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 ;-