“Even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased.”

This recent Delhi High Court judgment, contrary to how it was first reported [link] and shared on facebook – does not say that menopausal women cannot be raped.

In December 2010, the victim was found dead inside her house … along with an inebriated Achey Lal … The post-mortem of the victim revealed that she has sustained injuries on her vagina, and traces of alcohol were found on her, too. [link]

But it does point out that the deceased had consumed alcohol along with the accused and that the sexual act was forceful enough and was the cause of the death of the 65-70 year old.

Why was the accused acquitted?

1. It ‘has not been proved beyond reasonable doubt’ that sexual intercourse was without consent. (Because there were no injuries except around the vagina). – So, rape not confirmed.

2. The accused ‘neither had any intention nor knowledge that such a forceful act of sexual intercourse would cause the death of the deceased.‘ – So, not murder.

Read more at:

http://indiankanoon.org/doc/21362297/

 

Even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased.

In the present case the post-mortem report shows that the deceased had consumed alcohol and was subjected to sexual intercourse. The finding of the post-mortem Doctor is categorical that the aspiration of gastric contents was caused due to forceful sexual intercourse.

…. it is proved beyond reasonable doubt from the post- mortem report that the deceased had consumed alcohol and was subjected to sexual intercourse. 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.

9. 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.

Another link:  Delhi HC didn’t say menopausal women can’t be raped: Here’s what it really said

Other cases where sexual assault victims had consumed alcohol: 

When a crime is a punishment or a lesson taught to the victim.

‘The woman said she was inebriated when a co-worker took her to a room and raped her.’

Rapist said that coming from Afghanistan meant he didn’t understand what ‘consent’ was.

9 thoughts on ““Even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased.”

  1. “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.”

    how is menopause even relevant? its as relevant as 2 finger test!

    don’t all of us dream of forceful intercourse? Why in the world would it be forcible or against our wishes? Why ever would she want a pleasurable intercourse? Pleasure is for men, its a woman’s duty. Unfortunately this guys pleasure lead to her death, unfortunately for him that is, poor thing must be so traumatized!

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  2. “On internal examination he found the brain congested, neck tracheal mucosa was congested and trachea contained gastric content that had reached upto secondary bronchiole of both lungs. The stomach contained semi digested food material with clear fluid and wall was congested, smell of alcohol present. He opined the cause of death as asphyxia due to aspiration of gastric contents consequent upon forceful sexual intercourse which was sufficient to cause death in the ordinary course of nature. He opined that the injuries were ante mortem in nature and recent in duration. The injuries present in and around the vagina indicated sexual assault/intercourse before death and time since death was about six hours.”

    The smell of alcohol was present?
    The doctor doing the post-mortem didn’t at least check the deceased Sharda’s blood alcohol level (do a basic tox screen) if alcohol ingestion was suspected (& in a case where rape & or murder charges were possible)?
    So basically the doctor guessed that the sexual intercourse was so violent that the deceased (& possibly drunk?) Sharda vomited (aspirated?) & choked to death on it.
    I don’t know, people often drink alcohol quickly & spontaneously vomit.
    Sometimes they are so inebriated they can choke to death on the vomit OR I’ve also seen people die from passing out face down in a pool of vomit & drowning in it.
    People can die from blood alcohol concentrations (BAC) ranging from 0.3 (% by col.) to 0.5, stupor & unconsciousness can occur at 0.2.
    (Blood alcohol levels at autopsy are valid up to 48 hours after death when simple principles are observed in the collection and storage of samples.
    Alcohol levels in samples of blood taken from the intact heart are as significant as levels of blood from the femoral veins.)
    I’d like to know-
    What was (the deceased) Sharda’s blood alcohol level?
    What injuries (or other signs) made the post-mortem doctor suspect the forceful intercourse caused aspiration/vomiting? (surely vaginal injuries were not enough to trigger vomitimg/aspiration)
    What does the deceased Sharda’s age & being menopausal have to do with her death?
    How do we know the intercourse was ‘not forcible and contrary to the wishes and consent of the deceased Sharda’? (she didn’t leave a note or communicate her wishes or consent to anyone other than the defendant, did she?)
    Too many unanswered questions in this case for me.

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  3. Innocent until proven guilty. The absence of testimony from any eye witnesses, it might be impossible to prove rape. I am not a lawyer and don’t have any legal expertise but that’s how it appears to me. How can we prove he raped her or intended to kill her? We can only imply.

    Let’s be honest, given the evidence and presence of alcohol, if the judge assumed rape, we’d be protesting against social standards that don’t allow older women to want sex and/or alcohol.

    Tragic that the lady died. I hope she wasn’t raped and murdered but we just don’t know what happened and better one guilty be left free than 10 innocent suffer. That’s the principle our legal system is based on and that’s why he must be acquitted.

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  4. Thank you for writing about this IHM. This article was doing the rounds on social media yesterday, and (I’m not sure why but) I was surprised that I saw through the sensationalism a, but a lot of well-read, intelligent people I know lashed out. I wonder if they even read the whole thing, which makes me think that maybe we’re all just ready to shoot at the slightest mention of “it wasn’t rape”. Mob mentality, much?😐

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    • This. Stupid newspapers printing sensationalist headlines and people falling hook, line and sinker for it. I pointed out to multiple people that while pointing out the age of the woman was not required, but the acquittal was surely not on the basis of her age alone.

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  5. Thank God for one sensible article on the subject. You may not agree with the judgement (and bringing in menopause was surely irrelevant), but the complete furore was a sham. Yes, forceful intercourse does NOT equal forcible intercourse. One may be by passion (mutual or one-sided) and the other is rape. Which is what the Court pointed out, and said we can’t find evidence that it was forcible, ie rape.

    If the evidence was not enough, perhaps the rage should be directed against the police and the prosecuting authorities, not on the legal fraternity, who, let us be frank, are probably about a generation behind the 1900s anyway in language and expression.

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  6. Pingback: “It was OK for her to say ‘no’ after saying ‘yes’? Saying ‘yes’ doesn’t mean a blanket sanction to any sexual activity.” | The Life and Times of an Indian Homemaker

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