Summary
Concurrent convictions of the accused for kidnapping and gang rape of a girl under seventeen who was held captive and repeatedly raped over two months were upheld. The prosecutrix's minority made consent irrelevant and in any event submission under fear of her captors was not consent; the medical opinion that she was 'accustomed to sexual intercourse', the absence of injuries and the delay in the FIR did not help the defence; and no reduction of sentence below the statutory minimum was warranted.
Issues
- Whether the prosecutrix was a minor at the time of the offence and, if so, whether her consent is relevant.
- Whether her remaining with the accused for two months without raising an alarm, the medical opinion that she was accustomed to sexual intercourse and the absence of injuries established consensual intercourse.
- Whether the delay of about two months in lodging the FIR was fatal to the prosecution.
- Whether the sentence should be reduced to the period already undergone.
Provisions considered
- Section 376(2)(g), Indian Penal Code, 1860The appellants stood convicted of gang rape. The Court upheld the conviction, holding that once the prosecutrix's minority was established consent was irrelevant and that in any case intercourse under fear of her captors was not consent, and declined to reduce the sentence below the minimum statutory sentence prescribed for the offence. (¶¶ 1, 10, 11, 20, 24)
- Section 366, Indian Penal Code, 1860Conviction for kidnapping the minor prosecutrix from the lawful guardianship of her aunt on the pretext of securing her a job, in order that she be forced or seduced to illicit intercourse, was affirmed along with the gang-rape conviction. (¶¶ 1, 10, 11, 17)
- Section 363, Indian Penal Code, 1860The High Court had set aside the separate sentences under this section for three accused as double punishment contrary to Section 71 IPC while affirming the convictions under Sections 366 and 376(2)(g); the Supreme Court noted this and upheld the High Court's order. (¶¶ 11, 25)
Held
- The dental surgeon's opinion that the prosecutrix was below seventeen, the school register and transfer certificate corroborated by the Principal showing her date of birth as 10.08.1988, and her guardian's statements in the missing-person report and in evidence together established that she was a minor on 06.07.2005, the starting date of the continuing offence. (¶ 19)
- Once the prosecutrix is shown to have been a minor at the time of the incident, the question of consent becomes irrelevant and the act is statutory rape; even otherwise, submission to sexual intercourse by a girl of tender age held captive for a prolonged period under threat to her life, operating under constant fear, cannot be understood as consent. (¶ 20)
- A medical opinion that the prosecutrix was 'accustomed to sexual intercourse' is an archaic notion of sexual purity that seeks to shame the victim and downplay the role of consent, and does not advance a plea of consensual intercourse; the absence of injuries is not an important factor where the offence continued for two months and the medical examination took place long after the first incident. (¶ 21)
- Delay in lodging the FIR is inconsequential: the normal rule on delay does not apply to rape cases, and the prosecutrix, held captive for two months, had no means of registering the FIR earlier. (¶ 22)
- The prosecutrix's testimony on the sexual assaults remained wholly unimpeached after lengthy cross-examination, and the alleged discrepancies with her case-diary statement did not shake the prosecution case; conviction for rape can rest on the sole testimony of the prosecutrix where it suffers from no basic infirmity. (¶¶ 16, 23)
- No mitigating circumstances existed to reduce the punishment below the minimum statutory sentence; a long period on bail is no ground for leniency where a young village girl was kidnapped on the pretext of a job by men she trusted and subjected to gang rape for two months. (¶ 24)
Result
Appeals dismissed; the High Court's judgment affirming the convictions and sentences under Sections 366 and 376(2)(g) IPC upheld. Appellants on bail directed to surrender before the trial court within eight weeks to serve the remaining sentence. Pending applications disposed of.