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In the case of Thankappan P.K. v. State of Kerala, Justice P.B. Suresh Kumar has held that only that intercourses that are welcomed could be consensual in nature. It should not be violative of the rights of the victim. The court thus dismissed the appeal of the accused in a rape cases where there was no merit for the contentions advanced by his counsel.
The case herein is an appeal where the appellant is the sole accused of raping a minor girl of Scheduled Caste on a Sunday of February 2009 and other days. The accused has been convicted under Section 376 of the IPC and Sections 3(1)(xii) and 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989. He had also been questioned under Section 313 of CrPC as to the incriminating evidence pointed out by the prosecution. The court found that the accused had impregnated the minor, though the prosecution was unable to prove her age, the accused was still held guilty of rape under Section 376. He had been given imprisonment for 12 years compulsorily and 15,000 Rs of fine or 9 months of imprisonment.
The appellant’s counsel contended that the act was consensual beyond doubt. The Public prosecutor on the other hand contended that during the cross-examination, there had been no suggestion as to the intercourse being consensual. “Evidence tendered by the victim girl does not indicate in any manner that the sexual relationship between the parties was consensual.”
The court was of the view that “mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’” after referring to the cases of Rao Harnarain Singh Sheoji Singh v. State and Uday v. State of Karnataka. The use of the name “thankappanachan” shows that the accused was a fatherly figure for the victim. The accused cannot call this act as consensual since he used to put a cloth in the minor’s mouth. Further, while the first intercourse was not consensual, it does not matter whether the subsequent ones were consensual or not.
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