"There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male," remarked the Bombay High Court in an order granting bail to a 24-yr-old rape accused.
The remark was made by Justice Bharati Dangre while negating the insinuation of 'consent' imputed by the applicant's counsel. He observed,
"There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into diffierent circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other. The concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.
This can all be established during the course of the trial by evaluating the version of the victim in the backdrop of the psychological framework, which would be expounded through a trial."
The Applicant had been accused by a 25-yr-old college student, also an acquaintance, of making sexual advances at her after an overnight party at a Bunglow in Lonavala, on the intervening night of October 27- 28, 2019.
The statement of the victim was to the effect that she entered the bedroom on the second floor of the bungalow and went to sleep there and it was only in the wee hours when she was awakened to the Applicant forcing himself upon her and she repelled him by using force.
An FIR in the matter was lodged at the local Police station on November 11, 2019, the Applicant was apprehended in December and has been incarcerated since.
The Applicant's counsel had argued:
- 1)There was an unexplained delay in lodging the FIR;
- 2)There was inconsistency in the complainant's statement under Section 164 of CrPC and first statement recorded by the Police in the Zero FIR, as to the point of time when she had disclosed the incident to her friends. In the former statement, she stated that she did not disclose the incident to anyone and left the Bunglow on the second day. However, in the latter statement to the police, she stated that she stayed at the Bunglow on the next day and it was only on October 29, when they were leaving that she divulged the alleged incident to her friends.
- 3)One of the photographs placed on record with the charge-sheet captured the Applicant and the Complainant together in a friendly pose, after the alleged time of incident.
In view of these submissions, the High Court was of a "prima facie" opinion that there is no reasonable ground for believing that the Applicant is guilty of an offence with which he is charged.
The Court was "astonished" at the fact that when the Complainant raised an alarm to deter the Applicant, though being in the same bungalow, none of her friends came to her rescue. The Court proceeded to observe,
"She did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the Accused and one other friend. The reason for she not disclosing the offensive conduct of the Applicant which was so dreadful, horrific and appalling, according to her, is something incomprehensible."
However, the Court clarified that its prima facie opinion should not be taken as an opinion on merits of the prosecution case and the trial court shall not be influenced by the observations in the order.
The prosecution had resisted the bail plea based on certain WhatsApp chats between the Applicant and his friends, where allegedly the Applicant had himself admitted to his guilt, amounting to extra judicial confession.
Rejecting this submission the bench observed,
"The extra judicial confessions in the form of chat messages are also compiled in the chargesheet and its existence as piece of evidence would be tested at the time of trial since there is no report of its veracity at this stage. It is a settled position of law that extra judicial confession is a weak piece of evidence unless and until corroborated with substantial evidence."
The Court proceeded to note that the Applicant had no criminal antecedents, had firm roots in the Society and there was minimal likelihoold of his absconding and fleeing the course of justice.
"Every accused before he assumes the character of the convict is presumed to be innocent. Under the Indian Constitution, liberty of an individual is zealously safeguarded and it is founded on the bedrock of the rights guaranteed under the Constitution itself. It is acknowledged as the most cherished value in Indian democracy. Deprivation of liberty is considered to be punitive and incarceration before conviction has a substantial punitive content. In the backdrop of the conundrum between the individual liberty of the accused and securing justice for the victim, a neat balance has to be struck," the bench observed.
Thereby, taking note of the dim chances of the trial commencing and concluding in the immediate times, "particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic," the bench allowed the bail plea.
"Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty. The investigation being completed and the charge-sheet having been filed and the prima facie material contained in the chargesheet persuade me to release the Applicant on bail subject to certain stringent conditions that he will not enter in the jurisdiction of the police station where the victim girl is residing," the Court held.
Case Title: Jitin Mothukiri v. State of Maharashtra
Case No.: BA No. 48/2020
Quorum: Justice Bharati Dangre
Appearance: Advocate Dr. Abhinav Chandrachud with Advocates Khushboo Pathak and Wasi Sayyed i/b Advocate Prem Pandey (for Applicant); APP Ajay Patil (for State); Advocate Satyam Nimbalkar (for Intervener)