Crime against Disabled Persons

Mange vs. State of Haryana

Filed Under: Section 376 of the Indian Penal Code, 1860
Appellant: Mange
Respondent: State of Haryana
Citation: (1979) 4 Supreme Court Cases 349
Court:In the Supreme Court
Judges: S Murtaza Fazal and AD Koshal

This is a case in which Raj, a deaf and mute girl was raped by Mange who was convicted of rape by the Sessions Court and the High Court. He then appealed against the judgment in the Supreme Court.

Facts

Mange was convicted for rape under section 376 of Indian Penal Code. He was sentenced to rigorous imprisonment for three years and was fined Rs. 300. On the day of the incident, at about 8 am, Raj Bala, the daughter of Jaswant Singh, was stopped by Mange and was forcibly taken into his chamber. She started crying and her cries attracted her step-brother, Mohinder Singh’s attention. When he reached Mange’s chamber he found him lying on top of Raj, engaged in the act of sexual intercourse. On seeing him, Mange ran away. Thereafter, Mohinder brought Raj back to her home. Her father Jaswant, had gone to Delhi when this incident took place. When he returned he was told about this incident. Jaswant then went to the Police Station and filed a FIR.

After the usual investigation, the Police submitted a charge sheet against Mange, on the basis of which he was convicted before the Sessions Judge. Mange then filed an appeal in the High Court but it was dismissed. The case then came to the Supreme Court.

Mange’s lawyer raised a number of arguments against the order of the High Court and the Sessions Court. It was contended that Raj had not even been examined by the opposite party in the Court and on that ground alone the case should fail. The second point, which was raised, was that the medical evidence did not support that the rape had taken place on the day it was alleged because the lady doctor had stated that Raj may have been subjected to intercourse two days before. Finally it was also contended that Mohinder had not narrated the occurrence to Raj’s mother and had waited for Raj’s father to come back.

Observations of the Court

The Court examined these arguments. With respect to the first argument, the Court held that Raj was a ‘dumb and deaf’ girl of 13 years and no useful purpose would be served by examining her in the Court. For the second argument the Court pointed out that it was difficult for any medical expert to give the exact time when the rape was committed and other medical evidence showed clearly that Raj had been raped. For the third argument the Court held that Mohinder was Jaswant’s step-brother and he must have thought it better to wait and tell Jaswant directly about the incident. Under these circumstances, Mohinder’s omission of narrating the incident to Raj’s mother was clearly explainable.

On considering the evidence and circumstances, the Court was satisfied that the High Court had been right in holding that the case against Mange was fully proved. Accordingly the Court upheld the decision of the High Court and dismissed the appeal.

Sections Referred:

  • Section 376, of the Indian Penal Code, 1860

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Tulshidas Kanolkar vs. State of Goa

Filed Under: Section 154 of the Criminal Procedure Code, 1974 Section 376 of the Indian Penal Code, 1860
Appellant: Tulshidas Kanolkar
Respondent: State of Goa
Citation: AIR 2004 SC 978
Court: In the Supreme Court of India
Judges: Doraiswamy Raju and Arijit Pasayat

Tulshidas Kanolkar filed the present appeal against the order of the High Court sentencing him for 7 years for the rape of a mentally challenged girl.

Facts

The victim in this case was a girl whose mental faculties were underdeveloped and her ‘I.Q. was not even 1/3rd of that of a normal person’. One day her parents’ noticed that her legs were swollen and there were signs of an advanced stage of pregnancy. They asked her who was responsible for her pregnancy. In her own way she pointed toward Tulshidas and said that he had intercourse with her on some pretext or the other a number of times.

Tulshidas’s mother offered some money for an abortion. However, the money offered was very little compared to what was required for the termination of the pregnancy. The baby was not aborted and the girl finally delivered a stillborn child. Her father then lodged an FIR in the police station. Thereafter, an investigation was undertaken for the commission of the offense of rape and threat to the victim by Tulshidas.

He was then charge sheeted for the offense. In the Trial Court, Tulshidas pleaded false implication and indirectly implied that the victim had consented to the sexual intercourse. It was also highlighted that there had been a delay in the lodging of the complaint and this fact rendered the version given by the victim’s side as unacceptable. It was also mentioned that as there had been intercourse on several occasions; it was a case of consent and not of rape.

The Sessions Judge considered the arguments and held Tulshidas guilty. A sentence of 11 years was imposed on him along with fine. Tulshidas then filed an appeal in the High Court of Bombay at Goa and reiterated the same stand. The High Court upheld the conviction but reduced the sentence to 7 years.

Tulshidas then filed the present appeal in the Supreme Court.

Observations of the Court

The Court dealt with both the contentions raised by Tulshidas’s lawyer. The Court held that the argument of delay in filing of the complaint was not valid since the victim was suffering from mental subnormality and had not been aware of the consequences of the act committed by Tulshidas. Regarding the second argument that the intercourse had taken place on a voluntary basis, the Court stated that since the victim was mentally challenged she could not have given her consent.

The Court even explicated the difference between submission and consent (refer to quotes) and stated that since the victim had a mental age of below 12 years, the gravity of the offense should especially be taken into account. Based on these reasons, the Court found no infirmity in the conclusions arrived by the Trial Court and the High Court to warrant interference. The appeal was thereby dismissed and Tulshidas Kanolkar was ordered to undergo the remaining period of the sentence imposed.

Sections Referred:

  • Section 154 of the Criminal Procedure Code, 1974
  • Section 376 of the Indian Penal Code, 1860

Quotes from the Judgment:

“The plea of consent is too shallow to even need detailed analysis or consideration. 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. Every consent involves submission but the converse does not follow and mere act of submission does not involve consent. As 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 consent as understood in law.”

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