Report No. 84
III. Want of Consent-how Proved
7.7. Burden of proof of want of consent.-
Want of consent being a cardinal element of rape under section 375, second clause of the Indian Penal Code, it is for the prosecution to prove it. Now, it is common experience that many prosecutions for rape tail for want of such proof. There often arise situations where the probability is that the woman did not consent, but sufficient legal proof of want of consent is not forthcoming.
For example, the woman may be physically too weak or mentally too dazed to resist (so that no marks of violence could come into existence). Or, the venue of the offence-e.g. the secluded place in which rape is committed-may totally take away the inclination to resist, even if there is a physical capacity to do so, because resistance in such circumstances would be futile, same would be the case where the woman about to be attacked knows that the offender is well armed, or where what has come to be known as "gang rape" is committed.
In such cases also, resistance would be futile, and may even cause more harm than passive submission. In such situations, marks of resistance or other visible signs of "no consent" cannot be insisted upon. In our opinion, it should be obligatory for the Court to draw prima facie inference of want of consent, once the woman who is alleged to be the victim states in the witness box before the Court in her evidence that she did not consent.2
1. For draft see para. 7.11, infra.