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CASE NO.:

Appeal (crl.) 298 of 2003

PETITIONER:

Tulshidas Kanolkar

RESPONDENT:

The State of Goa

DATE OF JUDGMENT: 27/10/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

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 PW1 (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.

Learned Additional Sessions Judge, Panaji, considered all these

pleas and held the accused guilty, imposed sentences of 10 years and one

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year respectively for the two charged offences along with a fine of

Rs.10,000/- and Rs.2,000/- respectively with default stipulation.

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.

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