Recently, a judgement delivered by the Delhi High Court in the case of rape and murder of an old woman has sparked a debate on whether sexual intercourse with a post-menopausal woman can be treated as rape. In another case, a 50-year-old woman in Rajasthan was paraded naked on a donkey on the orders of a self-styled village court that decided that she was guilty of killing her husband’s cousin. They hit her with bricks, sticks and stripped, blackened her face, chopped off her hair and put her on a donkey. She is still in shock and trauma. The incident took place on Saturday evening in Rajsamand in south Rajasthan, where most villages defer to community councils or panchayats that are kangaroo courts with no legal status. The woman’s sister-in-law had reportedly told the panchayat that her husband, who died on November 2, was murdered by her. The group allegedly pronounced the woman guilty, thrashed her and ordered her public humiliation though she kept pleading innocence. The Rajasthan High Court had ordered action against such community panchayats but in large parts of rural Rajasthan, their diktats are law.
Rape, assault, molestation are the topmost common crimes against women in India. According to the National Crime Records Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by relative or neighbour; in other words, the victim knew the alleged rapist in 98 per cent of the cases. According to 2012 statistics, New Delhi has the highest number of rape-reports among Indian cities, while Jabalpur has the per capita incidence of reported rapes. Several rape cases in India received widespread media attention and triggered protests since 2012. This led the Government of India to reform its penal code for crimes of rape and sexual assault. Many minor kids and young woman are victims of sexual assault. These days, even old aged woman are not only robbed but also raped, whether it is a kid or an old aged woman, its womanhood which is abused.
The injuries on the victim’s vagina prove that there was forced penetration, and the inference will lead to the criminal case of rape. Also, the judgement says that there were no other injuries, which is clearly a step back to the pre-Mathura era, where one would look for injuries to prove rape. The Mathura rape case led to two amendments; one, there should not be any requirement about explaining injuries for rape. And secondly, consent should be univocal.
Contrary to some media reports which state that a man has been acquitted of rape charges simply because the woman had crossed the menopausal age, the actual judgment states more facts that have been ignored. The judgement pertains to an accused Achey Lal in the 2010 rape and murder of a 65-year-old woman who has been acquitted by the Delhi High Court because it was not convinced of the proof. 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.
Achey Lal was convicted for causing the offence punishable under Sections 376/302 IPC by the impugned judgement dated September 27, 2011 and vide order dated October 01, 2011 directed to undergo ‘Rigorous Imprisonment’ for a period of ten years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo Simple Imprisonment for one month for offence punishable under Section 376 and to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo Simple Imprisonment for one month for offence punishable under Section 302 IPC. The case of the prosecution being based on circumstantial evidence it has to be ascertained whether the deceased died a natural death or a homicidal death and whether forcible sexual intercourse was committed on her or not.
The judgement nowhere mentions rape is not possible because she is post menopause. What it actually reads is that “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. However, the basis for the judgement which could also be considered as bizarre is that since there were no signs of protest, there was no resistance from the deceased.
Achey Lal and the post-mortem of the deceased are 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. In December 2010, the victim was found dead inside her house in Majnu ka Tila along with an inebriated Achey Lal by a girl at whose house the victim worked. Age does not matter in rape; 80-year-olds get raped, too. If the culprit is vindictive and bent on causing maximum harm, the age is a deterrent than. Should the age alone not be considered for any ground? This should lead to more punishment.
How long an aged woman is going to suffer by so called custodians? Sometimes even in the hands of judiciary. These are two latest developments which has shaken the existence of woman in India.
