Criminal Appeal against a conviction and five-year sentence for rape. The Kerala High Court rejected the consent defence due to the victim's mental retardation, affirmed the sufficiency of prosecution evidence, and upheld the trial court's sentence.
Appeal dismissed, conviction and sentence confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.THANKAPPAN
THURSDAY, THE 8TH MARCH 2007 / 17TH PHALGUNA 1928
CRL.A.No. 2449 of 2006()
-----------------------SC.153/2006 of ADDL. SESSIONS COURT (ADHOC)-II, THODUPUZHA.
APPELLANT: ACCUSED
MANIKANDAN, S/O. NAGAN, HOUSE NO.11/210, CHAKKUPALLAM PANCHAYATH, SASTHANDA KARA, ANAKKARA VILLAGE.
BY ADV. SRI.LATHEESH SEBASTIAN
RESPONDENT: STATE
STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. P. RAVINDRA BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER IN CRL.M.A.NO.13051 OF 2006 IN CRL. APPEAL NO. 2449 OF 2006.
DISMISSED
8.3.2007 Sd/-(K.THANKAPPAN, JUDGE)
K.THANKAPPAN, J.
CRL. APPEAL NO. 2449 OF 2006
Dated this the 8th day of March, 2007
JUDGMENT
This appeal is filed against the judgment in Sessions Case No.153 of 2006 on the file of the Additional Sessions Court (Adhoc) II, Thodupuzha. The appellant faced trial for the offence punishable under Section 376 I.P.C.
CRL.A.NO.2449/2006
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the appellant guilty under Section 376 I.P.C., convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. The above conviction and sentence are challenged in this appeal.
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hostile to the prosecution, he admitted his signature in Ext.P1.
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certificate in respect of the appellant which shows that the appellant was capable of sexual intercourse. PW.7, the Tahsildar was examined to prove Ext.P7 caste certificate in respect of PW.2. PW.8 , the Headmistress of the school where PW.2 had studied was examined to prove Ext.P8 extract of school admission register in which the date of birth of PW.2 is shown as 15.4.1988. PW.9, the Village Officer proved Ext.P9 scene plan. PWs.10 and 11 were the police officials who recorded the statement of PW.1 and conducted investigation of the case.
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The fifth clause of Section 375 I.P.C. reads as follows:
“ 375. Rape.-- A man is said to commit “rape” who, except in the case hereinafter excepted, has intercourse with a woman under circumstances falling under any of the six following descriptions:
fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.”
The above provision would clearly show that even if any consent was given by the victim in a rape case, it cannot be considered as consent if at the time of giving such consent, the victim was unable to understand the nature and consequences of the act to which she had given consent on account of the reasons mentioned in the said provision. From the evidence adduced by the prosecution, it is clear that the victim was a person whose mental faculties were not developed. In this context the decision of the Apex Court reported in Tulshidas Kanolkar v. State of Goa ( 2003)8 S.C.C. 590 is relevant. In paragraph 6 of the above judgment, the Apex Court held as follows :
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“.............. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be a conscious and voluntary act. There is a 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 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 constituting 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 be said in law, to have suffered sexual intercourses with consent.”
In the light of the above observation of the Apex Court, this Court is of the view that PW.2 was not a consenting party to the offence.
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Hence, the finding of the trial court in this regard is fully justified.
The Crl. Appeal is accordingly dismissed, confirming the conviction and sentence awarded by the court below.
(K.THANKAPPAN, JUDGE)
sp/
CRL.A.NO.2449/2006 8
3 issues framed by the court
Whether PW.2 was a consenting party to the rape offence given her mental retardation.
Whether the prosecution evidence was sufficient to prove the appellant's guilt.
Whether the sentence of five years rigorous imprisonment warranted interference.
Colour shows how this judgement treated each authority
Tulshidas Kanolkar v. State of GoaExplained¶46
( 2003)8 S.C.C. 590 · Who else cites this
4 provisions across 2 enactments
Manikandan
State of Kerala
K. Thankappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
