Consent; Ayodhya Prasad Vs. State of U.P. [Allahabad High Court, 12-05-2016]

Penal Code, 1860 – Ss. 363, 366 & 376 –  Rape Victim – Credibility of the Testimony of Prosecutrix – An inference as to consent can be drawn if only based on evidence or probabilities of the case – Consent is also stated to be an act of reason coupled with deliberation – It denotes an active will in the mind of a person to permit the doing of an act complained of – Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

# Consent


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Aditya Nath Mittal, J.

12 May, 2016

CRIMINAL APPEAL No. 349 of 1994

Appellant :- Ayodhya Prasad Vs. Respondent :- State Of U.P

Counsel for Appellant :- A.R. Siddiqi, Abdul Raffey Siddiqi, Kiran Kumar Butpori

Counsel for Respondent :- Govt. Advocate

The challenge in this appeal is the judgment and order dated 20.08.1994, passed by the VIth Additional Sessions Judge, Faizabad in Session Trial No.129 of 1992, relating to Case Crime No.63 of 1990, Police Station-Bewana, District-Faizabad, by which the appellant has been convicted for the offence punishable under under Sections 363, 366 & 376 I.P.C.

The brief facts of the case are that on 29.03.1990 when the daughter of the complainant aged about 12 years had gone to School, the appellant had called her daughter through the son of the complainant who was also studying in class-III in the same school and allured him by giving a sum of Rs.5/- and asked him to send the victim outside the school. When the daughter of the complainant came outside the school, she was enticed away by the appellant. She was informed that he had gone to village Siura where she went but till then the appellant had gone somewhere else alongwith her daughter. The matter was reported to the police on the same day at 16:30 hrs, upon which the case at Crime No.63 of 1990, under Sections 363, 366 & 376 I.P.C. was registered. The victim was recovered on 20.05.1990 by the police party from where she was sent for medical examination and her statement was also recorded. After concluding the investigation, the charge-sheet for the offence punishable under Sections 363, 366 and 376 I.P.C was submitted against the appellant.

The prosecution has examined the complainant Smt. Parwati as PW-1, who has proved the incident as well as the First Information Report as Ext. Ka-1. The victim has been examined as PW-2, who has stated that she was enticed away by the appellant and she was also subjected to rape forcefully by the appellant. Dinesh PW-3 is the brother of the victim who has also supported the prosecution version and has stated that he was studying in Class-III while his sister was studying in Class-IV and on the date of incident the appellant allured him by giving a five rupee note to buy sweet in exchange for calling his sister, upon which he had called his sister outside the school from where the appellant enticed her away on his bicycle. He informed the incident to his mother, on which after making search, the First Information Report was lodged.

Dr. A.K. Srivastava, Radiologist has been examined as PW-4, who has conducted the X-Rays and has stated in his opinion that she was aged about seventeen years. The X-Ray report as well as X-Ray plate have been proved by this witness as Ext. Ka-2. Constable Rakesh Bahadur Singh PW-5 has proved the Chik F.I.R. and the entry of G.D. as Ext. Ka-3 and Ext. Ka-4. Sub-Inspector Rudal Prasad Tyagi PW-6 has proved the investigation of the case as well as the recovery of victim on 20.05.1990 and arrest of the accused. The site plan has been proved as Ext. Ka-5 and the recovery memo as Ext. Ka-6. The site place of the spot from where the victim was recovered has been proved as Ext. Ka-7 and the “Supurdaginama” and the charge-sheet have been proved as Ext. Ka-8 and Ext.Ka-9.

Dr. Shushma Gupta, PW-7 has proved the medical examination of the victim and has stated that vaginal sperm was taken for pathological test.

After prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded in which he has denied the charges and has stated that he has been falsely implicated on the basis of suspicion because the victim used to come to his shop for purchasing.

In defence, no oral or documentary evidence has been adduced by the appellant.

After appreciating the evidence on record, learned trial court came to conclusion that the offence punishable under Sections 363, 366 and 376 I.P.C. are proved beyond any doubt and accordingly sentenced him.

Heard learned counsel for the appellant, learned Additional Government Advocate and perused the record.

Learned counsel for the appellant has submitted that in the First Information Report, the age of the victim has been mentioned as twelve years, while in the medical examination, she has been found to be seventeen years of age. It has also been submitted that the victim was consenting party because as per her statement, she moved to various places by different means of transportation and nowhere she raised any alarm. She remained with him for about one and half months after which the recovery has been shown, therefore, she was a consenting party.

On the other hand, learned Additional Government Advocate has defended the impugned judgment and has submitted that there was no consent from the side of the victim. Moreover, the victim was about seventeen years of age, as per medical examination report and the appellant was about twenty eight years old. Therefore, the appellant was a mature person and might be a married person at the time of incident and he better knew what would be the consequences of enticing away the minor girl.

I have gone through the evidence on record and the judgment of the trial court and also considered the rival submissions of both the counsel.

From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus ;-

(i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.

(ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.

(iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:

(a) circumstances showing on the part of prosecutrix an animus against the accused;

(b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle;

(c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix;

(d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity:

(e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and

(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.

The evidence of the prosecution has to be appreciated in view of the settled position of law.

It has also been submitted by learned counsel for the appellant that the victim was a consenting party.

An inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to the expression “Consent” and describes what is not consent.

For the purpose of Section 375, voluntarily participation is required 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 resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

In the case of

# Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113

Hon’ble the Apex Court has interpreted the word “consent” as under:-

“‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of “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 resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case.”

It has been further held that the consent is intended by Sections 375 and 376 IPC should not be under a misconception of fact.

In the case of

# Deelip Singh alias Dilip Kumar vs. State of Bihar reported in (2005) 1 SCC 88

Hon’ble the Apex Court has held that:-

“In the matter of consent, the court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. alleged offender is concious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given.”

When there is a plea of consent, in my opinion, the act of enticing away and rape is admitted unequivocally. One cannot blow hot and cold at the same time. In a plea of consent, the admission of incident is there and the accused has to prove the consent to secure his acquittal.

But at the same time, the victim should be in a position to give consent provided she is not under that age, which has been mentioned in the relevant provisions. Further, the consent should be free and should not be under threat or misrepresentation. “Consent” and “Complaint” of offence cannot find place on the same coin. When the act is with consent, the question of complaint does not arise. Similarly act of complaint does not involve consent.

From the evidence on record, I do not find the present case as case of consent.

In the present case, the victim has been cross-examined at length and in her cross-examination, she has specifically stated that the appellant had committed rape with her forcefully and when she resisted, she was threatened. In the statement of victim nothing adverse has come that she was ever consenting for sexual intercourse or abduction. From the evidence on record, it is not proved that the sexual intercourse with the victim was done with her consent. Therefore, I do not find any substance in the submission of learned counsel for the appellant that the victim was a consenting party. But at the same time, I find substance in the submission of learned Additional Government Advocate that the appellant was a matured person at the time of incident, aged about twenty eight years. Therefore, he should have had knowledge of the consequence of committing rape with a girl, who is not his wife. The million dollar question is that why the appellant had put his pious mouth in the dirty dream. The question remained unanswered by learned counsel for the appellant.

Learned counsel for the appellant has further submitted that in the medical examination report, no injuries were found on the body of the victim, therefore, the incident is doubtful.

In the case of

# Santosh Kumar vs. State of M.P. reported in (2006) 10 SCC 595

the Hon’ble Apex Court has held that mere fact that no injuries were found on her private parts, cannot be a ground to hold that no rape was committed upon her. Again in the case of State of Rajasthan vs. N.K. (accused) decided on 30.03.2000, the Hon’ble Apex Court has held that the absence of injuries and delay in the First Information Report cannot be a ground to disbelieve the prosecution story, if otherwise found reliable.

In view of the above, I do not find substance in the submission of learned counsel for the appellant.

In the case of

# Ranjit Hazarika vs. State of Assam reported in (1998) 8 SCC 635

the Hon’ble Supreme Court has held as under:-

“The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, , nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on “no reasons”.

In the present case, although no injuries have been found on her private parts or other parts of the body, but in view of the above settled position of law, it cannot be said that in the absence of injuries, the prosecution story can be disbelieved.

In the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle.

Much emphasis has been laid down that the victim was major at the time of incident, therefore, the offences punishable under Sections 363 and 376 I.P.C. as well as Section 366 I.P.C. are not proved. In the evidence, it has come that at the time of incident the victim was studying in Class-IV and her brother was studying in Class-III in the same school. Although, in the medical examination report, the age of the victim has been found to be seventeen years but in the statement of her mother as well as statement of victim and her brother, they have told that she was aged about twelve years. It is not disputed that the victim was studying in Class-IV at the time of incident. It appears that the Doctor who had conducted the Radiological test has assessed the age on higher side. A student of Class-IV cannot be said to be a major especially in the circumstances when the mother of the victim, victim as well as her brother are stating that she was twelve years of age. From all the evidence on record, it is proved that at the time of incident, she was below or about seventeen years but definitely not more than seventeen years. Section 363 I.P.C. provides punishment for kidnapping and Section 361 I.P.C. defines the kidnapping from lawful guardianship. For committing an offence punishable under Section 363 I.P.C., it should be proved that female was under eighteen years of age.

In the present case, the victim has been found to be under eighteen years of age. Apart from it, it is also proved that she was enticed away from her school by giving allurement to her brother. The brother of the victim has also been examined as PW-3 who has stated specifically that he was also studying in Class-III in the same school. He has further stated that the appellant had asked him to call his sister and he was given a sum of Rs.5/-. When he called his sister, she was enticed away by Cycle and he intimated the incident to his mother. This witness was also aged about thirteen years at the time of recording the statement and this witness has been cross-examined at length.

Being the child witness, his statement appears to be very natural and it does not appear that he has been tutored by anybody. It is also relevant to mention that there is absolutely no enmity between the parties and even the appellant in his statement under Section 313 Cr.P.C. has not stated that he has been falsely implicated due to enmity. He has simply stated that he has been falsely implicated on the basis of suspicion. The girl was enticed away on 29.03.1990 and she was recovered on 20.05.1990 and the First Information Report was lodged naming the appellant. The perusal of case diary reveals that the police had made so many raids for searching the appellant and if the appellant was present in the village during 29.03.1990 to 20.05.1990, it could have been believed that he has been falsely implicated, but the appellant as per his surrender application moved on 22.05.1990, in which he has stated that just to save himself from the police torture, he wants to surrender before the court. Upon this surrender application, he has been taken into custody. If there was mere suspicion upon the appellant, then he was required to explain his absence from the date of occurrence i.e. 29.03.1990 to the date of application for surrender i.e. 22.05.1990. Undisputedly, the victim has been recovered on 20.05.1990 and just within two days, he has moved the application for surrender stating that by rumours he has come to know that he is named accused. This conduct of the appellant also goes against him because at the time of recovery of the victim by the police personnel, the victim had stated that the appellant leaving her there, has gone to arrange money. From the evidence on record, it is proved beyond reasonable doubt that on 29.03.1990 the appellant had enticed away the victim in the manner as narrated by the prosecution.

As far as the offence of rape is concerned, the statement of the prosecutrix is sufficient, provided it inspires confidence. It is not disputed that the victim was known to the appellant much prior to the incident, but it has also been established that at the time of incident she was studying in Class-IV and she was about seventeen years of age. The victim in her statement categorically stated the incident in a very natural way and has stated the journey from school to Kanpur. She has also stated specifically that she was subjected to rape and upon resistance she was threatened and she was kept for about one and half months at Kanpur. After one and half months the appellant brought her at village Siura for managing some money where she was recovered by the police in the presence of her mother. This witness has also been cross-examined at length, but nothing adverse has come in her statement so as to show her consent to go with the appellant or to perform sexual intercourse with her. In the cross-examination, she has also stated that whenever the appellant used to go outside the house at Kanpur, she was threatened, therefore, she had not raised any alarm. She has denied this suggestion that she has gone of her own will with the appellant. The victim has told her age of fifteen years on the date of statement before the Court, but as has been discussed above, she cannot be above seventeen years on the date of incident. The incident took place in the year 1990 while her statement had been recorded in the year 1993 i.e. after a gap of about three years. The statement of the victim does not suffer from any infirmity in a manner so as to make it either unsafe or impossible to base a finding of guilt.

Admittedly, there is no enmity with the appellant. There is evidence on record showing the resistance and the threat of the appellant. Although three accused were named in the First Information Report but the prosecution has levelled the allegation against the appellant only. In these circumstances, there appears to be no improvement or exaggeration in the prosecution version.

In the present case, the First Information Report has been lodged on the same day and there is absolutely no delay in lodging the First Information Report. There is no previous litigation between the parties by which it can be presumed that the appellant has been falsely implicated. From perusal of the statement of the victim PW-2, I also do not find any element of artificiality or unnaturalness and the statement of the victim inspires full confidence.

Learned trial court has also considered all aspects of the matter in detail and has appreciated the evidence on record categorically touching each and every aspect of the matter. I do not find any material contradiction in the statements of the witnesses. I also do not find any impropriety in appreciation of evidence by the trial court or any glaring mistake.

From perusal of the evidence on record, I am also of the view that the prosecution has succeeded in proving the guilt of the appellant beyond any reasonable doubt. Accordingly, the conviction of the appellant for the offence punishable under Sections 363, 366 and 376 I.P.C. is upheld.

As far as quantum of punishment is concerned, learned trial court has awarded three years rigorous imprisonment for the offence punishable under Section 363 I.P.C., three years rigorous imprisonment for the offence punishable under Section 366 I.P.C. and five years rigorous imprisonment alongwith fine of Rs.1000/- for the offence punishable under Section 376 I.P.C.

As the appellant is being sentenced for the offence punishable under Section 366 I.P.C., therefore, in my opinion, there is no need to pass separate sentence for the offence punishable under Section 363 I.P.C. From perusal of record, it transpires that the appellant was a matured person at the time of incident and the victim was much younger than him. Possibility also cannot be ruled out that the appellant was a married person at the time of incident because he was already running a “Kirana” shop at the time of incident. Although the incident took place in the year 1990 for which about twenty six years have passed, therefore, considering the date of offence, the present age of the appellant and other circumstances, the imprisonment of three years for the offence punishable under Section 366 I.P.C. is upheld, but the punishment for the offence punishable under Section 376 I.P.C. is modified to three years alongwith a fine of Rs.10,000/-. In default of payment of fine, he shall further undergo with an imprisonment of three months.

The appeal is accordingly partly allowed. The appellant is sentenced for the offence punishable under Sections 366 & 376 I.P.C. as aforesaid. Both the sentences shall run concurrently and the period already undergone shall be set off.

The appellant is also directed to surrender before the court below within two weeks from today, failing which, the trial court shall be at liberty to take coercive action against the appellant.

Office is directed to send the certified copy of this judgment alongwith lower court record to the court below for compliance, at an early date.

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