(1) Arjan has preferred an appeal to this Court from his conviction and sentence under Section 376, Indian Penal Code. The trial Court has sentenced him to undergo rigorous imprisonment for two years for having committed the offence of rape against Mst. Jhanjo P.W. 1 of village Nasirpur in District Gurgaon.
(2) The accused was a foot constable. The facts of this case are that Mst. Jhano, aged 30 years, was returning from village Hathin to her village Nasirpur and was accompanied with her minor daughter aged 4 years. The accused in police uniform and two companions of his, who were also in police uniform, were seen coming by her at the Railway Station Sholaka which fell on her way. On overtaking her, they said that she was a vagrant which allegation her, they said that she was a vagrant which allegation she denied and told them that she was coming from village Hathin after having met her relations and was proceeding to her own village.
They kept on walking beside her and went on pestering her with questions on the way. She then took path leading to her village along the canal bank and she passed by some men who were busy extricating bullocks which had got stuck in the marshy ground. After she had covered some more distance and was passing along a sugarcane field, the her asked her to pull a sugarcane from the field for her daughter but she declined to do so.
They then verbally threatened her with beating with the dandas which they were carrying and the companions of the accused forcibly took her in the sugarcane field. The accused remained outside with her little daughter. She tried to raise alarm but her mouth was plugged and both the constables, in turn, committed rape on her. Then the accused also went inside the sugarcane field and he too committed rape on her. In the meanwhile the accused was surprised by two men.
They caught hold of the accused before he was able to tie his belt but his other two companions made good their escape. Mst. Jhanjo narrated the occurrence to these men. The accused was taken to village Sewli where Inspector of Police was camping. Mst. Jhanjo gave her statement to the Inspector who recorded it and it is Exhibit P. A. He also took into possession the dhoti and the petticoat which were found to be stained with semen. The accused was also handed over to the Inspector who put him under arrest.
(3) The prosecution case is supported by the statements of P.W. 4, Ram Parshad, a clerk in the Army Training Battalion, and a resident of village Serai Katela, and of p. W. 5 Kishan Lal, who belongs to the same village. These two witnesses stated that they and some others were trying to extricate a bullock that had got stuck in the mud near their field. A Meo woman passed by them and at her instance they went to the sugarcane field. On their arrival, two police constables, who were wearing police uniform ran away, but they secured the accused while he was adjusting his clothes and fastening his belt.
These two witnesses saw the accused getting up from the ground while Mst. Jhanjo was lying there and she also sat up. She was weeping at that time. The prosecution witnesses did not hear any alarm being raised by her. She immediately narrated the incident to the prosecution witnesses and told them how the accused and his companions had been pestering and following her and what they did to her in the sugarcane field.
(4) The accused in his defence has denied the allegations and stated that he and his two companions were on guard duty at the Railway Station Sholaka on 22nd of November, 1958. After the completion of their duty, they were waiting for some truck to take them to Palwal. His companions left him. After about fifteen minutes some Gujjars of Serai Katela came to him and inquired of him the names of the two companions and he told them that he did not know their names. On this the Gujjars took him to village Sewali and handed him over to the Inspector of Police present there. When he made his statement under Section 342, Criminal Procedure Code, the accused maintained that even then he had forgotten the names of the two companions. Obviously he was trying to screen them.
(5) The only argument urged on behalf of the appellant is that as there were no injuries found on the person of the woman or on the person of the accused, it should be presumed that it was an Act of sexual intercourse with consent. It was also suggested that this woman had been undergoing forms of marriage with a number of persons some of whom were still alive and, therefore, she was a woman of loose character and she should be deemed to have consented to the violation of her person by the accused and his companions. From the above circumstances I cannot come to the conclusion that it was a case of voluntary consent by the woman and that she yielded her body to the three foot constables in uniform out of her free will and volition. It appears to me more a case of helpless resignation than that of free consent. In the case of Rao Harnarain Singh v. The State, AIR 1958 Punj 123, I had made the following observations:
'A mere Act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the Act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere Act of submission does not involve consent. Consent of the girl in order to relieve an Act, of a criminal character, like rape, must be an Act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to Act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.'
The material placed on the record of this case does not furnish a basis form which it may be possible to deduce that Mst. Janjo was a consenting party. She had been pestered by the three police constables in uniform armed with dandas, who were following her and accusing her of being a vagrant. The verbal persecution went on for some time and she was all the time protesting against this accusation.
I cannot believe that she was of such a dissolute and abandoned character who would yield her body to the fist stranger who expressed a desire to violate her. The conduct of three policemen in uniform who were following her to some distance and plying her with questions and accusing her of vagrancy was a sufficient threat and a surrender to them under the circumstances cannot amount to a free consent. I feel satisfied with the truth of her version and under these circumstances I am not surprised at there being no injuries on her person indicating resistance on her part. Absence of resistance does not necessarily imply consent.
(6) The guilt of the accused is established beyond reasonable doubt and he has been rightly convicted, though in awarding sentence of two years' rigorous imprisonment, the Court has acted on the side of lenity. I maintain his conviction and sentence and dismiss his appeal.
(7) Before concluding, I wish to note that the accused in this case had successfully screened his companions by not disclosing their names and had thus enabled them to escape the consequences of law. It is to be regretted that the investigation in this case suffered from inexcusable laxity. There would have been no difficulty whatsoever for finding out the two companions of the accused who were admittedly on guard duty at the Railway Station Sholaka along with the accused on the day the offence was committed.
Their names and numbers would have been known to the investigating officer and in any case could have been ascertained without any difficulty. These two persons could then have been put up for identification by the prosecutrix and the other prosecution witnesses. Had it not been for the courage of Ram Parshad, who was serving in the army, and of his companion Kishan Lal, in securing the accused, the offence would have remained untraced.
If the investigating agency had been alive to its duty, there would have been no difficulty in securing the other two constables who were also the culprits along with the accused. The conduct of the police officer responsible for the investigation of this case exposes to the charge that the case against the two guilty associates of the accused was left untracked as they belonged to the police force and they have been permitted to continue in the police force while still fugitives from justice on a grave charge.
In this case, apart from the accused, two other police constables in uniform, who committed a serious crime like rape, have escaped and gone unpunished simply because no serious efforts were made to catch them.
(8) A copy of this order may be sent to the Punjab Government.
(9) Appeal dismissed.