The Himachal Pradesh High Court on 5th May, 2021 comprising of a bench of Justice Anoop Chitkara remarked that a woman saying "no" to the sexual advances of a man has one and only one meaning - that she is not open to such sexual activity. (Suresh Kumar v. State of Himachal Pradesh)
A "no" does not mean the girl is shy or asking the man to convince her, the Court said emphasising that neither the absence of resistance nor the unwilling submission implies consent for sexual intercourse.
When a woman says no, the man has to stop, the court said adding that this simple word has become the most difficult for some men to understand.
The Court said, "NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. 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 word NO doesn't need any further explanation or justification. It ends there, and the man has to stop."
Facts of the case
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On December 17, 2020 the victim was waiting for the bus at a bus stand. Around noon, Suresh Kumar, who was her friend, reached the place in his pickup Jeep and offered that he would drop her at her home. The victim boarded the vehicle, but the accused took a detour on the way. When the victim asked why, Kumar said he would take a U-turn ahead and drop her at her home. However, he did not, and took the Jeep to a secluded place instead. Thereafter he started touching her inappropriately and even as the girl said “no”, he said he would rape her if she shouted.
Kumar asked the girl if she would marry him and when the girl said “no” again, the accused forcefully undressed her and had sexual intercourse with her. Thereafter, he left for Solan and the victim came home by bus. On reaching home she informed her mother about the incident. Based on these allegations, the police registered an FIR against Kumar under sec. 376 of IPC and sec. 4 of POCSO Act.
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Contention of the parties
Ms. Ritika Jassal, Ld. Counsel for the accused argued that 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. Thus, the conduct of the victim would entitle the accused for grant of bail.
On the contrary, Mr. Nand Lal Thakur, Ld. Additional Advocate General for the State, drew attention to Para 3 of the petition wherein the allegations are that the Police was trying to save the actual culprits.
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Courts Observation and judgment
The Court looking at the facts of the case reasoned that the fact that the victim revealed the unfortunate incident to her mother "prima facie points towards the genuineness of the incident."
The Court observed, "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 victim voluntarily narrated the incident to her mother, prima facie points towards the genuineness of the incident. It would be correct to say that it was courageous for the victim girl to talk about the unfortunate incident to her mother and later come forward and report the same with the police."
Furthermore, making strong observation that a NO MEANS NO, the Bench went ahead to observe that despite the victim saying no to the accused, he did not stop.
The Court at the outset observed, "When the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again."
The judge while rejecting the bail plea of the accused noted that the scientific analysis pointed towards the presence of blood and semen in the survivor's underwear, which pointed towards unprotected sex, the Judge noted. While there were no physical injuries found on the survivor's body, the Court reasoned that this was because the survivor was intimidated into cooperating with the accused.
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The Court in this backdrop opined that the accused had failed to make out a case for bail and dismissed the bail plea. However, the Court granted liberty to the accused to file a new bail application if there are changed circumstances.
Any observation made in this judgment would not be an expression of opinion on the merits of the case, the Court added.
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