No Means No: It Ends There And The Man Has To Stop

No Means No: The simplest of sentences have become most difficult for some men to understand. No does mean yes, it does not mean that the girl is shy; 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, Ruled, A single judge bench of the Himachal Pradesh High Court on 5.05.2021 while denying the bail application filed by a man who is accused of raping a 17 year old Minor.

Suresh Kumar v/s. State Of Himachal Pradesh - Court: The High Court of Himachal Pradesh - Date of Decision: 5th May 2021
Citation: Cr MP (M) No.656 of 2021 - Judge: Hon'ble Mr. Justice Anoop Chitkara
Petitioner: Suresh Kumar
Respondent: State of Himachal Pradesh
Counsel for the petitioner: Ms. Ritika Jassal and Mr. Aditya Thakur
Counsel for the respondent: Mr. Nand Lal Thakur

Brief Facts Of The Case
The incident took place on 17.12.2020, when the victim was waiting for the bus at the bus stand. Around noon, accused, (Suresh Kumar), who was her friend, reached the said place in his pickup jeep and offered that he would drop her at her home.

The victim boarded the vehicle, but the accused allegedly took a detour on the way. On enquiry by the victim he said that he would take a U turn ahead and will drop her at her home.
However, he did not do so; he took the jeep to a secluded place and started inappropriately touching the victim.

The victim said No to him, but instead, the accused told her that if she would cry, then he would force himself upon her. He then asked her if she would marry him, to which the girl said NO.

After that the accused undressed the victim and had sexual intercourse with her. On reaching home, she informed her mother about the incident. Based on these allegations, the FIR was registered against the accused.

The accused was charged with rape under the Indian Penal Code as well as offence under the Protection of Children from Sexual Offences ( POSCO) Act, since the victim was 17 years old.

The petitioner, aged 26 years, is in custody since 18.02.2020 under Section 376 of the IPC and Section 4 of POSCO Act.

Earlier, the petitioner had filed a petition under Section 439Crpc before this Court, which was registered as Cr MP (M) No 210 of 2021, but the same was dismissed with liberty to file fresh.

Hence, the accused filed the petition before the court seeking regular bail.

Victim's Statement
The victim stated in her statement under Section 164Crpc that she had said NO for sex to the accused, but the accused told her not to cry; otherwise he would force himself upon her. So in such circumstances of threat and coercion in a secluded area, the victim was forced to cooperate with the accused.

Contentions
The petitioner counsel had asserted that the victim herself stated in her statement that she was a friend of the accused, and her taking lift in his vehicle further proved that the friendship was cordial. Therefore, if any sexual intercourse had taken place it was with the active consent of the victim and without any force on her by the accused.

Thus, the conduct of the victim would entitle the accused for grant of Bail.

Questions Raised:

• What prompted the girl to inform about the incident to her mother?
• Had she consented to the coitus?
   

Reasoning
The Court noted that the alleged events took place during the day light hours. So it is not the case that she reached home late in the night or that her parents questioned her or started a search looking for her or enquire her being seen with the accused. She could have easily concealed the incident 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.

The Medical evidence clearly points towards the presence of blood and semen in the victim's underwear, which pointed towards the unprotected sex, the judge noted.

While there were no physical injuries found on the victim's body, the court reasoned that this was because the victim was intimidated into cooperating with the accused as under such threat and coercion in an isolated area the victim had to co-operate.

Judgment
The Court held:
The accused fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application in case of changed circumstances

The girl said No to the accused when he started touching her, but he continued, the judge observed:
It nowhere implies consent or zeal and desire to explore and feel each other in romantic love.
Neither the absence of resistance nor the unwilling submission implies consent for sexual intercourse in any way or in any language, the court remarked.

The Court in its judgment further observed that in the absence of a proper curriculum for sex education, the children raised by such society is failing women time and again.

Hon'ble Justice went on to elaborate:
No Means No:
The simplest of sentences have become most difficult for some men to understand. No doesn't mean yes, it doesn't mean that the girl is shy; it doesn't 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.

The Court, therefore, rejected the bail application of the accused and disagree the plea that the act was consensual.

Conclusion
The word yes and  no, we have been hearing and saying these words from the moment we could speak and understand. Everyone knows that 'To say yes is to agree' and 'To say no is to disagree'.

So why then, it becomes so difficult to understand the meaning of yes and no when it comes to consent?
Consent has always meant and will always mean the same thing i.e. to agree to do something or to give permission. Consent is like a boxing. If both people do not agree to it, then one person is committing a crime.

Most importantly consent matters because the absence of it amounts to rape, sexual violence and sexual assault. Rapist place blame on the victims and generally argue that they were unsure of the victim desire of what she mean when she say 'no' or 'I don't know'. A woman saying no to the sexual advances of a man has one and only one meaning that she is not open to any such sexual activity.

'No' or 'I don't know' and 'silent' are not consent. The victim doesn't need to screamed or say no repeatedly in order for it to count as a rape. If a woman claim that while having sexual intercourse there was no consent than the court shall presume the same.

No is an entire sentence in itself.
No means no, and when somebody says it,
You need to stop

Written By: Pinky Mehta, Student of Chanakya Law College, ( Kumaun University)