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or as to at what stage the consent was revoked and the act of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. The long lived notion as expressed in the words of
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 attemps 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” 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. The freedom guaranteed to a woman to
continue with her bodily integrity and autonomy, free from
sexual violence are the emerging concepts which will have to be
traversed during the course of a 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
LD VC DIST BAIL APPLICATION NO.48 OF 2020
WITH
INTERIM APPLICATION NO.1 OF 2020
Jitin Mothukiri Vs. The State of Maharashtra
CORAM: BHARATI DANGRE, J.
DATED : 21st JULY 2020
1. By this Application, the Applicant is seeking his release on
bail in a crime where he is charged with offences punishable
under Sections 376, 354-A and 354-B of the Indian Penal Code.
On his Anticipatory Bail Application being rejected by the
Sessions Court and the High Court, he came to be apprehended
on 16/12/2019 and remanded to judicial custody on 21/12/2019
and since then he is incarcerated.
2. C.R. No.472 of 2019 came to be registered with the Paud
Police Station, Pune on 08/11/2019 and on a charge sheet being
filed, it was numbered as Sessions Case No.282 of 2020, the take
off point being a complaint filed by the victim girl, aged 25 years
reporting about the incident which took place on 28/10/2019 at
Aamby Valley (Lonawala), Pune.
3. According to the Complainant, she was acquainted with
the present Applicant aged 24 years since last eight years as she
was studying in Symbiosis College, Pune. As per her version, on
27/10/2019, the Complainant along with her eight friends,
proceeded to a bungalow owned by one of her friends, Mr.
Yashwardhan Agarwal for celebration of Diwali. The
Complainant with her friends reached Bungalow No.94-B,
Ambivali about 12.00 to 12.30 a.m. and amongst the friends
present on the said occasion, the Applicant was one of them.
The youngsters had an overnight party and it is the version of the
Complainant that after having dinner around 2.00 a.m., she
decided to have rest and occupied Bed Room No.3 on the second
floor of the said bungalow whereas her other friends continued
with the party. While she dozed off to sleep, at about 4.30 to
5.00 a.m., she was awakened to certain feeling and found that
someone was forcing himself upon her. On becoming aware of
the situation, she realised, it was the Applicant who was lying on
her body kissing her and trying to have sexual intercourse with
her by penetrating his penis into her vagina after removing her
jeans-pant and undergarments. 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. Thereafter
she wore her clothes and ran out of the room. In the complaint,
she stated that once she went out of the room, she searched for
her friends on the first floor but they were not found, which
compelled her to return to Bed Room No.3 and when she found
that the Applicant was not there, she went to sleep in the same
bedroom. After passage of some time, again the Applicant came
there in semi-nude state and tried to get intimate by forcing
himself upon the Complainant to which the Complainant
responded by scolding him and asked him to immediately leave
the room. As a result, being scared, the Applicant left the room.
4. As per the version of the victim girl, this incident caused
tremendous mental trauma to the Complainant and she was
frightened. On spending one more day in the bungalow amidst
her friends, she narrated the incident on a day after to her friends
present in the bungalw. She returned to her home in Pune on
29/10/2019 in a distressed mental condition and did not report
the matter until 30/10/2019, when she narrated the entire episode
to her mother. She was in a tremendous depression and her
mother accompaneid her to a psychiatrist in the city. Thereafter,
on discussing the matter with the family, she approached
Kondwa Police Station where her statement was recorded on
04/11/2019 and a `Zero' FIR was registered. Her supplementary
statement came to be recorded on 07/11/2019. Thereafter, she
approached the Paud Police Station on 08/11/2019 based on her
complaint, the FIR came to be registered naming the Applicant
as an accused alleging that he had committed offences
punishable under Sections 376, 354, 354-A and 511 of the IPC.
Section 511, however, came to be deleted while filing chargesheet.
5. On completion of investigation, the charge-sheet came to
be filed. On filing charge-sheet, a Bail Application was moved
before the Sessions Court but it was rejected by Order dated
17/03/2020. The Applicant even attempted to prefer an Interim
Application for temporary bail on account of Covid-19 situation
but the same was rejected by the Sessions Court. In the
aforesaid background of chronology of events and on failure to
seek any relief from the Sessions Court, the Applicant has moved
this Court by filing the present Application.
6. Dr. Abhinav Chandrachud, learned counsel for the
Applicant has taken me through the entire charge-sheet, which
has been uploaded and he has laid stress on certain relevant
aspects from the charge-sheet. At the outset, he would submit
that the FIR has been lodged on 08/11/2019 and, in fact, there is
a delay in lodging the FIR, which is unexplained. Since on
04/11/2019 she had approached Kondwa Police Station where a
Zero FIR came to be registered, the explanation offered by the
Complainant that she was extremely scared and not in a proper
state of mind to take a decision is not a sufficient explanation,
according to the learned counsel. Dr. Chandrachud has also
emphasised on the improvements in her supplementary statement
which was recorded on 07/11/2019 where she had made an
attempt to improve her version on the material aspect like she
had stated for the first time that she went to sleep in the bedroom
on the second floor by locking the room but the door was having
electric lock and it is possible to open it from outside. According
to the learned counsel, the spot panchnama and the
memorandum of panchnama do not record any such thing as
electric lock on the door of the room where the alleged incident
took place. Further, according to him, even the owner of the
Bungalow Mr. Yashwardhan Agarwal has not mentioned
anything about such electric lock being installed on the bed room
doors. He would also invite my attention to the two statements;
one by Mr. Yashwardhan Agarwal, the owner of the Bungalow
and the other by Mr. Yash Wadhwani. The statements being to
the effect that when these two persons wanted to go for sleep
after finishing the party and when they approached Bed Room
No.3 on the second floor, the Applicant and the victim girl were
sleeping in the said bedroom and occupying the same bed.
According to the learned counsel, this statement speaks for itself
and presumably Dr. Chandrachud wants to hint at the act
complained of being done with her consent. He is also acerbic
of the fact which emanates from the complaint of the victim that
if on the first occasion, the victim was forced upon, why she kept
quiet despite having an option of raising an alarm and seeking
help from her friends by knocking the doors of other rooms in
the bungalow and according to him, she remained tight lipped
and spent on the entire next day with her friends and enjoyed her
venture in the Sahara City which, according to him, is clearly
reflected from the photographs that form part of the chargesheet.
It was only on 29/10/2019 when all the friends were
leaving for their respective houses, she had revealed the said
incident to them. This conduct, according to the learned counsel,
speaks volumes. Apart from this, Dr. Chandrachud has also
relied upon the discrepancies in the statement recorded under
Section 164 of the Cr.P.C. as against her first statement as to
the point of time when she had disclosed the incident to her
friends. The learned counsel also urge that the medical history
she had given at the time of her physical examination states
that she had consumed alcohol, necessarily leading to an
inference that she was not in her full consciousness to
comprehend the situation.
7. Learned A.P.P. as well as the learned counsel for the
Intervenor would emphatically argue that the offence
complained of is serious one and modesty of a young girl has
been outraged. The submission is to the effect that even the
Applicant himself has admitted to his guilt in several
WhatsApp chat with his friends and this amounts to extra
judicial confession.
8. I have perused the material placed on record in the form
of charge-sheet. The Applicant seeks his release on bail and it
will have to be decided on the well known judicial parameters
of consideration of such an application. The exercise of
discretion conferred on the Courts is expected to be exercised
in a judicious manner. The question whether an accused is to
be admitted to bail or not is dependant on variety of
circumstances and the most acceptable being (a) whether there
is any prima facie or reasonable ground to believe that the
accused had committed the offence; (b) nature and gravity of
charge; (c) severity of punishment in the event of conviction;
(d) danger of the accused absconding or fleeing the cause of
justice; (e) character, behavior, position and standing of the
accused in the society; (f) likelihood of offence being repeated
and (g) reasonable apprehension of the Applicant tampering
with the prosecution witnesses. All the circumstances have to
be cumulatively assessed as competing factors while exercising
the discretion. Each of the circumstance is to be given due
weightage bearing in mind that any one of it do not
superimpose on the other. It is the cumulative effect of all the
aforesaid circumstances which must enter into the judicial
verdict, is the settled position of law.
9. 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 overweighing factors to do justice to the victim is expected
to pitted against avoidance of indefinite incarceration of the
accused awaiting his transformation from accused to the
convict. The availability of the accused for trial and the
likelihood of abuse of his liberty to manipulate the prosecution
case on the release are to be juxtaposed against justice to the
victim by ensuring a fair trial.
10. In the background of the aforesaid settled position of
law, I have examined the material compiled in the form of
charge-sheet against the present Applicant. Though mere
delay in lodging the FIR may not be fatal to the case of the
prosecution and justiciable explanation offered by the victim
girl can be re-asserted by evaluating her state of mind and it
may be accepted during the course of the trial, certain
circumstances warrant attention. The victim is aged 25 years
on the date on which the alleged incident took place. She had
categorically admitted that she was introduced to the Accused
while she was pursuing her eduction in Symboisis College,
Pune and she was acquainted with him and he was a part of her
friend circle. She accompanied her friends for celebration of
Diwali to Ambivali and when she reached there on 27/10/2019,
the Accused was already present there. The alleged incident
took place on the intervening night of 27/10/2019 and
28/10/2019. The statement of the victim is 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. It is her statement that
she stepped out and went one floor down in search of her
friends and since the lights were switched off, she was not able
to find any help. She again returned to her room where
another attempt was made by the Applicant to establish
physical contact with the victim by his explicit sexual
overtures. When she raised an alarm to deter him, though
being in the same bungalow, none of the friends came to her
rescue is something astonishing. 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. Further, in her statement under
Section 164 of the Cr.P.C., she has stated that she did not
disclose this fact to anyone and on the second day itself she left
for her home in Pune. However, in her first statement to the
police recorded on 04/11/2019 she has stated that she stayed
there on 28/10/2019 and while they were leaving on
29/10/2019, she divulged the incident which took place in the
night of 28/10/2019 to her friends. This version is
corroborated by the statements of her other friends, the
inhabitants of the bungalow who had stayed there on the night
of 28/10/2019 and 29/10/2019. The eight statements which
form part of the charge-sheet in unison reflects that on
28/10/2019 all the friends had their breakfast and lunch and
they had a ride in Sahar City and stayed in the bungalow on
that night. On the next day i.e. on 29/10/2019 when they were
about to leave, the victim narrated the alleged incident. This
version is in contradiction to the statement of the victim
recorded under Section 164 of the Cr.P.C. where she has stated
that she went home the very next day and did not narrate the
incident to anyone. One of the photographs placed on record
with the charge-sheet reflects the time as 29/10/2019 at 3.09
p.m. and it captures the Applicant and the Accused together in
a friendly pose.
The reliance of the prosecution and the intervenor is on
some chat messages wherein the Applicant has accepted his
guilt. The chat messages, however, are not reflective of the
actual alleged incident but give an impression that the
Applicant has apologized to some of his friends about his
conduct with the victim girl. 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.
11. Taking an overall view of the material collected by the
prosecution against the Accused and contained in the chargesheet,
prima facie I am of the considered view that it do not
constitute a reasonable ground for believing that the Applicant
is guilty of an offence with which he is 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. This is a prima facie
opinion after having an overall feel of the prosecution case
through the material contained in the charge-sheet and 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 this order.
12. 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. The long lived notion as expressed in the words of
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 attemps 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” 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. The freedom guaranteed to a woman to
continue with her bodily integrity and autonomy, free from
sexual violence are the emerging concepts which will have to be
traversed during the course of a 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.
13. The Applicant came to be arrested on 16/12/2019, which
is seven months ago, and till date he is confined there as a
prisoner. He is a young boy of 24 years and a graduate in
Mechanical Engineering, aspiring to pursue his career. It is
not reported that he has any criminal antecedents. To the
contrary, he has firm roots in the Society; his father being
engaged in a business of manufacturing and engineering goods
and a resident of Kalyani Nagar in Pune and the likelihoold of
his absconding and fleeing the course of justice can be
presumed to be minimal. Balancing depreviation 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. 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 and also reserving liberty to the prosecution to move
an application for cancellation of bail on being reported that
the Applicant has misused the liberty or in any way attempted
to interdict a fair trial while being on bail. Hence, the following
order:
ORDER
(a) The Applicant – Mr. Jitin Mothukiri shall be released
on bail in C.R. No.472 of 2019 registered with Paud
Police Station (Sessions Case No.282 of 2020) on
executing P.R. bond to the tune of Rs.50,000/- and
on furnishing one or two sureties of the like amount.
(b) The Applicant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with facts of case so as to dissuade him
from disclosing the facts to Court or any Police
Officer or tamper with the evidence or the witnesses
of the prosecution.
(c) The Applicant shall not enter the jurisdiction of
Undri Police Station, Pune or the area nearby the
residence of the victim.
(d) The Applicant shall deposit his passport, if any, with
the Investigating Officer and make himself available
as and when required by the Investigating Officer.
(e) The Applicant shall provide his residential address
and telephone number to the Investigating Officer.
14. The Application is allowed in the aforestated terms.
15. All parties are directed to act on the downloaded copy supplied
by the Advocate under his seal and signature.
SMT. BHARATI DANGRE, J
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