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Synopsis

The Supreme Court has said that once the age of the prosecutrix at the time of the incident is established to be that of a minor, the question of consent per se becomes irrelevant, and the act would qualify as statutory rape nevertheless.

A bench of Justices Vikram Nath and Sanjay Karol also said that subjection to sexual intercourse under fear of the accused persons can in no way be understood to mean consent on the part of the prosecutrix.

The bench further emphasized that the normal rule of delay would not apply to rape cases.

Upholding the conviction and sentence of three men in a gang rape case, the bench said, "Even if the argument of consent is to be considered, we cannot lose sight of the fact that the accused- appellants were men who had held the prosecutrix, who was of a tender age, captive for a prolonged period of time by threatening her life."

The court said it would be illogical to rule out the role played by the constant fear that the prosecutrix was operating under, as she was subjected to rape by the accused persons over a period of two months.

With regard to the contention that the medical report showed the girl was habituated to sexual activity, the bench said, "Such an expression as “being accustomed to sexual intercourse” is nothing but an archaic notion of sexual purity which intends to morally shame the victim and downplay the role of consent, or the lack thereof, in an offence of rape".

In the case, the trial court, after duly examining the witnesses and appreciating the evidence on record, held that the accused Indrapal, Suresh, and Surendra kidnapped the girl, who was below 18 years of age, from the lawful guardianship of her paternal aunt for committing illicit intercourse with her. Court further found that Indrapal, Suresh, Surendra, and Raju committed gang rape on the prosecutrix several times between July 6, 2005, and September 12, 2005, against her will.

The high court re-examined the grounds of defense put forth by the accused persons as well as the contentions supporting the prosecution’s case and held that the ingredients of the offences punishable under Sections 363, 366, and 376(2)(g) of the IPC were made out beyond all reasonable doubt.

In their appeal, the chief contention of the counsel for the appellants hinged on the argument that the prosecutrix had given her consent to the act.

The appellants highlighted the fact that she had left her home with them willingly without informing her guardian and that she remained in their company for two months. During this period, she visited many places such as Siddhi, Rewa, Allahabad, and Delhi using public transport, where she could have easily raised a call or alarm for help, but she did not do so, which, according to them, clearly showed that she was a consenting party.

They argued that the medical report suggested she was accustomed to sexual intercourse and that there were no injuries on her body. They claimed that no forcible sexual intercourse or rape had occurred. They also referred to a delay of about two months in lodging the FIR, which they contended was completely unjustified and unexplained. The appellants further argued that the girl had attained the age of majority at the time of the incident, and therefore, as a consenting adult, no offence of kidnapping or rape was made out.

The state counsel, on the other hand, contended that the testimony of the girl was reliable and without contradictions, inspiring complete confidence. The delay in lodging the FIR was due to her being held captive by the accused persons for two months. Even if, for the sake of argument, it was assumed that she went with the accused of her own will, considering that the courts below had conclusively found her to be below 17 years of age, the accused persons would still be liable for offences under Sections 366 and 376(2)(g) of the IPC, the state counsel argued.

Considering the facts and circumstances of the case, the statements of the witnesses on record, and the findings, the bench said, "We find that the appellants have not made any good ground on the basis of which the concurrent findings of the two courts below could be interfered with".

In view of the report of the dental surgeon and school records, the court noted that the girl’s date of birth was recorded as August 10, 1988, and the date of the incident was July 6, 2005. Therefore, she was less than 17 years of age at the start of the continuing offence. Her guardian had also recorded her age as below 18 years at the time of lodging the missing person report.

"Once the age of the prosecutrix at the time of the incident is established to be that of minority, the question of consent per se becomes irrelevant and the act shall qualify as statutory rape nevertheless," the bench said.

Rejecting the argument on consent, the bench said that subjection to sexual intercourse under fear of the accused persons can in no way be understood to mean consent on the part of the prosecutrix.

The court also held that the appellants' reliance on the medical report, which suggested that the prosecutrix was accustomed to sexual intercourse, would not further their contention that the sexual act was consensual.

"This is simply for the reason that such an expression as “being accustomed to sexual intercourse” is nothing but an archaic notion of sexual purity which intends to morally shame the victim and downplay the role of consent, or the lack thereof, in an offence of rape," the bench said.

Moreover, the lack of injuries on the prosecutrix’s body was not an important factor in this case since the offence continued for two months and the medical investigation was conducted long after the first instance of rape was committed, the bench observed.

The court also pointed out that the issue of delay was inconsequential since, firstly, the normal rule of delay does not apply to rape cases, and secondly, the prosecutrix was held captive by the appellants for two months and had no means to register the FIR earlier.

"We find it of utmost importance to note here that the statement of the prosecutrix made in the chief-examination regarding sexual assaults committed by the accused persons remained totally unimpeached even after being subjected to a lengthy cross-examination. It is to be noted that none of the so-called discrepancies in the evidence of the prosecutrix with reference to her case diary statement shook the veracity of the prosecution case," the bench said.

The appellants also argued for reducing the sentence awarded to the period already undergone, considering that they had been enlarged on bail for a considerable period.

However, the court found no mitigating circumstances in the instant case to reduce the punishment to less than the minimum statutory sentence prescribed under the IPC.

"We are in no way inclined to trivialize the misery and exploitation that has been suffered by the prosecutrix, a young girl from a village who was kidnapped on the pretext of securing her a job by men in whom she imposed some level of trust, and then subjected to an offence as heinous as gang rape for an elongated period of two months," the bench said.

The court opined that the ends of justice would be met only when the accused-appellants serve the entire period of the sentence awarded to them, and therefore, no leniency was merited in the facts of the case.

The court dismissed the appeals and upheld the impugned order. It directed the accused-appellants, currently enlarged on bail, to serve the remaining period of their sentence as awarded by the high court by surrendering before the concerned trial court within eight weeks.

Case Title: Raju @ Nripendra Singh Vs The State of Madhya Pradesh