LexSTATE OF HIMACHAL PRADESH versus MANGO RAM
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A STATE OF HIMACHAL PRADESH v. MANGO RAM AUGUST 24, 2000 B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND K.G. BALAKRISHNAN, JJ.] c D E Penal Code, 1860-Sections 375 and 376-Rape-Proof of o.lfence- Consent for sexual act-Held, the offence is committed; submission under fear o.f terror cannot be construed as a consented sexual act. Respondent-accused, aged about 17 years, committed rape of his niece, a minor girl. The girl told her father about the incident, who re- ported the matter to the police. The accused was arrested. Trial Court acquitted the accused on the ground that the offence of rape had not been established by the prosecution; that she was above the age of 16 years; and that there was consent by her for the sexual act. High Court confirmed it. Hence the appeal by the State. State contended that there was sufficient evidence, including medical evidence, to prove that the accused had committed the offence of rape; that the offence was committed after she was physically over-powered by the accused; that she was below the age of 16 years; and that there was no consent from her for the sexual act. The respondent-accused contended that the absence of spermatozoa in the clothes of the prosecutrix and the accused, as revealed in the chemi- cal examination, showed that the accused had not committed any sexual F act; that there were no marks of violence over the breasts, nipples or cheeks and lips or other external genitals of the prosecutrix; that the prosecutrix had not deposed anything about the extent of penetration; that it is only an attempt to outrage the modesty; and that a false case was filed to get his property. G Disposing of the appeal, the Court HELD : 1.1. There is evidence of the Doctors, who examined the prosecutrix after taking note of physical features to the effect that prosecutrix must be of the age between 13 to 14 years. This view is more strengthened by the family history which showed that she was born in the year 1979. H Therefore, in all probability, the age of the prosecutrix at the time of occur- 626 STATE v. MANGO RAM 627 rence was about 14 years. The certificate of the Medical Officer-cum-Radi- ologist, also gives only the probable age of the prosecutrix. Therefore, the finding of the Trial Court that the prosecutrix was above 16 years is based on faulty reasons and is not supported by evidence. [632-A-B] 1.2. The reasons attributed by the Trial Court that she had given consent for the sexual act are not true. According to the prosecutrix, she resisted the accused by scratching him with nails but as no nail marks were found on the body of the accused, the Sessions Judge assumed that there was consent on the part of the prosecutrix. The accused was examined on 20.4.1993. As the incident occurred on 17.4.1993, even if tl\fre were any marks of violence on the body of the accused, the same would have been obliterated and were not so prominent so as to be noticed by the medical officer who examined him. Therefore, the absence of nail marks or minor injuries on the body of the accused is of not much significance. From the oral evidence of the prosecutrix, it is proved that the accused caught her from behind and he lifted her and pushed her down and despite her attempt to cover herself with the salwar, the accused pulled it down. She also stah! that the accused gagged her mouth when she attempted to cry aloud. The subsequent conduct of the prosecutrix also shows that she was very much resistant to the sexual onslaught on her. She came to her father immediately and told the entire incident as to how she was ravished by the accused. The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 I.P.C. requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but also after having fully exercised the choice between the resistance and assent. From the evidence on record, it cannot be said that the prosecutrix has given consent and thereafter she turned round and acted against the interest of the accused. There is a clear credible evidence that she resisted the onslaught and made all possible efforts to prevent the accused from comm
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