Indian Penal Code, 1860
Section 376—Rape—Delay in lodging FIR—Where the virtue of a lady is at stake, normally persons around her would be more circumspect in approaching the law enforcing agency and would try to sort out the issues amongst themselves along with the opposite party and only in cases where consensus could not be reached, resort will be made for remedy through the law enforcing agency—Family of the prosecutrix had resorted to similar procedures of having an in-house discussion and in the absence of consensus, had taken up the issue before the respondent—Delay in lodging the complaint, in cases of this nature, unless it is too enormous, cannot be the basis to question the bona fides of the complaint—Delay in lodging the complaint cannot be put against the prosecution.
[Paras 67 & 68]
Sections 375, 376 read with 90 & 417—Rape—Conviction—Question as to whether consent as claimed could be treated to be a consent in consequence of fear of injury or a misconception of fact so as to draw first accused into the fold of commission of rape under Section 375 IPC—No only there are glaring discrepancies and contradictions in the depositions of witnesses but there are interpolations in the evidence of witnesses—None of two limbs of Section 90 of IPC are fulfilled by the prosecution to prove that the act of first accused falls within the periphery of Section 90 IPC and that the consent given by victim was on misconception of fact—Evidence as a whole indicates that there was no resistance by the prosecutrix and there was voluntary participation by victim for the sexual act—Consent given is not only based on intelligent exercise of knowledge, but also fully appreciating the significance and understanding the moral quality of the act—Sexual act was in pursuance of a consent, which was voluntary and in a free and unconstrained possession of her physical and moral power and, therefore, the act, as alleged would not fall within the contours of rape as defined under Section 375 of IPC—Merely because steps were taken to record the statement of victim under Section 164 of CrPC, and that the said statement is in consonance with her deposition in court alone cannot form the basis for convicting the appellant as all the parameters laid down in the provisions of the Code should be satisfied so as to fasten the guilt on the appellant—However, without any iota of evidence, as a result of shoddy investigation, the appellant has been shown to be the aggressor—In the absence of any shred of evidence, which points to his guilt, which squarely falls within the provisions of Section 375 IPC, the allegation levelled against the appellant cannot be countenanced and, therefore, the findings recorded against the appellant by the court below deserves to be interfered with—Conviction set aside.
[Paras 35, 49, 71 & 73]