Delhi HC: “blogs/posts on the social media put by the complainant/prosecutrix appear to reflect that she had reservations about institution of marriage and supported the idea of live-in relationship.”
On October 15, in the case of Ashish Windwani v. State (The NCT of Delhi), the Delhi High Court bench of Justice Anoop Kumar Mendiratta, suspended the sentence and granted bail to a man who had been found guilty of raping a woman under the false pretense of marriage. The man accused in the said case was found guilty of raping the woman, but the Section 313 of the IPC (causing a miscarriage without the victim’s consent) charges against him were dropped by the court.
By virtue of the lower court order, the appellant had been sentenced to undergo rigorous imprisonment of 10 years for the offence punishable under Section 376 (2)(n) of the IPC, and was acquitted of the offence under Section 313 IPC. While challenging the impugned judgment of the lower court, the Senior Advocate N. Hariharan appeared on behalf of the appellant and submitted that there is patent infirmity in convicting the accused as crucial evidence in favor of appellant has been overlooked. The counsel submitted before the High Court that the learned Trial Court erred in concluding that appellant obtained prosecutrix’s consent for sexual intercourse on a false promise of marriage. Furthermore, the prosecutrix herself had written blogs which were posted on social media that she did not believe in the institution of marriage.
The counsel also said that the appellant/applicant had met the complainant/prosecutrix on a social media application ‘Tinder’, which is known for casual dating. As such, the prosecutrix herself did not believe in the idea of marriage. Further, it is improbable by her conduct and circumstances on record that she was misled on alleged promise of marriage. The counsel presented that there is overwhelming evidence on record that the prosecutrix knew that the appellant was already married having two children which falsifies the theory of alleged promise to marry.
Justice Mendiratta remarked in his decision that the complainant woman appeared to favor live-in relationships and against the institution of marriage in her social media posts and blogs. The court further said that it’s crucial to keep this in perspective because the blogs were written before the alleged event was reported and it seems like the initial sexual encounter was completely voluntarily.
The court, in its order, reiterated that the “blogs/posts on the social media put by the complainant/prosecutrix appear to reflect that she had reservations about institution of marriage and supported the idea of live-in relationship. The aforesaid observations need to be kept in perspective since the blogs had been made prior to the alleged reporting of the incident. It appears that sexual encounter initially at Hyatt Hotel on 26.05.2015 was completely voluntary. The evidence relating to incident dated 10.06.2015 also requires a deeper scrutiny in the light of defence evidence led on behalf of the appellant. It may be preposterous to make observations in detail at this stage but the evidence led by the appellant does require consideration. At this stage, even if the evidence is not to be re-assessed or re-analyzed for the purpose of execution of sentence but the infirmities which have been pointed out on record need consideration. It may also be noticed that the disposal of the appeal is likely to take some time.”
The Delhi High Court, while allowing the bail and suspension of sentence, stated that the Appellate Court, “at the stage of suspension of sentence and release on bail till disposal of appeal, has to examine if there is any patent infirmity in the order of conviction that renders the conviction prima facie erroneous. The evidence is not to be re-assessed or re-analyzed to suspend the execution of the sentence. The detailed observations on merits of the case are not called for, at this stage lest it prejudices the case of the petitioner but the matter has to be seen in the light of settled principles of law.”
Thus, the Court granted him bail on furnishing a personal bond in the sum of Rs.25,000/-with two sureties, subject to certain conditions.
The order can be read here.
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