The State of Assam herein appeals against respondent's acqu­ittal of charge under Section 376 1. P. C. On 23.11.78 Rameswar, P. W. 3 lodged a First Information Report at Sorbhog Police Station alleging that on 19 11.78 the accused - respondent was caught by him flagrant delicate while committing rape on his younger sister Kiranbala, P. W. 2, and that as he protested, the respon­dent tried to straggle him, but left him when, hearing his hue and cry, villagers arrived Charge-sheeted and committed, the Assistant Sessions Judge, Barpeta framed charge under Section 376 I. P. C. to which the respondent pleaded not guilty and claimed to be tried. 2. At the trial prosecution examined 10 witnesses including the Doctor and the investigating officer, while the defence exa­mined no witness. The learned trial court having acquitted the respondent holding that the factum of rape was doubtful, and even if it was believed, the girl was a consenting party, and that the prosecution completely failed to prove the charge against the respondent, the State appeals. 3. Mr. A. K. Choudhury the learned Public Prosecutor sub­mits that in face of categorical statement of Kiranbala the trial Judge ought not to have doubted the prosecution case and arri­ved at erroneous finding about the factum of rape and about consent of the victim girl, and, hence, the acquittal is liable to be set aside. 4. Mr. P. Prasad for the respondent submits the entire alle­gation was absolutely false as the medical evidence shows that there was no rape at all; and even if the factum of intercourse was there the girl was definitely above 18 years of age and was a consenting party as would be clear from the medical evidence and the deposition of the prosecutoix herself. Mr. Prasad further submits that it was just a trap laid to push the respondent into marrying Kiranbala. 5. First the evidence as to the factum of rape may be examined. Mr. Prasad further submits that it was just a trap laid to push the respondent into marrying Kiranbala. 5. First the evidence as to the factum of rape may be examined. P. W. 2 Kiranbala deposed that she was alone in her house at noon, preparing meal when the respondent entered, dragged her from the cook-shed, led her to the bed, made her lie on it and committed rape; and when the respondent wan­ted to go after the act her elder brother Rameswar arrived and a fight ensued between the respondent and Rameswar, and in the meantime her younger sister Kalpana P. W. 6 also arrived and seeing the fight went off sobbing. After a while Biswanath, P. W. 4, and Dharmeswar, P. W. 5, also arrived and saw the fight. She denied the suggestion that the respondent did not rape her and that she instituted a false case only to marry the respondent, P. W. 3 Rameswar corroborates Kiranbala deposing that in that noon he went outside and Kiranbala was alone in the house, and when after a while he came back, he saw the respondent flagrante delicto and bade him to leave Kiran. Then he beat his sister, but the respondent dragged him from the house and strangled him. Meanwhile Kalpana came, wept out of fear and went away. He became senseless when strangled. Later on he saw Biswanath and Dharmeswar in his courtyard and told them about the occurrence. Thereafter his mother Mstt. Radhika, PW. 7, came and be told her about the occurrence. After discussion with the villagers the matter was placed before the village ' Mel ' but the respondent did not turn up. In cross examination he said that the ' Mel' was held in the same evening and Godo chaharia, Suren Master and others were present. Another 'Mel' was also subsequently held. He denied the suggestion that he instituted the case in order to induce Kiran's marriage with the respondent. PW. 7 Mstt. Radhika Das, mother of Kiranbala, clearly said that she was reaping paddy and Rameswar told her that the respondent raped Kiranbala, and when she carue back home Kiranbala, herself told her about the rape and that the respondent strang­led Rameswar. PW. 8 a co-villager corroborates PW. PW. 7 Mstt. Radhika Das, mother of Kiranbala, clearly said that she was reaping paddy and Rameswar told her that the respondent raped Kiranbala, and when she carue back home Kiranbala, herself told her about the rape and that the respondent strang­led Rameswar. PW. 8 a co-villager corroborates PW. 3 saying that after the occurrence Rameswar came and informed him that Gobinda raped Kiran and he could try a 'Mel' but he did not come to that 'Mel'. 6. In his statement under Section 313 Cr P. C. the respon­dent, when asked whether he forcefully raped Kiranbala, answe­red : '' I did not rape her, I am innocent ". He did not say that there was trap " making him marry Kiranbala. PW. 4 Biswanath entered the house, hearing hue and cry and while coming out Rameswar told him that Gobinda raped Kiranbala. P.W. 5 Dhaimeswar was also similarly told by Rameswar. 7. P. W. 1 Dr. Gurucharan Das, Medical and health Officer-I of Civil Hospital, Barpeta examined Kiranbala on 24.11.78 that is, after 5 days, and found hymen absent, the vegmal canal admitting two fingers, but he did not take virginal semen ' as there is no sign of recent rape '' and found no injury on the vagina. In his opinion the girl was more than 18 years. On the basis of the above evidence the learned trial court cannot be said to have taken a reasonable view in that the factum of intercourse was doubtful. The trial court magnified minor discrepancies between Kiranbala and Rameswar, the former saying that she was standing after rape when Rameswar came while Rameswar saying that he caught the accused while still upon Kiranbala. In fact Krranbala only said that when the respon­dent wanted to go after the act Rameswar Came. The absence of any injury on the person and private part of Kirambala were note decisive to create doubt as to the occurrence. There were enough evidence for holding that the factum of ravishing was there. The trial court did not give any reason why Kiran bala could not be believed. In Bharwada's case, 1983 Crl. L. J. 1096, relying on Rameswar's case, AIR 1952 SC 54 , the Supreme Court held that corroboration is not a sine qua non for a convoking in a rape case. The trial court did not give any reason why Kiran bala could not be believed. In Bharwada's case, 1983 Crl. L. J. 1096, relying on Rameswar's case, AIR 1952 SC 54 , the Supreme Court held that corroboration is not a sine qua non for a convoking in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spec­tacles fitted with lenses tinged with doubt, disbelief or suspi­cion ? To do so is to justify male chauvinism in a male domi­nated society. 8. As regards the girl having been a consenting party the trial court based its conclusion on the absence of any injury on Kiran's person and her conduct during the act. Mr. Prasad points out that in cross-examination she said that while the respondent dragged her from the cook shed she did not apply force not to come and also did not move when the accused made her lie and she was silent when the respondent ravished her. She also said that blood oozed out from her private part which was injured by tearing and the accused ripped open her blouse. In face of such evidence can the view taken by the trial court be said to be reasonable ? 9. The greatest definitional problem in the crime of rape relates to or is the function and meaning of "consent''. Though force and resistance are not literal requirements of law, yet in applying the law often notions of force and resistance are found applied. Between consent and non-consent fall the states of relu­ctant submission and the states of induced or fraudulently pro­cured consent. Application of force, if proved to be effective is indicative of absence of consent. Use of effective force is indi­cative of non-consent. However, force is not a literal requirement as there may be victims who are unconscious or who are incapa­ble of consenting. Resistance again is not a literal retirement as the victim may be asleep. Timid, reluctant, fraudulent or induced consent will not amount to consent is the eye of law. Use of effective force is indi­cative of non-consent. However, force is not a literal requirement as there may be victims who are unconscious or who are incapa­ble of consenting. Resistance again is not a literal retirement as the victim may be asleep. Timid, reluctant, fraudulent or induced consent will not amount to consent is the eye of law. While analysing the victim's state of mind and the nature of resistance we should not forget that it in the conduct of the criminal and not conduct of the victim woman that is prima­rily to be seen. It is only when the accused pleads consent of the victim that the analysis of the subjective attitude of the victim woman assumes importance. Again, the subjective attitude of the victim may not always be clearly reflected in her behaviour or resistance and may also be distorted while recollecting at the 4ime of evidence. Though the victim's resistance is often regarded as evidence of her subjective non consent, there is no requ­irement of utmost resistance, but it appears that the require­ment of some sort of resistance remains. Courts often insist on-the evidence of reasonable resistance or reasonable fear of immi­nent or bodily or other harm. If the victim fails to offer suffi­cient resistance, court may find that there was no force or threat of force or the act was not against her will or that she reluc­tantly submitted or that her consent was induced. Of course, if the victim's evidence is that she loved or enjoyed the act or that she invited the accused then the court may be justified in holding that she was a consenting party or the act was not against her will. Too much emphasis on resistance irrespective of the cir­cumstances of the case would be unjustified. If in all other cri­mes resistance is not a criterion, there is no reason why in case of rape alone it is to be insisted to unreasonable extent. Resis­tance is not required on the part of robbery or theft victim, nor is consent implied from absence of resistance to the threatening robbery or theft. This is because the robber or thief has no right to take away the victim's property. To justify robbery or theft because of absence of resistance would amount to recognising the right of the robber or thief to illegally take away the pro­perties of the victim. This is because the robber or thief has no right to take away the victim's property. To justify robbery or theft because of absence of resistance would amount to recognising the right of the robber or thief to illegally take away the pro­perties of the victim. Logically speaking there is no reason why the same principle may not apply in case of rape. To refuse to regard rape as a crime because there was no resistance would amount to recognising a right on the part of the offender to commit the sexual assault. Of course, consent on the part of the victim woman, where she is in a position of voluntary willing and con­senting may prevent the assault from being rape as the same also will prevent an act of taking away property from being robbery or theft. Yet no burden is placed on the part of the victim owner of the property to prove that there was no will or consent to the robbery or theft. When the assailant takes the defence of will or consent of the victim women, the question may of course be different and she may have the burden to show that it was not so. It is true that the prosecution has the onus to prove the ingredients of the offence of rape and, therefore, to prove that there was no consent even though the defence does not plead consent. In Pratap Misra's case, AIR 1977 SC 1307 - 1977 Cri. LJ 8)7 the trial court dismissed the plea of consent on the gro­und that it was not pleaded by the accused. The Supreme Court held that the trial court completely lost sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circum­stances proved in the case. The High Court also having failed to consider this aspect, such an approach was held to be wrong re­sulting in a serious miscarriage of justice to the accused calling for interference by the Supreme Court. Thus it is not necessary for the accused to plead consent. The prosecution has the onus to prove absence of consent. 10. The High Court also having failed to consider this aspect, such an approach was held to be wrong re­sulting in a serious miscarriage of justice to the accused calling for interference by the Supreme Court. Thus it is not necessary for the accused to plead consent. The prosecution has the onus to prove absence of consent. 10. 'Consent' according to Black's Law Dictionary means a concurrence of wills; voluntarily yielding the will to the propo­sition of another; acquiescence or compliance therewith. As used in the law of rape 'consent' means consent of the will and sub­mission under the influence of fear or terror cannot amount to a consent. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent and if the woman resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Consent of a victim cannot be implied from sub-mission and the submissions of a victim is no defence to a crime unless the victim's consent negatives an element of the crime itself. Verbal resistance apart, the woman can give effective ob­stacle' by means of bands, limbs and pelvic muscles. Indeed, medical writers opine that these obstacles may be insuperable in the absence of more than the usual disproportion in age and strength between the roan and the woman involved in the enco­unter. Resistance by any or more of these will amount to resis­tance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be a consent, as envisaged in law. In other words, consent on the part of a woman as a defence to an allegation of rape, requires voluntary partici­pation not only after the exercise of intelligence based on the knowledge' of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent, as was held in Rao Larnarain Singh, 1958 Cri. L.J. 563 and Joseph 1962 Cri. L.J. 668. 11. L.J. 563 and Joseph 1962 Cri. L.J. 668. 11. In Pratap Misra (supra) the finding of rape was at without there being sufficient evidence and without even ex; mining the possibility of consent which was not only present in that case but almost proved and probabilised by the circumstan­ces which appeared from the prosecution evidence itself. The Supreme Court observed that this was absolutely a wrong appro­ach and gross error of procedure in not examining the possibi­lity of consent merely on the ground that the same was not plea­ded by the accused. The victim therein was a pregnant woman allegedly raped successively by three persons. The medical opinion showed that it was very difficult for any person to rape single handed a grown up and experienced woman without meeting stiffest resistance from her. She was pregnant and had knowledge of midwifery. She was expected to know that such rape would cause abortion, and was to be resisted. The absence of any inju­ries either of the accused or of the prosecutrix, it was held, cle­arly showed that she did not put up any resistance to the alle­ged rape committed by the accused and the only irresistible inference, therefore, was that she was a consenting party and that was reinforced by other circumstances in the case. 12. While considering the question of consent reasonable follies of the offender about the prosecutrix having consented may also become relevant. A reasonable belief in such circums­tances is that of a reasonable man. In Morgan, 1976 AC 1826, the defence of the three accused was that they were invited by the husband of the prosecutrix and were told that though at first kinky she would like it. Though a man who forcibly rapes a woman ought not to be allowed to set up a cock-and-bull story about believing that she consented, a reasonable be­lief may take out the mens rea from the offence. What would be a reasonable belief must always depend on the facts and circumstances of the case. 13. Applying the above principles to the fact of the instant case it is seen that though the accused did not take the plea of consent it was the burden of prosecution to prove the in­gredients or rape. What would be a reasonable belief must always depend on the facts and circumstances of the case. 13. Applying the above principles to the fact of the instant case it is seen that though the accused did not take the plea of consent it was the burden of prosecution to prove the in­gredients or rape. Had Kiranbala complained of rape the mat­ter could have been different but the fact is that it was Rameswar who lodged the ejahar where he also said that previously the same accused did such occurrence twice. With this may be considered the evidence of clear non-resistance as discussed above. The medical evidence is also consistent with non resist­ance. Non-resistance under such circumstance is indicative of consent. The idea of the accused ultimately marrying Kiranbala may also have had a psychological effect. There is no doubt that the girl is above the age of consent as the Doctor repo­rted. This Court is conscious about the social need for prote­cting Indian womanhood and ordinarily would not have disbe­lieved Kiranbala but under the peculiar facts and circumstances of this case and in view of the fact that the trial court took a view favourable to the accused it is not considered to be an appropriate case for interference in this appeal against acquittal. 14. In the result the appeal is dismissed.