Citations: Tulshidas Kanolkar Vs the State of Goa 2003 Appeal (Cri) 298
Date of Judgement: 27/10/2003
Equivalent citations: 2003 Appeal (Cri) 298
Case Type: Criminal Appeal
Case No.: Appeal (crl.) 298 of 2003
Appellant: Tulshidas Kanolkar
Respondent: State of Goa
Bench: Hon’ble Justice Doraiswamy Raju, Hon’ble Justice Arijit Pasayat
Court: Supreme Court of India
Statutes Referred:
- Indian Penal Code,1860; Section 376, 506(2)
- Code of Criminal Procedure, 1973; Section 313
Facts:
- The victim’s mental skills were underdeveloped, and her Intelligence Quotient (I.Q.) was less than a third of that of a normal individual.
- Victim’s parents observed the legs of victim as being swollen and with indicators of an advanced stage of pregnancy sometime in 1999. Parents were really taken aback and inquired as to who was to blame for the victim’s pregnancy.
- The victim, in her own manner, pointed accusing fingers at the accused and claimed that he ravished her at multiple occasions. The victim’s family asked for money from the Accused for termination of pregnancy but they were only willing to part Rs 2000 and not Rs 6000 as required.
- There was no termination of the pregnancy, and evidence reveals that the victim delivered a stillborn child. PW1 reported the incident to the police on August 10, 1999. (Father of the victim). The accused was investigated for committing the crime of rape and making a threat against the victim.
- Under the chargesheet a case for offences punishable under Section 376 and 506(2) of the Indian Penal Code, 1860 was filed.
- The Trial Court considered all of the pleas and found the defendants guilty, imposing terms of ten years and one year for the two alleged offences, respectively, along with fines of Rs.10,000/- and Rs.2,000/-, with a default stipulation.
- In an appeal, the Trial Court’s position was restated before the High Court of Bombay in Goa, which maintained the conviction but reduced the sentence to seven years for the offence punishable under Section 376 of the Indian Penal Code.
Issues:
- Whether the High Court was correct in reducing the Sentence of the accused when accusations of rape are involved?
- Whether delay in filing the FIR be used to discard and doubt authenticity of Petitioner’s Case?
Contention of the Respondent:
- During the trial, the defendant pled guilty to false implication. It appears that a case of consent was argued indirectly based on the duration of cross-examination and the statement made under Section 313 of the Code of Criminal Procedure, 1973.
- The prosecution version was found to be unsatisfactory because of the delay in filing the initial information report. Many others who may have shed light as putative victims made disclosures regarding appellant’s participation before them were not questioned.
- It is certainly a question of consent because there was claimed intercourse on multiple occasions.
Contention of Appellant:
- Counsel argued that, given the nature of the evidence and the seriousness of the crime, the High Court behaved leniently in decreasing the term while sustaining the conviction. The failure to file a first information report on time cannot be used as a ritualistic prescription for dismissing the prosecution case and casting doubt on its veracity.
- A competent explanation of the delay, on the other hand, is sufficient to dismiss the argument of false inference or vulnerability of the prosecution case. As the real-life case demonstrates, the victim was completely oblivious of the tragedy that had befallen her.
- Non-interrogation of some witnesses does not negate the prosecution’s case, especially where the prosecutrix has withstood sharp cross-examination pointing to the appellant as the perpetrator of the crime, notwithstanding her mental limitations.
- Every act of consent entails a submit, but the opposite is not true, because a simple act of submission does not include consent. In law, a girl with underdeveloped mental powers cannot be regarded to have had sexual intercourses with consent.
Judgement:
The appeal was dismissed.
The court concluded that in the present case, this appeal is without merit and is rejected. The Apex Court didn’t see any flaws in the Trial Court’s and High Court’s judgments that would need it to intervene and so the appeal stood dismissed. The appellant was directed to serve out the remainder of the sentence.
Obiter Dicta:
- In a situation when the victim is a mentally challenged or deficient girl, the penalty is prescribed. Clause(f) of Section 376, sub-section (2), refers to the physical age of a woman under the age of 12. In such a circumstance, a penalty greater than that required in sub-section (1) is available. What happens, though, when the victim’s mental age is less than 12 years old?
- A woman in this scenario is unquestionably more vulnerable. In such a circumstance, a rapist takes advantage of her mental immaturity and weakness in addition to physical ravishment. In a case like this, the legislature would do well to impose a stiffer minimum punishment.
Conclusion:
The Apex Court dismissed the contentions of the Learned Counsel on the behalf of the State representing the Victim that there was no merit in the Appeal on the Bombay’s High Court Judgement reducing the accused’s punishment and the convicted person should serve his required sentence. However, the court laid down how a mentally challenged victim is more vulnerable and how rape can tarnish not only the physical body of the victim but also took advantage of her mental state.
Drafted by: Sachika Vij, Ram Manohar Lohiya National Law University
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: January 04, 2021 at 18:00 IST