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Himachal Pradesh High Court · body

2002 DIGILAW 299 (HP)

RAJINDER ALIAS RAJU v. STATE OF H. P.

2002-11-01

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the accused appellant (hereafter referred to as the accused) against the judgment dated 23.7.2002, passed by the learned Sessions Judge, Bilaspur, convicting the accused under Sections 366 and 376 of the Indian Penal Code and sentencing him to rigorous imprisonment for seven years and to pay a fine of Rs. 10,000 and in default of payment of fine, to undergo rigorous imprisonment for a term of nine months under Section 376 IPC. No sentence, however, has been awarded to the accused under Section 366 IPC. 2. Case of the prosecution, in brief, is that the accused a registered contractor with IPH, on 16.1.1996, went to the house of the prosecutrix (PW-1) in village Kothi, as he was laying GI pipes near her house. At that time, the prosecutrix was having pain in her throat. The accused informed Sheela Devi (PW-5), the mother of the prosecutrix, that a son of his aunt was a doctor at Ghumarwin and he could get the prosecutrix checked up by him. After giving assurance to the mother of the prosecutrix, the accused took the prosecutrix on his scooter to Ghumarwin but instead, of getting her checked up from any doctor, he took her to Jablu, saying that he had his shops at Jablu and was to recover the rent thereof. From Jablu, the accused took the prosecutrix to Barthin where sweets and peanuts were purchased by him and given to the prosecutrix and disclosed that he would take the prosecutrix to his house as the night had already fallen. Thereafter, the accused took the prosecutrix on his scooter towards village Dohak. On the way near a Pully, he stopped, gagged the mouth of the prosecutrix and took her to a lonely place, where he committed rape on her. After commission of the rape, the accused fled away leaving Pattu, torch and Mungfali etc. on the spot. The helpless prosecutrix, who was feeling pain remained on the spot for sometime. Noticing some light in a far off house, she went to the said house and informed the inmates of the house about the occurrence. She stayed there for the night and in the morning, Up Pradhan and villagers gathered there and statement Ex. PW-l/A of the prosecutrix about the occurrence was recorded by Roop Singh (PW-4). Noticing some light in a far off house, she went to the said house and informed the inmates of the house about the occurrence. She stayed there for the night and in the morning, Up Pradhan and villagers gathered there and statement Ex. PW-l/A of the prosecutrix about the occurrence was recorded by Roop Singh (PW-4). The occurrence was reported by the prosecutrix to the police vide her statement Ex. PW-l/B on the basis of which, formal FIR Ex.PW-12/A was recorded at Police Station, Ghumarwin. During investigation, torch Ex. P-l, Pattu Ex. P-2, peanuts Ex. P-3 left at the place of occurrence were produced by the prosecutrix to the police and were taken in possession vide memo Ex. PW-l/C. While in custody, the accused made a disclosure statement Ex. PW-10/B regarding purchase of Gachak and pea nuts and the consequential recovery memo is Ex. PW-4/A. On production by the accused, his underwear was also taken into possession by the investigating officer vide memo Ex. PW-10/A. Prosecutrix and the accused were got medically examined. MLC regarding medical examination of the prosecutrix conducted by medical officer Seweta Mehta (PW-13) is Ex. PW-13/A and as per the opinion therein, the possibility of commission of rape on the prosecutrix could not be ruled out and that the sexual intercourse was committed with her within 48 hours of her medical examination. The accused was medically examined by medical officer S.C. Kaushik (PW-7) and the MLC issued by him is Ex. PW-7/A whereby it has been opined that the accused was found fit to commit sexual intercourse. The wearing apparels of the prosecutrix alongwith the vaginal slides and underwear of the accused were sent for chemical analysis and the report about such analysis is Ex. PW-12/L. It was also found during the course of investigation that the prosecutrix belongs to a scheduled caste. On the basis of the material collected by the investigating agency, the officer incharge, Police Station, Ghumarwin, submitted a charge sheet against the accused under Sections 366 and 376, Indian Penal Code and Section 3(XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The accused was tried by the learned Sessions Judge, Bilaspur, on a charge under Sections 366 and 376 IPC and Section 3(XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 4. 3. The accused was tried by the learned Sessions Judge, Bilaspur, on a charge under Sections 366 and 376 IPC and Section 3(XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 4. To prove the charge against the accused, the prosecution examined as many as 13 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he claimed that the case against him is false and has been engineered at the behest of Prem Singh, Pradhan, Suram Singh and his wife Bimla Devi and the witnesses Prem Singh, Suram Singh, Bimla Devi and Rattan Singh are inimical towards him. The mother of the prosecutrix had taken timber worth Rs. 5,000 from him and when he demanded payment of the amount, the mother of the prosecutrix demanded payment of Rs. 50,000 from him and only thereafter she would finish the case against him. The accused led defence and examined S.P. Chaterji (DW-1). 5. On the basis of the evidence produced by the prosecution, the learned Sessions Judge, by the impugned judgment, though acquitted the accused of the head of charge under Section 3(XII) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, but convicted him under sections 366 and 376 IPC and sentenced the accused only under Section 376 IPC as aforesaid. Hence this appeal. 6. I have heard the learned Counsel for the accused and the learned law officer for the State and have also gone through the records. 7. The learned Counsel for the accused has not disputed that the accused had sexual intercourse with the prosecutrix at the time and place of occurrence. However, his contention is that such an act was committed by the accused with the consent and free will of the prosecutrix. 7. The learned Counsel for the accused has not disputed that the accused had sexual intercourse with the prosecutrix at the time and place of occurrence. However, his contention is that such an act was committed by the accused with the consent and free will of the prosecutrix. To substantiate his contention, the learned counsel relied on the following circumstances :— (i) that the prosecutrix at the relevant time was more than 18 years of age and thus capable of consenting to the act of sex; (ii) that no injury suggestive of struggle was found on the person of the prosecutrix and the injury on her cheek can be as a result of heat of passion; (iii) that the act of sex is stated to have been performed after laying the Pattu on the ground which is suggestive of consent; (iv) that the story of accused threatening the prosecutrix at the point of dagger is an after thought and does not find mention in the FIR rendering the statement of the prosecutrix false; and (v) that the conduct of the prosecutrix accompanying the accused voluntarily from the very beginning and even after the alleged threat and not complaining about it despite opportunity belies her version of forcible intercourse and is indicative of her consent to the act of sex. 8. Before I consider the aforesaid circumstances to arrive at any conclusion, it may be pointed out that it is well settled that consent is an act of reason coupled with deliberation after the mind has weighed the good and evil on each side in a balanced manner and denotes an active will to permit the doing of the act complained of. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent". To be a valid defence the consent on the part of the woman to an act of sex requires voluntary participation and she can be said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she desired. 9. To be a valid defence the consent on the part of the woman to an act of sex requires voluntary participation and she can be said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she desired. 9. In Bijoy Kumar Mohapatra and others v. The State, 1982 Cri LJ 2162, while dealing with the meaning of the expression "consent", Orissa High Court held as under : "10. In a case of rape, consent, if any, given by the victim must be voluntary. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in, when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be consent. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent. The question of consent or compulsion is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence, if available and the attendant circumstances preceding, accompanying or following the acts of sexual intercourse." 10. In State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224, the Honble Supreme Court while dealing with the subject, held as under : "13...Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." 11. It is against the aforesaid settled position in law that the contentions raised for the accused requires examination. Circumstance No. (i) : 12. It is not in dispute that at the relevant time the prosecutrix was more than 18 years of age and thus capable of giving consent to the act of sex. It is against the aforesaid settled position in law that the contentions raised for the accused requires examination. Circumstance No. (i) : 12. It is not in dispute that at the relevant time the prosecutrix was more than 18 years of age and thus capable of giving consent to the act of sex. However, the capability of a person to give consent for certain act by itself is no reason to hold that such person invariably has given consent to the act of sex but such consent is a matter of proof. This circumstance by itself is, therefore of no help to the accused. Circumstance No. (ii) : 13. It was contended by the learned Counsel for the accused that no external injury on the person of the prosecutrix except an abrasion on her cheek was found. Such abrasion, according to the learned Counsel, could be result of heat of passion and no such other mark of injury has been found on the person of the prosecutrix at the time of her medical examination which may suggest use of force against her. Therefore, the only inference is that she willingly submitted herself to the act of sex. 14. It is not in dispute that the occurrence took place at about 8.30 p.m. when it was dark. The prosecutrix was not at a place the topography whereof was known to her nor it appears from the perusal of the record that after resisting the accused she was in a position to come back to her house or to go to a place of safety. It is also not in dispute that when she was subjected to rape a Pattu was first laid on the ground and thereafter the rape was committed on her. Thus, the rape was not committed on a bare stony surface, therefore, it was not inevitable to sustain injuries by the prosecutrix despite use of force. It has not been suggested to the prosecutrix that she was a consenting party to the act of sex. On the contrary, the trend of her cross-examination is suggestive of the initial plea of the accused that he did not have sexual intercourse with the prosecutrix. It has not been suggested to the prosecutrix that she was a consenting party to the act of sex. On the contrary, the trend of her cross-examination is suggestive of the initial plea of the accused that he did not have sexual intercourse with the prosecutrix. It has also not been suggested to the prosecutrix that the abrasions found on her right cheek were a result of heat of passion nor it was suggested to the Medical Officer that such an injury could be caused by a tooth bite in the heat of passion. Therefore, absence of injuries on the person of the prosecutrix except the aforesaid injury cannot lead to the conclusion that she was a consenting party to the act of sex. Circumstance No. (iii) : 15. The contention of the learned Counsel that lying of the Pattu on the ground and thereafter having the sexual intercourse with the prosecutrix is suggestive of consent because in the event of her not being a consenting party she could have bolted away when the accused was laying down the Pattu on the ground is also untenable. A s already stated hereinabove, the offence was committed during the night hours and in a lonely place when the prosecutrix was not in a position to run away to a place of safety. The laying of the Pattu on the ground by the accused before committing rape on the prosecutrix cannot be interpreted to mean the consent of the prosecutrix to the act of sex. Circumstance Nos. (iv) and (v) : 16. It was contended by the learned Counsel for the accused that in the FIR it has not been mentioned that the accused has shown dagger to terrorise the prosecutrix and the prosecutrix had improved her version as contained in the FIR by stating it for the first time in her cross-examination and in any case if she was so threatened when they reached at Jablu they admittedly stayed there for about 10 minutes at a shop and the prosecutrix had the opportunity to inform the shopkeeper about the act and conduct of the accused but she did not do so. 17. In the FIR the version of the prosecutrix is not that she was threatened with a dagger. 17. In the FIR the version of the prosecutrix is not that she was threatened with a dagger. However, at the same time it is not her version even in her examination in chief, therefore, even if it is taken that it is an improved version it has no bearing on the question of consent. In any case the prosecutrix has explained as to why she did not complain to the shopkeeper at Jablu about the conduct of the accused. In this regard, she has stated that "she had a doubt about the behaviour of the accused at Jablu but as the accused told me that he will take back me to my house I accompany him. "In the situation in which the prosecutrix was placed at the relevant time this explanation is natural and confidence inspiring. At about 8 or 8.30 p.m. when the prosecutrix has no means to return to her house she had no alternative but to accept the assurance of the accused that he would take her back to her house. Thus, if she did not complain about the behaviour of the accused to the shopkeeper because of assurance as aforesaid her non-complaining does not lead to the conclusion that she was a consenting party to the act of sex. Therefore, even these circumstances are of no help to the accused. 18. It may be pointed out that in view of the statement of the prosecutrix, medical evidence and the report Ext. PW-12/L about the chemical analysis of Pattu, Salwar and Shirt of the prosecutrix it is fully and firmly established that she was subjected to sexual intercourse by the accused. She had not eloped with the accused. She was having some ailment and on the assurance of the accused that one of his relations was a doctor at Ghumarwin and he would get her examined from him, the prosecutrix with the consent of her mother accompanied the accused. She went with the accused to Ghumarwin from where the accused took her to Jablu on the plea that he had to collect the rent of shops, and then to Barthin and then taking benefit of the darkness of the night and the lonely place committed sexual intercourse with the prosecutrix in a situation wherein she was not in a position to run away to a place of safety. Had it been a case of consent it would have been suggested to the prosecutrix who is the only person to admit or deny the consent or willingness to the act of sex with her. However, the suggestion was never put to her in her cross-examination thereby rendering it just an after thought. 19. There are circumstances which belie the plea of the accused that he committed sexual intercourse with the prosecutrix with her consent. In case the prosecutrix was a consenting and willing party, the accused instead of taking the prosecutrix to a lonely place during night could have taken her to his house where he intended to go, as stated by the prosecutrix. In case of consent there was no reason for the accused to leave the prosecutrix at the place of occurrence all alone and go away. If it was a case of consent, then in the ordinary course of human conduct the accused after having performed the sexual intercourse would have either taken the prosecutrix to his house where he intended to go or would have brought her back to the house of the prosecutrix. 20. There is reliable and confidence inspiring version of the prosecutrix on oath that the accused after informing the prosecutrix that he was taking her to his house because it was already dark, took her to a lonely place on the scooter and then took her to some distance from the road after gagging her mouth and then after untying her Salwar committed sexual intercourse with her. Thus, in view of her statement there is total absence of her consent and willingness, moreso, when it has not been suggested to her that she was a consenting and willing party to the act of sex. Evidently in the situation in which the prosecutrix was placed in the lonely place during the darkness of night and thereby rendering her incapable of making good her escape to the place of safety, the sexual intercourse committed by the accused cannot be said to have been done with the consent and willingness of the prosecutrix. 21. In view of the above discussion, the plea of the accused that he had the sexual intercourse with the prosecutrix with her consent and willingness is just an after thought and is devoid of any merit and substance. The impugned judgment, therefore, does not call for any interference. 22. 21. In view of the above discussion, the plea of the accused that he had the sexual intercourse with the prosecutrix with her consent and willingness is just an after thought and is devoid of any merit and substance. The impugned judgment, therefore, does not call for any interference. 22. As a result, this appeal merits dismissal and is accordingly dismissed.