TULSHIDAS KANOLKAR versus THE STATE OF GOA

Citation: [2003] SUPP. 4 S.C.R. 978 · Decided: 27-10-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

A 
TULSHIDAS KANOLKAR 
v. 
THE ST ATE OF GOA 
OCTOBER 27, 2003 
B 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Penal Code, 1860-Sections 376 and 506(2)-Rape-Mentally 
challenged victim-Delay in lodging FIR-Consent-Plea of Held, on 
facts, victim is totally unaware of dreadful consequences-Hence, there is 
C no delay in lodging FIR-Mentally challenged victim cannot legally give 
consent to sexual intercourse Legislature advised to prescribe higher 
minimum sentence for rape of mentally challenged victim. 
Appellant accused committed rape of a mentally challenged 
D victim·several times. The parents of the victim came to know of it on 
seeing the legs of the victim being swollen and signs of advanced stage 
of pregnancy. The victim pointed out accusing fingers at the appellant. 
The mother of the appellant offered a part of the amount necessary 
for termination of the pregnancy of the victim. There was no termination 
of pregnancy and the victim delivered a stillborn child. The father of 
E the victim lodged a complaint with the police. The appellant was 
charged for the offences punishable under section 376 and 506(2) IPC. 
The appellant contended before the trial court that there was a delay 
in lodging of first information report: that certain persons were not 
examined by the prosecution; and that since the appellant had sexual 
F intercourse with the victim on several occasions, there was a clear 
consent by the victim. 
The trial court held the appellant guilty under sections 376 and 
506(2) IPC and sentenced him to imprisonment for 10 years and one 
year along with a fine of Rs.10,000 and Rs. 2,000 respectively with 
G default stipulation. The High Court, in appeal, upheld the conviction 
but reduced the sentence to 7 years in relation to offence under section 
376 JPC. Hence the appeal. 
The respondent State contended that considering the nature of 
H evidence and gravity of offence, the High Court has acted liberally in 
978 
TULSHIDAS KANOLKAR v. ST A TE 
979' 
reducing the sentence while upholding the conviction. 
Dismissing the appeal, the Court 
HELD : 1. The unusual circumstances satisfactorily explained the 
delay in lodging of the first information report. In any event, delay per 
A 
se is not a mitigating circumstance for the accused when accusations B 
of rape are invoived. Delay in lodging first information report cannot 
• 
be used as ritualistic formula for discarding prosecution case and 
doubting its authenticity. It only puts the court on guard to search for 
and consider if any explanation has been offered for the delay. Once 
it is offered, the Court is to only see whether it is satisfactory or not. C 
Jn a case if the prosecution fails to satisfactory explain the delay and 
there is possibility of embellishment or exaggeration in the prosecution 
version on account of such delay, it is a relevant factor. On the other 
hand satisfactory explanation of the delay is weighty enough to reject 
the plea of false implication or vulnerability or prosecution case. As 
the factual scenario shows, the victim was totally unaware of the D 
catastrophe which had befallen to her. That being so, the mere delay 
in lodging of first information report does not in any way render 
prosecution version brittle. [982-D-G] 
2. Non-examination of some persons per se does not corrode E 
vitality of prosecution version, particularly when the prosecutrix 
has notwithstanding her mental deficiencies, withstood incisive 
cross-examination pointed to the appellant as the perpetrator of the 
crime. [982-H) 
3. A mentally challenged girl cannot legally give a consent which F 
would necessarily involve understanding of the effect of such consent. 
It has to be a conscious and voluntary act. There is gulf of difference 
between consent and submission. Every consent involves a submission 
but the converse does not follow, and mere act of submission does not 
involve consent. An act of helpless resignation in the face of inevitable G 
compulsion, quiescence, non-resistance or passive giving in when the 
faculty is either clouded by fear or vitiated by duress or impaired due 
to mental retardation or deficiency cannot be considered to be consent 
as understood in law. For cdnstituting consent, there must be exercise 
of intelligence based on the knowledge of the significance and the moral 
effect of the act. A girl whose mental faculties are undeveloped, cannot H 
;·i 
980 
SUPREME COURT REPORTS [2003] S.UPP. 4 S.C.R. 
A be said i

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