There is very fine difference between ‘consent’ and ‘submission’ in sexual offence. Submission does not involve consent. If a person does sexual intercourse, and the girl did not agree to do it but when she didn’t see any way to escape and she submit herself before the man, it will be called ‘submission’ and not ‘consent’.
There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent. Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.[1]
Meaning of Consent in Indian law
Explanation 2 to Section 375 of the I.P.C states that, consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act
It is also provided that a woman does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as a consenting party to the sexual activity.
In a Kerala case, the accused had sexual intercourse with the girl for the first time at the hotel. Girl stated that, the accused forcibly undressed her, when she refused to undress on his demand. it was against her will and without her consent that the accused committed sexual intercourse with her for the first time at the room in the hotel. Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option.[2]
Consent of a girl more than 18 years’ old
Consent of a girl below to 18 years does not count as ‘consent’ but if a girl more than 18 years old, then also it cannot be assumed that she was consenting party and that was not submission.[3]
Effect of injury on the body in Sexual offences
Absence of injuries on the body of the prosecutrix does not lead to an inference of consent on her part or falsity of the allegation. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim.[4]
Burden of Proof
It is not for the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it is for him to place materials to show that there was consent. Plea of consent shall be taken or made during cross examination and the statement recorded under Section 313 Cr.P.C.[5]
It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony.[6]
[1] Syam Sivan v State of Kerala (2021)
[2] Syam Sivan v State of Kerala (2021)
[3] State of U.P v. Manoj Kumar Pandey:AIR 2009 SC 711
[4] Balwant Singh v. State of Punjab : AIR 1987 SC 1080
[5] See State of U.P v. Sree Kant Shekari : AIR 2004 SC 4404
[6] Syam Sivan v State of Kerala (2021)
