Delhi High Court

Shankar S/O Shri Vasudev vs The State (Nct Of Delhi) on 9 July, 2010

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Crl. Appeal No. 999/2008

 %                                                      Reserved on: June 02, 2010
                                                        Decided on: July 09, 2010

Anil Kumar S/o Shivan Shah
R/o Jhuggi No. 5, Block - I,
Shakur Pur, Near Jeevan Jyoti Apptts.
Delhi.
(Presently confined in District Jail Rohini, Delhi-89.)  .... ..... Appellant
                          Through:      Mr. S.M. Chopra, Advocate

                        versus

State                                                        ........... Respondent
                                 Through:    Mr. Naveen Sharma, APP

                                            A N D


+               Crl. Appeal No. 13/2009

Shankar S/o Shri Vasudev
R/o Jhuggi No. 5, L-Block,
Near Jeevan Jyoti Apartments,
Delhi.
(Central Jail No. 3, Tihar, New Delhi.)                  .... ..... Appellant
                           Through:     Mr. S.M. Chopra, Advocate

                        versus


The State (NCT of Delhi)                                     ........... Respondent
                                 Through:    Mr. Naveen Sharma, APP

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Yes


Crl. Appeal Nos. 999/2008 and 13/2009                                        Page 1 of 7
 2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported
   in the Digest?                                           Yes

MUKTA GUPTA, J.

1. These appeals arise from a common judgment and order whereby the

appellant in Crl. Appeal No. 999/2008 has been convicted for offences

punishable under Sec. 363/366/376/504 IPC and the Appellant in Crl. Appeal

No. 13/2009 has been convicted for offences punishable under Sections 376/506

IPC.

2. Both the Appellants have been awarded sentence of RI for 7 years and

fine of Rs. 2,000/- each, in default, RI for one month under Section 376 IPC and

RI for one year under Section 506 IPC. The Appellant Anil Kumar has also

been awarded sentence of RI for 7 years for offence punishable under Section

366 IPC and fine of Rs.2,000/-, in default RI for one month, and RI for a period

of 2 years and fine of Rs.1,000/-, in default RI for 15 days for offence

punishable under Sec.363 IPC.

3. The allegations in brief against the Appellants are that on 1st April, 2005,

the Appellant Anil Kumar took the Prosecutrix from her house to jhuggi No.5,

L-Block, Jivan Jyoti Apartment, Sakur Pur on the pretext that he would marry

her and there committed rape with her without her consent twice, after

threatening her. Appellant Anil threatened her that if she disclosed he would

kill her by knife, so she did not cry there. After six days her parents traced her

and took her away. The allegations against the Appellant Shankar are that at the

said jhuggi he also committed rape with the Prosecutrix after threatening her,

when Anil went away somewhere.

4. Learned counsel for the Appellants contends that the finding of the

learned trial court that the Prosecutrix was a non-consenting party, is not based

on correct appreciation of evidence. According to him, the Prosecutrix was

aged 20 years and she willingly went with the Appellant Anil Kumar and stayed

with him for 6 days in a thickly populated area. Though it is alleged, that both

the Appellants raped her in the six days, the Prosecutrix did not raise any alarm

nor informed anybody about the misdeeds of the Appellants. It is further

contended on behalf of Appellant Shankar that if Anil had promised to marry

her he would not have permitted Shankar to indulge in the said offence against

his prospective wife. It is stated that though allegedly the girl was recovered on

6th April, 2005, however, the statement of the Prosecutrix under Section 164

Cr.P.C. was recorded after two months and thus the same was a tutored one.

5. Per contra, learned APP for the State contends that the present is a case

where the girl was taken away on false assurance of marrying her and there she

was threatened to be killed by knife and thereafter the Appellants committed

rape on her forcibly without her consent. As per the MLC, the doctor found that

the hymen of the Prosecutrix was ruptured, which fact duly corroborates her

version. It is contended that there is no infirmity in the impugned judgment and

the appeals are liable to be dismissed.

6. I have heard learned counsel for both the parties. As per PW8 Dr. Shipra

Rampal who examined the X-ray plates of the Prosecutrix on 19.5.2005, the

estimated bone age of the Prosecutrix was more than 20 years. Thus, even by

giving the benefit of +2 years, the Prosecutrix, on the date of offence was more

than 18 years of age. The issue that arises in the present appeals is whether the

Prosecutrix was a consenting party and in case it was not so, whether the

Prosecution has been able to prove its case against the Appellants beyond

reasonable doubt.

7. The Prosecutrix has been examined as PW5. She has categorically stated

that she was taken away from her house by Appellant Anil Kumar and kept in a

jhuggi on the pretext of marrying her. There he committed rape on her twice.

He also extended threats to her that if she disclosed to anyone about the same,

he would kill her and thus, she did not cry. This witness has been cross

examined at length and it has been put to her that because of the love affair

between her and Anil Kumar, she had accompanied him with her own consent

and will, which fact has been denied by her. As per her statement before the

Court, she states that she was taken away and was kept in a jhuggi on the

pretext of marrying her. Thus, the actus reus and mens rea of taking away on a

false pretext as the Appellant Anil did not marry her rather forcibly committed

sexual intercourse with her without her consent after threatening her by knife is

clearly established. The fact that the Appellant Shankar also committed rape on

the Prosecutrix also shows that the Appellant Anil had no intention to marry her

and had enticed her to the jhuggi on the false pretext of marrying her. The

Appellants have not been able to elucidate anything in cross examination from

the Prosecutrix to show that she was a consenting party and had intercourse

with her own consent.

8. As per Black‟s Law Dictionary „consent‟ as used in the law of rape

means: -

"Consent" means consent of the will, and submission under the influence of fear or terror cannot amount to real consent. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. And if woman resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not "consent".

9. It would be appropriate to reproduce the observations in Rao Harnarain

Singh Sheoji Singh and others vs. The State, AIR 1958 P&H 123: -

"A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" 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 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 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."

10. Thus, the ingredients of commission of the offence of rape as defined in

Section 375 IPC are established beyond reasonable doubt in the present case.

From the evidence led during the trial the taking away of the Prosecutrix for the

purpose of committing illegal sexual intercourse falling within the ambit of

kidnapping as punishable under Section 366 IPC has also been established

beyond reasonable doubt. In the present case the Appellant Anil Kumar took

the Prosecutrix on a false pretext and instead of marrying committed illegal

sexual intercourse with her and thus has been rightly convicted for offences

under Sections 366 and 363 IPC. Both the Appellants threatened the

Prosecutrix with knife and thus have been rightly convicted of offence

punishable under Section 506 IPC.

11. I find no infirmity in the impugned judgment of conviction and order of