Madhya Pradesh High Court
Darbari Singh vs State Of M.P. on 27 September, 2003
Equivalent citations: 2004(2)MPHT373
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT Arun Mishra, J.
1. Appellant is aggrieved by his conviction and sentence imposed for commission of the offence under Section 376(1), IPC he has been sentenced to undergo seven years RI by Addl. Sessions Judge, Dindori in S.T. No. 58/97.
2. The allegation against the accused/appellant is of commission of rape over a dumb girl aged 18 years namely Parwatibai on 26-2-97. Parwatibai and accused Darbari Singh are neighbours. Prosecutrix was not married still gave birth to one daughter. According to the prosecution case Parwatibai is dumb and her marriage has not been performed. Accused Darbari Singh was having no issue though he was married. At the time of incident Parwatibai's parents had gone to their field for harvesting. Accused taking advantage, wanted to perform sexual intercourse and assured Parwatibai of performance of marriage and forcibly committed sexual intercourse and thereafter continued to perform sexual intercourse. Parwatibai got pregnant after 3 months. Parents of the prosecutrix came to know that she was carrying the pregnancy. Information of the same was given to the villagers. Panchayat was convened. Parwatibai disclosed that in the month of "Chaitra" accused had performed sexual intercourse and was treating her as his wife. The pregnancy was caused by accused Darbarisingh. Darbarisingh admitted in the Panchayat that he has committed sexual intercourse and he was responsible for the pregnancy. When Parwatibai gave birth to a daughter, accused refused to own child. Thereafter FIR was lodged at P.S., Shahpur for commission of the offence under Section 376, IPC. Accused was arrested and found capable of performing sexual intercourse.
3. Accused Darbarisingh abjured his guilt and contended that he was falsely implicated. The Trial Court has found that the age of the prosecutrix was about 18 years. Findings has been recorded that she is dumb, illiterate and a tribal girl. She was unable to understand the questions which were put to her. She had carried the six months child to the Court. She has clearly stated that child was begotten from the accused Darbarisingh. When it was put to her that she was speaking a lie, she fell in state of sorrow as she is dumb girl, conduct has been considered by the Trial Court in extensive detail.
4. Shri Amit Dubey, learned Counsel appearing for the appellant as Amicus Curiae, submits that it was a case of consent and the commission of the offence under Section 376, IPC has not been established. He has further submitted that the Trial Court has simply proceeded on the basis, that Parwatibai is dumb girl. As such conviction has been recorded. In the facts and circumstances of the case conviction is bad in law.
5. Shri Sanjay Seth, learned Counsel appearing for the respondent-State, has supported the conviction and submitted that in view of the dumbness of the prosecutrix and also the fact that she is illiterate tribal girl and sexual intercourse was committed upon her taking advantage of dumbness and the promise was offered to her that accused will perform the marriage and on this assurance the sexual intercourse was committed several times and thereafter accused has resiled from his assurance, thus, it is a case where offence under Section 376, IPC is attracted.
6. In the instant case, the prosecution has examined 12 witnesses. Prosecutrix Parwatibai is P.W. 1. A perusal of deposition of Parwatibai, (P.W. 1) indicates that she was unable to understand even the questions which are put to her. Being a tribal girl, she was not able to follow Hindi language. The Court has recorded that it would be proper to record the statement of the parents first and thereafter to record the statement of Parwatibai and her statement was deferred. When it was again recorded the deposition indicates that she has clearly stated that child was begotten from the accused Darbarisingh. When question was put whether forcible sexual intercourse was committed or it was a case of consent, she answered both the questions in positive. She was unable to state of how many months the child was. The child was of 6 months at the relevant time. When question was put that accused taking advantage when she was alone in the house, and felled her down, she answered in positive. When accused Darbarisingh caught hold of her whether she cried, she had answered the question in positive. When question was put whether at the time of committing wrong, accused assured that he will perform the marriage, she was unable to answer anything. When the question was put whether Darbarisingh committed sexual intercourse, she had answered in 'yes'. When it was put that several time sexual intercourse was done, she answered the question in positive but was unable to state how many times the sexual intercourse was performed. She has answered in positive the suggestion that she was taken to the Doctor. When in the cross-examination it was put that she was living as the wife of the Darbarisingh, she has answered in positive. When suggestion was put in cross-examination whether she had disclosed the fact of commission of sexual intercourse to the parents, she had answered in negative and she expressed her willingness to live with Darbarisingh. When suggestion was put that she was speaking lie, it is mentioned that she fell in state of sorrow and was unable to answer the question. When suggestion was put that Darbarisingh had committed sexual intercourse with the consent, she had answered in 'yes'. The entire deposition of Parwatibai shows that she has clearly stated that Darbarisingh has committed sexual intercourse and was treating her as his wife and has performed sexual intercourse number of times. Thus, it is clear that accused has taken the advantage of dumbness of young girl, illiteracy and also the fact that she is a poor tribal girl.
7. Lalman (P. W. 2), the father of the prosecutrix, has deposed that Parwatibai has the weak mind. When she fell ill, she was taken to the Doctor and was asked how she has got pregnant. The accused has not done the act forcibly but established the physical relationship with Parwatibai. Parwatibai was not married and has given birth of child. Panchayat was convened. Parwatibai went to the Panchayat. In Panchayat accused admitted that daughter was begotten from him and accused also admitted in Panchayat that he has treated Parwatibai as his wife. No regular marriage was performed with Parwatibai. Parwatibai was not married with the accused. Accused was responsible for the birth of the child. He has further stated that he is ready to send Parwatibai to the accused.
8. Shyamabai (P.W. 3), mother of the prosecutrix, has deposed that in Panchayat Darbarisingh had stated that he will keep the child but has not kept the child or Parwatibai so far. She has further stated that she will perform the. marriage of Parwatibai with Darbarisingh as parties have compromised.
9. Kannulal (P.W. 4) has also deposed as to the factum of Panchayat and has stated that Parwatibai has stated in Panchayat that child was begotten from accused. Witness was declared hostile and cross-examined and has stated that compromise has taken place between the parties. Gyanidas (P.W. 6) Kotwari of the village, has also been examined. He has stated that Parwatibai had disclosed to him that child was begotten from accused. At that time accused was also present in the Panchayat. Darbari Singh did not admit that child was begotten from him. Factum of giving birth to child is established by Dr. Kirti Singh (P.W. 7), Asstt. Surgeon. Accused was found capable of performing sexual intercourse by Dr. Ashok Gaud (P.W. 9). Shivlal (P.W. 10) and Jethu (P.W. 11) did not support the prosecution case. In defence two of the witnesses have been examined namely Sarju Prasad (D.W. 1) and Indersingh Sarote (D.W. 2).
10. Sarju Prasad (D.W. 1) has stated about the factum of calling the Panchayat and has further stated that Parwatibai is having weak mind and Parwatibai made the allegation against Kotwar. However, in the cross-examination witness has admitted that Parwatibai has pointed out towards the accused Darbarisingh that he was responsible for the birth of the child and child was put in lap of accused Darbarisingh. Witness has expressed his ignorance whether accused had kept Parwatibai as his wife. Indersingh Sarote (D.W. 2) has also supported the factum of Panchayat. He has stated that Parwatibai did not answer who was responsible for the child.
11. From the evidence on record, it is clear that sexual intercourse was performed by the accused Darbarisingh with the prosecutrix. Child was begotten from the accused Darbarisingh and Panchayat was convened, in the Panchayat factum of which has been admitted even by the defence witnesses. It is clear that prosecutrix has pointed out that accused Darbarisingh was responsible. When her deposition was recorded in the Court, demeanour of the witnesses has been noted by the Court. There is nothing to disbelieve that accused Darbarisingh has performed sexual intercourse with the prosecutrix and was responsible for her pregnancy and birth of child.
12. Next question for consideration is whether the act of the accused tantamounts the commission of the offence of rape within the purview of Section 376, IPC. Prosecutrix is of weak mind. She is illiterate and a tribal girl. Her I.Q. is extremely poor and she was unable to understand even the questions which were put by the Court. Thus, it is clear that prosecutrix was mentally deficient and in this context whether she gave her consent to the accused or was capable of giving consent to the accused and understood the consequence of the same; simply failure to resist sexual intercourse would not amount to free consent. Submission of her body under the influence of fear or terror is no consent. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to. Consent after the first act of rape does not absolve the accused, as it might purely be the result of sexual urge and would not affect the first act of coitus which has already taken place against her will, as held the reference in In Re Anthony alias Bakthavatsalu v. State of Madras, AIR 1960 Madras 308. It is clear that accused has taken the advantage of situation in the instant case and continued to perform the sexual intercourse with dumb girl who is illiterate and of weak mind. The consent even if any given by the prosecutrix considering the total body and mind can not be said to be a free consent. In Addepalli Settibabu v. State of A.P., 1994 Cr.LJ 1420 (AP), it was held that where consent is obtained by giving false promise of marriage, it is no consent under law. In Fletcher, 8 Cox CC 131, it was held that sexual intercourse with a woman of weak intellect and incapable of forming any judgment on the matter, would be against her will and the mere fact that she offered no resistance would be of no consequence. In the instant case, factum of Panchayat also supports the fact of commission of sexual intercourse and considering the state of affairs of prosecutrix, it can not be said that she was capable of giving free consent and understood the consequence of the act. Even if the submission of learned Counsel for the appellant is accepted that appellant had given the false assurance of marriage and treating the prosecutrix as wife; accused was having no child, after child was begotten and born, accused resiled. It is a case where young girl was subjected to commit sexual intercourse who was dumb and of weak I.Q. and was unable to understand even the questions put to her in the Court. Accused preferred an appeal before this Court aggrieved by the judgment dated 15-5-1998 and his bail application was dismissed on 4-6-98. Accused has remained in custody. I find from above discussion that no interference is called for in the judgment of the Trial Court. His conviction is proper, however, with respect to sentence, the accused must have served out the sentence. In case he is in jail for any small period, he is sentenced to the period already undergone by him.
13. Resultantly, the conviction is maintained. With respect to the sentence, appeal is disposed of with the above directions.