𝐑𝐚𝐩𝐞 𝐨𝐫 𝐅𝐨𝐫𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧? 𝐓𝐡𝐞 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐂𝐨𝐧𝐯𝐞𝐫𝐭𝐬 𝐂𝐨𝐧𝐯𝐢𝐜𝐭𝐢𝐨𝐧 𝐨𝐟 𝐑𝐚𝐩𝐞 𝐢𝐧𝐭𝐨 𝐅𝐨𝐫𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐟𝐨𝐫 𝐈𝐧𝐬𝐮𝐟𝐟𝐢𝐜𝐢𝐞𝐧𝐭 𝐄𝐯𝐢𝐝𝐞𝐧𝐜𝐞

𝐑𝐚𝐩𝐞 𝐨𝐫 𝐅𝐨𝐫𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧? 𝐓𝐡𝐞 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐂𝐨𝐧𝐯𝐞𝐫𝐭𝐬 𝐂𝐨𝐧𝐯𝐢𝐜𝐭𝐢𝐨𝐧 𝐨𝐟 𝐑𝐚𝐩𝐞 𝐢𝐧𝐭𝐨 𝐅𝐨𝐫𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐟𝐨𝐫 𝐈𝐧𝐬𝐮𝐟𝐟𝐢𝐜𝐢𝐞𝐧𝐭 𝐄𝐯𝐢𝐝𝐞𝐧𝐜𝐞

A recent judgment of the Supreme Court made headlines on social media wherein two judges converted a case in involving offence of rape into fornication for lack of evidence on the part of prosecution, while one namely Justice Ayesha Malik dissented to the majority decision and held that it was a fit case for conviction of rape.The majority judgemnent, and the reasoning behind it and the factual background of the case, has so far not been given any attention by media critics. Hence, both the views are briefly explained as under:

The background facts of the case are that the complainant alleged in the FIR that she was raped by the accused in her house. She was dragged from the main gate to inside her house. The accused bolted the gate from inside and committed rape. The trial courts as well as the High Court convicted the accused for rape. The accused approached the Supreme Court wherein the majority held that the complainant has alleged that she was dragged but no bruises were found on her body neither torn cloths of her. Similarly, both the accused and the complainant  were previously, prior to the case in hand, arrested in an FIR for obscene acts, meaning thereby that they were in strong relationship since the past.  DNA report came positive which proved that there were accused’s semens found on the complaint’s ‘body’. The majority concluded that this case can be at best of sexual intercourse with consent, not without consent which can lead to rape. It also transpired that the parties had affected a compromise as well wherein the complainant had stated that she has mistakenly nominated the accused. It is mentioned that offence of rape is not compoundable. The majority reached this conclusion on the basis of past relationship between the parties, insufficient evidence and lacuna in the the complainant’s statement which could establishment that this was a case of rape not fornication.

However, justice Ayesha Malik dissented and held that section 375 PPC does not state that there should be active fight and resistance on the par of rape victim in order to make it rape case. Even sexual intercourse without consent can make out case of rape as per the vires of the said section. She held that even if the victim does not show resistance in this case, no bruises were found on her body, neither her cloth were tron, still the positive DNA test and the victim’s statement are enough to make this a case of rape.  She held that consent means agreement or willingness to an act without any coercion which is missing in the case in hand. She further held that the accused has never taken stance of consensual intercourse. Rather he rebutted the allegations all together. As for the past relationship and character, Justice Ayesha stated that this Court has time and again held that previous conduct and character do not make any difference once it is proved that the intercourse was without consent.

The majority allowed the petition partially and converted  the conviction of rape into fornication. The minority upheld the two judgments below and dismissed the petition.

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