ROOP SINGHversusSTATE OF MADHYA PRADESH

                     [2013] 4 S.C.R. 287


                        ROOP SINGH                                 A
                               v.
               STATE OF MADHYA PRADESH
             (Criminal Appeal No. 1345 of 2005)

                        JUNE 18, 2013
                                                                   B
     [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

    Penal Code, 1860:

     ss. 376 and 450 - Rape - Consent - Connotation of -           c
Explained - Held: The evidence on record is clear that the
victim was not a willing party to the sexual intercourse
committed by the accused and it cannot be said that she
voluntarily participated in it after fully exercising her choice
in favour of assent - Nor can it be held that the accused was      D
falsely implicated in the offences.

     The appellant was convicted and sentenced to 7
years RI uls 376 IPC and 3 years RI u/s 450 IPC for
committing rape on her neighbor, the complainant (PW5),
in the night when she and her sister-in-law (PW4) were E
sleeping in the house and her husband was out to irrigate
the fields. The High Court dismissed the appeal of the .
convict.

    Dismissing the appeal, the Court                               F
    HELD 1.1. So far as the plea of consent is concerned,
unless there is voluntary participation by the woman to
a sexual act after fully exercising the choice in favour of
assent, the court cannot hold that the woman gave
consent to the sexual intercourse. In the instant case, it G
cannot be said that the complainant had given her
consent to the sexual intercourse committed by the
appellant. The evidence of PW-4 and PW-5 is clear that

                              287                                  H
    288     SUPREME COURT REPORTS              [2013] 4 S.C.R.


A the complainant was sleeping within 2-3 feet away from
  her sister-in-law (PW-4). PW-5 has stated in her evidence
  that her sister-in-law (PW-4) woke up when she shouted.
  There is no discrepancy in the evidence of PW-5 and PW-
  4 on this point. The evidence on record is clear that PW-
8 5 was not a willing party to the sexual intercourse and
  this Court cannot hold that PW-5 voluntarily participated
  in the sexual intercourse with the appellant after fully
  exercising her choice in favour of assent. [para 6-7] [291-
  C-D, G; 292-C-D]
c       State of U. P. v. Chhotey Lal .2011 (1) SCR 406 = (2011)
    2 SCC 550; and State of H.P. v. Mango Ram 2000 (2) Suppl.
    SCR 626 = (2000) 7 SCC 224 - referred to.

       1.2. As regards the plea of false implication owing to
D a land dispute between the two families, the trial court
  has held that there is no proof of any litigation being there
  between the parties. In the absence of any evidence to
  show that there was a dispute between the families in
  relation to a land on account of which PW-4 and PW-5
E would have lodged the FIR against the appellant, the
  Court cannot hold that the appellant had been falsely
  implicated in the offences punishable u/ss 450 and 376,
  IPC. [para 8] [292-E-G]
                         Case Law Reference:
F
     2011 (1) SCR 406               referred to        para 5
     2000 (2) Suppl. SCR 626        referred to        para 7
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 1345 of 2005.

        From the Judgment & Order dated 13.12.2004 of the High
    Court of Judicature, Madhya Pradesh, bench at Gwalior in
    Criminal Appeal No_. 452 of 2002.

H
   ROOP SINGH v. STATE OF MADHYA PRADESH                     289


     R.C. Kohli for the Appellant.                                 A

     Vibha Datta Makhija, Archi Agnihotri for the Respondent.

     The Judgment of the Court was delivered by

     A.K. PATNAIK, J. 1. This is an appeal by way of special       B
leave under Article 136 of the Constitution against the judgment
dated 13.12.2004 of the Madhya Pradesh High Court, Gwalior
Bench.

      2. The facts very briefly are that a First Information Report C
 (for short 'FIR') was lodged by the complainant in Police
Station, Civil Lines, Morena, on 01.03.2000 at 7.50 p.m. in the
evening. In her verbal statement which was registered as FIR,
the complainant stated that on the previous night while she was
sleeping in her house in village Tighrapura in a room at about D
2 a.m., the appellant, who was her neighbour, entered into her
house an~ forcibly committed intercourse with her when her
sister-in-law Guddi Bai sleeping in a nearby cot woke up after
listening to weeping of the complainant and then the appellant
ran away. The complainant further stated that her husband
Rajesh had been to the well to give water to the field and when E
he came in the morning she told him about the incident and he
went to Khadiahar to call her father-in-law Ram Bhajan but he
did not meet him and then the complainant has come with her
husband to lodge the FIR. Pursuant to the FIR, an x-ray was
conducted on the complainant. The complainant was also F
medically examined. Investigation was conducted and the
statements of witnesses were recorded by the police and
charge-sheet was filed against the appellant under Section
450, IPC, (house trespass in order to commit an offence) and
Section 376, IPC, (rape).                                           G

     3. At the trial of Sessions Case No.129 of 2000, the FIR
was marked as Ex.P-6. Dr. Yogender Singh, who carried out
the x-ray examination, was examined as PW-1 and the x-ray
report was marked as Ex.P-1. Dr. Smt. C~andra Jatav, who           H
    290      SUPREME COURT REPORTS                (2013] 4 S.C.R.


A conducted the medical examination on the complainant, was
  examined as PW-2 and her examination report was marked
  as Ex.P-5. The Petticoat of the complainant along with the slide
  of her vaginal liquid were sent to the Forensic Science
  Laboratory (FSL}, Gwalior, and the FSL report was marked as
B Ex.P-7. Guddi Bai, the sister-in-law of the complainant, was
  examined as PW-4 and the complainant was examined as PW-
  5. On the basis of the ocular evidence of PW-4 and PW-5 and
  the medical evidence and FSL report, the learned Sessions
  Judge, Morena, convicted the appellant by judgment dated
c 31.07.2002 and sentenced him to three years rigorous
  imprisonment and a fine of Rs.250/- for the offence under
  Section 450, IPC and also sentenced him to seven years
  rigorous imprisonment and a fine of Rs.500/- for the offence
  under Section 376(1) IPC. Aggrieved, the appellant filed
  Criminal Appeal No.452 of 2002 before the Madhya Pradesh
0
  High Court, Gwalior Bench, but by the impugned judgment the
  High Court maintained the conviction and sentences under
  Sections 376 and 450, IPC, and dismissed the appeal.

         4. At the hearing of this appeal, Mr. R.C. Kohli made two
E   submissions before us: (i} the appellant was not guilty of the
    offence of rape as PW-5, the complainant, had given her
    consent to the sexual intercourse as would be clear from the
    evidence on record; and (ii) the complainant has made out a
    false case against the appellant because of a grudge that the
F   family of the complainant bore against the appellant over a land
    dispute.

       5. Ms. Vibha Datta Makhija, learned counsel appearing for
  the State, on the other hand, referred to the evidence of PW-5
G to show that the complainant made all efforts to resist the
  appellant and submitted that this was thus not a case where
  the complainant had given her consent for the sexual
  intercourse. She cited the judgment in State of U.P. v. Chhotey
  Lal ((2011) 2 SCC 550] to submit that the word "consent" in
H the definition of rape in Section 376, IPC, connotes exercise ,.
   ROOP SINGH v. STATE OF MADHYA PRADESH                    291
               [A.K. PATNAIK, J.]

of intelligence based on knowledge of the significance and          A
moral quality of the act to which consent is given and also
presupposes a choice of the woman who is said to have given
consent between resistance and assent. In reply to submission
of Mr. Kohli that the complainant had made the false allegation
of rape against the appellant only because of the dispute over      B
the land between the appellant and the family of the complainant,
Ms. Vibha Datta Makhija submitted that the trial court has held
that there is no evidence whatsoever in support of this defence
taken by the appellant.                               ·

      6. We cannot accept the submission of Mr. Kohli that the      C
complainant had given her consent to the sexual intercourse
committed by the appellant. The evidence of PW-4 and PW-5
is that the complainant was sleeping within 2-3 feet away from
her sister-in-law (PW-4) and she could not have given her
consent for the sexual intercourse when her sister-in-law was       D
sleeping within a short distance from her. Moreover, from the
evidence of PW-4, we find that there were three rooms in the
house where PW-4 and PW-5 were sleeping and the husband
of PW-5 was not in the house and hence PW-5 and the
appellant would have moved on to another room if PW-5 was           E -
willing for .the intercourse. PW-5 has also stated in her
evidence:

    "I made efforts to remove aside the accused but did not
    scratch him. It is wrong to say that I had got done the bad     F
    act from the accused, or unknown person, with sweet-will."

PW-5 has further stated in her evidence that her sister-in-law
(PW-4) woke up when she shouted and prior to that she did
not wake up and she was sleeping and there is no discrepancy
in the evidence of PW-5 and PW-4 on this point. Hence, the          G
evidence on record is clear that PW-5 was not a willing party
to the sexual intercourse.

    7. In State of U.P. v. Chhotey Lal (supra), the following
passage from the judgment of a three-Judge Bench of this            H
                                                                        -----
     292         SUPREME COURT REPORTS                 [2013] 4 S.C.R.


 A Court in State of H.P. v. Mango Ram [(2000) 7 SCC 224] on
   the meaning of 'consent' for the purpose of the offence of rape
   as defined in Section 375, IPC, is quoted:

            "Consent for the purpose of Section 375 requires voluntary
 B          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."
 c
         Thus, unless there is voluntary participation by the woman
   to a sexual act after fully exercising the choice in favour of
   assent, the Court cannot hold that the woman gave consent to
   the sexual intercourse. From the evidence of PW-4 and PW-5
 D discussed above, we cannot hold that PW-5 voluntarily
   participated in the sexual intercourse with the appellant after
   fully exercising her choice in favour of assent.

        8. On the second contention of the learned counsel for the
 E appellant that PW-5 has falsely named the appellant out of
   grudge arising out of a dispute on the land between the two
   families, we find that the trial court has held that there is no
   proof of any litigation being there between both the parties.
   Learned counsel for the appellant has also not brought to our
   notice any evidence to show that there was any land dispute
 F between the two families. In the absence of any evidence to
   show that there was a dispute between the families in relation
   to a land on account of which PW-4 and PW-5 had lodged the
   FIR against the appellant, the Court cannot hold that the
   appellant had been falsely implicated in the offences under
 G Sections 450 and 376, IPC.
         9. In the result, we do not find any merit in the appeal and
     we accordingly dismiss the same.

_, H R.P.                                            Appeal dismissed.