Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:
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 different 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.
Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.
Advocates who appeared in the present matter:
Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.
Mr Ajay Patil, A.P.P. for the State.
Mr Satyam Nimbalkar for the intervener.
Forceful Sexual Intercourse
Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.
Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.
Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.
Distressed Mental Condition
Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.
Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.
In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.
Another point which seemed incomprehensible was the fact that 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.
Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.
The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.
Further the Bench added that,
“…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.”
Court also quoted Warren Buffet,
“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”
above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.
On granting bail to the applicant, Court stated that,
Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.
Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]