As the saying goes, “It is better to risk saving a guilty person than to condemn an innocent one”
Sandeep Menon Nandakumar ((B.A.LL.B. (Hons.) (NUALS), LLM (CUSAT), LLM (Exeter, UK); Assistant Professor (Sr.), VIT Law School, Chennai)).
The recent Delhi High Court judgment in Achay Lal v. State Govt of NCT of Delhi (2014) has created a lot of debate and discussions. Most of the negative comments on the judgment are a result of the improper analysis of the same or in other words, due to the erroneous reporting of the judgement done by some reporting websites. The main issue in this case is evident from the initial discussions in the judgment which states that “it has to be ascertained whether the deceased died a natural death or a homicidal death and whether “forcible” sexual intercourse was committed with her or not”. The Hon’ble High Court held that “at best the appellant could have committed forceful intercourse but the same was not forcible and contrary to the wishes of the deceased and hence entitled for an acquittal”.
The main reason for much of the debate and discussions was not because the accused was acquitted but due to the observation of the court that “as regards the offence punishable under S.376 IPC the deceased was aged around 65-70 years, thus beyond the age of ‘menopause’. What relevance this has to do with the judgment or reasons for the judgment (ratio decidendi) is unclear. The main reason for the judgment was itself made clear by the Division Bench holding that even if the sexual intercourse was ‘forceful’ it was not ‘forcible’ and contrary to the wishes and consent of the deceased. This being the reason for the judgment, there is no relevance in the observation made by the judges regarding the fact that the victim has crossed the age of menopause.
Before we proceed further, let me state that the informal decision of the Supreme Court to keep all the judgments short from now on is a welcoming move. As regards how much the same is binding on all other courts in the territory of India is unknown, but a judgment like the one that the Delhi H.C. has made in the instant case clearly matches with the informal decision of the S.C.
And this is precisely where one can see the shortcomings of the judgment. This judgment is too short and is devoid of adequate reasons. The Report of the Committee on Amendments to Criminal Law (Justice Verma Commission) has specifically concluded that the offences such as rape and sexual assault are not merely crimes of passion but an expression of power. The reason for stating this is because this was a case involving a question of rape and murder and the H.C. should have taken a bit more effort to clarify the terms and statements used in the judgment. Ratherit seems that the court concluded everything by making three to four random observations without any sort of explanations leaving it to the reader to come to inconsistent conclusions. This is a case where the victim is dead and sadly she is no more to depose whether she has consented to the act or not. The court appreciates the circumstantial evidence and comes to the conclusion that “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 it has not been proved beyond any reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent”. The court here completely seems to forget the fact that the proviso to section 375 IPC specifically states that the fact that the woman does not physically resist to the act of penetration alone should not be construed as an act of consenting to the sexual activity. One amongst many criticisms levelled against the judgment in Mathura rape case has been remedied by the later amendments to IPC but this court seems to reiterate what has happened in Mathura rape case. Moreover there have been several case laws (Guddu v. State of M.P., (2007) 14 SCC 654) where even the fact such as the redness of the hymen was considered to be sufficient to constitute the offence of rape.
The court in this case concluded that the victim had consumed alcohol along with the accused though it had been answered in the negative by the deceased’s husband during trial. Even if it was a case of voluntary intoxication the court should have noted that it vitiates the consent as required under Section 375 IPC. It is of common knowledge that the consent under Section 375 IPC means voluntary 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. It being so, the H.C. should have at least kept in mind that sexual intercourse under influence of drink cannot be said to be intercourse with consent.
The court has relied on circumstantial evidence in the instant case which according to the court goes in favour of the accused. It is indeed shocking to see that the court is not even bothered to find out the truth of a situation wherein the victim was lying dead and naked on the floor, her shirt upto her neck with a blanket on some part of her body and the accusedwho was in an intoxicated condition who was inside the room prevented people (who went to the scene of crime after hearing the news) from entering the room saying that the victim was like his “mother” and had not died and was sleeping after taking liquor. The court seems to agree that with the same person who was addressed as mother the accused had “forceful” sex but not “forcible” sex and hence the act does not amount to rape. The court is clear in acquitting the accused under Section 302 IPC as the requisite intention required as per the section is not made out. But at any rate the court had the responsibility to explain what they meant by “forceful” and “forcible” and how different these concepts are from each other with special reference to Section 376 IPC.
One could see that as a result of this judgment, the victim (who was married) who had already lost her life is depicted as a woman who consented to forceful sexual intercourse with a person other than her husband, the terms ‘forceful’ and ‘forcible’ still unclear from the judgment.