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High Court Of Orissa
ARIJIT PASAYAT
RABINARAYAN DAS - Appellant
Versus
THE STATE - Respondent
CRIMINAL REVISION 180 Of 1990
Decided On : 07/31/1991
Held: Obviously consent involves no denial, no resistance. It cannot be equated to inability to resist out of helplessness. Here we are concerned with a blind girl. As observed by the Supreme Court, absence of violence or stiff resistance may even suggest helpless surrender due to sheer timidity and would not amount to consent. (Para 6)
Absence of injuries cannot be always the sine qua non of consent. As indicated above, the passive submission may be due to several factors. SI There is a gulf of difference between consent and submission. While the consent involves submission, the contrary is not always there and the mere act of submission does not involve consent. The surrounding circumstances and previous or contemporaneous acts and conduct have to the looked into. Here the prosecutrix is a blind girl. Helpless ness is natural account of physical deficiency. Therefore, merely because there was no injury except abrasions on her cheeke case of to consent is not inferable. (Para 6)
So far as corroboration is concerned, lack of II the same cannot be a ground for throwing out the prosecution case. Conviction can be maintained n on the evidence of the prosecutrix herself. In the d instant case, the evidence of P.Ws 2, 9, 10, 11 and a 12 clearly show that the accused was seen immediately prior to and after the occurrence. It is not the case of the petitioner that between the time he went inside the Secretariat praises along with a the prosecutrix and came back to be detained and immediately thereafter medically examined, d there was somebody-else committed the offence. (Para 8)
The evidence on record clearly establish the c guilt of the petitioner so far as the question of rape is concerned. (Para 8)
(ii) Indian Penal Code, 1860 - Section 342 - Wrongful confinement. Blind girl taken to Press cutting room of secretariat and raped. Whether offence of wrongful confinement is made out? (No)
Held: Coming to the offence of wrongful confinement, I find that the essential ingredient f has not been established. The esseotial ingredient of the offence is that the accused should have 1 wrongfully restrained the complainant, and such restraint was to prevent the complainant from proceeding beyond certain circumscribing limits beyond which he or she had a right to proceed.
Therefore, the conviction under section 342, IPC is set aside. (Para 9)
(iii) Indian Penal Code, 1860 - Sections 366 and 361 - Abduction for illicit intercourse - Blind girl getting down from bus - Going on Rickshaw - Accused accompanied her and instead of taking her to proper destination took her to press cutting room of secretariat for ape - Whether offence of abduction is made out? (Yes)
Held: So far as the offence under section 366, PC is concerned, that relates to kidnapping or abducting any woman with intent that she may be compelled, or knowing it to be likely that she will e compelled, to marry any person against her will, or in order that she may be forced or seduced illicit intercourse, or knowing it to be likely that he will be forced or seduced to illicit intercourse. 11 the instant case, allegation is one of abduction.
In terms of section 362, IPC, "abduction" means, whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The expression "deceitful means" includes a mislead statement. It is really speaking a matter of intention. The intention of the accused is the basis and the gravamen of the offence. The volition, the intention and the conduct of the woman do not determine the offence. Here the prosecutrix was go to her school. But the petitioner took her to the Secretariat premises. No evidence is forth-coming that she went out of her own volition without any inducement by the petitioner Inducement does not necessarily involve any force or compulsion. It simply means persuasion, but or abduction it must be by deceitful means there is nothing to show that the prosecutrix had one on her own volition. The place where she lad been taken was riot her destination. Any act in the part of a person to lead a woman astray from the path of rectitude is seduction and if it followed by intercourse, it will be seduction for illicit intercourse. See in re Khalandar Sahab. The conviction under section 366, IPC is, there fore, maintained; so is the sentence awarded. (Para 10)
(iv) Indian Penal Code, 1860 - Sections 376 and 366 - Abduction of Blind girl and blinded by must committing rape on her - Sentenced to Life Imprisonment and 2 years R.I. respectively - Leniency in sentence. Accused loosing job - Family suffering - Whether mitigating circumstances to reduce sentence? (No)
Held: Coming to the sentence, it may be said at the threshold that human goodness is limited but human depravity is not. A helpless blind girl has been ravished. Rape is not only physical violation on a woman, it is violation of her dignity. Minimum sentence has been prescribed by the Legislature making seven years' imprisonment a statutory mandate, unless Court records adequate and special reasons for reduction in term of sentence. In my view, no mitigating circumstance exists for such reduction. I, therefore, confirm the conviction and sentence awarded in respect of offence under section 376, IPC. The sentences in respect of convictions under sections 366 and 376, IPC shall run concurrently. (Para 11)
ARIJIT PASAYAT, J.
( 1 ) BLINDED by lust, the petitioner committed rape on a blind girl. That is the allegation. The accusation was accepted by the learned Assistant Session Judge-cum-Additional Chief Judicial Magistrate, Bhubaneswar, who convicted the petitioner under S. 376 of the Penal Code, 1860 (in short 'ipc') and sentenced him to rigorous imprisonment for seven years. Additionally, he found that the petitioner was guilty under Ss. 366 and 342, IPC and awarded sentences of two years and three months rigorous imprisonment respectively. The sentence were directed to run concurrently. In appeal, the learned Additional Sessions Judge, Bhubaneswar up held the convictions and sentences.
( 2 ) SHORN of unnecessary details, the factual backdrop as depicted by the prosecution is that the prosecutrix, a blind girl (P. W. 1) used to go to Bhubaneswar for trainings in music. On 6-3-1987, she was travelling from Cuttack to Bhubaseswar by bus. The petitioner was a co-passenger and when the prosecutirx got down at Bhubaseswar and took a rickshaw to go to her destination, the petitioner sat by her side and traveled with her. Instead of dropping her at her destination, she was taken to the Orissa Secretariat where she was raped. The rickshaw puller was examined as P. W. 2. Several other witnesses were examined to show that the petitioner had taken the prosecutrix inside the Secretariat and when he came down after the heinous act, he was apprehended, taken to the police station and both petitioner and prosecutirx were examined medically. After completion of investigation charge sheet was submitted against the petitioner. Medical evidence and the opinion of the doctors PWs 4, 5, 13 and 20 fully corroborate the evidence of the prosecutrix as do opinions of the chemical examiner and serologist and findings recorded by them. The petitioner was identified in the Test Identification Parade by the rickshaw puller (P. W. 2) and the sentries P. Ws. 9 and 10. This place of occurrence is a paper cutting room, otherwise known as Press cutting room of the Information and Public Relations Department of the State of Orissa, Blood patches were found on the steps to the spot room as detected by the Scientific Officer (P. W. 6) and P. W. 21.
( 3 ) THE petitioner's plea was one of denial.
( 4 ) AS many as twenty seen witnesses were examined to further the prosecution case. Two witnesses were examined by the petitioner. Prosecution apart from the evidence of the prosecutrix relied on the evidence of several witnesses to further its case. As indicated above, P. W. 2 is the rickshaw puller, P. W. 17 had been both petitioner and prosecutrix in a rickshaw between the place where the prosecutrix got down from the bus and the main gate of the secretariat compound. P. Ws. 9 and 10 are the sentries at the entry point of the Secretariat. P. Ws. 11 and 12 are two other sentries who detained the petitioner and the prosecutrix while they were coming back after the former's wanton act. P. Ws. 15, 16 and 22 are the Principal and students of the school before whom the prosecutrix described about the commission of offence immediately after they were detained at the gate by P. Ws. 11 and 12.
( 5 ) MAIN plank of the petitioner's argument assailing the convictions and sentences is that the materials on record do not establish the offences as alleged. Even if it is accepted that there was sexual intercourse, as alleged, the circumstances clearly established consent on the part of the prosecutix and, therefore, no offence under S. 376 is made out. Further, the ingredients of offences under Ss. 366 and 342 are singularly lacking in the case. In order to establish its case of consent, it is highlighted that the prosecutrix without any demur traveled a long distance with the petitioner. Even when they were detained at the entry point of the Secretariat, she did not raise any objection. There were no injuries on her person as found by the doctors, which clearly rules out any for
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