GAJANAND MAGANLAL MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Human weakness or wickedness; either of the two or both of them together may be the cause of sexual offences. If the offence is on account of wickedness the accused naturally deserves no sympathy.

(2.) The appellant-accused was charged for offence under Section 376 of the Indian Penal Code on the allegation that on the night of April 24 1983 between 9.00 and 10.30 p.m. he committed rape on the prosecutrix S (P.W. 1 Exhibit 12) on the boundary of village Doliya District Surendranagar and thereby committed offence under Section 376 of the Indian Penal Code. The learned Sessions Judge held the accused guilty of the offence charged against him and ordered him to undergo R.I. for seven years. The appellantaccused has challenged the legality and validity of the judgment and order of conviction and sentence in this appeal.

(3.) Counsel for the appellant-accused submitted that as per the medical evidence the girl was used to sexual intercourse and therefore it should be held that the sexual intercourse by the accused was with the consent of the girl. The argument has its roots in the notions prevailing in male-dominated society having feudalist traits. It is not understood how it can even be suggested that on the basis of the circumstance that a woman used to sexual intercourse would be a consenting party to a forcible sexual assault and intercourse. This argument may be tested by counter-posing a question: If an accused a male able-bodied person is used to sexual intercourse and is charged of an offence of some sexual assault can it be inferred or can it be argued that because he is used to sexual intercourse he must have committed sexual assault or intercourse against the will of the girl or woman ? If this circumstance cannot be taken against a male person then it is not understood how a similar circumstance can be advanced as an argument to show that the girl must be a consenting party to the forcible sexual intercourse? Therefore the circumstance that as per the medical evidence the girl was used to sexual intercourse by itself does not carry the matter either way. A girl or a woman either married or unmarried may be promiscuous in her sexual behaviour and relations. Even so she has a right to refuse to submit herself to sexual intercourse to anyone and everyone. Once a girl or woman is used to sexual intercourse she does not become a vulnerable object or prey for being sexually assaulted. Because she is promiscuous it cannot be inferred that she must have given consent to the alleged forcible sexual intercourse. At the most it is a relevant circumstance which has to be taken into consideration by the court.