Absence Of Consent Is Sine Qua Non To Sustain A Charge U/S.376 IPC: Supreme Court Acquits Rape Accused

The Appeal before the Apex Court arose from a judgment passed by the Telangana High Court, which confirmed the judgment whereby the appellant was convicted under Sections 376, 363, and 342 of the Indian Penal Code, 1860. However, while upholding the order of conviction passed by the Trial Court, the High Court reduced the sentence awarded to the appellant.

The Division Bench of Justice Sanjay Karol and Justice Sandeep Mehta asserted, “In the present case, we find that this charge has no legs to stand on, for she only makes a positive statement about the occurrence of sexual intercourse and does not even in the slightest imply the same to be against her will. The absence of consent is the sine qua non to sustain a charge under Section 376. That cannot, in our opinion, be met as per the evidence on record.”

Advocate Harsha Tripathi represented the Appellant while AOR Devina Sehgal represented the Respondent.

Factual Background

The appellant, a friend of PW-4 (the victim's brother), was a regular visitor to the house of PW-1 (the victim's mother). During such visits, he came in contact with the victim (PW3), who was pursuing her graduation. One morning, the appellant took the victim to Hyderabad, where he tied a turmeric thread around her neck, thereby creating an impression that they were married. The appellant then allegedly confined the victim in a room, and they started residing together as a couple, subjecting her to sexual intercourse. The victim’s mother filed a complaint against the appellant. When the appellant sustained injuries in a motorcycle accident, he was admitted to the hospital and at that time, the victim came to her mother and narrated the ordeal to her family.

After the surrender of the appellant, a potency test was conducted by a doctor (PW-9), who issued a certificate stating that the appellant was potent to commit a sexual act. Charges under Sections 366(A), 342, and 376 of the IPC were framed against the appellant, to which he pleaded not guilty and claimed trial. The case was subsequently transferred to the Special Court. The Trial Court convicted the appellant under Sections 363, 342, and 376 of the IPC; however, it acquitted him in relation to the offence under Sections 366(A) or 366. The High Court reduced the sentence. Still aggrieved, the appellant approached the Apex Court.

Reasoning

The Bench noted that no attempt was made by the prosecution to adduce corroborative testimony regarding the victim's date of birth from her family members. There was nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate issued by the school. Thus, it could not be relied upon to determine the age of the victim and hold with certainty that the victim was below sixteen/eighteen years of age.

On a perusal of the facts of the case, the Bench noticed that the appellant, being a friend of PW-4, was in constant contact with the victim since he was a regular visitor at her parental house. The victim had herself corroborated this in her examination-in-chief by acknowledging that her acquaintance with the appellant arose from his regular visits to her home.

The Bench explained that to sustain a charge of kidnapping from lawful guardianship, the essential ingredients that must be satisfied include taking or enticing a minor (under 18 years of age if female) from the lawful guardianship of her parents or guardians, and without their consent. However, as per the facts of the case, the victim's deposition did not demonstrate that the appellant forcibly removed or enticed her from the guardianship of her parents with deceit or inducement. She admitted to having voluntarily accompanied the appellant on a motorbike and having resided with him for nearly two months. There was also an unexplained delay of four days in lodging the missing report.

Addressing the issue of rape, the Bench said, “It is trite law that a conviction for rape can be sustained solely on the testimony of the prosecutrix/victim, provided that her evidence inspires confidence in the mind of the Court and appears to be natural and truthful. However, if the version given by the prosecutrix is inconsistent, unsupported by any medical evidence, or the whole surrounding circumstances are highly improbable and believable in the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix.”

It was further noticed that the prosecution had not successfully proved that the victim was less than sixteen/eighteen years of age at the time of the alleged commission of the crime, and thus, the benefit ought to have been given to the appellant. As to the factum of kidnapping, wrongful confinement and rape, the Bench held that no such offence was made out as it did not meet the essential ingredients as defined in Sections 342, 363 and 376 IPC.

“We do not find any evidence which may suggest that the appellant kidnapped the victim from lawful guardianship or confined her, for approximately two months, against her volition in a house at Hyderabad or had sexual intercourse with the victim against her will or without her consent”, the Bench said while allowing the appeal and acquitting the appellant of all the charges.

Cause Title: Birka Shiva v. The State of Telangana (Neutral Citation: 2025 INSC 863)

Appearance

Appellant: Advocates Harsha Tripathi, Kanishka Singh, AOR Balaji Srinivasan, Advocates Lakshmi Rao, Vishwaditya Sharma, Subornadeep Bhattacharjee, Rohan Dewan, Aakriti Priya, K Shiva

Respondent: AOR Devina Sehgal, Advocates Yatharth Kansal, Dhananjay Yadav, M. Srikanth Varma

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