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CASE NO.:

Appeal (crl.) 298 of 2003

PETITIONER:

Tulshidas Kanolkar

RESPONDENT:

The State of Goa

DATE OF JUDGMENT: 27/10/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

While the murderer destroys the physical frame of his victim, a

rapist degrades and defiles the soul of a helpless female. When the

victim is a mentally challenged person, there is not only physically

violence and degradation and defilement of the soul, but also

exploitation of her helplessness. The case in hand is a classic example

when the baser instincts of the appellant overtook his moral values and

human sensitivity and he ravished the unsuspecting victim incapable of

comprehending the vicissitudes of the dastardly act, not once but

several times. So innocence was the victim that she was even not aware

of the dreadful consequences. The mental faculties of the victim were

undeveloped and her Intelligence Quotient (in short 'I.Q.') was not even

1/3rd of what a normal person has. Tragedy struck on the victim

sometimes in 1999, when parents of the victim noticed that her legs were

swollen and there were signs of advanced stage of pregnancy. They were

shocked beyond limits. They asked the victim as to who was responsible

for her pregnancy. She in her own way pointed out accusing fingers at

the appellant and said that on some pretext or the other, ravished her.

When this shattering news was conveyed to the parents of the victims,

they questioned the appellant. It is on record that some money was

offered to them by mother of the appellant to have termination of

pregnancy. When asked about the possibility of termination of pregnancy,

the doctor indicated a sum of Rs.6,000/- as the amount required. Since

the appellant's family were willing to part with only Rs.2,000/-, there

was no termination of pregnancy and evidence shows that a stillborn

child was delivered by the victim. Information was lodged with the

police on 10th August, 1999 by PW1 (father of the victim). Investigation

was undertaken for the commission of the offence of rape and threat

given to the victim by the appellant. The accused was charge sheeted for

offences punishable under Section 376 and 506(2) of the Indian Penal

Code, 1860 (for short the 'IPC'). During trial, accused pleaded false

implication. From the tenure of cross-examination and statement made

under Section 313 of the Code of Criminal Procedure, 1973 (for short

'Cr.P.C.'), it appears that indirectly a case of consent was pleaded.

It was highlighted that there was delay in lodging of first information

report which rendered the prosecution version unacceptable. Many

persons who could have thrown light as allegedly victim made disclosure

about the involvement of appellant before them were not examined. As

there was alleged intercourse on several occasions, it is otherwise

clearly a case of consent.

Learned Additional Sessions Judge, Panaji, considered all these

pleas and held the accused guilty, imposed sentences of 10 years and one

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year respectively for the two charged offences along with a fine of

Rs.10,000/- and Rs.2,000/- respectively with default stipulation.

In appeal, the stand taken before the Trial Court was reiterated

before the High Court of Bombay at Goa, which upheld the conviction, but

reduced the sentence to 7 years in relation to the offence punishable

under Section 376 IPC. The stands taken before the trial Court and the

High Court were pressed into service by learned counsel appearing for

the accused appellant.

Learned counsel for the State on the other hand submitted that

considering the nature of evidence and the gravity of offence, the High

Court has rather acted liberally in reducing the sentence while

upholding the conviction.

We shall first deal with the question of delay. The unusual

circumstances satisfactorily explained the delay in lodging of the first

information report. In any event, delay per se is not a mitigating

circumstance for the accused when accusations of rape are involved.

Delay in lodging first information report cannot be used as a

ritualistic formula for discarding prosecution case and doubting its

authenticity. It only puts the court on guard to search for and

consider if any explanation has been offered for the delay. Once it is

offered, the Court is to only see whether it is satisfactory or not. In

a case if the prosecution fails to satisfactory explain the delay and

there is possibility of embellishment or exaggeration in the prosecution

version on account of such delay, it is a relevant factor. On the other

hand satisfactory explanation of the delay is weighty enough to reject

the plea of false implication or vulnerability of prosecution case. As

the factual scenario shows, the victim was totally unaware of the

catastrophe which had befallen to her. That being so, the mere delay in

lodging of first information report does not in any way render

prosecution version brittle.

Non-examination of some persons per se does not corrode vitality

of prosecution version, particularly when the prosecutrix has,

notwithstanding her mental deficiencies, withstood incisive cross-

examination pointed to the appellant as the perpetrator of the crime.

The plea of consent is too shallow to even need detailed analysis or

consideration. A mentally challenged girl cannot legally give a consent

which would necessarily involve understanding of the effect of such

consent. It has to be a conscious and voluntary act. There is gulf of

difference between consent and submission. Every consent involves a

submission but the converse does not follow, and mere act of submission

does not involve consent. An act of helpless resignation in the face of

inevitable compulsion, quiescence, non-resistance or passive giving in

when the faculty is either clouded by fear or vitiated by duress or

impaired due to mental retardation or deficiency cannot be considered to

be consent as understood in law. For constituting consent, there must

be exercise of intelligence based on the knowledge of the significance

and the moral effect of the act. A girl whose mental faculties are

undeveloped, cannot be said in law, to have suffered sexual intercourses

with consent.

We find no infirmity in the conclusions arrived at by the Trial

Court and the High Court to warrant interference. The appeal fails.

The omega is said, but a few words are necessary to be said about

prescription of sentence in a case where a mentally challenged or

deficient woman is the victim. In sub-section (2) of Section 376, clause

(f) relates to physical age of a woman under 12 years of age. In such a

case sentence higher than that prescribed for one under sub-section (1)

is provided for. But what happens in a case when the mental age of

victim is not even 12 years of age? Such a woman is definitely at more

vulnerable situation. A rapist in such a case in addition to physical

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ravishment exploits her mental non-development and helplessness. The

legislature would do well in prescribing higher minimum sentence in a

case of this nature. The gravity of offence in such case is more serious

than the enumerated categories indicated in sub-section (2) of Section

376.

We record our appreciation for the fair manner in which

Mr. Surya Kant, learned amicus curiae and Ms. A. Subhashini for the

respondent-State placed all relevant materials for disposal of the

appeal.

The appeal as indicated above, is sans merit and is dismissed. The

appellant shall undergo the remaining period of sentence imposed.