Sexual intercourse, which is forceful and not forcible, not rape.


Court :
High Court of Delhi

Brief :
The bench comprising of Justices Pradeep Nandrajog and Ms. Mukta Gupta held that sexual intercourse, which is forceful and not forcible is not rape. The bench, thereby, acquitted the accused. "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. "

Citation :
Achey Lal vs. State Govt. of NCT of Delhi

* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
     Judgment Reserved on: October 17, 2014 
%     Judgment Delivered on: October 30, 2014
 
+     CRL.A. 1534/2011
 ACHEY LAL      ..... Appellant 
Represented by: Mr.Vivek Sood, Ms.Vandana
Bhatnagar, Ms.Jhanvi Mahan,
Mr.Jaideep Tandon and
Mr.Prem Prakash, Advocates.   
    versus
 
 STATE GOVT. OF NCT OF DELHI   ..... Respondent 
Represented by: Ms.Aashaa Tiwari, APP for the
State with SI Mukesh Kumar,
PS Civil Lines.  
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA 
MUKTA GUPTA, J.
1.  Achey Lal is convicted for causing the offence punishable under
Sections 376/302 IPC by the impugned judgment 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 `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 `5,000/- and in default of payment of fine to
undergo Simple Imprisonment for one month for offence punishable under
Section 302 IPC. 
2. The case of the prosecution being based on circumstantial evidence it
has to be ascertained whether the deceased died a natural death or a 
Crl.A.No.1534 of 2011     Page 1 of 6
 
homicidal death and whether forcible sexual intercourse was committed with
her or not. 
3. Learned counsel for the appellant assailing the judgment contends that
as per the post-mortem report the death was due to a natural cause of action,
thus the appellant cannot be convicted for causing the murder of the
deceased Sharda and at best the appellant could have committed forceful
intercourse but the same was not forcible and contrary to the wishes of the
deceased.  Hence he is entitled to be acquitted even for offence punishable
under Section 376 IPC.
4. On December 31, 2010 a PCR call was received from mobile phone
No.9891271617 informing that a lady who was working at their house was
found dead when the other maid went to call her from her house and Police
be sent.  The said PCR call was recorded vide DD No.18 at Police Post,
Majnu Ka Tila at 12.50 PM on December 31, 2010.  When Inspector Rakesh
Kumar, PW-27 reached the spot he found the body of a female covered upto
the breast by a blanket lying in the room.  One Nokia mobile phone (IMEI
No.356902033673200) was lying near the pillow.  The lady was naked from
breast to feet and ASI Yashwant and Constable Sudhir had caught the
accused who disclosed his name as Achey Lal.  The Salwar and her woollen
innerwear were also opened upto her feet.  One quarter bottle of Bonnie Scot
was lying near her legs.  They examined the girl Manisha who was at the
spot and had called the police.  The spot was inspected and photographed by
the Crime Team.  A muffler was also found near the private parts of the
deceased which was also seized. 
5. Manisha PW-5 stated that she was doing Ph.D from Delhi University
and Sharda the deceased was living at House No.L-11, Majnu Ka Tila along 
Crl.A.No.1534 of 2011     Page 2 of 6
 
with her husband on rent.  Sharda used to go in the neighbourhood to work
as a maid.  On December 30, 2010 Sharda had taken `20/- as loan from her
mother and assured that she would clean her house in return thereof.  On that
day at about 12.30 PM she had come to the house of Sharda to ask her to do
the work. When she reached at the house of Sharda she found that the door
was open.  She knocked at the door but got no answer. She pushed the door
and called Sharda.  She found Sharda lying on a bed on the floor and was not
responding.  When she tried to wake up Sharda, she gave no response.  She
found that Sharda’s shirt was upto her neck and had a blanket on some part
of her body.  When she did not respond she thought that she was
unconscious and went outside the house.  People collected.  In the meantime,
one man aged 45 years Achey Lal who was in intoxicated condition was
found inside the room.  When they all wanted to go inside the room, Achey
Lal stopped them at the door to prevent them from entering the room and
stated that Sharda was like his mother and had not died and was sleeping
after taking liquor.  Thus she called the police.  When the police came they
handed over Achey Lal to the Police. 
6. The dead body of Sharda was sent for post-mortem to Dr.S.Lal, PW-1
who conducted the post-mortem of the body aged 65-70 years and authored
the report Ex.PW-1/A noticed ante-mortem injuries in the form of reddish
abrasion 1 x 0.5 cm on the anterior aspect of vagina just about the clitorius
and multiple reddish bruises seen in and around the vaginal orifices, on inner
mucosa with mild bleeding.  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 
Crl.A.No.1534 of 2011     Page 3 of 6
 
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 post-mortem on the body of the deceased was conducted at 3.55 PM and
thus the death took place approximately around 10.00 AM. 
7. On cross-examination Dr.Lal admitted that the lungs were congested
because of the food (gastric contents) present in the trachea that had reached
upto bronchiole of both lungs and that aspiration of gastric contents was
caused due to forceful sexual intercourse.  He denied that this was due to
some self natural happening in the body of the deceased during her sleeping
in a position that the food contents entered the bronchiole and that the same
was not even possible by overeating.  
8. In Modi’s Medical Jurisprudence and Toxicology, Twenty-Second
Edition at pages 273-274 it has been explained that choking and obstruction
of the air passage from within is mostly accidental.  It is pointed out that the
vomited matter may regurgitate into the larynx, and by inspiratory efforts
may be aspirated into the smaller bronchi and may cause suffocation.  This
is especially common in acute alcoholism and occasionally occurs during a
fit of epilepsy or in a case of badly administered anaesthesia.  The contents
of stomach may also fall into the larynx and trachea after death owing to
pressure of the gases of decomposition but they cannot reach the smaller
bronchi.  In the present case the post-mortem report shows that the deceased
had consumed alcohol and was subjected to sexual intercourse.  The finding 
Crl.A.No.1534 of 2011     Page 4 of 6
 
of the post-mortem Doctor is categorical that the aspiration of gastric
contents was caused due to forceful sexual intercourse.  Even the husband of
the deceased Kishan Lal PW-17 deposed that Achey Lal had come to his
house at about 8.00 AM and was carrying a quarter bottle of liquor.  He
along with the accused consumed that bottle whereafter he left the house
along with Bhola and Ashok Kumar and reached Malka Ganj.  Thereafter
Achey Lal and his wife Sharda were at home and at 3.00 PM he came to
know that his wife had expired.  Though he denied that Bhola, Ashok Kumar
and Achey Lal and his wife had taken liquor together as stated in his earlier
statement however, it is proved beyond reasonable doubt from the postmortem
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 
Crl.A.No.1534 of 2011     Page 5 of 6
 
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.  
10. The appeal is accordingly disposed of. 
11. The appellant, who is in custody, be released forthwith if not required
in any other case. 
12. T.C.R. be returned. 
13. Two copies of the judgment be sent to the Superintendent Central Jail
Tihar one for his record and the other to be handed over to the appellant.   
     
 
              (MUKTA GUPTA)
                      JUDGE
 
 
(PRADEEP NANDRAJOG) 
              JUDGE
 
OCTOBER  30, 2014
‘vn’ 
Crl.A.No.1534 of 2011     Page 6 of 6
 

Vassu Arora
on 04 November 2014
Published in Criminal Law
Views : 8224
Attached File : 261905_4034_judgment.pdf
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