Corrigenda: 1. Pls read "The first salvo, so to speak, was apparently fired by a news report the following day in the DNA" in the first line, 2nd para, under the opening sub-section, The Furore, as "The first salvo, so to speak, was apparently fired by a news report, a few days after, in the DNA". 2. Pls read "The Hindu, interestingly, goes on to underscore certain vital aspect of the trial court judgement" in the 5th para under the same sub-section as "The Hindu, interestingly, goes on to underscore a certain vital aspect of the trial court judgement". 3. Pls. read "The Hindu report, cited above on the trial court judgement strongly suggests" in the opening line of the 2nd para, under the sub-section, The Actual Case, as "The Hindu report, cited above, on the trial court judgement strongly suggests".
Sukla Sen On 07/11/2014, Sukla Sen <[email protected]> wrote: > *The Furore* > > A recent judgement (ref.: < > http://lobis.nic.in/dhc/MUG/judgement/29-10-2014/MUG30102014CRLA15342011.pdf>), > on the October 30th last, by a two-judge bench of the Delhi Court, > comprised of a male and a female judge, in a rape case overturning the > verdict of the trial court convicting the accused of both rape and murder > and sentencing him to life imprisonment has created quite a bit of stir, or > sort of, in the alternative media and, even if to a far lesser extent, in > the mainstream media as well. > The first salvo, so to speak, was apparently fired by a news report the > following day in the *DNA*, bearing the provocative caption, *Forceful sex > on menopausal woman not rape: Delhi HC* (see: < > http://dnasyndication.com/dna/top_news/dna_english_news_and_features/Forceful_sex_on_menopausal_woman_not_rape:_Delhi_HC/DNMUM319427>). > > Its opening line reads: "Can forced sex with a 65-year old woman, who has > attained menopause, be punishable under law? The Delhi High Court seems to > think otherwise." Further down, it puts things even more bluntly: "If a > woman has attained menopause, she cannot be termed a victim of rape, the > judgment seems to point out." > A reading of the actual text of the judgement makes it amply clear that > this is a very tendentious and deliberately slanted presentation of the > judgement. We'll come to that in a while. > The other news report in the mainstream media, broadly of the same genre - > though making a less obviously distorted presentation, which would come a > day after, is carried by the *Hindu* (see: < > http://www.thehindu.com/news/national/forceful-sex-is-not-rape-hc/article6565078.ece>). > It's captioned: *Forceful sex is not rape: HC*. The *Hindu*, interestingly, > goes on to underscore certain vital aspect of the trial court judgement (no > copy of which is available to the present commentator): "The trial court > had in 2011 awarded life imprisonment to Achey Lal and imposed a fine of > Rs.10,000 on him, while holding that *he had committed rape of a woman > older than his age whom he used to call his mother* [emphasis added]." > While the alternate media is agog with aggressive and adverse responses to > the subject Delhi High Court judgement, we'll here refer to two blogging > sites, < > http://www.legalera.in/news-deals/high-court-news/delhi-hc/item/14970-forceful-sex-on-menopausal-woman-not-rape-says-delhi-high-court.html> > and < > http://www.legallyindia.com/News/delhi-hc-acquits-rape-accused-for-lsquo-forceful-rsquo-lsquo-not-forcible-rsquo-sex>, > dedicated to discussing *legal* issues, ostensibly by legal experts as > interesting illustrations. > The former one is in fact a verbatim reproduction of the above-referred > *DNA* report, making no mention of the fact though, sans only the final > para. The latter one of course does better. It reproduces the actual text > of understandably the operative part of the judgement. It, however, goes on > to claim that the subject judgement is a step back from the post-Mathura > judgement situation, by referring to the aforesaid *DNA* report. It > actually says: "[the judgement is] 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," which is of course > factually wrong (see: <http://en.wikipedia.org/wiki/Mathura_rape_case>). > Both the reports, interestingly, inaccurately claim that the accused had > been sentenced to 10 years rigorous imprisonment. Quite a sloppy work by > "legal experts". And the *DNA* report is obviously the main basis for such > claims/reactions. > > *The (Partial) Rejoinders* > > To be fair, the *DNA* report, by the way, has not gone just unchallenged: < > http://www.firstpost.com/india/delhi-hc-didnt-say-menopausal-women-cant-be-raped-heres-what-it-really-said-1786761.html> > and < > http://scroll.in/article/687210/Fact-check:-The-Delhi-High-Court-did-not-say-menopausal-women-can't-be-raped>. > The latter one is evidently more detailed, and arguably of better quality. > It'd be useful here to take note of a certain portion from this: > "The lawyer for the convicted man pointed out that *there is a difference > between "forceful" intercourse - rough sex - and forcible sex, which is > rape. The key difference is that the first is consensual, while the other > one involves the accused having intercourse without the consent of the > woman*. [Emphasis added.] He also argued that this consensual rough sex had > caused a natural reaction in the woman's body, causing her to vomit and die > of asphyxiation because of a gastric reaction. > "Right away, *the High Court held that the man couldn't be held guilty of > murder, because the death was evidently caused by this gastric > reaction *[emphasis > added]. "Even if held guilty for causing the offence of Section 376 IPC > [rape], he could not be held guilty for offence under Section 302 IPC > [murder] "as he neither had any intention nor knowledge that such a > forceful act of sexual intercourse would cause the death of the deceased", > it said." > > *The Actual Case* > > Before turning our attention to the actual text of the said High Court > judgement - which is remarkably brief in a refreshing departure from the > time-honoured Indian traditions of delivering prolix judgements running > into pages and pages, it'd be worthwhile to look into the preceding trial > court verdict. > The *Hindu* report, cited above on the trial court judgement strongly > suggests that *the main consideration that had propelled the trial court is > that the (accused) man must be made to pay heavily for having extra-marital > sex and that too with a much older woman (mother like) - a case of severe > moral lapse; regardless of the actual facts of the case*. That's apparently > what explains its verdict convicting the accused of murder, regardless of > the precise mechanism of the death - the woman had died of choking by the > internal vomit from her stomach, which did not eject out of her mouth, as > clearly brought out by the subject Delhi HC judgement, and the strong (and > unjust) bias underlying it. > The HC obviously has refused to share and uphold this premise. > > Here we attempt a brief review of the actual, NOT imagined, text of the > judgement, in particular, and the case, in general. > > The accused was charged (and convicted by the trial court) of rape and > murder. > > As regards murder, the Delhi HC judgement reads: "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 rape: " 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* [emphasis added]. 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." > > The issue of "menopause", though mentioned earlier, is *not *cited as a > ground for acquittal. > > What is of real relevance is the fact that absence of any injury on the > body, other than the genital (maybe the mention of "menopause" in the > judgement subliminally relates to this injury, which the post-menopausal > women are understandably more prone to, in case of vigorous intercourse, > because of the physiological changes brought about by menopause), is the > ground for acquittal; granting the accused the *benefit of doubt*. > > In the subject case, it deserves to be noted, there is no other witness (of > the act); and the woman concerned had already died when others found her. > The statement of the accused - who rather markedly never tried to flee away > perhaps because of being under the wrong notion that the woman was just in > a (transient) stupor and not dead together with his own apparently > inebriated state, himself is nowhere mentioned or referred to. (The fact > that the accused never made an attempt to flee *strongly suggests* that he > had no idea that the woman had died, and he was very much expecting her to > get restored to her normal state in due course of time; nor he was > anticipating that the woman would cry "rape" as and when she does.) > > *The (Inevitable) Conclusion* > > > *So what makes it prima facie a case of "rape"?Apparently, the fact of > extramarital sex between a woman and a man, where the woman happens to be > way older*. > > And, > *in order to "prove" a "murder" and "rape", neither a direct complainant, > nor any witness, nor any external injury mark, either on the body of the > "victim" or the accused, is called for.The "moralist" prejudice - that > denies the legitimacy, and thereby the very possibility, of seeking > gratification of sexual desire outside of marital bond(age) by a woman, > that too elderly, must suffice*. > > To sum up, the point here is not that there was *no* rape. (Of course, > there was *no* "murder".) > The point is that there is no conclusive evidence either way, as quite > rightly pointed out by the Delhi High Court judgement. > > Sukla Sen > -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send an email to [email protected]. Visit this group at http://groups.google.com/group/greenyouth. For more options, visit https://groups.google.com/d/optout.
