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This ruling was given by a Bench, comprising Justice Doraiswamy Raju and Justice Arijit Pasayat, on Monday while dismissing the appeal of Tulsidas Kanolkar, sentenced to 10 years of imprisonment for repeatedly raping a woman whose mental age was one-third of her actual age.
The Bench said the IPC provided for higher sentences in case the physical age of the rape victim was below 12 years.
"But what happens in a case when the mental age of the victim is not even 12 years of age," the Bench asked and said "such a woman is definitely at a more vulnerable situation". A rapist in such a case in addition to the physical ravishment, exploited the mental non-development and helplessness, it said.
"The legislature would do well in prescribing a higher minimum sentence in a case of this nature. The gravity of the offence in such a case is more serious than the enumerated categories indicated in sub-section (2) of Section 376 of IPC,'' Justice Pasayat, writing for the Bench, said.
He said that while a murderer destroyed the physical frame of his victim, a rapist degraded and defiled the soul of a helpless woman.
"When the victim is a mentally challenged person, there is not only physical violence and degradation and defilement of the soul, but also exploitation of her helplessness," he said.
The incident related to Panaji where the appellant repeatedly raped a mentally-challenged girl who did not realise the gravity of the offence till her parents asked her about her swollen belly. She could only point a finger towards the accused when asked repeatedly as to who did the criminal act with her.
The trial court had convicted the appellant and sentenced him to 10 years of imprisonment. However, on appeal, the Bombay High Court Bench in Goa reduced the sentence to seven years.
Rejecting the contention of the appellant that he had intercourse with the girl with her consent, the Bench said:
"A mentally challenged girl cannot legally give consent which would necessarily involve understanding of the effect of such consent.
"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," Justice Pasayat said. PTI
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