The Delhi high court noted in its judgement acquitting an alleged rapist, that sexual intercourse between the accused and the victim, who was “beyond the age of menopause”, was “forceful [but] it was not forcible”.
A bench comprising justices Pradeep Nandrajog and Mukta Gupta ruled that the absence of the victim’s consent for sex was not proved beyond reasonable doubt because even though “forceful penetration is evident from the injuries on the vaginal orifices […] however, besides the injuries on the vagina there is no other injury mark on the body of the deceased [victim]”.
Acquitting the accused Achey Lal, justices Nandrajog and Gupta wrote in the judgement delivered on 30 October:
“Achey Lal even if held guilty for causing the offence of Section 376 IPC cannot be held guilty for offence under Section 302 IPC as he neither had any intention nor knowledge that such a forceful act of sexual intercourse would cause the death of the deceased. Consequently he is acquitted for the offence punishable under Section 302 IPC.
As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased. From the MLC of Achey Lal and the post-mortem of the deceased it is evident that both Achey Lal and deceased had consumed alcohol. The forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased. Hence we are of the opinion that it has not been proved beyond reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent.
Consequently the appellant is also acquitted of the charges under Section 376 IPC. The impugned judgment of conviction and order on sentence are set aside.”
With this precedent the bench takes a step back from the Mathura rape case in which it was held that there is no requirement of explaining injuries for rape and that consent should be unequivocal, reported DNA India.
Lawyer Vrinda Grover commented to the DNA: ““On what grounds did the court arrive at the judgement that the case was not one of rape? And where does menopause factor in here?”
The victim was a 65-70 year old maid found dead in 2010 in her apartment in Majnu Ka Tila, North Delhi by one of her employers, and the accused who was found inebriated beside the victim’s body, was immediately apprehended by the police. The lower court had then convicted him and sentenced him to 10 years rigorous imprisonment.
Comments
Also, the fact that there were no other injuries on the body of the deceased shows that there might have been consent. There is no fact suggesting there was no consent. This doubt whether there was consent is a reasonable doubt and thus, in my opinion, there is nothing wrong with this judgment.
The most common cause of vaginal atrophy is the decrease in estrogen which happens....increasingly so in [b]post-menopause[/b].
The symptoms can include vaginal soreness and itching, as well as painful intercourse, and bleeding after sexual intercourse. The shrinkage of the tissues can be extreme enough to make intercourse impossible."
Just as Marxist view everything as class struggle feminist have the ability to turn around anything.
The judgment is sound both on law and facts.
Reasons for why it's awful are below:
http://www.legallyindia.com/News/delhi-hc-acquits-rape-accused-for-lsquo-forceful-rsquo-lsquo-not-forcible-rsquo-sex#comment-58827
http://www.firstpost.com/living/delhi-hc-didnt-say-menopausal-women-cant-be-raped-heres-what-it-really-said-1786761.html
Legallyindia, being a legal (!) website, should have done their own independent analysis
1. The Supreme Court has expressly held that lack of injury marks on a victim can not be taken as evidence against rape.
2. The reasoning in this judgment is rather slim: a sentence or two saying that they believe the defence counsel arguments about menopause?? Did they call medical expert witnesses in the HC or did they just go with defending counsel's assertions about 'vaginal atrophy', as YoyYo and we are left to guess.
3. Why is the HC deciding on the facts of the case, which should have been settled at trial? Has new evidence about menopause and the lack of injuries been produced or did the defending counsel just make a really compelling speech the judges liked?
We might never know, and those, in my book, are just some of the reasons that this is prima facie an awful judgment.
4. Throwing menopause into the concluding paragraph of the judgment but being apparently too squeamish (or not bothered) to explain what they meant, if they did indeed mean what we are speculating they meant, is at best careless writing.
Just read Para 9 (concluding para) of the judgement:
First - the conclusion or the ratio of the judgement is found in para 9. It makes a reference to "beyond menopause" - for what??? The bench did not lay down why that is relevant.
Second - "we find force in the contention of the learned counsel for the appellant" - pray tell us how? A judgement cannot just say that the counsel argued well and therefore 'we conclude' that we find force and hence acquit.
Third - "both Achey Lal and deceased had consumed alcohol". So? How is that relevant in a case of alleged rape. That too appearing in the concluding paragraph.
Rest of the parts - completely agree with Kian above.
If you read para 9 - "hence, we are of the view" - which means that the preceding sentences in that paragraph are the basis of forming that view - "beyond menopause", "consumed alcohol" "no other injury mark on the body"
If a woman is held at gun-point and threatened - she is forced and raped at gun-point - she does not fight because she is scared - would the courts still say (as appears in para 9 of the judgement - "no other injury mark on the deceased or on the appellant to show that there was any protest by the deceased"????
Regressive. Very regressive judgement
The attempt by Delhi High Court to draw a dividing line between “FORCIBLE” sexual intercourse that amounts to rape and “FORCEFUL” sexual intercourse that does not amount to rape, has the potential to dangerously increase the scope for subjectivity and misuse in the country’s already ambiguous rape law.
1.Even though the Delhi High Court did not record any adverse observation that women beyond the age of menopause could not be raped, however, since the fact that the victim was “beyond the age of menopause” was specifically mentioned in the same sentence of the judgment that begins with the words “as regards the offence punishable under section 376 IPC…”, it is beyond doubt that the cessation of reproductive ability taken into consideration by the Court. It is unfathomable as to how the presence or absence of the victim’s reproductive capability could even be remotely connected with the ingredients that need to be satisfied in deciding whether the offence of rape had been committed.
2. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim. It is illogical and unjust to insist that only an ‘active violent resistance’ was sufficient to prove that a victim protested. While absence of bodily injuries may be one of the many indicators to be considered cumulatively so as to show lack of consent, it can never be the whole and sole factor so as to establish whether or not there was protest by the victim.
3. If the sexual intercourse was forceful enough to cause death of the victim due to asphyxiation, does such sexual intercourse continue to remain consensual? Should it not cease to be a sexual intercourse ‘without protest’ and move towards being a sexual intercourse that is forcible, and not just forceful?
The line between forcible and forceful sexual intercourse is very thin and the subjectivity of the issue obfuscates this so called line of distinction sought to be drawn by the Delhi High Court
http://www.legallyindia.com/201411055271/Legal-opinions/listen-yaar-what-s-the-deal-with-the-delhi-high-court-menopause-rape-judgment-anyway