Section 376 IPC | Minor's Consent Not Ground To Absolve Accused: Jharkhand High Court Reiterates

The Jharkhand High Court while affirming a judgment of conviction passed by the trial Court and sentence under Section 376 of the Indian Penal Code, has observed that despite the victim being a consenting party and engaging in a sexual relationship leading to her pregnancy over several months, the accused cannot be absolved of guilt solely based on her consent as she was a minor.

Justice Gautam Kumar Choudhary observed, “Matter for consideration is whether consent of the victim negated the crime. Consent of a minor girl is immaterial in a rape case. At the relevant time i.e., in the year 2005 when the alleged offence of rape is said to have been committed, the age of consent was sixteen years and above. It was only vide an amendment made in the year 2013 that this has been increased to eighteen years. As per the definition of rape under sixth clause of Section 375 of the IPC prior to Amendment of 2013 Act, sexual intercourse with or without her consent, when she was under sixteen years of age constituted rape.”

“Prosecutrix as per the FIR was aged 15 years at the time of the registration of the FIR on 05.02.2005. At the time of her deposition on 19.04.2006 her age has been stated to be 15 years. Doctor (PW-8) who examined the victim, has assessed the age of victim to be 14-16 years as per the opinion of the radiologist. … There is no contrary evidence to show that victim was more than 16 years at the time of the said incidence. Victim was a consenting party and the sexual relationship continued for months resulting in her pregnancy, but the consent of the minor victim cannot be a ground to absolve the accused of his guilt,” Justice Choudhary added.

The case was initiated based on the testimony of the prosecutrix, which was recorded on 14.05.2005. According to her statement, she was 15 years old at the time and resided at her maternal grandfather's house.

According to the prosecutrix's account, approximately seven months prior to the aforementioned date, while she was grazing her cattle, the accused raped her. She was threatened with dire consequences if she revealed the incident to her family members. Allegedly, the accused continued to rape her on multiple occasions, resulting in her pregnancy.

Upon confiding in her parents about the ordeal, a case was filed against the accused under Section 376 of the Indian Penal Code. Subsequent police investigation confirmed the validity of the claims, leading to the submission of a charge sheet and the commencement of trial proceedings against the accused.

The judgment of conviction and sentence passed by the trial court was assailed on the ground that there was inordinate delay of seven months in institution of FIR without any plausible reason for the said delay.

Further it was contended that there was no direct eye witness barring the prosecutrix, and as per her own version, the incident was consensual, and it was only when she became pregnant, the FIR was lodged.

Another contention was the absence of documentation supporting the age of the complainant. It was argued that although a doctor's opinion suggested her age to be between 14-16 years, it was argued that medical age determination can have a margin of error of up to two years, which should favor the accused. Moreover, it was asserted that the accused was over 16 years old at the time of the incident.

The Assistant Public Prosecutor (APP) defended the impugned judgment of conviction and order of sentence.

Before delving into the appreciation of evidence, the Court found it pertinent to outline the legal principles governing the assessment of evidence provided by the prosecutrix in a rape case.

The Court affirmed, “It is settled position of law that in cases of sexual assault the evidence of prosecutrix is to be treated that of an injured witness, so much that no corroboration is necessary. Where the sexual intercourse is established, there is a presumption of absence of consent under Section 114 A of the Evidence Act. This presumption is a presumption of fact, and is restricted in its application compared to the presumption is under Sections 113A and 113B of the Evidence Act (Refer to Rajoo & Others Vs State of M.P., (2008)15 SCC 133).”

In the present instance, the Court noted an undeniable delay of 7 months in filing the FIR.

Additionally, the Court observed that PW 2 to 6, who were close relatives of the victim, testified that the victim had disclosed the incident of rape only about 15 days before the lodging of the FIR.

The Court stressed, “No plausible explanation for the said delay has been given by the prosecutrix, except that she was threatened with life from disclosing the incidence to her family member. This explanation does not inspire confidence, because there is no corroboration regarding the threat extended by the accused to the Appellant.”

The central issue before the Court revolved around whether the victim's consent could negate the crime in question.

The Court firmly stated that “Consent of a minor girl is immaterial in a rape case.”

The Court further highlighted that at the relevant time i.e., in the year 2005 when the alleged offence of rape is said to have been committed, the age of consent was sixteen years and above.

The Court further highlighted that it was only vide an amendment made in the year 2013 that this has been increased to eighteen years. As per the definition of rape under sixth clause of Section 375 of the IPC prior to Amendment of 2013 Act, sexual intercourse with or without her consent, when she was under sixteen years of age constituted rape.”

The Court observed, “During investigation or trial, there is no material to suggest that any physical threat or harm was done to the prosecutrix or any of her family members. Unexplained delay in lodging FIR is viewed with suspicion, on the other hand, a prompt FIR makes it more dependable. A delay in lodging the FIR by days or even weeks is understandable particularly in rape cases, but when it stretches to months, it needs a credible explanation.”

“In the absence of any convincing reason, and the case being filed only at an advanced stage of pregnancy, logically drives one to the inference that physical relationship was a consensual affair that continued for days and months without any protest or demur on the part of the victim of girl,” the Court added.

Under the circumstance, in view of the uncontroverted evidence of the prosecutrix regarding the sexual intercourse, the Court held, “the prosecution has proved its charge under Section 376 of the IPC against the accused, beyond the shadow of all reasonable and probable doubt. Judgment of conviction passed by the trial Court, is accordingly, affirmed.”

On the point of sentence, considering the consensual nature of physical relationship which continued for several months ultimately, resulting in pregnancy of the victim, the Court opined that there existed special and adequate reasons for awarding sentence less than minimum prescribed sentence in this case.

“A sentence of R.I. of four years and fine of Rs.5,000/- shall meet the ends of justice. In the event of default in payment of fine, S.I. of three months shall meet the ends of justice. Victim shall be entitled to compensation as per the victim compensation scheme,” the Court directed while cancelling the bail of the Appellant.

The Court further directed the Appellant to surrender before the Court within two weeks of the order, and with this modification of sentence, the Appeal was dismissed.

Appearance:

For the Appellant : Ms. Vani Kumari, Advocate

For the State : Mr. Pankaj Kumar Mishra, A.P.P.

Case No.: Criminal Appeal (S.J.) No. 246 of 2012

Case Title: Sachindra Singh @ Sacha @ Sachchi Singh Versus The State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 45

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