Himachal Pradesh High Court
Kuldeep Kumar & Anr vs State Of H.P. & Anr on 22 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 609/2017 Reserved on: 18.8.2023 Decided on : 22.8.2023 Kuldeep Kumar & anr. .....Appellants .
Versus
State of H.P. & anr. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
of Whether approved for reporting?1 Yes For the Appellants: Mr. Dibender Ghosh, Advocate. For the Respondents:
rt Mr. Anup Rattan, A. G. with Mr. Y.W Chauhan, Mr. I. N. Mehta, Sr.Addl A.Gs., & Ms. Sharmila Patial, Addl. A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellants have filed the instant appeal against the judgment, dated 23.3.2017 passed by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 0000043/2014, whereby they along with respondent No.2 have been convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.
5000/- each and in default, to undergo simple imprisonment for 6 months under Section 366A of the Indian Penal Code (IPC) and undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 35000/- each and in default, to undergo 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 2further simple imprisonment for 1 year under Section 376D IPC.
2 The prosecution case, in a brief, is that in the year .
2014, prosecutrix (PW1), aged about 14 years, was studying in 9th class in Govt. Senior Secondary School, Taklech. On 3.7.2014, she had gone to her school and after attending the school, when she was about to return to her home and was at of Taklech, at about 3 P.M. Sunil Kumar, respondent No.2 herein, who was running a chicken shop at Kareri, approached her and rt said to her "I love you". The prosecutrix when spurned his gesture and asked him to go away, he forcibly made her to sit in vehicle bearing registration No. HP-06A-1289, in which, Kuldeep Singh (appellant No.1 herein) and Sanjeet Kumar (appellant No. 2 herein) were already sitting. All of them took her in the aforesaid vehicle to a jungle situated near Middle School, Kareri, where she was subjected to gang rape. Appellant No.2 was the first person, who alleged to have sexually assaulted the prosecutrix twice, and thereafter respondent No.2 and appellant No.1 one after another. The prosecutrix though shouted for help, but since the place was secluded one, none could hear her shouting. After some time, appellant No.2 and respondent No.2 went away. However, appellant No.1 kept the prosecutrix in the forest for whole of the night and during night, ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 3 he again subjected her to forcible sexual intercourse. She requested the appellant a number of times to allow her to go to home, but all in vain.
.
3. On next morning, the prosecutrix went to her school right from the place of occurrence, whereas appellant No.1 also left the spot. After the school time, the prosecutrix went to her home and started washing her clothes. In the meantime, of mother of the prosecutrix came and on seeing this, asked the prosecutrix as to why she was washing her clothes. In reply rt thereto, the prosecutrix narrated whole of the incident to her mother, who in turn disclosed it to her husband.
4 Thereafter, the father of the prosecutrix accompanied by her went to Taklech and reported the matter to ASI Bhagat Ram (PW12), Incharge of Police Post, Taklech. On the basis of the allegations made by the prosecutrix in her statement, the matter was sent to Police Station, Rampur Bushahr for registration of formal FIR under Sections 363, 366A, 376D and 506 read with Section 34 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act (for short, POCSO Act).
5 During the course of the investigation, PW12 prepared the docket and sent the prosecutrix to Civil Hospital, Khaneri for her medical examination, where she was medically ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 4 examined by Dr. Anupam Gupta, who, besides examining her, also took samples of vaginal smears and pubic hair, and after preparing sealed parcel thereof, handed over the same along .
with MLC issued by her to him. PW12 visited and inspected the site of occurrence and recovered therefrom a prescription slip issued by Civil Hospital, Taklech to the prosecutrix and tablets of some medicine prescribed to the prosecutrix by the Medical of Officer and took the same into possession by preparing sealed parcel thereof. He also prepared site plan of occurrence and rt also took photographs thereof. He also took into possession the vehicle in which the prosecutrix had been kidnapped and brought to the jungle. PW12 recorded the statements of prosecution witnesses and on the basis of the material collected during investigation, both the appellants and respondent No.2 were formally arrested and were got medically examined from the Medical Officer who having examined them, issued their necessary MLCs and also handed over their under garments and other forensic samples taken by him to the Investigating Officer. He subsequently got the samples so collected as well as the clothes of the prosecutrix as well as that of the appellants and respondent No.2 examined from the forensic science laboratory and obtained necessary reports in this behalf. He ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 5 also obtained birth certificate and BPL certificate of the prosecutrix from the Panchayat Secretary.
6 After completion of the investigation and on .
submission of final report, the appellants as also respondent No.2 were charged with aforesaid offences, to which they pleaded not guilty and claimed trial.
7 In order to prove its case, the prosecution examined of as many as 13 witnesses.
8 Thereafter, statements of the appellants and rt respondent No.2 were recorded under Section 313 Cr.P.C., wherein they claimed to be innocent.
9 The learned Special Judge, after evaluating the oral as well as documentary evidence, convicted and sentenced the appellants and respondent No.2, as aforesaid.
10 It is vehemently argued by the learned counsel for the appellants that the learned Special Judge without there being any legal evidence, presumed the prosecutrix to be a minor, whereas it was the case of consensual sexual intercourse where the prosecutrix was not even proved to be a minor.
11 In order to prove this issue, one needs to refer to meaning of a "child" as finds mention in Section 2(d) of the POCSO Act as any person below the age of 18 years. So, what ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 6 this Court is primarily required to determine is whether the prosecutrix was under the age of 18 years at the time of occurrence.
.
12 To prove the age of the prosecutrix, the prosecution has placed on record statements of PW1 prosecutrix, her mother PW2 and to lend corroboration thereto, the prosecution has relied upon birth certificate of the prosecutrix, of Ext. PW5/A and BPL certificate, Ext. PW5/B, belonging to family of the prosecutrix.
13rt Both these documents have been tendered in evidence by the prosecution through PW5 Sangi Ram, the then Secretary, Gram Panchayat Munish, Tehsil Rampur. However, both these certificates were discarded by the learned Special Judge by observing as under:
21. So if regard is had to the statement made by above named Secretary of Gram Panchayat, then same goes to show that he himself had admitted that in fact birth entries of the prosecutrix as incorporated in Ext. PW-5/A in fact are based on the entries made in the Pariwar register. He had further admitted that the entries made in the pariwar register are based on the oral information. But he had not elaborated as to on whose oral information, the aforementioned entries had been made. If the nature of the statement made by this witness is considered in the light of the nature of the entries made in the family register, then it could be reasonably inferred that entries in the Pariwar register are incorporated on the basis of the ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 7 information invariably supplied by any member of the concerned family. But as far as the relevant entries with respect to the prosecutrix are concerned, he had neither elaborated as to on the basis of whose information, he .
had made these entries nor had he brought the original family register on the basis whereof it could have been held that the relevant entry had been incorporated by this witness on the basis of information given by a particular person.
14 However, the learned Special Judge proceeded to of take judicial notice of the fact that since the prosecutrix was studying in school, therefore, she would be presumed to be a rt minor as is evident from observations made in para 29 of the judgment, which read as under:-
29 Judicial notice can be taken of the fact that ordinarily a child is got admitted by the parents/guardians in first class in school around the age of about 5 years. In areas like villages, due to illiteracy and other connected factors, the possibility could not be ruled out that in some cases a child is got admitted for the first time in a school even around the age of 6 or 7 years. Prosecutrix is also resident of a village falling under Tehsil Rampur, Distt. Shimla.
There is nothing on record to show as to whether the parents of the prosecutrix are literates or not. But even if it is assumed that on account of their ignorance or other factors, they had got the prosecutrix admitted for the first time in the school around the age of 6 6 or 7 years, even then it could be held that by the time the prosecutrix had reached 9th class, she was about the age of 16 years. There is nothing in evidence nor had it been suggested on behalf of the accused to show that in between class 1 and ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 8 9th, she had failed. Rather, if the statement made by the prosecutrix as PW-1 is to be believed, then it can be held that even after the alleged incident, she had passed the 9th class and at the time of deposing before this Court, .
she had been promoted to 10" class. Generally speaking, level of education in primary and middle classes is comparatively easier than the higher classes. So if this aspect of the case is considered in the light of the factum of the prosecutrix passing 9th class even after the incident in question, then these facts lends credence to the of aforestated finding to the effect that the prosecutrix had not failed in any class till the date of incident. So on the basis of the above and in the absence of any contrary rt evidence on record, it could be safely concluded that at the time of alleged incident, the prosecutrix was certainly quite below the age of 18 years. While holding so, I am fully conscious of the fact that the prosecution had not produced the school record to show as to what was the age at which the prosecutrix had been got admitted for the first time in the school. Otherwise also, it was not the case of the accused that the birth entries made in the school record are different from the age stated by the prosecutrix as well as her mother.
Moreover, the accused could have easily requisitioned the aforementioned record to rebut this aspect of the case of the prosecution. So under the given circumstances, the non-production of the aforementioned record shall also not be of any help to the accused. Moreover, as already observed above, I have already given margin of two years while assessing the age of the prosecutrix.
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 915 We have considered the aforesaid observations and find it extremely difficult to align much less uphold the aforesaid observations. No presumption unless backed by .
provisions of law could have been raised by the learned Special Judge. Even otherwise, the aforesaid observations are based on surmises and conjectures without there being any reasonable basis for the same.
of 16 However, at this stage, it needs to be noticed that the prosecution had filed an application before this Court rt bearing Cr.M.P. No. 1864/2018 under Sections 391 and 311 read with Section 482 Cr.P.C. for examination of the Head Master, Government Primary School, Jogni, Tehsil Rampur to prove date of birth of the prosecutrix.
17 The aforesaid application was allowed vide order dated 27.12.2018 and thereafter, statement of Mr. Yudhvir Singh, Head Master was recorded on 13.3.2019, who in his statement, produced on record admission and withdrawal register maintained in the school pertaining to admission of the children in 1st Standard in the school, wherein the prosecutrix was shown to have been admitted in the school on 27.5.2004. The entries qua her admission was containing at Sr. No. 229 in the register, Ext. AW1/A. He had also brought date of birth certificate prepared on the basis of entries in the ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 10 admission register vide Ext. AW1/B, admission slip, Ext.AW1/C and date of birth certificate accompanying the admission slip issued on 25.6.2004, Ext. AW1/D. .
18 Now, in case these documents are perused, it would be noticed that Ext. AW1/A is admission and withdrawal register, which goes to show that the prosecutrix had left the school after completion of her 5th class, so the of document would be in a nature of transfer certificate and is thus not admissible in evidence even if it is assumed that the rt prosecutrix is a minor.
19 In coming to such conclusion, we are duly fortified and supported by the recent judgment of the Hon'ble Supreme Court in P. Yuvaprakash vs. State Rep. by Inspector of Police, JT 2023 (7) SCC 261. It shall be apt to reproduce paras 10 to 19 thereof, which read as under:-
10. Mr. V. Krishnamurthy, Learned Additional Advocate General appearing for the State, supported the concurrent conviction and sentence recorded by the Courts below; he submitted that even though the victim and the appellant knew each other, and even if it was accepted that they had feelings for each other, the fact remains that the victim was below the statutory age, and consent is irrelevant. He submitted that the findings of the courts below with respect to the age of the victim were supported or corroborated only by the testimony of DW-2, the Head Mistress of the school where M had studied. She had ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 11 deposed that according to the school records, M's date of birth is 11.07.1997.
Analysis and conclusions
11. Before discussing the merits of the contentions and .
evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:
"34. Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and of Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the rt age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
"94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 12 shall undertake the process of age determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned .
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
of Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
rt (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".::: Downloaded on - 22/08/2023 20:35:17 :::CIS 13
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which .
the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board of or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. rt C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C- 1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 14 in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person .
in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence of whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), rt
(ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 15 the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent .
certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of of documents that would be accepted in order of preference.
18. Reverting to the facts of this case, the headmaster of M's School, CW- 1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness rt produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope.
She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 16 description of "the date of birth certificate from the school"
or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these .
circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she rt admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 17 the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
.
20 In addition to above, it would be noticed that Ext.AW1/B is a self-serving document, which has not been prepared by the Head Master of the school. Likewise, Ext.AW1/C does not in any way establish date of birth of the of prosecutrix and this simply is an application for admission and the so called birth certificate, Ext.AW1/D is the same rt document, having been produced before the learned Special Judge, which was rightly rejected as is evident form para 21 of the judgment, as extracted above.
21 Even otherwise, it is more than settled that family register issued by the Panchayat cannot be accepted as equivalent to matriculation certificate to prove the age of the prosecutrix. Reference in this regard can conveniently be made to one of the recent judgments of the Hon'ble Supreme Court in Vinod Kataria vs. State of U.P. AIR 2022 SC 4771 22 Thus, what stands established on record is that the prosecutrix cannot be termed to be a child or minor and therefore, the appellants and respondent No.2 could not have been charged and thereafter convicted and sentenced under ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 18 Section 366A or Section 4 of the POCSO Act. Consequently, that part of the judgment is quashed and set aside.
23 However, moot question still remains regarding .
legality of conviction of the appellants for the offences punishable under IPC given the fact that the specific case of the appellants is that the prosecutrix had indulged in consensual sexual intercourse with each of the appellants.
of 24 In order to appreciate this controversy, it would be necessary to refer to the statement of the prosecutrix.
25rt Prosecutrix appeared as PW1 and deposed that in the year 2014, she was studying in 9th Class. On 3.7.2014, while returning home from the school at 3:00 P.M., she met respondent No.2 at Tacklech, who was running a chicken shop at Kareri. He said to her "I Love You". She further deposed that he was following her, to which she objected to and asked him to go away. On this, respondent No.2 forcibly made her to sit in Camper bearing registration No.HP-06-1289. The appellants were also sitting in the vehicle. They took her in the vehicle to a forest near Govt. Middle School Kareri. Appellant No.2 subjected her to forcible sexual intercourse twice. She shouted and raised alarm, but no one came on the spot. Thereafter, respondent No.2 subjected her to forcible sexual intercourse once. She again shouted and raised alarm. Thereafter, ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 19 appellant No.1 also subjected her to forcibly sexual intercourse once. She kept on shouting, but none heard her cries. By that time, it had gone dark. Appellant No.2 and respondent No.2 .
left from the spot, whereas appellant No.1 stayed back and during the night, he again subjected her to forcibly intercourse in the jungle. She kept pleading with appellant No.1 to let her to go to home, but he refused to accede to her request and of threatened her with dire consequences in the event she disclosed the incident to anyone. In the morning, she went to rt school and appellant No.1 also left therefrom. She further deposed that after attending the school, she went to home and at the time of washing of her uniform, her mother inquired about her absence for the previous night and it is then that she disclosed the entire incident to her mother. Thereafter, her mother disclosed the incident to her father and later on, the matter was reported to the police. The police recorded her statement, Ext. PW1/A. Thereafter, she was sent for medical examination to Rampur Hospital. On 4.7.2014, she went to the spot along with police for identification. The police recovered torn hospital slip and tablets of medicine from the spot which were taken into possession vide seizure memo, Ext.PW1/B in the presence of her father and other police officials. The police during the course of investigation, on 5.7.2014, took into ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 20 possession her school uniform i.e. shirt and salwar in the presence of her parents vide seizure memo, Ext. PW1/C. Her statement was also recorded under Section 164 Cr.P.C. at .
Rampur. She indentified the appellants, respondent No.2, her clothes and other material that had taken or recovered by the police, in the Court.
26 In the cross-examination conducted by the defence of counsel for appellant No.1, she admitted that school timing was 10:00 A.M. to 4:00 P.M.. She did not know that there were rt about 5-6 shops at Village Kareri. She denied the suggestion that the place, from where she was forcibly made to sit in the vehicle, was frequented by children and others. She named the driver of the camper to be appellant No.2. She stated that during the entire incident till morning, she did not eat and drink anything. She denied the suggestion that she used to visit the jungle earlier also along with other children for study. She deposed that hospital prescription slip got torn during the time she was being raped, however her clothes did not tear during the entire incident. She also admitted that she had not sustained any injuries on her body. She further deposed that on the next day in morning, she did not disclose the incident to anyone in the school. She feigned ignorance regarding there being any altercations with the appellants and respondent ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 21 No.2 at Taklech. She admitted that the spot at jungle was uneven surface with bushes.
27 In the cross-examination conducted by the defence .
counsel for respondent No.2, she admitted that Varsha from her village used to go to School with her together. She stated that she used to go to school from her village by bus and board the bus from Taklech to village at 4:30 P.M. The school was at a of distance of about 4 kms from her village. She admitted that she did not know appellant No.2 personally and came to know rt about his name when the appellants and respondent No.2 were talking in the vehicle. She denied the suggestion that appellant No.2 did not do any wrong act with her. She further denied the suggestion that she was deposing falsely.
28 On being cross-examined by the defence counsel for respondent No.2, she admitted that on 3.7.2014, she had examination etc, but did not remember the subject. The examination got over at 1:00 P.M. After attending the school, she had visited hospital on 3.7.2014. She denied that she returned to home by taking lift in a tipper. She further denied that on her return to Taklech, she had changed her uniform.
She deposed that after examination, she had lunch in a hotel at Taklech and thereafter went to Hospital. It took about 5-10 minutes in hospital. It is thereafter she went to Taklech Bazaar ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 22 and was returning home on foot. She admitted that while going from Taklech bazaar to her home, hospital falls in between. She stated that she was suffering from common cold .
for which she visited hospital. She stated that the vehicle camper came from Taklech side. She denied the suggestion that she stopped the vehicle and asked for lift to her village. She admitted that while going from Taklech to Kareri, her village of comes in between. She denied the suggestion that after taking lift when the vehicle reached her village, the appellants and rt respondent No.2 asked her to alight from the vehicle, but she refused to alight and told them that she was going to Kareri.
She denied the suggestion that the appellants and respondent No.2 had been falsely implicated by planting evidence against them.
29 Statement of PW2 Bhagwan Devi, mother of the prosecutrix is only corroborative as most of her statement is based on hearsay and narration of PW1.
30 Learned counsel for the appellants would vehemently argue that since it has come on record that surface where the prosecutrix alleged to have been raped was uneven surface with bushes and there was no injury on the person of the prosecutrix, therefore, it could have to be inferred that the prosecutrix was the consenting party.
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 2331 In order to buttress his submission, he would rely upon testimony of PW7 Dr. Anupam Gupta, more particularly, her cross-examination, wherein she admitted that as per .
physical examination and clinical report, there was nothing suggesting that the prosecutrix might have been subjected to forcibly sexual intercourse and that she had not given any observation regarding the duration when the last sexual of intercourse took place with the prosecutrix. She also admitted that if a girl of 14 years is subjected to forcible sexual rt intercourse on an uneven and bushy surface, in that event, the she is likely to sustain injuries.
32 However, we find no merit in such contention.
33 Section 375 of I.P.C. defines rape. It reads as follows:
"375.Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
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."
(Rest omitted as unnecessary.) ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 24 34 A reading of the above provision shows that when a woman is subjected to sexual intercourse against her will or without her consent, or in the circumstances mentioned in .
Clause Thirdly, it amounts to rape. The clause which is attracted to the facts of the case is Clause Secondly, which mentions "without her consent". The question arises what is meant by 'consent'. One has to necessarily refer to Section 90 of of I.P.C. which reads as follows:
"90. Consent known to be given under fear or misconception.- A consent is not such a consent as it rt 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."
(Rest omitted as unnecessary.) 35 It must immediately be noticed that section is worded in the negative form. Going by the provision, consent cannot be inferred if (i) is given under fear or injury, (ii) under misconception of fact. First of these two aspects have no application to the facts of the present case. It is the second limb, i.e., misconception of fact, which is taken aid by the prosecution in the case on hand to fasten liability on the accused. It is trite that the consent must be free one and must not be the result of threat, coercion, intimidation, ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 25 misrepresentation or fraud. Consent given under misconception is invalid if the person concerned is aware of its existence.
36 In Ratanlal and Dhirajlal's Law of Crimes, 23rd .
Edition, 262 at page under the caption 'Misconception of fact', it is noticed as follows:
"The prosecutrix had alleged in a complaint against the accused, a teacher of the local village school of having committed rape on her. According to the complaint, the of accused used to visit her residence and one day, during the absence of the complainant's parents from the house, told her that he was in love with her and that he wanted rt to marry her. The complainant wanted the marriage to be performed. The accused was alleged to have promised that he would do so after obtaining the consent of her parents. Acting on such assurance she started cohabiting with the accused and this continued for several months during which period the accused often used to visit her late at night and sometimes spent the night with her. Eventually she conceived and when she insisted that the marriage should be performed as early as possible the accused proposed abortion of the child and agreed to marry the complainant sometime after the forthcoming elections. The complainant not having agreed to the abortion, the accused ultimately disowned her and stopped visiting her house. On these allegations a rape was filed. It was held that if a full-grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she became pregnant, it was then an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 could not be called in aid in such a case to pardon the ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 26 act of the girl and fasten criminal liability on the other, unless the Court could be assured that from the very inception the accused never really intended to marry her."
.
37 Consent contemplated under Sections 90 and 375 of I.P.C. must be one which should be obtained before the act. To ascertain whether there is consent on the part of the prosecutrix which would exonerate the accused, the attending of circumstances will have to be considered. One must notice here at once that Section 90 of I.P.C. comes under Chapter IV dealing with 'General Exceptions'. Consent, in order to relieve rt the act of criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance between the good and the evil. It is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
38 In Halsbury's Laws of India, Vol.5(1) at page 131, it is stated as follows:
"Definition of 'consent' The Indian Penal Code 1860 defines 'consent' negatively. In other words, it defines as to what does not amount to consent. The word 'consent' is defined in the Indian Contract Act, 1872. Two or more persons are said to consent when they agree upon the same thing in the same sense. Consent is said to be free when it is not caused by :
(1) coercion;
(2) undue influence;::: Downloaded on - 22/08/2023 20:35:17 :::CIS 27
(3) fraud;
(4) misrepresentation; or (5) mistake."
.
39 Corpus Juris Secundum, Vol.15A deals with the question of consent and it is observed as follows:
"The word "consent" is also defined to mean intelligent concurrence in a contract or an agreement of such a nature as to bind the party consenting, the mind of weighing, as in a balance, the good and evil on both sides; a voluntary yielding of the will, judgment, or inclination to what is proposed or desired by another; the rt voluntary allowance or acceptance of what is done or proposed to be done by another; voluntary accordance with, or concurrence in, what is done or proposed by another; voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. The word "consent" may be used with a significance no broader than acquiescence, that is knowledge without objection. "consent" implies knowledge, a knowledge of the facts, and is evidence of willingness. The term implies assent to some proposition submitted; an assent to some proposition submitted by another. In some connections the consent that is required is something more than a mere general consent. The term may signify actual consent, and not a mere fiction of consent, and may imply something more than mere acquiescence with knowledge, or a mere acquiescence in a state of things already in existence, or a mere formal act of the mind"
40 In Words and Phrases, permanent Edition, Vol.8A at page 197 it is observed as follows:
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 28"Consent" in law means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice proposed by another. "Consent" differs from "assent", and implies some .
positive action and involves submission; while "assent"
means mere passivity, or submission which does not include consent." .
41 At page 205 it is observed as follows:
"Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a rt mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed "consent" and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes "consent" as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and "consent"
one of the evidences of that condition. Likewise resistance is not a synonym of unwillingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of "consent" and resistance as being ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 29 proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting .
witness."
42 In Black's Law Dictionary, 9th Edition at page 346 'consent' is noticed as follows:
"Consent. Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent of person; legally effective assent.
Consent is an affirmative defense to assault, battery, and related torts, as well as such torts as as defamation, rt invasion of privacy, conversion, and trespass. Consent may be a defense to a crime if the victim has the capacity to consent and if the consent negates an element of the crime or thwarts the harm that the law seeks to prevent. See Model Penal Code.
"The consent to a contract is none the less 'genuine' and 'real', even though it be induced by fraud, mistake, or duress. Consent may be induced by a mistaken hope of gain or a mistaken estimate of value or by the lie of a third person and yet there is a contract and we do not doubt the 'reality of the consent'. Fraud, mistake and duress are merely collateral operative facts that co-exist with the expressions of consent and have a very important effect upon the resulting legal relations."
43 In Text Book of Criminal Law by Glanville Williams, Second Edition, the author, after referring to the negative and positive sides of the notion of consent, at page 560 observed as follows:
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 30"Consider the case where a man makes a false statement to a woman in order to obtain her consent to sexual intercourse. If he represents himself as being rich when in fact he is poor, few would argue that her consent is .
"vitiated", so that the man is guilty of rape or assault. The traditional rule for both these offences is that they are acts done without consent. When, if ever, is fraud so serious that it can be done to destroy any "real" consent? The answer is given by the previous observation that consent always means consent to something. If you of consent to A, you do not for that reason consent to B. It may be said that in rape, the issue is the woman's consent to sexual intercourse with this man. If she does rt not know that the act is one of sexual intercourse, or if she is mistaken as to the identity of the man, then she does not consent, but otherwise she does. One must have regard to the decencies of language, and it cannot properly be asserted that the woman does not consent where she merely mistakes some attribute of the man (that he has career prospects, that he has been vasectomised, that he intends to marry her, that he is free from venereal disease). If the man is guilty of fraud in these matters he can be punished for the statutory offence of obtaining sexual intercourse by fraud. There is, therefore, no need to inflate the grave offence of rape to make it cover sexual deceits in general. The law was settled in this sense in Clarence, which has already been discussed in connection with OAPA Section
20. It will be remembered that the facts were that Clarence, knowing that he was suffering from venereal disease, had intercourse with his wife, and thus communicated the disease to her. In holding that Clarence was not guilty ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 31 under Section 20, because there was no assault, the Court for Crown Cases Reserved took the view that the wife's consent to the contact was not vitiated by Clarence's nondisclosure of his condition; and Stephen J .
expressly held that the rules for both rape and assault were the same. He stated the law thus:
"The only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act.
of I should myself prefer to say that consent in such cases does not exist at all, because the act consented to is not the act done."44
rt In Halsbury's Laws of England, Vol.25 at page 191 it is observed as follows:
"For the purposes of the statutory sexual offences involving the absence of consent, a person 'consents' if he agrees by choice and has the freedom and capacity to make that choice.
Further, if in such proceedings, it is proved that the defendant did the relevant act and that he intentionally deceived the complainant as to the nature or purpose of the act or intentionally induced the complainant to consent to the act by impersonating a person known personally to the complainant, it is to be conclusively presumed that the complainant did not consent to the act and that the defendant did not believe that the complainant consent to it."
45 In Criminal Law, 9th Edition by P.S.A. Pillai, at page 127 it is stated as follows:
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 32"The word 'consent' has not been defined in the IPC. Section 13 of the Indian Contract Act, has defined consent as follows:
"Two or more persons are said to consent when they .
agree upon the same thing in the same sense'. Section 90, IPC, describes consent in a negative manner. In other words, it describes as to what does not amount to consent as intended by any section in the court. Consent under this section is the act of a man in his character of a rational and intelligent being, not in that of of an animal. It must proceed from the will, not when such will is acting without the control of reason as in idiocy or drunkenness but the will sufficiently enlightened by the rt intellect to make such consent the act of a rational being."
Generally speaking, consent means something which is done deliberately and by free will. It is a concurrence of wills. While concurrence of wills is an essential element of consent, it is also equally important that the consent is given consciously and with full knowledge of the act consented to."
46 In American Jurisprudence 2nd at page 766, it is mentioned as follows:
"The authorities agree that the sexual act must be committed against the will of the woman, and without her consent, not technically, but actually and in fact, or it will not be rape. Consent given at any time prior to penetration deprives the subsequent intercourse of its criminal character, regardless of how reluctantly it may have been given, or how much force had theretofore been employed. However, the yielding to overpowering force, or yielding as a result of being put in fear, is submission, and not consent, and it is therefore often a vital question whether ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 33 the woman ceased resistance because it was useless or dangerous, or because she ultimately consented. After the offense has been completed by penetration, no submission or consent of the woman will avail the defendant.
.
The ultimate consent of the woman does not have a retroactive effect by relation, and operate as a condonation of a crime which has become complete, and the doctrine of relation, however useful it may be as a rule defining or regulating private rights in a civil suit, has no application in criminal proceedings."
of At page 767, it is mentioned as follows:
"A man will be justified in assuming the existence of consent if the conduct of the prosecutrix toward him at the rt time of the occurrence is of such a nature as to create in his mind an honest and reasonable belief that she has consented by yielding her will freely to the commission of the act. In the ordinary case, when the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose a carnal act is consent. And the rule of law is well settled that although a woman objects verbally to the act of intercourse, yet if she by her conduct consents to it, the act is not rape. Thus, it has been held that voluntary submission by the woman, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape."
At page 817 it was held as follows:
"It has been generally held that the alleged victim's testimony in prosecutions for forcible rape should be carefully considered, together with the circumstances, in determining whether she consented to the act, or whether, as she testifies, it was without her consent. Failure to make outcry where others are in the vicinity and outcry ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 34 would be available should be considered in determining the question, for evidence of failure of the female to make any outcry tends to show that she consented to the intercourse. However, if the offence occurs at a place so .
remote from all human help that all outcry must be unavailing, it has been held that outcry need not be made, for the law does not require the doing of impossible or useless acts.
Although the mere failure to make an outcry does not raise a presumption as a matter of law that no outrage of was committed, if no complaint is found to have been made by a prosecutrix in a given case, the want of it weights heavily against the prosecution, and in favour of the rt accused, unless satisfactorily explained. considerable delay on the part of a prosecutrix to make Any complaint is a circumstance of more or less weight tending to show consent, depending upon the other surrounding circumstances."
47 In Stroud's Judicial Dictionary of Words and Phrases, 6th Edition, Volume 1 at page 490, it is observed as follows:
"Consent. "'Consent' is an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side."
"Every 'consent' to an act, involves a submission; but it by no means follows that a mere submission involves consent", e.g. The mere submission of a girl to a carnal assault, she being in the power of a strong man, is not consent. But there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 35 grudging, but if she consciously permits it there is "consent"."
48 In Criminal Law Cases and Materials by .
K.D.Gaur, the learned author referring to the decision reported in Rao Harnarain Singh, Sheoji Singh v. State (AIR 1958 Punjab
123) observed as follows:
"A mere act of helpless resignation in the face of inevitable of compulsion, quiescence non-resistance passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as rt understood in law. 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 after having freely exercised a choice between resistance and assent."
49 In Corpus Juris Secundum, Volume 75, at page 475 it is observed as follows:
"To constitute carnal knowledge of a female rape, the law requires something more than mere absence of consent;
there must be actual resistance, or excuse, incompatible with consent, for its absence. Thus, generally resistance by the female is a necessary element of the crime. In fact, the essential element of nonconsent, or that the act be against the woman's will, signifies, an is indicated by, resistance by the female. Further, the resistance must be in good faith and not a mere pretense, or, as stated otherwise, it must be real or genuine and active, and not feigned, or passive or perfunctory.::: Downloaded on - 22/08/2023 20:35:17 :::CIS 36
The female need not resist as long as either strength endures or consciousness continues, but rather the resistance must be proportioned to the outrage, and the amount of resistance required, sometimes by virtue of .
express statutory provisions, necessarily depends on the circumstances, such as the relative strength of the parties, the age and condition of the female, the uselessness of resistance, and the degree of force manifested. The female need resist only until physical penetration occurs, and the crime is complete, and her failure to resist after that is of immaterial; she need resist only until resistance becomes so useless as to warrant its cessation. Stated in another way, the resistance of the female to support a charge of rt rape need only be such as to make non-consent and actual resistance reasonably manifest."
50 A reading of the above literature would show that consent means an act of reasoning accompanied by deliberation, the mind weighing, as in a balance, good and evil on either sides. Consent supposes three things;
(i) a physical power,
(ii) a mental power, and
(iii) free and serious use of them.
51 Consent given under a misconception is invalid if the person to whom consent is given is aware of its existence.
An honest misconception by both the parties however does not invalidate the consent. Consent obtained by false representation which leads to misconception of facts will not be ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 37 valid consent. If the consent is obtained by (i) intimidation, (ii) force, threat, coercion or undue influence, it is to be treated as a delusion and not as a free and deliberate act of mind (See Cr.
.
A. No. 614/2006 (F), titled Sunil Kumar vs. State of Kerala, decided on 22.5.2013).
52 The Court cannot be oblivious to the fact that there were as many as three persons, i.e. appellants and respondent of No.2, who have now been charged with the offence of gang-rape.
53 A mere act of helpless resignation in the face of rt inevitable compulsion, quiescence non-resistance passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. This was so held by Punjab and Haryana High Court in Rao Harnarain Singh, Sheoji Singh v. State (AIR 1958 Punjab 123), wherein even though the court was considering an application for bail, it was contended on behalf of the accused that even assuming that there is sexual intercourse, the victim had consented to the same. The victim was no more.
One of the main contentions was that there was no signs of the victim having offered resistance. Considering the question of consent in that context, it was held as follows:
"7. 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 ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 38 by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law. 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 after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but of the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be rt an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. A woman is 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 wanted. Consent implies the exercise of a free and untrammelled 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."
54 When there is a plea of consent, in our considered view, act of enticing away and rape is admitted unequivocally.
One cannot blow hot and cold at the same time. In a plea of consent, the admission of incident is there and the accused has to prove the consent to secure his/there acquittal.
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 3955 In order to establish 'consent' on the part of the prosecutrix, it has to be established by the convict that she freely submitted herself while in free and unconstrained .
position of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non resistance and passing giving in of cannot be deemed to be consent. Consent means active will in the mind of a person to permit the doing of the act and rt knowledge of what is to be done or of the nature of the act that is being done is essential to a consent to an act.
56 The court cannot be oblivious to the fact that even though the prosecution has not been able to prove that the prosecutrix was minor, yet it has been established on record that at the time of incident, she was student of 9th standard and her evidence is required to be proved in this background.
This Court has no hesitation to hold that the prosecutrix has established beyond any reasonable doubt that she had been gang-raped by the appellants and respondent No.2.
57 As regards medical evidence, it, in no manner, supports the case of the appellants. Even if it is assumed that there is conflict between oral as well as medical evidence, the ocular evidence would get credence and prevail over the medical ::: Downloaded on - 22/08/2023 20:35:17 :::CIS 40 evidence if the same is reliable and trustworthy as is the fact obtaining situation in the instant case. Therefore, the mere fact that there were no injury on the person of the prosecutrix .
cannot be a ground to exonerate the appellants, more especially when the Court has come to the conclusion that the prosecutrix had not submitted herself in a free and unconstrained position of her physical and mental power but acted on account of of inevitable compulsion given the fact that there were three persons as against one lone and hapless victim.
58 Rape
rt is the most morally and physically
reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.
59 Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
Gang rape is all the more a serious and heinous offence.
::: Downloaded on - 22/08/2023 20:35:17 :::CIS 4160 The committal of gang rape is a beastly act and rape itself rather takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot .
overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scar, though less visible are more difficult to treat.
61 In view of aforesaid discussions and for the reasons of stated hereinabove, while setting aside the judgment passed by the learned Special Judge with regard to the minority of the rt prosecutrix, we find that such findings do not have any bearing on the sentence as imposed by the Special Judge under the provisions of Indian Penal Code. Net result is that, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 22.8.2023 Judge (pankaj) ::: Downloaded on - 22/08/2023 20:35:17 :::CIS