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Tuesday, October 28, 2014

Question of consent: Why Section 377b and not 377c? (11)


LIVE REPORT

3.05pm: Gopal says the charge should have been framed based on what is claimed by the complainant.

The defence lawyer says the trial judge was wrong in ruling that the defence cannot have a copy of Saiful's cautioned statement.

"Saiful says that the sodomy was non-consensual. By charging under a different section, Saiful risked being impeached," he adds.

2.40pm: Gopal says the point is that the evidence presented by the prosecution constitutes corroboration in law.

On the third point, the defence lawyer scrutinises Saiful's testimony of consensual and non-consensual sodomy.

"Saiful testified that the alleged sodomy was non-consensual but the appellant was charged under Section 377b and not Section 377c (of the Penal Code)," he says.

Section 337b reads: Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Whereas Section 377c reads: Whoever commits carnal intercourse against the order of nature on another person without consent or against the will of the other person, or by putting the other person in fear of death or hurt the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

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