NATIONAL LEGAL RESEARCH DESK
Tulshidas Kanolkar v The State of Goa – Citation: (2003) 8 SCC 590 – Supreme Court of India
While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female. When the victim is a mentally challenged person, there is not only physically violence and degradation and defilement of the soul, but also exploitation of her helplessness. The case in hand is a classic example when the baser instincts of the appellant overtook his moral values and human sensitivity and he ravished the unsuspecting victim incapable of comprehending the vicissitudes of the dastardly act, not once but several times. So innocence was the victim that she was even not aware of the dreadful consequences.
The mental faculties of the victim were undeveloped and her Intelligence Quotient (in short ‘I.Q.’) was not even 1/3rd of what a normal person has. Tragedy struck on the victim sometimes in 1999, when parents of the victim noticed that her legs were swollen and there were signs of advanced stage of pregnancy. They were shocked beyond limits. They asked the victim as to who was responsible for her pregnancy. She in her own way pointed out accusing fingers at the appellant and said that on some pretext or the other, ravished her. When this shattering news was conveyed to the parents of the victims, they questioned the appellant.
The Supreme Court observed that the unusual circumstances involved in this case satisfactorily explained the delay in lodging of the first information report. It further observed that, “In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity.”
Regarding non examination of some witnesses the Supreme Court stated that “Non-examination of some persons per se does not corrode vitality of prosecution version, particularly when the prosecutrix has, notwithstanding her mental deficiencies, withstood incisive cross- examination pointed to the appellant as the perpetrator of the crime.” and consent of the prosecutrix the Supreme Court said that “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 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.”
Thus, the Supreme Court upheld the decision of Sessions Court regarding conviction of the accused, and imposition of rigorous imprisonment of 10 years and one year respectively for the two charged offences under Sections 376 (rape) and 506 (2) (criminal intimidation) along with a fine of Rs.10,000/- and Rs.2,000/- respectively with default stipulation.