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While hearing a petition of a rape convict, Kerala High Court observed that merely being in love with someone cannot be presumed as the victim’s consent for sexual intercourse. The bench noted that consent should not be confused with submission.

Justice R Narayana Pisharadi was hearing the plea of 26-year-old Syam Siwan against his conviction for alleged rape. He had approached the Kerala High Court submitting that he was a minor at the time of the crime.

Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent,” noted Justice R Narayana Pisharadi.

There is a massive difference between consent and submission, and every consent involves a submission but the converse does not follow,” added Justice Pisharadi.

The court went on to add that even if on certain occasions, the victim didn’t resist Syam, it cannot be considered as her consent for the sexual intercourse but only a “passive submission under unavoidable circumstances” since she had no other option.

The accused Syam Siwan, who used to work as a cleaner in a bus, was in a relationship with a 17-year-old girl. In 2013, he took the girl with him to Mysore in Karnataka and had sexual intercourse without her consent. It was also reported that he sold her gold ornaments, took her to Goa, and raped her there again. He allegedly threatened her saying that he will commit suicide in front of her house if she didn’t go with him.

An FIR and charge sheet was filed against the accused. The trial court had held him guilty and had sentenced him to 10 years of rigorous imprisonment under relevant sections of the Indian Penal Code and Protection of Children against Sexual Offences (POCSO) Act.

Justice Pisharadi convicted the man under Section 366 and Section 370 of the Indian Penal Code. However, the High Court bench set aside the conviction under POCSO Act citing the reason that the age of the victim was not proved in the court.

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