1) It is most humbly submitted before this Hon’ble Supreme Court that due to Respondent's

mental and physical incapacity, she lacks the ability to provide valid consent

2) It is submitted that Indian Penal Code, 1860 does not define consent in positive terms. But
what cannot be regarded as consent is explained by section 90 which reads as

“90. Consent known to be given under fear or misconception.—

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a
person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or
has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person. — if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his consent;
or

Consent of child. — unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age”

3) It is further submitted that the word “consent” has been explained as an act of reason
accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side.
Consent supposes three things, a physical power, a mental power and a free and serious use of
them. Hence it is that if consent be obtained by intimidation, force, mediated imposition,
circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate
and free act of the mind.

4) Furthermore, Section 375 also describes certain acts which if committed by the accused
under the circumstances mentioned therein, as the commission of ‘Rape’, even though committed
with the consent of the prosecutrix. Expression “fear or misconception” contained in Section 90
IPC is also required to be appreciated in the light of the Clauses contained in Section 375 IPC,
more particularly the Clauses Thirdly and Fifthly thereof, when the accused is charged for the
offence of ‘rape’. The circumstances described in the said two Clauses are wider than the
expression “ fear and misconception”, as contemplated in Section 90 of IPC.

5) Section 375 describes seven circumstances under which the ‘rape’ could be said to have been
committed. As per the Clause - Thirdly, a rape could be said to have been committed, even with
her consent, when the consent of the prosecutrix is obtained by putting her or any person in whom
she is interested in fear of death or of hurt. As per the Clause - Fifthly, with her consent when at
the time of giving the consent, the prosecutrix by reason of unsoundness of mind or intoxication
or the administration of stupefying or unwholesome substance by the accused or through another,
she is unable to understand the nature and consequences of that to which she gives consent. Thus,
apart from the prosecutrix being under the fear and misconception as contemplated in Section 90,
her consent would be treated as ‘no consent’ if she had given her consent under any of the
circumstances mentioned in Section 375 of IPC.

6) Reliance is placed on the judgments of Satpal Singh v State of Haryana, (2010) 8 SCC 714
[LNIND 2010 SC 666] , 724 (para 31), relying on Uday v State of Karnataka, (2003) 4 SCC 46
[LNIND 2003 SC 228] ; Deelip Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123]
 and Yelda Srinivasa Rao v State of AP, (2006) 11 SCC 615 [LNIND 2006 SC 785] where the
court held that :

“The concept of “consent” in the context of section 375 of the Indian Penal Code, 1860 has to
understood differently, keeping in mind the provision of section 90 IPC, according to which a consent
given under fear/coercion or misconception/ mistake of fact is not a consent at all. Scheme of section
90 IPC is couched in negative terminology”.

7) It is herein submitted that in State of HP v Mange Ram, AIR 2000 SC 2798 [LNIND 2000 SC
1144] : (2000) 7 SCC 224 [LNIND 2000 SC 1144] ; Uday v State of Karnataka, AIR 2003 SC
1639 [LNIND 2003 SC 228] : (2003) 4 SCC 46 [LNIND 2003 SC 228] . ) The court held that

“Consent for the purpose of section 375 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
fully exercised the choice between resistance and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances”.

8) It is moreover submitted that “Every “consent” to an act, involves a submission; but it by no

means follows that a mere submission involves consent”, e.g. the mere submission of a girl to a
carnal assault, she being in the power of a strong man, is not consent. (per Coleridge, J., R. v
Day)8004. ( R. v Day, (1841) 9 C&P 722 : 173 ER 1026, 1027, cited in Stroud’s Judicial
Dictionary, (4th Edn), vol 1 (1971) at p 555 and State of UP v Chhotey Lal, (2011) 2 SCC 550
[LNIND 2011 SC 73] , 559 (para 18))

9) Further Reliance is placed on (State of HP v Mango Ram, (2000) 7 SCC 224 [LNIND 2000
SC 1144] : 2000 SCC (Cri) 1331 [LNIND 2000 SC 1144] . See also State of UP v Chhotey Lal,
(2011) 2 SCC 550 [LNIND 2011 SC 73] , 560 (para 20). )

“Submission of the body under the fear of the terror cannot be construed as a consensual sexual act.
Consent for the purpose of section 375 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
fully exercised the choice between resistance and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances”

10) It is further submitted that a woman has given consent only if she has freely agreed 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 untrammelled 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.

11) It is submitted that court in the case of S. Ibochouba Singh v Manipur Administration, 1972
Cr LJ 395 held that “ The third clause of section 375, of the Indian Penal Code, 1860 provides
that when such consent has been obtained by putting her in fear of death or of hurt either to
herself or to one she is interested in, it is rape. Consent of a woman over eighteen years of age to
sexual intercourse obtained by putting her in fear of death or hurt was, therefore, held to be not a
valid defence and section 376, Indian Penal Code, 1860 attracted”.

12) Furthermore in the case of Pinki Kumari v State, 2003 Cr LJ 4019 (Jhar) : 2003 AIR Jhar
HCR 1126 the court held that -The accused committed rape by giving threat to kill her and other
members of her family. When sexual relations between parties continued for sometime, the victim
became pregnant. The accused assured to marry her but then refused. On being prosecuted under
section 376 he pleaded consent of victim and Trial Court held that offence of rape was not made
out. On appeal High Court reversed the Trial Court finding and held that there was no consent
when sexual intercourse was committed for first time by giving her threats to murder her. The
Trial Court was therefore directed to proceed with the case in accordance with law.

13) In Lalu Kamumal v State, AIR 1953 Ajmer 12 : 53 Cr LJ the court said where a man had
carnal knowledge of a girl of imbecile mind, and the jury found that it was without her consent,
she being incapable of giving consent from defect of understanding, it was held that this
amounted to rape. These cases will now fall within the mischief of the fifth clause to section 375,
of the Indian Penal Code, 1860.

14) Furthermore in Khoja Ram v State, 2006 Cr LJ 2093 (HP) the court held that Rape was
committed on a mentally retarded girl and her consent was therefore, of no value. She specifically
told that she was sexually assaulted by the accused against her wishes and this fact was
corroborated by medical evidence as well as evidence of her sister-in-law. Conviction was held
proper.

15) In a case of Ashok Kumar Rout v State, 2006 Cr LJ 3362 (Pat). In Shanabhai Chandubhai v
State, 2006 Cr LJ 3252 (Guj) minor girl was intellectually weak and was lured by the accused by
showing Rs. 2. Conviction was upheld but sentence was reduced to seven year from 10 years R.I.
only witness had turned hostile and prosecutrix herself was a dumb girl but other evidence was
sufficient to support prosecution case, convicting the accused Court further observed, that a
witness cannot be allowed to hijack justice by turning hostile before Court and his previous
statement made before magistrate at the earliest opportunity under section 164 of the Code of
Criminal Procedure, 1973 must get some credence if it is being corroborated on material points by
other evidence.”

16) In the case of Shamsher Tappi v State of UP, 1995 Cr LJ 2328 (All). The accused committed
rape on a mentally retarded minor girl. The eye witness in the case was other of the girl who had
rushed to the scene of occurrence and had seen the accused escaping from the scene. The girl as a
valuable witness was not produced in the Court but it was observed that non-compliance of
section 118 and 119 of Evidence Act, 1872 would not be fatal to prosecution case. The accused
was convicted and sentence awarded to him was confirmed.

17) Furthermore, in the case of Anil Motibaba Barokar v State of Maharashtra, 1996 Cr LJ 494
(Bom) The insane woman of 25 to 27 years of age was gang raped and done to death but vital
links of the chain to bring home the guilt of the accused beyond reasonable doubt were clearly
missing. It was therefore held that though crime is gruesome and incident of gang rape and
murder of insane woman was pathetic but that itself could not be sufficient ground to convict the
accused appellant unless he could be connected with the crime.8175. Thus, giving the benefits of
doubt to the accused, his conviction was set aside.

18) Reliance is placed on Public Prosecutor v Lingesetty Sreenu, 1997 Cr LJ 4003 (AP) The
accused committed rape on dumb girl who indicated that accused had committed rape on her. It
was held that the victim in such cases is a better witness and her testimony could be relied on
without any corroboration. The accused was accordingly convicted under sections 376/511 as he
had only attempted to commit rape.8177.
 19) In R. v Blair (Dennis), (1996) 1 Cri App R (5) 336 Kenne J CA (Cri Div). The accused
assaulted the mentally retarded girl and was convicted and against his conviction he appealed and
submitted that leave be granted against the sentence and conviction be set aside. The leave was
not granted but appeal was allowed in part and sentence of four years imprisonment was reduced
to 21 months imprisonment as it was proved that the mens rea existed at or by the time the
indecent assault had taken place.8178.

20) In Tulshidas Kanolkar v State of Goa ,54 wherein the accused ravished a mentally-challenged
girl on occasions more than one that resulted in her pregnancy, the apex court categorically held
that consent given by mentally challenged girl cannot be said to be ‘consent’ for sexual
intercourse as she is incapable of understanding the consequences of her consent. It observed:

21) Satpal Singh v. State of Haryana (2010Cri.L.J.4283), the Supreme Court considered the
question as to when a woman can be said to have given consent and it was held thus: It also ruled
that a rapist by sexually assaulting a mentally underdeveloped girl not only physically ravishes
her but also exploits her mental non-development and helplessness. Rape is an offence against
human dignity, it is a transgression which is destructive of the whole personality of the victim,
thus, there is no question of being lenient in passing sentence against the accused.

An 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 to be consent as understood in law. For
constituting consent, there must be exercise of intelligence based on the knowledge of the significance
and the moral effect of the act. A girl, whose mental faculties are undeveloped, cannot be said in law,
to have suffered sexual intercourses with consent.

22) In Chaman Lal vs The State Of Himachal Pradesh the court held that “A person suffering
from mental disorder or mental sickness deserves special care, love and affection. They are not to
be exploited. In the present case, the accused has exploited the victim by taking disadvantage of
her mental sickness/illness and committed rape on prosecutrix. The high court taking a very
lenient view imposed the minimum sentence of seven years rigorous imprisionment, no
interference is called for”. ( AIR 2021 SUPREME COURT 46, AIRONLINE 2020 SC 869

23) It is submitted that the Indian Evidence Act, 1872 by incorporating section 114A which
clearly has been added to add weight and credence to the statement of the victim woman who
suffers the offence of rape and a claustrophobic interpretation of this amended provision cannot
be made to infer that the version of the victim should be believed relating merely to consent in a
case where the offence of rape is proved by other evidence on record.

24) If this view of the matter is taken into account relying upon section 114-A of the Indian
Evidence Act, 1872 which we clearly do, then even if there had been a doubt about the medical
evidence same would be of no consequence as it is well settled by now that the offence of rape
would be held to have been proved even if there is an attempt of rape on the woman and not the
actual commission of rape.

25) The Indian Evidence Act, 1872 clearly implying and expecting the Court to give utmost
weightage to the version of the victim of the offence of rape which definition includes also the
attempt to rape.8018. (Puran Chand v State of HP, 2014 Cr LJ 2577 : 2014 (5) Scale 551
[LNIND 2014 SC 486] : (2014) 5 SCC 689 [LNIND 2014 SC 486] .) In order to enable the court
to draw presumption as contained in section 114-A against the accused, it is necessary to first
prove the commission of sexual intercourse by the accused on the prosecutrix and second, it
should be proved that it was done without the consent of the prosecutrix.

26) It is submitted that In Deepak v State of Haryana, 2015 Cr LJ 2049 : 2015 (3) Scale 414
[LNIND 2015 SC 150] : (2015) 4 SCC7 62 the court held that Once the prosecutrix states in her
evidence that she did not consent to act of sexual intercourse done by the accused on her which,
as per her statement, was committed by the accused against her will and the accused failed to give
any satisfactory explanation in his defence evidence on this issue, the court will be entitled to
draw the presumption Under section 114-A of the Indian Evidence Act, 1872 against the accused
holding that he committed the act of sexual intercourse on the prosecutrix against her will and
without her consent. The question as to whether the sexual intercourse was done with or without
consent being a question of fact has to be proved by the evidence in every case before invoking
the rigour of section 114-A of the Indian Evidence Act, 1872.

27) Furthermore in the case of Bipul Medhi v State of Assam, 2008 Cr LJ 1099 , p 1108 (Gauh)
(DB) the court stated that Thus there is Presumption of absence of Consent—section 114A of
Evidence Act that When sexual intercourse by the accused with the prosecutrix is proved to have
taken place and the prosecutrix, in such a case, claims in her evidence before the court that she
had not consented to the sexual act, the court shall draw a presumption under section 114A,
Evidence Act, 1872 that she had not consented to the sexual act and the burden would then shift
to the accused to prove that his sexual act with the prosecutrix was with her consent.

28) Thus it is submitted that the Petitioner forcefully raped the Respondent under threat,
supported by the recovery of a knife used in the assaults. Respondent's purported mental and
physical disabilities, exemplified by her reliance on a translator during trial proceedings and the
incomplete assessment of her condition in the medical examination, further undermine the
validity of any consent she may have appeared to give.

29) Furthermore in Rameshwar v. State of Rajasthan the court declared that corroboration is not
the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for
the Court observed as follows :- 19 Criminal Appeal No.954/2017 [Kalyan Pal Vs. State of M.P.]
"The rule, which according to the cases has hardened into one of law, is not that corroboration is
essential before there can be a conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense with it, must be present to the
mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind
of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction
can be allowed to stand."

30) In the present case of Respondent, the elements of Section 114-A are evident from the facts
presented. Firstly, it has been established through medical examination and DNA evidence that
Respondent gave birth to a child, and Sumesh's DNA matched with that of the child, indicating
sexual intercourse between them. This satisfies the requirement of proving the commission of
sexual intercourse by the accused on the prosecutrix. Secondly, the allegations made by
Respondent and her sister-in-law in the FIR, accusing Appellateof forcefully raping Respondent
multiple times, coupled with the refusal of Appellateand his family to marry Respondent and their
offer to abort the child, suggest that the sexual acts were done without Respondent's consent.
Furthermore, Respondent's alleged mental and physical incapacity, as evidenced by her request
 for a translator during trial proceedings, further support the contention that the sexual intercourse
was non-consensual also as proved above.

31) Hence, based on the established facts presented herein, it is respectfully requested that the
esteemed court considers drawing a presumption against the accused under Section 114-A of the
Indian Evidence Act. The evidence strongly suggests the absence of valid consent in the
encounters between Respondent and the accused, Sumesh. Given Respondent's purported mental
and physical incapacities. To uphold the principles of justice and safeguard the rights of the
victim, ensuring that legal recourse is pursued in a manner consistent with the provisions of the
law. Therefore, with due consideration to the evidence and the circumstances at hand, drawing
such a presumption would serve the interests of fairness and uphold the integrity of the legal
process.

32) In light of these compelling circumstances, the lower courts exercised their discretion
judiciously in sentencing Appellateto rigorous imprisonment. Their decisions were not only
legally sound but also reflective of the need to ensure justice for the victim and uphold the rule of
law. Therefore, it is respectfully urged that the decisions of the lower courts be upheld and
affirmed by this Hon'ble Supreme Court.

ISSUE PETITIONER

1) It is most humbly submitted before this hon’ble court that that the Respondent is the
consenting party and the sexual intercourse was consensual.

2) It is submitted that Indian Penal Code, 1860 does not define consent in positive terms. But
what cannot be regarded as consent is explained by section 90 which reads as

“90. Consent known to be given under fear or misconception. —

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a
person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or
has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person. — if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his consent;
or

Consent of child. — unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age”

3) Furthermore, Section 375 also describes certain acts which if committed by the accused under
the circumstances mentioned therein, as the commission of ‘Rape’, even though committed with
the consent of the prosecutrix. Expression “fear or misconception” contained in Section 90 IPC is
also required to be appreciated in the light of the Clauses contained in Section 375 IPC, more
particularly the Clauses Thirdly and Fifthly thereof, when the accused is charged for the offence
of ‘rape’. The circumstances described in the said two Clauses are wider than the expression “
fear and misconception”, as contemplated in Section 90 of IPC.
 4) Moreover, Section 375 describes seven circumstances under which the ‘rape’ could be said to
have been committed. As per the Clause - Thirdly, a rape could be said to have been committed,
even with her consent, when the consent of the prosecutrix is obtained by putting her or any
person in whom she is interested in fear of death or of hurt. As per the Clause - Fifthly, with her
consent when at the time of giving the consent, the prosecutrix by reason of unsoundness of mind
or intoxication or the administration of stupefying or unwholesome substance by the accused or
through another, she is unable to understand the nature and consequences of that to which she
gives consent. Thus, apart from the prosecutrix being under the fear and misconception as
contemplated in Section 90, her consent would be treated as ‘no consent’ if she had given her
consent under any of the circumstances mentioned in Section 375 of IPC.

5) It is humbly submitted that both the elements of Rape as per fear or conception and due
mentally incapacity is not proved beyond reasonable doubt in the present case.

6) It is submitted that in the case of No.954/2017 [Kalyan Pal Vs. State of M.P.] the court stated
that evidence which has come on record, it is clear that the basic requirement of Section 375
Firstly of IPC have not been established by the prosecution beyond reasonable doubt and, hence,
the appellant is liable to be acquitted.

7) The court further held that “However, where undisputedly, the two persons, i.e., the appellant
and the prosecutrix were involved in sexual activities, then the moot question for determination
would be that whether the act of sexual intimacy was without the will of the prosecutrix or it was
with her consent. Whether the prosecutrix was a consenting party and her claim, that She was
subjected to sexual violation, is a question which has to be determined after considering the
surrounding circumstances. Although it is a well established principle of law that the sole
testimony of the prosecutrix is sufficient to hold the accused guilty of committing rape, but where
the evidence of the prosecutrix is not found trustworthy, then She can be disbelieved.

8) The word "willingness" would mean that when a woman in her full senses, and with clear
understanding of the consequences of intimate relationship, agrees to involve herself in sexual
relations, without any misconception of fact and without any coercion or pressure, then it can be
said that the act of sexual intimacy was not against the will of the woman.

9) In Amar Bahadur Singh Vs. State of U.P. Reported in (2011) 14 SCC 671 has held as under :

On the contrary the findings of the High Court that the prosecutrix was a consenting party appear to
be correct and it was perhaps when the accused and the prosecutrix had been caught red-handed that
the story of rape had been cooked up, to salvage some of the family honour. This is often the tendency
in such matters. The High Court has therefore gone completely wrong in dismissing the appeal even
after its categorical observations.

10) Hon'ble Supreme Court in Sheikh Zakir v. State of Bihar (7), has stated in the following
manner :-

"Even though a victim of rape cannot be treated as an accomplice, the evidence of the victim in a rape
case is to be treated almost like the evidence of an accomplice requiring corroboration. Hence there
must be an indication in the course of the judgment that the judge had this rule in his mind when he
prepared the judgment and if in a given case the judge finds that there is no need for such
corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a
conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on
that sole ground. In the case of a grown up and married woman it is always safe to insist on such
corroboration. Whether corroboration is necessary it should be from an independent source but it is
not necessary that every part of the evidence of the victim should be confirmed in every detail by
independent evidence. Such corroboration can be sought from either direct evidence or circumstantial
evidence or from both."

The findings of the learned Addl. Sessions Judge (Fast Track) convicting the accused appellant for the
offence under Section 376 IPC cannot be sustained :-

(i) That the medical evidence so far as the allegation of alleged rape is concerned, is nil and thus, from
medical evidence, there is no corroboration to the statement of the prosecutrix PW 2 Monika.

(ii) That the fact that the prosecutrix did not receive any injury when accused appellant committed
rape with her on 27,5.2000 and 2.6.2000 itself goes to show that she was a willing partner to the
sexual intercourse.

(iii) That the fact that she did not tell about the alleged incidents of rape to anybody or even to the
wife of the accused appellant further goes to show that she was a consenting party.

(iv) That the fact that on both incidents of alleged rape, she was first undressed and she herself put on
the clothes, further goes to show that she was a consenting party.

(v) That hymen of the prosecutrix PW 2 Monika was found torn and vagina admitted two fingers
easily and there were no tears present in the vagina and these facts go to show that she was habitual to
sexual intercourse and this aspect also negatives the allegations of rape.

(vi) That the medical evidence, therefore, clearly discloses that the prosecutrix does not appear to
have put up any resistance to the alleged onslaught committed on her by the accused appellant. From
this, the only irresistible inference can be that the prosecutrix was a consenting party.

(vii) That the fact that the prosecutrix did not raise any hue and cry on both incidents of rape, itself
goes to show that she was a consenting party.

(viii) That no doubt in sexual offence, the prosecutrix is not an accomplice and there is no rule of law
that her testimony cannot be acted upon and made basis of conviction unless corroborated in material
particulars, but, however, since in the present case, the corroboration to the statement of the
prosecutrix is not found in any other evidence as she remained silent over the alleged incident and,
therefore, in such circumstances, statement of the prosecutrix PW 2 Monika cannot be said to be
reliable and trustworthy being not corroborated with any other evidence and furthermore, she has
Rajasthan High Court.

11) In Dhan Raj @ Dhand Vs. State of Haryana, (2014) 6 SCC 745 the court said that in absence
of each circumstance being proved beyond all reasonable doubts by independent evidence, a
criminal charge based on circumstantial evidence should not be held to have been brought home.
The argument must be rejected straightaway for the simple reason the case at hand is not based on
circumstantial evidence. The prosecution seeks to prove the accusations brought against the
appellants on the basis of testimony of prosecutrix (PW-1), the victim, result of the charge, of
course, being contingent upon credibility of her word.

12) The Supreme Court in the case of Kaini Rajan Vs. State of Kerala reported in (2013) 9 SCC
(Cri) 858 has held as under : Section 375 IPC defines the expression "rape", which indicates that
the first clause operates, where the woman is in possession of her senses, and therefore, capable of
consenting but the act is done against her will and second, where it is done without her consent;
the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the
offender, because it is obtained by putting her on any person in whom she is interested in fear of
death or of hurt. The expression "against her will" means that the act must have been done in spite
of the opposition of the woman. An inference as to consent can be drawn if only based on
evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with
the evidence supporting her statement.

13) In K.P. Thimmappa Gowda v. State of Karnataka was a case where the accused had assured
the prosecutrix that he would marry her and had sexual affair, which was repeated on several
occasions as well. But he did not marry and she became pregnant. That was a case where there
was delay of eight months in filing 18 Criminal Appeal No.954/2017 [Kalyan Pal Vs. State of
M.P.] the complaint. The accused was given the benefit of doubt holding that it would not be
possible to conclude that the alleged sexual act was committed without the consent of the
prosecutrix.

14) It is submitted that in the cases of circumstantial evidence, for the conviction of the accused,
it is essential that the incriminating facts and circumstances must be incompatible with the
innocence of the accused or guilt of any other person. Circumstances from which an inference as
to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact sought to be inferred from those
circumstances.

15) In State of Uttar Pradesh v Satish, 2005 Cr LJ 1428 (SC).) In a rape on minor girl based on
circumstantial evidence, because of the number of missing links in the prosecution case, the
accused was held to be entitled to the benefit of doubt.7133 Appasaheb Maruti Shedge v State of
Maharashtra, 2005 Cr LJ 1503 (Bom)

16) In State of Himachal Pradesh v Gian Chand, 2001 Cr LJ 2548 (SC). The court held that Non-
examination of a material witness is not a mathematical formula for discarding the weight of
testimony available on record, however natural, trustworthy and convincing it may be. The charge
of withholding a material witness from the court, leveled against the prosecution, should be
examined in the background of facts and circumstances of each case so as to find whether the
witnesses were available for being examined in court and were yet withheld by the prosecution.
The court has first to assess the trustworthiness of the evidence adduced and available on record.
If the court finds the evidence adduced worthy of being relied on, then the testimony has to be
accepted and acted on, though there may be other witnesses available who could also have been
examined, but were not examined. However, if the available evidence suffers from some infirmity
or cannot be accepted in the absence of other evidence, which though available has been withheld
from the court, then the question of drawing an adverse inference against the prosecution for non-
examination of such witnesses may arise. It is now well settled that conviction for an offence of
rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and
 other circumstances such as the report of chemical examination, etc., if the same is found to be
natural, trustworthy and worth being relied on.

17) When the accused is a relation of the in-laws of the mother of the prosecutrix, and the other
young girls who are alleged to have been not examined, being from the family of such in-laws, it
is futile to expect that such girls would have been allowed by their parents to be examined as
witnesses, and if allowed, could have freely deposed in court. The question of drawing an adverse
inference against the prosecution for such non-examination does not arise.7135

18) The court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1994) SC 1622 held
that . Therein, while dealing with circumstantial evidence, it has been held that the onus was on
the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution
cannot be cured by a false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence must be fully established. They are:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the-innocence of the accused and must show that in all human probability
the act must have been done by the accused.

Bandu v State of Maharashtra, 1996 Cr LJ 285 (Bom).Karnel Singh v. State of M.P. (9) (2) State of
Punjab v. Gurmit Singh (10) Principles Underlying Corroboration of Testimony of Prosecutrix

19) In Moti Chand v State of Rajasthan7288 the Rajasthan High Court after analysing the
observations of the apex court in several cases7289 has summarised the principles pertaining to
corroboration of testimony of prosecutrix based upon these decisions of the apex court as follows:

(1) corroboration of the testimony of prosecutrix in rape cases is not required as a rule of law;

(2) corroboration in such cases is, however, required as a matter of prudence and this rule of prudence
has now almost hardened into rule of law;

(3) the rule of prudence which has been hardened into rule of law is that the rule as to corroboration
must be present in the mind of the Judge and must have been incorporated in the judgment;

(4) if the evidence of the prosecutrix does not suffer from any basic infirmity and the probabilities
factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted
upon;
(5) the corroboration of the prosecutrix evidence may be dispensed with where circumstances of a
case make it safe to do so, but the reasons for dispensing with the necessity of such corroboration
should be forthcoming in the judgment;

(6) corroboration should ordinarily be required in the case of a woman having attained majority and
who is habitual to sexual intercourse as, in such cases, there is likelihood of her having levelled such
an accusation on account of her instinct of self-preservation or when the probabilities factor is found
to be out of time;

(7) the view that though corroboration should ordinarily be required in the case of a grown-up woman,
it is unnecessary in the case of a child of tender years is not correct; whether corroboration is
unnecessary is a question of fact in every case.

20) In Gurucharan Singh v. State of Haryana (4), the Hon'ble Supreme Court has stated "As a rule
of prudence, however, court normally looks for some corroboration of her testimony so as to
satisfy its conscience that she is telling the truth and that the person accused of rape on her has not
been falsely implicated. The court further held that

(1) It is not necessary that there should be independent confirmation of every material circumstance in
the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient
to sustain conviction. All that is required is that there must be some additional evidence rendering it
provable that the story of the accomplice (or complainant) is true and that is reasonably safe to act
upon it.

(2) The independent evidence must not only make it safe to believe that the crime was committed but
must in some way reasonably connect or tend to connect the accused with it by confirming in some
material particular the testimony of the accomplice or complaint that the accused committed the
crime.

(3) The corroboration must come from independent sources and thus ordinarily the testimony of one
accomplice would not be sufficient to corroborate that of another.

(4) The corroboration need not be direct evident that the accused committed the crime. It is sufficient
if it is merely circumstantial evidence of his connection with the crime.

It is humbly submitted that Presumption of consent cannot be taken under section 114 A as :

21) It is submitted that In . (Holman v R., 1970 WAR 2, cited in Stroud’s Judicial Dictionary and
State of UP v Chhotey Lal, (2011) 2 SCC 550 [LNIND 2011 SC 73] , 559 (para 18).)“But there
does not necessarily have be complete willingness to constitute consent. A woman’s consent to
intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is
“consent”.”8005

22) .furthermore in (Deepak v State of Haryana, 2015 Cr LJ 2049 : 2015 (3) Scale 414 [LNIND
2015 SC 150] : (2015) 4 SCC7 62. ) The question as to whether the sexual intercourse was done
with or without consent being a question of fact has to be proved by the evidence in every case
before invoking the rigour of section 114-A of the Indian Evidence Act, 1872.8019
 23) Moreover In, State of Maharashtra v Vasant Madhav Davre, 1989 Cr LJ 2004 (Bom).

In a Bombay case the accused was a police constable who was proved to have sexual intercourse with
prosecutrix, a woman living near the police station, when the husband of the prosecutrix, a night
watchman was away from her hut on duty. It was found that on return in the night to drink water the
husband found his wife in a compromising position with the accused. In that case when the accused
inside the hut of the prosecutrix removed his pant and shirt, his evil design was apparent, but she did
not raise any alarm, nor after the occurrence the prosecutrix and her husband made any attempt to
wake up the neighbours. It was only the next day she was taken to Panchas. It was held that consent
on the part of the prosecutrix could not be ruled out. The accused was acquitted.8170

24) Furthermore , In Anil Motibaba Barokar v State of Maharashtra, 1996 Cr LJ 494

(Bom). The insane woman of 25 to 27 years of age was gang raped and done to death but vital
links of the chain to bring home the guilt of the accused beyond reasonable doubt were clearly
missing. It was therefore held that though crime is gruesome and incident of gang rape and
murder of insane woman was pathetic but that itself could not be sufficient ground to convict the
accused appellant unless he could be connected with the crime.8175. Thus giving the benefits of
doubt to the accused, his conviction was set aside.8176.

25) The court In Public Prosecutor, High Court v Chollangin Arjuna Rao, 2007 Cr LJ 2690
(AP). it was alleged that the accused had caught hold of victim, gagged her mouth and by
threatening her at point of knife, had raped her. Neither panch witness nor investigating
officer had stated about existence of light at the place of incident and whatever victim had
stated was quite unnatural. Cogent and convincing reasons were given by the Trial Court for
not accepting version of incident spoken by witness. Acquittal of the accused person was held
proper.

26) Reliance is placed on Hira Lal Mirdha v State, 2007 Cr LJ 3077 (Jhar) on facts and
circumstances it was a fabricated story and the girl was a consenting party State v
Chayan alias Santosh Sahr, 2007 Cr LJ 2903 (Gau).As per evidence of the victim she was
raped while sleeping alone in varandah. No neighbour came to hear her cries, no intimation was
given to the mukhiya and other villagers and complaint was lodged after a week’s time. It was
held that factum of rape was doubtful and the accused was entitled to acquittal.8366.

27) It is submitted that in Jayasena Pradhan v State, 2001 Cr LJ 1953 (Ori). The accused
was charged under section 376 but supportive evidence was not found cogent and reliable. It was
held that testimony bristling with infirmities and improbabilities were not reliable and conviction
based on such evidence was not sustainable.8372.

Delay in FIR

28) The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder
Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under: "in conclusion, having
regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged
incident to anybody for five days coupled with late recording of report by her after five days with
false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very
unsafe to pin faith on her mere word that sexual intercourse was committed with her by five
accused persons or any of them . It is also difficult to believe her version regarding the alleged
abduction in jeep. In the circumstances it must be held that the prosecutrix story was not
satisfactorily established"
 29) in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the
Supreme Court as follows:

"The unusual circumstances satisfactorily explained the delay in lodging of the first information
report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation
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. It only puts the court on guard to search
for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to
only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the
delay and there s possibility of embellishment or exaggeration in the prosecution version on account
of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is
weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the
factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her.
That being so the mere delay in lodging of first information report does not in any way render
prosecution version brittle.

30) The prosecutrix and the prosecution have not been able to justify the delay and why the
prosecutrix did not report the matter immediately or earlier. No logical explanation has been
furnished by the prosecution for the delay of about nine months and then the two days when the
prosecutrix was in her mother's house.

31) These facts indicate that the possibility of the complaint being motivated or manipulated and
the version of the prosecutrix being untrue cannot be completely ruled out. The possibility that the
FIR was lodged after due deliberation and consultation cannot be ruled out. The discrepancies in
the evidence and the documents regarding the delay in lodging of the FIR indicate that the
prosecutrix and the prosecution are unable to justify the delay in lodging of the FIR which is fatal
to the prosecution version.

32) Therefore, it can be said that the FIR was lodged after a delay which is fatal to the
prosecution story. The delay has not been satisfactorily explained by the prosecutrix and the
prosecution.

33) It is submitted that if the entire evidence which has come on record is considered in its
entirety, then it would be clear that the prosecutrix herself was the consenting party. Firstly, there
is no conclusive evidence provided that definitively proves Respondent's mental and physical
incapacity. While Respondent's sister-in-law and family made claims regarding her condition, the
medical examination report left the reasons for concluding her fitness blank, indicating a lack of
concrete evidence supporting the allegations.

34) Additionally, Respondent's actions during the period in question raise doubts about her
alleged incapacity. She willingly went to Sumesh's house with her sister-in-law, engaged in
conversations with Appellate in public, and even accompanied him to locations where the alleged
acts took place. These actions suggest a level of autonomy and decision-making ability on
Respondent's part

35) Furthermore, contradictory witness testimonies, such as Usama's account of seeing

Respondent and Appellate together in a friendly manner, and Rajiv's denial of witnessing any
forceful acts, cast doubt on the narrative of coercion and non-consent presented by Respondent
and her family. The absence of any prior complaints or reports of coercion or assault adds weight
to this assertion.

36) While Respondent accused Appellate of using a knife to threaten her, there is a lack of direct
evidence supporting this claim. The recovery of the knife from Sumesh's house does not
conclusively prove that it was used for intimidation purposes. Without eyewitness accounts or
other corroborating evidence, it becomes challenging to establish Sumesh's involvement in
criminal intimidation.

37) Respondent had motives to falsely accuse him of criminal intimidation. Respondent's family
initially approached Appellate for marriage, which he declined. This rejection could have led
Respondent and her family to fabricate allegations of criminal intimidation in retaliation.
Establishing a potential motive for false accusation undermines the credibility of Respondent's
claims

38) The testimonies provided by witnesses regarding the alleged criminal intimidation contains
inconsistencies or contradictions. Usama's statement about seeing Appellate and Respondent
together without any apparent signs of coercion contradicts Respondent's claim of being
threatened with a knife. Such inconsistencies raise doubts about the veracity of the allegations of
criminal intimidation.

39) The circumstances surrounding the lodging of the FIR and Respondent's subsequent actions
may cast doubt on the validity of the allegations. Respondent and her family filed the FIR
immediately after Appellate refused to marry her, suggesting a potential ulterior motive behind
the accusation. Additionally, Respondent's decision to visit Sumesh's house with her family to
demand marriage raises questions about the timing and authenticity of the intimidation claims.

40) In criminal cases, the burden of proof rests with the prosecution to establish guilt beyond a
reasonable doubt. Without concrete evidence linking Appellateto the alleged criminal
intimidation, the prosecution may fail to meet this burden.

41) In light of these factors, the conviction of Appellate under Section 376 and Criminal
intimidation under Section 503 and other relevant sections of the Aryavarta Penal Code may not
be justified, as there exists reasonable doubt regarding Respondent's alleged incapacity to give
consent. Therefore, Sumesh's appeal before the Supreme Court of Aryavarta deserves careful
consideration based on the evidence presented in the case.