Goutam Bhaduri, J.
1. This is an appeal against the judgment dated 29.11.1997 passed by the Sixth Additional Sessions Judge, Durg, in Sessions Trial No. 342/96, whereby, the appellant has been convicted u/s 376 of IPC and has been sentenced to 7 years R.I. The brief facts of the prosecution case is that the prosecutrix was residing with her father and brothers at village Nandni Khundni. Her mother had left and married somewhere and the prosecutrix was living with her three brothers namely Nand Kumar, Ishwari & Baldau. Along with brother of prosecutrix Ishwari, one boy named Tikendra, the accused, was also studying. Because of the friendship, the said boy used to visit the house of the prosecutrix and was in conversation with her. It is the case of the prosecution that when the prosecutrix used to remain alone in her house, the accused Tikendra used to visit there and expressed her that he is in love with her. Further, the case of the prosecution is that at about one year before the incident, the accused came to the house of the prosecutrix when she was alone. Thereafter, the accused had told her that he is in love with her and will marry her and wanted to commit sexual intercourse with her. The prosecutrix tried to avoid it since she was blind girl, but the prosecutrix was told by the accused that he will marry her and will give her all support and therefore, she submitted herself to the accused. Thereafter, the accused committed sexual intercourse with her. It is the case of the prosecution that whenever the prosecutrix remained alone in the house, the accused used to come and commit sexual intercourse with her. By such course of action, when the prosecutrix became pregnant, the prosecutrix told the accused to marry her. At that point of time, the accused stop visiting the house of the prosecutrix. Subsequent to it, the incident were disclosed to the father of the prosecutrix who called the meeting of Panchayat in the village. In such Panchayat, the accused was also called. It is the case of the prosecution that in the Panchayat, the accused admitted the fact that he had committed sexual intercourse with the prosecutrix but refused to marry her and left the Panchayat. It was the specific case of prosecution that though the prosecutrix was blind, she could recognize the person i.e. the accused by his voice and by touch.
2. After the matter was reported, the prosecutrix was subjected to medical examination and the Doctor gave its report by Ex. P-2 & P-3 and the age of the prosecutrix was also confirmed by radiological test by Ex. P-4. After the entire examination and recording the statement of the witnesses, charge sheet was filed u/s 376 of IPC, wherein the learned Court below after evaluating the evidence on record had convicted the accused appellant as aforesaid. Hence this appeal.
3. I have heard the learned counsel for the parties at length and have perused the evidence and the statement adduced during the course of trial.
4. The learned counsel for the appellant submits that the prosecutrix was blind and therefore, she could not recognize or identify the accused. He further submits that in order to hold a person guilty in criminal trial, the prosecution was under obligation to prove the fact that the accused has committed rape on the prosecutrix. He submits that the evidence on record would show that there had been a number of person who were visiting the house of the prosecutrix and therefore attributing the charges of rape to the accused was completely wrong. He further submitted that, even if, the identification is not in question, in such case too, since the age of the prosecutrix was more than 18 years, she can be said to have a consenting party to the incident and therefore, the conviction made by the Court below u/s 376 of IPC is bad in law.
5. Per contra, the learned State counsel would submit that the appellant has neither raised the defence before the Court below with respect to his identification nor any cross examination has been made by him. He further submits that, even if, such argument is considered, in such case also, the prosecutrix has categorically stated that she had recognized the accused by his voice. He further submits that since the incident was continuing in nature, according to the statement of the prosecutrix, therefore, the identification of the accused by voice cannot be sidelined. He further submits that, even if, the age of the prosecutrix was said to be more than 18 years, in such case too, the physical intercourse was committed by giving a false assurance of promise to marry her who was blind girl and therefore the consent was not free and therefore the case of rape is made out.
6. The age of the prosecutrix, in this case, is proved by the Doctor (PW-6) the Radiologist. He has stated that he had obtained the X-ray of the prosecutrix and on the basis of the X-ray, he had given his report, which is marked as Ex. P-4, wherein, the age of the prosecutrix is written to be that of 18 years, approximately. This part of evidence is not in dispute. The Doctor has proved that, at the time of examination, the age of the prosecutrix was 18 years.
7. The prosecutrix was examined in this case as PW-1. She has stated that she used to stay with her father and brothers at village Nandni. She has further stated that one of his brother was named Ishwari. She has further stated that the accused was studying with her brother and used to visit their home. It was further stated that the accused used to talk to her and narrating the incident she had stated that one day when she was alone in the house, the accused all of a sudden came and caught hold of her. She has further stated that when she cried, the accused had told and assured her that nothing would happen and if anything happens, it would be his responsibility. In para 3 of the statement, she has categorically stated that she is blind, but she could recognize a person by his voice. This witness has further stated that the accused had told her that he will keep her. She has further stated that when she was caught hold of by the accused, at that time, she requested to leave her but the accused did not leave her and further explaining the fact she had stated that had she been able to see, she would have run away.
8. The prosecutrix has stated that the accused has committed rape on her and thereafter whenever she used to stay alone in the house, the accused used to come and had committed sexual intercourse with her on the pretext of marriage. Thereafter, when she became pregnant, the witness has stated that then the accused stopped visiting their house and out of fear she could not tell it to any one. The witness has further stated that when the accused was called in the Panchayat, he refused to admit his paternity and when the Panchayat people went to leave her in the house of the accused then the accused refused to keep her. She has stated that the accused had promised her to marry but subsequently refused to marry her. During the course of statement, it is also recorded by the Court that the witness had recognized the accused from his voice in the Court during the course of evidence. The prosecutrix had further stated that she delivered a child but it died subsequently.
9. In the cross examination of the prosecutrix, she has stated that because of the friendship with his brother, the accused used to visit their house till one year and thereafter subsequently he stopped. She has also stated that in the house of the prosecutrix, no doors are attached and it used to be open. She has off-course admitted the fact in the cross examination that in the Panchayat, the accused had refused the fact to commit sexual intercourse with the prosecutrix. In the entire cross examination with respect to the identification by voice, nothing was confronted to the prosecutrix. No defence was taken during the trial so as to question the identify of the accused.
10. The father of the prosecutrix was examined as PW-2. He has also stated that with one of his son named Ishwari, the accused used to study and he was in friendship. Therefore, the accused used to visit their house. He has further stated that when his daughter became pregnant, her daughter told him that she has been made pregnant by the accused. He has also stated that the prosecutrix had told her that the accused used to tell her daughter that if something happens, he will keep her. The witness further stated that whenever the accused used to visit his house, the prosecutrix used to remain alone. The witness in the cross examination has stated that in the Panchayat, when the accused refused to keep her daughter; thereafter, an advise of the villagers, the report was made to the police.
11. The witness Ramulal Nirmal was examined as PW-3 who attended the meeting in the village on 07.07.1996. The witness has stated that in such meeting, the prosecutrix has told that the child which she was carrying in the womb was that of accused.
12. Similar statement has been made by the brother of the prosecutrix, Ishwar, who was examined as PW-5. He has also stated that her sister had told that the accused made her pregnant. In the cross examination when this witness was asked that who used to visit in his absence in the house, the witness has stated that in absence of the members, her sister had told that the accused used to visit their house along with him one Loknath also used to come and the friend of his younger brother Aatmaram also used to come.
13. The Doctor, Smt. Savita Chopra, was examined as PW-4, who has proved the fact that she has examined the prosecutrix and on examination of ultrasound, she found that the prosecutrix was pregnant. The Doctor had given its report by Ex. P-2 and the Sonography report was given by Ex. P-3.
14. It is submitted before the Court that the accused has been falsely implicated as identification has not been substantiated and only on the basis of voice, the identification cannot be sustained. But if we examined the statement of the prosecutrix, she has stated categorically, she being blind, she had identified the accused by voice. During the cross examination of the prosecutrix, this ground was not raised before the trial Court and no question to this effect was ever asked. With respect to the identification, this fact cannot be ignored that the prosecutrix has said that the sexual intercourse was being committed number of times and not once and further this can be also inferred that a person who comes to close he may be recognized by voice and touch too.
15. The Hon''ble Supreme Court in
16. The Hon''ble Supreme Court in
17. Therefore, in view of the principles laid down by the Hon''ble Supreme Court, it cannot be said that the accused was wrongly identified by the prosecutrix from what she heard and felt in person from the accused. This fact also cannot be ignored that during the course of evidence, the learned Court below has also observed that the prosecutrix has recognized the accused from her voice. Therefore, the credibility of the statement of the witness cannot be put to question with respect to the identification in the nature the act of sexual intercourse was committed by the accused with the prosecutrix number of times.
18. Now turning to the question of consent, the argument is advanced that the age of the prosecutrix was more than 18 years on the date of incident and even if, she was blind, the consent is apparent. This argument has to be decided in the facts of this case as the prosecutrix was blind.
19. The offence of rape is committed when a man has sexual intercourse with a woman, who is not his wife, under circumstances falling under any of the five clauses of Section 375 of IPC. According to the exception to the said section, if wife is under 15 years of age, sexual intercourse amounts to rape. If there is consent to the act, it does not amount to an offence. A woman can be said to have consented to the act only when she has submitted herself willingly and freely, while in free and unconstrained possession of the physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always involves a voluntary act and conscious acceptance of what is proposed to be done by another and concurred in by the former. ''Consent'' means ''agreement; community of feeling and opinion; unanimity; to agree not to resist or prevent. Obviously consent involves no denial, no resistance. It cannot be equated to inability to resist out of helplessness.
20. Here the prosecutrix was a blind girl and for which, absence of violence or stiff resistance may even suggest helpless surrender due to sheer timidity and would not amount to consent. Therefore, if the act is done under the helplessness, it would be termed as consent. Here in this case, there was a passive submission and the reasons have been stated by the prosecutrix that she was promised to be married. The surrounding circumstances of the fact that the prosecutrix was a blind girl cannot be shelved. The prosecutrix, in this case, has stated that she was subjected to sexual intercourse on the promise to marry.
21. The Hon''ble Supreme Court in
7. The question that falls for our consideration is that when the accused committed sexual intercourse with the prosecutrix holding out a promise for marriage whether this will amount to a consent or not? Section 375 of IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
9. The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 of IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Indian Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be valid consent. Section 90 reads as under:
90 - Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
[Consent of insane person] if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
[Consent of child] unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
22. Further, the Hon''ble Supreme Court in
29. It can be held that a woman has given consent only if she has freely agreed 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 untrammeled 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. An act of helplessness on the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat or use of force is sufficient.
30. The concept of ''Consent'' in the context of Section 375 IPC has to be understood differently, keeping in mind the provision of Section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of Section 90 IPC is couched in negative terminology. Consent is different from submission. [Vide
31. In the
Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 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 fully exercised the choice between the resistance and assent.
23. When the evidence in this case is examined in the light of the principles laid down, the evidence has come on record that the prosecutrix has stated that she being blind, sexual intercourse was committed, on the promise that the accused will marry her. Therefore, the consent was dependent on the promise extended by the accused and therefore, she submitted herself and therefore it cannot be held that the prosecutrix freely agreed to submit herself in free and unconstrained possession over her physical and moral power to act in a manner she wanted. The accused has rather in this case has misused the disability of the prosecutrix who was a blind. She being a blind girl naturally wanted to get herself married and to be settled and secured the safe hands. This psychological weakness has been exploited by the accused by giving false pretext and promise of marriage and on the basis of fraud, the sexual intercourse was committed on her. Therefore, in my considered view, this cannot be held to be a free consent extended by the girl/prosecutrix.
24. In view of this, on examination of the entire evidence, I am of the opinion that no perversity or illegality has been committed by the Court below to convict the accused u/s 376 of IPC. In the result, the appeal has no merit and accordingly is dismissed.
