The supreme court for lack of any finding relating to

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The Supreme Court for lack of any finding relating to “fear of death or hurt” which couldvitiate consent, held Ganpat not guilty under Section 375. While the Honorable High Courton the contrary had taken the opposite view. The fact that semen was found neither on thepubic hair nor on the vaginal-smears taken from her person was considered to be of noconsequence by reason of the circumstance that the girl was examined by the lady doctorabout 20 hours after the event, and of the probability that she had taken a bath in themeantime. The High Court proceeded to observe that although the learned Sessions Judge9
was right in saying that there was a world of difference between sexual intercourse and rape,he erred in appreciating the difference between consent and “passive submission”. In coming to the conclusion that the sexual intercourse in question was forcible and amountedto rape, the High Court said that “Mere passive or helpless surrender of the body and itsresignation to the other’s lust induced by threats or fear cannot be equated with the desire orwill, nor can furnish an answer by the mere fact that the sexual act was not in opposition tosuch desire or volition. On the other hand, taking advantage of the fact that Mathura wasinvolved in a complaint filed by her brother and that she was alone at the police station at thedead hour of night, it is more probable that the initiative for satisfying the sexual desire musthave proceeded from the accused, and that victim Mathura must not have been a willing partyto the act of the sexual intercourse. Her subsequent conduct in making a statementimmediately to her relatives and to the members of the crowd leaves no manner of doubt thatshe was subjected to forcible sexual intercourse.” The Nagpur bench of the Bombay HighCourt, thus, set aside the judgment holding that that passive submission due to fear inducedby serious threats could not be construed as willing sexual intercourse. The High Court’sjudgment reflects forward thinking and social sensitivity.While on the other hand, Ganpat was acquitted by the Supreme Court owing to the apparentconsent by Mathura. What is even more egregious in the decision is the rationale employedby the Hon’ble Supreme Court for holding Tukaram not guilty. He was acquitted because thecourt believed that Mathura’s words were inconsistent and that as she had lied about raisingan alarm, she must have lied about Tukaram molesting her also. This is certainly not the kindof reasoning the Apex Court of the land is supposed to employ in deciding cases. The judgesshould have adopted a more sensitive attitude towards the rape victim. The circumstances inthe case were held to be insufficient to hold the two men guilty and thus, the appeal wasallowed. The Hon’ble Supreme Court tragically failed to draw the line between “activeconsent” and “passive submission”. The unwillingness cannot possibly be solely checked onparameters of physical injuries as was done by the Court. The most disappointing part in

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