench asserted, 

"She was not only abused and bruised but was denied even basic dignity to which a living creature is entitled to, leave aside the courtesy and compassion that a human being offers to a fellow. It is evident from the chat that the prosecutrix was in a quagmire. She was noosed and the dilemma that she was facing was not only to keep the noose loose but also to conceal it. Whole of the time she was carrying the burden of the diabolical designs of the accused."

In 2015, a then second year student of OP Jindal University (pursuing BBA-MBA course) lodged a complaint alleging that her friend Hardik and his two friends forced and blackmailed her into having physical relationship(s) with them in the university campus. Hardik blackmailed the complainant with the help of her private pictures with him. 

She along with her parents also brought the matter to the attention of the University administration. 

The High Court was dealing with three appeals by the accused-convicts against the Trial Court judgements of conviction and orders of sentence. 

The parties to the lis were at issue w.r.t. 'consent' of the prosecutrix. The prosecution claimed that the alleged act was without consent and, thus, it fell within Section 375, whereas it was the case of the appellants that the consent of the prosecutrix was evident on record. 

After hearing the counsels for all the parties, the Court  at the very outset reiterated the presumption under Section 114A of the Evidence Act, while adding that as per Section 146 of the Evidence Act in a prosecution for sexual offences or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

Further, the Court opined that the Courts have not merely gone by language of Section 90 to conceptualise the dimensions of consent but have travelled a wider field. 

"The question of consent will arise only where the prosecutrix has an option to say 'no'. In a situation where she has no option but to submit, mere submission on her part will not constitute 'consent' and the case will fall within Section 375… 'Submission' does not amount to 'consent' and the same is further made clear from the reading of Explanation 2 appended to Section 375 along with the proviso appended thereto", held the Bench while also adding that the mere absence of physical resistance to the act cannot be regarded as 'consent'. 

Adverting to the present case, the Court held that it was a case of 'submission' on the part of the prosecutrix. 

"Her silence or her caving in to the demands of the accused cannot be termed as consent", the Bench asserted. 

After going through the WhatsApp chat, the Court concluded that the prosecutrix was facing an abusive relationship with Hardik. This conclusion was based on the ground that Hardik used to blackmail her with publishing her intimate/obscene pictures and at times, she had to seek his permission even for having dinner or even to drink water.  Through their chat it came to the forefront that the prosecutrix was videographed while performing oral sex at Chandigarh. 

While stating that the whole chat demonstrated the bawdiness with which the prosecutrix was treated by Hardik, the Bench added that, 

"She was not only abused and bruised but was denied even basic dignity to which a living creature is entitled to, leave aside the courtesy and compassion that a human being offers to a fellow". 

The Bench also opined, 

"It is evident from the chat that the prosecutrix was in a quagmire. She was noosed and the dilemma that she was facing was not only to keep the noose loose but also to conceal it. Whole of the time she was carrying the burden of the diabolical designs of the accused. Even her mother was not spared and the victim had to hear abuses qua her mother as well."

Thus, the Court found that the statement of the prosecutrix was trustworthy and was fully corroborated by the evidence on record in the form of WhatsApp Chats and oral testimony of other witnesses.

Consequently, the Court did not find any fault with the Trial Court in believing the same. The Court held that the prosecution successfully proved that the prosecutrix was being blackmailed and forced into an abusive relationship. 

"Hardik and Karan acting in furtherance of common intention committed rape upon the prosecutrix thereby committing offence punishable under Section 376-D IPC. Owing to the repeated rape committed by Hardik, Trial Court has rightly found him to be guilty of offence punishable under Section 376(2)(n) IPC. Likewise, no fault can be found with conviction and sentence awarded to Karan Chhabra", held the Court while adding, 

"Similarly, the allegation w.r.t. there being a WhatsApp group and the circulation of the obscene/intimate pictures of the prosecutrix being circulated by the accused also finds corroboration by the statements made by other witnesses. Thus, no fault can be found with the conviction of Hardik and Karan for offences punishable under Section 67 of the Information Technology Act, 2000 and Section 292 r/w Section 34 of the IPC."

Thus, the judgements of conviction and sentence orders of the Trial Court qua Hardik and Karan were upheld by the Court, but so far as accused Vikas was concerned, he was acquitted by the Court.