When the evidence in this case is examined in the light of the principles
laid down, the evidence has come on record that the prosecutrix has
stated that she being blind, sexual intercourse was committed, on the
promise that the accused will marry her. Therefore, the consent was
dependent on the promise extended by the accused and therefore, she
submitted herself and therefore it cannot be held that the prosecutrix freely
agreed to submit herself in free and unconstrained possession over her
physical and moral power to act in a manner she wanted. The accused
has rather in this case has misused the disability of the prosecutrix who
was a blind. She being a blind girl naturally wanted to get herself married
and to be settled and secured the safe hands. This psychological
weakness has been exploited by the accused by giving false pretext and
promise of marriage and on the basis of fraud, the sexual intercourse was
committed on her. Therefore, in my considered view, this cannot be held to
be a free consent extended by the girl/ prosecutrix.
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 2554 of 1997
Appellant
:
Tekam alias Tekram
VERSUS
Respondent
:
State of Madhya Pradesh
(Now Chhattisgarh)
SB: Hon’ble Shri Goutam Bhaduri, J.
(Passed on 16th day of January, 2014)
1.
This is an appeal against the judgment dated 29.11.1997 passed by the
Sixth Additional Sessions Judge, Durg, in Sessions Trial No. 342/96,
whereby, the appellant has been convicted under Section 376 of IPC and
has been sentenced to 7 years R.I.
2.
The brief facts of the prosecution case is that the prosecutrix was residing
with her father and brothers at village Nandni Khundni. Her mother had
left and married somewhere and the prosecutrix was living with her three
brothers namely Nand Kumar, Ishwari & Baldau. Along with brother of
prosecutrix Ishwari, one boy named Tikendra, the accused, was also
studying. Because of the friendship, the said boy used to visit the house
of the prosecutrix and was in conversation with her. It is the case of the
prosecution that when the prosecutrix used to remain alone in her house,
the accused Tikendra used to visit there and expressed her that he is in
love with her. Further, the case of the prosecution is that at about one
year before the incident, the accused came to the house of the prosecutrix
when she was alone. Thereafter, the accused had told her that he is in
Page 2
love with her and will marry her and wanted to commit sexual intercourse
with her. The prosecutrix tried to avoid it since she was blind girl, but the
prosecutrix was told by the accused that he will marry her and will give her
all support and therefore, she submitted herself to the accused.
Thereafter, the accused committed sexual intercourse with her. It is the
case of the prosecution that whenever the prosecutrix remained alone in
the house, the accused used to come and commit sexual intercourse with
her. By such course of action, when the prosecutrix became pregnant, the
prosecutrix told the accused to marry her.
At that point of time, the
accused stop visiting the house of the prosecutrix. Subsequent to it, the
incident were disclosed to the father of the prosecutrix who called the
meeting of Panchayat in the village. In such Panchayat, the accused was
also called. It is the case of the prosecution that in the Panchayat, the
accused admitted the fact that he had committed sexual intercourse with
the prosecutrix but refused to marry her and left the Panchayat. It was the
specific case of prosecution that though the prosecutrix was blind, she
could recognize the person i.e. the accused by his voice and by touch.
3.
After the matter was reported, the prosecutrix was subjected to medical
examination and the Doctor gave its report by Ex.P-2 & P-3 and the age
of the prosecutrix was also confirmed by radiological test by Ex.P-4. After
the entire examination and recording the statement of the witnesses,
charge sheet was filed under Section 376 of IPC, wherein the learned
Court below after evaluating the evidence on record had convicted the
accused appellant as aforesaid. Hence this appeal.
4.
I have heard the learned counsel for the parties at length and have
perused the evidence and the statement adduced during the course of
trial.
5.
The learned counsel for the appellant submits that the prosecutrix was
blind and therefore, she could not recognize or identify the accused. He
Page 3
further submits that in order to hold a person guilty in criminal trial, the
prosecution was under obligation to prove the fact that the accused has
committed rape on the prosecutrix. He submits that the evidence on
record would show that there had been a number of person who were
visiting the house of the prosecutrix and therefore attributing the charges
of rape to the accused was completely wrong. He further submitted that,
even if, the identification is not in question, in such case too, since the age
of the prosecutrix was more than 18 years, she can be said to have a
consenting party to the incident and therefore, the conviction made by the
Court below under Section 376 of IPC is bad in law.
6.
Per contra, the learned State counsel would submit that the appellant has
neither raised the defence before the Court below with respect to his
identification nor any cross examination has been made by him. He further
submits that, even if, such argument is considered, in such case also, the
prosecutrix has categorically stated that she had recognized the accused
by his voice. He further submits that since the incident was continuing in
nature, according to the statement of the prosecutrix, therefore, the
identification of the accused by voice cannot be sidelined. He further
submits that, even if, the age of the prosecutrix was said to be more than
18 years, in such case too, the physical intercourse was committed by
giving a false assurance of promise to marry her who was blind girl and
therefore the consent was not free and therefore the case of rape is made
out.
7.
The age of the prosecutrix, in this case, is proved by the Doctor (PW-6)
the Radiologist. He has stated that he had obtained the X-ray of the
prosecutrix and on the basis of the X-ray, he had given his report, which is
marked as Ex.P-4, wherein, the age of the prosecutrix is written to be that
of 18 years, approximately. This part of evidence is not in dispute. The
Page 4
Doctor has proved that, at the time of examination, the age of the
prosecutrix was 18 years.
8.
The prosecutrix was examined in this case as PW-1. She has stated that
she used to stay with her father and brothers at village Nandni. She has
further stated that one of his brother was named Ishwari. She has further
stated that the accused was studying with her brother and used to visit
their home. It was further stated that the accused used to talk to her and
narrating the incident she had stated that one day when she was alone in
the house, the accused all of a sudden came and caught hold of her. She
has further stated that when she cried, the accused had told and assured
her that nothing would happen and if anything happens, it would be his
responsibility. In para 3 of the statement, she has categorically stated that
she is blind, but she could recognize a person by his voice. This witness
has further stated that the accused had told her that he will keep her. She
has further stated that when she was caught hold of by the accused, at
that time, she requested to leave her but the accused did not leave her
and further explaining the fact she had stated that had she been able to
see, she would have run away.
9.
The prosecutrix has stated that the accused has committed rape on her
and thereafter whenever she used to stay alone in the house, the accused
used to come and had committed sexual intercourse with her on the
pretext of marriage. Thereafter, when she became pregnant, the witness
has stated that then the accused stopped visiting their house and out of
fear she could not tell it to any one. The witness has further stated that
when the accused was called in the Panchayat, he refused to admit his
paternity and when the Panchayat people went to leave her in the house
of the accused then the accused refused to keep her. She has stated that
the accused had promised her to marry but subsequently refused to marry
her. During the course of statement, it is also recorded by the Court that
Page 5
the witness had recognized the accused from his voice in the Court during
the course of evidence. The prosecutrix had further stated that she
delivered a child but it died subsequently.
10.
In the cross examination of the prosecutrix, she has stated that because
of the friendship with his brother, the accused used to visit their house till
one year and thereafter subsequently he stopped. She has also stated
that in the house of the prosecutrix, no doors are attached and it used to
be open. She has off-course admitted the fact in the cross examination
that in the Panchayat, the accused had refused the fact to commit sexual
intercourse with the prosecutrix.
In the entire cross examination with
respect to the identification by voice, nothing was confronted to the
prosecutrix. No defence was taken during the trial so as to question the
identify of the accused.
11.
The father of the prosecutrix was examined as PW-2. He has also stated
that with one of his son named Ishwari, the accused used to study and he
was in friendship. Therefore, the accused used to visit their house. He has
further stated that when his daughter became pregnant, her daughter told
him that she has been made pregnant by the accused. He has also stated
that the prosecutrix had told her that the accused used to tell her daughter
that if something happens, he will keep her. The witness further stated
that whenever the accused used to visit his house, the prosecutrix used to
remain alone. The witness in the cross examination has stated that in the
Panchayat, when the accused refused to keep her daughter; thereafter,
an advise of the villagers, the report was made to the police.
12.
The witness Ramulal Nirmal was examined as PW-3 who attended the
meeting in the village on 07.07.1996. The witness has stated that in such
meeting, the prosecutrix has told that the child which she was carrying in
the womb was that of accused.
Page 6
13.
Similar statement has been made by the brother of the prosecutrix,
Ishwar, who was examined as PW-5. He has also stated that her sister
had told that the accused made her pregnant. In the cross examination
when this witness was asked that who used to visit in his absence in the
house, the witness has stated that in absence of the members, her sister
had told that the accused used to visit their house along with him one
Loknath also used to come and the friend of his younger brother
Aatmaram also used to come.
14.
The Doctor, Smt. Savita Chopra, was examined as PW-4, who has proved
the fact that she has examined the prosecutrix and on examination of
ultrasound, she found that the prosecutrix was pregnant. The Doctor had
given its report by Ex.P-2 and the Sonography report was given by
Ex.P-3.
15.
It is submitted before the Court that the accused has been falsely
implicated as identification has not been substantiated and only on the
basis of voice, the identification cannot be sustained. But if we examined
the statement of the prosecutrix, she has stated categorically, she being
blind, she had identified the accused by voice. During the cross
examination of the prosecutrix, this ground was not raised before the trial
Court and no question to this effect was ever asked. With respect to the
identification, this fact cannot be ignored that the prosecutrix has said that
the sexual intercourse was being committed number of times and not
once and further this can be also inferred that a person who comes to
close he may be recognized by voice and touch too.
16.
The Hon'ble Supreme Court in Santosh Devidas Behade & Others v. State
of Maharashtra1 has held that the test identification parade in case of
known accused persons is not obligatory. The Hon'ble Court in its
judgment has laid down the principle that identification tests do not
1
(2009) 13 SCC 680
Page 7
constitute substantive evidence. They are primarily meant for the purpose
of helping the investigating agency with an assurance that their progress
with the investigation into the offence is proceeding on the right lines. The
identification can only be used as corroborative of the statement in Court.
The necessity for holding an identification parade can arise only when the
accused are not previously known to the witnesses. The whole idea of a
test identification parade is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify them from the midst of
other persons without any aid or any other source.
In this case,
categorically statement has been made by the prosecutrix that she had
recognized the accused from his voice which is unrebutted in the cross
examination too.
17.
The Hon'ble Supreme Court in Kirpal Singh v. The State of U.P.2, has held
that unless the trial is vitiated by some illegality or irregularity of procedure
or the trial is held in a manner violative of the rules of natural justice
resulting in an unfair trial or unless the judgment under appeal has
resulted in gross miscarriage of justice, it should not be normally
overturned. The Hon'ble Supreme Court has further lamented the
identification by voice when it has been specifically quoted. In the case in
hand, according to the statement of the prosecutrix and her brother and
father, the accused was intimately known to the prosecutrix for more than
a year before the date of offence. She met the appellant accused on
several occasions in her house and since she was a blind, she could
recognize his voice. The prosecutrix has further stated that the accused
has promised her to marry and sexual intercourse was committed on such
promise. In view of this, if a girl who is submitting herself for a sexual
intercourse, it can be safely presumed that in such eventuality, the girl
2
AIR 1965 SC 712
Page 8
would be able to recognize the person to whom she submitted herself and
can recognize him by voice.
18.
Therefore, in view of the principles laid down by the Hon'ble Supreme
Court, it cannot be said that the accused was wrongly identified by the
prosecutrix from what she heard and felt in person from the accused. This
fact also cannot be ignored that during the course of evidence, the learned
Court below has also observed that the prosecutrix has recognized the
accused from her voice. Therefore, the credibility of the statement of the
witness cannot be put to question with respect to the identification in the
nature the act of sexual intercourse was committed by the accused with
the prosecutrix number of times.
19.
Now turning to the question of consent, the argument is advanced that the
age of the prosecutrix was more than 18 years on the date of incident and
even if, she was blind, the consent is apparent. This argument has to be
decided in the facts of this case as the prosecutrix was blind.
20.
The offence of rape is committed when a man has sexual intercourse with
a woman, who is not his wife, under circumstances falling under any of the
five clauses of Section 375 of IPC. According to the exception to the said
section, if wife is under 15 years of age, sexual intercourse amounts to
rape. If there is consent to the act, it does not amount to an offence. A
woman can be said to have consented to the act only when she has
submitted herself willingly and freely, while in free and unconstrained
possession of the physical and moral power to act in a manner she
wanted. Consent implies the exercise of a free and untrammeled right to
forbid or withhold what is being consented to; it always involves a
voluntary act and conscious acceptance of what is proposed to be done by
another and concurred in by the former. 'Consent' means 'agreement;
community of feeling and opinion; unanimity; to agree not to resist or
Page 9
prevent. Obviously consent involves no denial, no resistance. It cannot be
equated to inability to resist out of helplessness.
21.
Here the prosecutrix was a blind girl and for which, absence of violence or
stiff resistance may even suggest helpless surrender due to sheer timidity
and would not amount to consent. Therefore, if the act is done under the
helplessness, it would be termed as consent. Here in this case, there was
a passive submission and the reasons have been stated by the prosecutrix
that she was promised to be married. The surrounding circumstances of
the fact that the prosecutrix was a blind girl cannot be shelved. The
prosecutrix, in this case, has stated that she was subjected to sexual
intercourse on the promise to marry.
22.
The Hon'ble Supreme Court in Yedla Srinivasa Rao v. State of A.P.3 while
determining the question when the sexual intercourse is committed by
holding out a promise to marry whether it amounts to consent or not ? has
held as under :
“7. The question that falls for our consideration is that when
the accused committed sexual intercourse with the
prosecutrix holding out a promise for marriage whether
this will amount to a consent or not? Section 375 of IPC
enumerates six circumstances wherein the sexual
intercourse committed amounts to rape which read as
under:
"First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that
he is not her husband, and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
3
(2006) 11 SCC 615
Page 10
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under
sixteen years of age."
9. The question in the present case is whether this
conduct of the accused apparently falls under any of the
six descriptions of Section 375 of IPC as mentioned
above. It is clear that the prsoecutrix had sexual
intercourse with the accused on the representation made
by the accused that he would marry her. This was a false
promise held out by the accused. Had this promise not
been given perhaps, she would not have permitted the
accused to have sexual intercourse. Therefore, whether
this amounts to a consent or the accused obtained a
consent by playing fraud on her. Section 90 of the Indian
Penal Code says that if the consent has been given under
fear of injury or a misconception of fact, such consent
obtained, cannot be construed to be valid consent.
Section 90 reads as under:
"90 - Consent known to be given under fear or
misconception.- A consent is not such a consent as it
intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent
was given in consequence of such fear or
misconception; or
[Consent of insane person] if the consent is given by
a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives his consent;
or
[Consent of child] unless the contrary appears from
the context, if the consent is given by a person who
is under twelve years of age."”
23.
Further, the Hon'ble Supreme Court in Satpal Singh v. State of Haryana 4
has held as under :
“29. It can be held that a woman has given consent only
if she has freely agreed to submit herself, while in free and
unconstrained possession of her physical and moral power
to act in a manner she wanted. Consent implies the
exercise of a free and untrammeled right to forbid or
withhold what is being consented to, it always is a
voluntary and conscious acceptance of what is proposed
to be done by another and concurred in by the former. An
act of helplessness on the face of inevitable compulsions
is not consent in law. More so, it is not necessary that
4
2010 AIR SCW 4951
Page 11
there should be actual use of force. A threat or use of
force is sufficient.
30. The concept of `Consent' in the context of Section
375 IPC has to be understood differently, keeping in mind
the provision of Section 90 IPC, according to which a
consent given under fear/coercion or misconception/
mistake of fact is not a consent at all. Scheme of Section
90 IPC is couched in negative terminology. Consent is
different from submission. [Vide Uday Vs. State of
Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip
Kumar Vs. State of Bihar AIR 2005 SC 203; and Yedla
Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615.]
31. In the State of H.P. v Mange Ram, AIR 2000 SC
2798 : (2000 AIR SCW 3095), this Court, while
considering the same issue, held as under :-
"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 the
resistance and assent."
24.
When the evidence in this case is examined in the light of the principles
laid down, the evidence has come on record that the prosecutrix has
stated that she being blind, sexual intercourse was committed, on the
promise that the accused will marry her. Therefore, the consent was
dependent on the promise extended by the accused and therefore, she
submitted herself and therefore it cannot be held that the prosecutrix freely
agreed to submit herself in free and unconstrained possession over her
physical and moral power to act in a manner she wanted. The accused
has rather in this case has misused the disability of the prosecutrix who
was a blind. She being a blind girl naturally wanted to get herself married
and to be settled and secured the safe hands. This psychological
weakness has been exploited by the accused by giving false pretext and
promise of marriage and on the basis of fraud, the sexual intercourse was
committed on her. Therefore, in my considered view, this cannot be held to
be a free consent extended by the girl/ prosecutrix.
Page 12
25.
In view of this, on examination of the entire evidence, I am of the opinion
that no perversity or illegality has been committed by the Court below to
convict the accused under Section 376 of IPC.
26.
In the result, the appeal has no merit and accordingly is dismissed.
JUDGE
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