Allahabad High Court granted bail to a rape suspect, stating that the woman “invited trouble and was also responsible for the same,” weeks after an Allahabad High Court judge noted that grabbing breasts or snapping a pyjama string do not constitute rape or attempt to commit rape.
The victim is a postgraduate student who resided in Delhi as a paying guest, according the FIR filed in September of last year. She went to a Hauz Khas restaurant with her companions on September 21. They became “very intoxicated” after drinking there till three in the morning. “She herself agreed to go to the applicant’s house and take rest because she needed support,” Justice Sanjay Kumar Singh stated in the ruling.
“The allegation of the victim that applicant instead of his house took her to his relative’s flat and raped her twice is false and against the evidence on record. On the strength of said facts, it is argued that considering the facts of the case as disclosed by the victim, it is not a case of rape but may be a case of consensual relationship between the parties concerned,” the order added.
According to Justice Singh, the accused’s attorney has argued that there is no possibility of him evading the legal system or falsifying evidence. Additionally, the attorney has noted that Nischal has no criminal past and has been incarcerated since December 11. The accused would not abuse the freedom granted by bail, the attorney has promised the court. However, the state government’s attorney was unable to contest the “factual aspect of the matter” despite opposing the bail petition, the order notes.
“Having heard learned counsel for the parties and examined the matter in its entirety, I find that it is not in dispute that victim and applicant both are major. Victim is student of M.A., hence she was competent enough to understand the morality and significance of her act as disclosed by her in the FIR. This Court is of the view that even if the allegation of the victim is accepted as true, then it can also be concluded that she herself invited trouble and was also responsible for the same. Similar stand has been taken by the victim in her statement. In her medical examination, her hymen was found torn but doctor did not give any opinion about the sexual assault,” the judge has said in the order.
In exchange for his cooperation with the investigation, the court granted Nischal Chandak bail. This occurs weeks after the Allahabad High Court’s March 17 ruling by Justice RamManohar Narayan Mishra, which caused a huge uproar due to its ridiculous remarks. The judge was hearing the accused’s challenge to a lower court order summoning them under Section 376 of Indian Penal Code, which deals with rape.
“…the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim,” reads para 21 of the high court ruling.
The lower court had summoned the accused under IPC Section 376, relating to rape, read with Section 18 of Protection of Children from Sexual Offences (POCSO) Act. Striking this down, the high court judge had said, “In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”
The judgment drew strong criticism from the Supreme Court, which noted that it reflected a “total lack of sensitivity”. The top court said it was pained to see some observations in the verdict and sought replies from the Centre and the Uttar Pradesh government.
“We are pained to state that it shows a total lack of sensitivity on the part of the author of the judgment. It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was application of mind. We are usually hesitant to grant stay at this stage. But since observations in paragraphs 21, 24 and 26 is unknown to cannons of law and shows inhuman approach, we stay the observations in said paras,” the top court said.
