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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.