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2003(7) Supreme 516
SUPREME COURT OF INDIA
(From Bombay High Court at Goa)
Doraiswamy Raju and Arijit Pasayat, JJ.
Tulshidas Kanolkar -Appellant
versus
The State of Goa -Respondent
Criminal Appeal No. 298 of 2003
Decided on 27.10.2003
Counsel for the Parties :
For the Appellant : Surya Kant, Advocate (A.C.).
For the Respondent : Ms. A. Subhashini, Advocate.
Held : The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. (Para 5)
(ii) Indian Penal Code, 1860-Section 376-Rape-Victim was mentally challenged person-Offence detected when she became pregnant and then delivered a stillborn child-Defence plea of consent-Mentally challenged girl could not legally give a consent-Difference between consent and submission-No infirmity in conclusion arrived by trial Court and High Court in conviction of appellant. (Para 6)
(iii) Indian Penal Code, 1860-Section 376-Rape-Sentence-Victim was a mentally challenged girl-Gravity of offence in such case was more serious-Sentence of 7 years imprisonment awarded by High Court could not be interfered. (Para 8)
Certainly. Based on the provided legal document, here are the key points:
Delay in lodging FIR in a rape case cannot be automatically used to dismiss the prosecution’s case. It only requires the court to consider whether an explanation for the delay was offered and if it was satisfactory. If the delay is satisfactorily explained, it does not undermine the prosecution's case (!) .
The court emphasized that delay per se is not a mitigating factor in cases of rape. An explanation for the delay is relevant; if unsatisfactory, it could raise doubts or suggest embellishment. However, a satisfactory explanation supports the credibility of the prosecution (!) .
When the victim is mentally challenged, her inability to legally give consent is a crucial consideration. Consent requires conscious understanding and voluntary agreement, which a person with mental deficiencies cannot provide. Therefore, acts of submission due to helplessness do not constitute valid consent (!) (!) .
The gravity of the offence is considered more serious when the victim is mentally challenged, and the sentence imposed reflects this seriousness. The court upheld a substantial sentence for such cases (!) .
The court highlighted that non-examination of certain witnesses does not necessarily weaken the prosecution’s case, especially when the victim's testimony withstands cross-examination and the victim’s mental condition is taken into account (!) .
The distinction between consent and submission is important. Consent involves an exercise of intelligence and understanding of the act's significance, which cannot be presumed in mentally challenged individuals. Passive resignation or helplessness does not equate to consent under law (!) .
The court noted that in cases involving victims with significant mental deficiencies, the legislature might consider prescribing higher minimum sentences due to the increased vulnerability and exploitation risks. This indicates a need for stricter punishment in such cases (!) .
Overall, the appeal was dismissed, affirming the conviction and sentence, emphasizing that the factual and legal considerations support the prosecution’s case despite the delay in reporting (!) .
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JUDGMENT
Arijit Pasayat, J.-While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female. When the victim is a mentally challenged person, there is not only physically violence and degradation and defilement of the soul, but also exploitation of her helplessness. The case in hand is a classic example when the baser instincts of the appellant overtook his moral values and human sensitivity and he ravished the unsuspecting victim incapable of comprehending the vicissitudes of the dastardly act, not once but several times. So innocence was the victim that she was even not aware of the dreadful consequences. The mental faculties of the victim were undeveloped and her Intelligence Quotient (in short I.Q. ) was not even 1/3rd of what a normal person has. Tragedy struck on the victim sometimes in 1999, when parents of the victim noticed that her legs were swollen and there were signs of advanced stage of pregnancy. They were shocked beyond limits. They asked the victim as to who was responsible for her pregnancy. She in her own way pointed out accusing fingers at the appellant and said that on some pretext or the other, ravished her. When this shattering news was conveyed to the parents of the victims, they questioned the appellant. It is on record that some money was offered to them by mother of the appellant to have termination of pregnancy. When asked about the possibility of termination of pregnancy, the doctor indicated a sum of Rs. 6,000/- as the amount required. Since the appellant s family were willing to part with only Rs. 2,000/-, there was no termination of pregnancy and evidence shows that a stillborn child was delivered by the victim. Information was lodged with the police on 10th August, 1999 by PW 1 (father of the victim). Investigation was undertaken for the commission of the offence of rape and threat given to the victim by the appellant. The accused was charge sheeted for offences punishable under Section 376 and 506(2) of the Indian Penal Code, 1860 (for short the IPC ). During trial, accused pleaded false implication. From the tenure of cross-examination and statement made under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C. ), it appears that indirectly a case of consent was pleaded. It was highlighted that there was delay in lodging of first information report which rendered the prosecution version unacceptable. Many persons who could have thrown light as allegedly victim made disclosure about the involvement of appellant before them were not examined. As there was alleged intercourse on several occasions, it is otherwise clearly a case of consent.
2. Learned Additional Sessions Judge, Panaji, considered all these pleas and held the accused guilty, imposed sentences of 10 years and one year respectively for the two charged offences along with a fine of Rs. 10,000/- and Rs. 2,000/- respectively with default stipulation.
3. In appeal, the stand taken before the Trial Court was reiterated before the High Court of Bombay at Goa, which upheld the conviction, but reduced the sentence to 7 years in relation to the offence punishable under Section 376 IPC. The stands taken before the trial Court and the High Court were pressed into service by learned counsel appearing for the accused appellant.
4. Learned counsel for the State on the other hand submitted that considering the nature of evidence and the gravity of offence, the High Court has rather acted liberally in reducing the sentence while upholding the conviction.
5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only
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