The recent news of Forceful sex not Rape has caught the attention of several news stories and Senior Lawyers. Several points have been raised for and against the judgment. There has also been some amount of wrong reporting as to what was held by the Delhi High Court.
The analysis here is confined to established tenets of law, the factual matrix and what can be interpreted legally and reasonably from the present judgment.
The judgment dated 30.10.2014 in CRL.A. 1534/2011 held:
AcheyLal 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.
One of the key ingredients intention/knowledge i.e.mens rea was seemingly lacking in this case and hence AcheyLal was acquitted for the offence under Section 302 IPC. The lack of this mens rea is based on the following factual points by the Delhi High Court:
The fact that the cross-examination of the husband of the deceased showed a contradiction (Law of evidence) with regard to whether the deceased had also consumed alcohol along with them, points to the possibility of the deceased consuming alcohol willingly. Further, the opinion of PW1 the doctor, the post mortem report support the fact that the deceased had consumed alcohol and that aspiration of gastric contents was caused due to forceful sexual intercourse.Modi’s Medical Jurisprudence supportsthat this kind of asphyxia, choking, obstruction suffered by the deceased is especially common in acute alcoholism and occasionally occurs during a fit of epilepsy or in a case of badly administered anaesthesia.Therefore the reasoning of the Court seems to be that one could presume the death to be accidental as the deceased had consumed alcohol and was engaged in forceful sexual intercourse that could have led to her choking/asphyxiating.
Therefore in light of the following circumstances, the Delhi High Court, uses the principle of reasonable doubt to acquit Achey Lal of the offence of murder since the mens rea an important element for the crime of murder was missing.
The second part of this judgment seems to have provoked far more controversy than the first part. This judgment goes on to acquit AcheyLal of rape as well and held:
… 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 rationale of the Court behind granting reasonable doubt with regard to consent is confusing. The judgment records the age of the deceased and the fact that she has crossed menopause. What relevance this has to assess consent of the deceased is not clear. Moreover, the fact that the deceased had consumed alcohol also cannot be a basis to presume that she had consented to sexual intercourse. The absence of injuries on the body of AcheyLal and the deceased (other than the ante mortem injuries in the form of reddish abrasion 1 x 0.5 cm on the anterior aspect of vagina just about the clitoris and multiple reddish bruises seen in and around the vaginal orifices, on inner mucosa with mild bleeding) cannot be the sole basis for assuming consent.It is settled law that lack of resistance/injuries/protest from the victim does not give a presumption of consent.
Hence what did the Delhi High Court basis the reasonable doubt on?
This is a case of circumstantial evidence. In a case of circumstantial evidence it has been held that the chain of events proved by the prosecution must show within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path.
In this case there is no eye witness. The victim of rape is deceased so there is no statement from her. The factual matrix establishes that a group of people were drinking alcohol. AcheyLal’s presence at the scene of the crime was confirmed by the husband of the deceased as well as the informant. The behavior of AcheyLal in preventing people from entering and lying about the fact that the deceased is sleeping is suspicious. The post mortem confirms that the death was due to asphyxiation provoked by forceful sexual intercourse. However, the conviction cannot be solely based on medical evidence.The Delhi High Court has found mens rea for murder to be missing and the death may have been an accident. Therefore after the cumulative effect is evaluated how does one assess consent in such a case?
The part where the Delhi High Court has indicated the following needed more clarity:
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.
The Delhi High Court has censored itself by seemingly admitting that what happens in the bedroom between two consenting adults could be forceful (for lack of a better term) but that does not automatically indicate rape.Some opinions have indicated that the term forceful refers to rough. However the other possible conclusion that one can draw is that there is a distinction between forceful penetration and forcible penetration when it comes to rape. But what do these terms mean and how would one understand this distinction? Is this distinction once again retreating to the age old argument that if the woman does not protest it is not rape? None of this has been clarified by the Court.
The judgment may create a strange precedent for lower courts on which they may rely to acquit the next person accused of rape. This judgment definitely raises more questions than it resolves.
T.Mohan is Associate Editor at Live Law