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Rajasthan High Court
Chhangani, J.
Gopi Shanker - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Appeals 2 of 1966
Decided On : July 21, 1566
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 ones will or pleasure. Non-resistance, if not otherwise accounted for, should be real and not unreal, for there is such a thing as maiden modesty, and some resistance is simulated even by women who are most anxious for the connection. (Paras 33 & 34)
Punishment is an art which involves the balancing of retribution, deterrence, prevention and reformation in terms not only of the courts but also of the prevailing values and inbalancing the purposes of punishment first one and then another receives emphasis as accompanying conditions change. An excessive punishment, instead of being a deterrent, often results in the generation of an angry public contempt of justice because of its severity, and does not reform the criminal who perceives injustice towards himself. Severity of sentence is far less effective as a deterrent to crime than certainty of detection and sentence. Severity of punishment alone will never permanently solve the crime problem, but imposition of a series of severe sentences frequently temporarily at least, tends to suppress a local crime wave. (Para 44)
The present case can be conceived as the case where the girl having visited Agra Hotel under some kind of pre-arrange ment the accused exploited the situation, over stepped and committed excesses with the girl and thus made them selves liable for the offence.The injuries suffered by the girl on the genitals have also not been shown to be very severe These circumstances may be rightly conceived as mitigating circumstances. On the other hand the owner of the hotel and the employees have special responsibility to behave properly and if the proprietor and the employees behave in the manner in which they are proved to have done in the present case a serious view of their conduct deserves to be taken. On balancing all considerations, a sentence of two years for an offence under sec. 376 and 18 months and a fine of Rs. 500/- for an offence under sec. 376 read with sec. 109 IPC, will meet the ends of justice. (Para 44)
Gopi Shanker u/s 376 IPC 5 years R.I. & fine of Rs. 500/-; in default, one years R.I.
u/s 342323r/w 34 6 months R I & fine of Rs. 50/-; in default, two months R.I. on each count.
Mahesh ChandShiv KumarDhan SinghSher Singh u/s 376 5 years R.I. & fine of Rs. 100/-; in default, six months R.I.
Tulsi Ramu,Ramchander u/s 342323r/w 34 6 months R.I. & fine of Rs. 50/-; in default, two months R.I. on each count.
All the sentences to run concurrently.
2. Each of the seven convicts has filed a separate appeal challenging his convictions and sentences and these appeals are being disposed of together.
3. The facts on which the prosectuion is founded may be briefly stated as follows: —
Mst. Draupdi, the prosecutrix, PW/1, was married with Arjun PW/2 in or about the year 1962 in Jodhpur. Mst. Draupdis parents resided during the relevant period in a house in Mohalla Navchowki, Jodhpur, whereas, her husband resided at Mahamandir. Two months before the incident which occurred in the night between 3rd and 4th of June, 1965, and which has led to the present prosecution of the appellants, Mst. Draupdi gave birth to a child at her fathers house and was residing with her parents upto the date of the occurrence. The presecu-tion case further is that on 3rd June, 1965, Arjun took Mst. Draupdi from her parents house at about 5.30 p.m. and left for the market for purchasing some cloth for himself and for Mst. Draupdi. They left the child in the care of Mst. Draupdis mother. They arrived at Sojati Gate. While Mst. Draupdi remained outside Arjun went into Prakash Silk Store. He, however, found great rush of customers in the Prakash Silk Store, and therefore, postponed the purchase of cloth and came out of the shop. At that time Gopal PW/5 is alleged to have met Arjun and Mst. Draupdi by chance. Gopal proposed to Arjun and Mst. Draupdi that they should visit the Olympic Cinema House to see a picture and Arjun and Mst. Draupdi agreed. All the three of them thereafter went to Olympic Cinema. After the show was over they again came to Sojati Gate. Ordinarily, Arjun and Mst. Draupdi could have availed of the direct route from Olympic Cinema to Navchowki Mohalla but at the suggestion of Gopal they adopted a route via Sojati Gate in order to provide further company to Gopal. When they arrived just outside Sojati Gate Gopal further suggested to Arjun and Mst. Draupdi to have tea at Agra Hotel. The suggestion having been accepted, all the three entered the Agra Hotel at about 10-30 p.m. The prosecution case further is that in the Agra Hotel Hall there was a rush of customers and it was suggested to Gopal, Arjun and Mst, Draupdi (either by Gopi Shanker as stated in the first information report or by Mamma alias Maheshchand as put forward during the course of trial) that they should go up-stairs in the family Cabin. Arjun, Gopal and Mst. Draupdi went to the family cabin and occupied some chairs near the family cabin. It may be pointed out incidentally at this state that initially in the first information report it was stated that they went into the family cabin and stayed there. Ignoring this discrepancy the prosecution story further is that the prosecutrix. Gopal and Arjun waited for tea for ten to fifteen minutes and then Gopal went down-stairs to enquire and on returning reported that they would be having their tea very shortly. Even thereafter tea could not be served to them for quite a long time. They, thereafter, got up to go down but were asked either by Gopi Shanker or Mahesh (here again the prosecution is not quite consistent) to wait for some time. Even
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