Anadi Tewari
In a significant verdict, the Himachal Pradesh High Court while dismissing a bail application of a man accused of raping a minor has observed that the word “NO does not mean YES, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her.”
The single-judge bench of Justice Anoop Chitkara went on to remark that:
“NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. The word NO doesn’t need any further explanation or justification. It ends there, and the man has to stop. Neither the absence of resistance nor the unwilling submission implies consent in any language.”
Background of the Case
Suresh Kumar, aged 26 years, is in custody since 18th December 2020, and is accused of raping his friend (victim) who is a minor (17 years of age). An FIR is registered against him under Section 376 of the Indian Penal Code, 1860 and under Section 4 of The Protection of Children from Sexual Offences (POCSO) Act, 2012.
On 17th December 2020, the victim was waiting for the bus at the bus stand while Suresh who was her friend reached the said place in his pickup jeep and offered the girl to drop her at her home. Instead of allowing her to alight, Suresh brought the vehicle to an isolated place and started touching her inappropriately.
The girl said NO to him but instead, Kumar told her that if she would cry, then he would force himself upon her. Kumar then asked if she would marry him to which she responded with a ‘NO’. The accused thereby undressed her and had sexual intercourse with her.
On reaching home, the victim informed her mother about the said incident and an FIR was registered by the police.
Arguments in this Case
“The Victim stated in her statement under S. 164 CrPC that she was friend of the accused, and her taking lift in his vehicle further proved that the friendship was cordial, resultantly, the sexual intercourse, if any, took place with active consent and without any force on her by the accused,” the Counsel for the accused stated.
“Attention should be drawn to Para 3 of the petition wherein the allegations are that the Police was trying to save the actual culprits,” the Counsel for the victim in contrary argued.
Findings/Observation by the Court
Analyzing the facts stated above, the Court observed that the victim after the incident voluntarily narrating the incident to her mother, prima facie points towards the genuineness of the incident.
“There is no mention of the victim reaching home late. Had she consented to the coitus, then there was no reason for her to reveal it to her mother. She would have kept it discreet because, as per her version, no one had noticed them. If the sexual act was with her will, she would not have told anyone about the same and tried to conceal the same,” the Court observed.
“Scientific evidence points towards the presence of blood and semen on the victim’s underwear. It also states that no physical injuries were found on her body. As stated by the victim in her Section 164 CrPC statement that she had said NO for sex to the accused, and the accused told her not to cry; otherwise, he would force himself upon her. In such circumstances of threat and coercion in a secluded area, the victim was forced to cooperate with the accused,” the Court further noted while dismissing the bail application of the accused.
“The term ‘NO’ nowhere implies consent, or zeal and desire to explore and feel each other in romantic love,” the Court observed, noting that despite saying NO, the accused continued having sexual intercourse with the victim.
Dismissing the bail application of the accused, the Court at the outset observed that “When the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again.”
Case: Suresh Kumar v. State of H.P. [Cr.MP(M) No. 656 of 2021]