Acquittal of rapists on weird grounds will set bad precedents






Two recent judgments on rape by two High Courts-Delhi and Punjab and Haryana- have sent shock waves in the large section of the society. Both judgments are related to the acquittal of accused persons. While in the judgment of the Delhi High Court, the Judge has coined a new terminology of “feeble no”, which does not exist anywhere either in the substantive or procedural law. The High Court has said while acquitting a filmmaker Mahmood Faruqi that the “the traditional model that says, ‘yes is yes’ and ‘no is no’ cannot be accepted universally”. The judgement further elaborates that ‘in certain cases, there can be affirmative consent or a positive denial but it may remain underlying/dormant which could lead to confusion in mind of others’.  
       This is a convoluted logic, which defeats the very essence of criminal jurisprudence. If a man has forced upon the victim against her will even if she has not yelled or screamed for fear of death or decapitation of her body or limb cannot be accepted to be a consent. A no is by all means no even if it is ‘feeble’. Another perplexing point is that the High Court has said that it was not a “traditional rape” but has not explained what is ‘modern rape’?How is modern rape different from the traditional rape? 
        Section 375(2) of the IPC has exhaustively dealt with the issue making it clear that the consent obtained by force, fraud, in fear of death or if the victim is of unsound mind or under the influence of intoxication is no consent. Thus, the Delhi High Court has stretched the ‘consent’ too far to acquit the culprit/ accused. If this ruling of the High Court is not set aside, it will be a bad precedent and the victims and the future victims will have to suffer the trauma beyond any measure.
      Similarly, the judgment of the Punjab and Haryana High Court, which has acquitted three persons accused of raping a girl of Sonepat of Haryana has twisted the criminal jurisprudence to the advantage of offenders. Regrettably, the verdict has not only set free the accused persons but has also shamed the hapless victim. The Judge in his highfalutin English has said that the ‘promiscuous attitude and voyeuristic mind’ has to be kept in mind while handling the rape trials. It further said in a didactic tone and tenor that “Victim’s narrative provides an alternative story of a casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters seek to suggest that young women enjoyed a certain comfort level with the offenders.” Strangely, the High Court has completely ignored the fact that a rape becomes more horrific if the trust and faith of women are betrayed by the offenders if they are known to her.
        Rape, needless to say, is not only a crime against the individual but also against the society. Therefore, any sympathy shown toward the perpetrators is misplaced which must be denounced with all force, even if it has come from the pulpit of the High Court.      

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