https://www.scconline.

com/blog/post/tag/section-376-ipc/

Kar HC | Rape victim falling asleep after perpetration of act is

“explanation unbecoming of an Indian women”: Court while granting
anticipatory bail to rape accused

https://www.tclindia.in/principles-to-be-followed-by-courts-while-granting-
rejecting-anticipatory-bails-indianlaws/

principles to be followed by the court while granting / rejecting

anticipatary bail

“witness may lie, but the circumstances will not lie. - [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom

520, dated 13-03-2019]

https://kapilchandna.legal/how-to-seek-bail-in-false-rape-cases/

1. In Akshay Manoj Jaisinghani v. The State of Maharashtra; Bail Application No. 2221/2016 wherein it was
observed to the effect :
“ Only because two individuals are sexually involved with each other, it is
not compulsory for them to marry. Initially, a boy and a girl genuinely may
want to marry and are true to their emotions and establish sexual
relationship, however, after some time, they may find that they are not
mentally or physically compatible and one decides to withdraw from the
relationship. Under such circumstances, nobody can compel these two
persons to marry only because they had sexual relationship. It is necessary
to have a healthy, objective and legal approach towards these incidents.
There may be moral bonding between the two persons when they indulge
into sexual activities with the promise to marry and it is also fact that
ultimately women only can remain pregnant and therefore, she suffers more
than the man. However, in law, this cannot be labeled in any manner as a
rape.”
The applicant, in this case, was allowed to be released on bail subject to the
conditions imposed.
3.
 In Arif Iqbal @ Imran v. State; 2009 SCC Online Del 356. The observations therein are to
the effect:
“Without expressing any view on the merits of the case, it is quite apparent from
the contents of some of the letters placed by the petitioner on record that the
prosecutrix was deeply in love with the petitioner. It is not in dispute that the
petitioner had physical relations with the prosecutrix not at any strange place but at
the residence of the prosecutrix itself. In her madness for love with the petitioner,
prosecutrix went to the extent of administering intoxicating pills to her family
members to induce them to go in fast and deep sleep and during which period the
petitioner had sex with the prosecutrix. No doubt the prosecutrix has alleged that
she allowed the petitioner to have sex with her because of the false promise of
marriage extended by the petitioner but in my view mere false promise of marriage
should not have prompted the prosecutrix to establish a physical relationship with
the petitioner.”
4.
Shiva Shankar v. State of Karnataka; Crl. Appeal
No. 504/2018
Hon’ble Supreme Court contend that where the accused and the
prosecutrix had lived together like a married couple, and the
sexual intercourse had lasted over a period of time, it was
observed to the effect that especially in the face of the
complainant’s own allegations of their living together, cannot be
termed to be a case of rape.

7. Harish Kumar v. State 2010 (4) JCC 2371

The Hon’ble Court contends that a promise to marry which is later
denied does not amount to offence of rape and it is a breach of
promise and the complainant should seek a civil remedy.

https://theleaflet.in/the-burden-of-being-an-indian-woman-karnataka-high-court-bail-order-
and-rape-myths/

“Testimony of a ‘Hindu, a virgin daughter or loyal wife’[x] would be more believable in courts than a
woman whose sexual behavior is inconsistent with the dominant values and norms.”
 

The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat created an entire ready-to
checklist of supposed qualities of ‘Indian Women’ which make her testimony more reliable than
‘western women’.[xi] Court held that a girl or a woman in the traditional society of India would be
reluctant to even admit her rape, she will be conscious of being looked down upon and ostracized
from society. She will be fearful of losing respect and love of her loved ones, she would fear their
taunts. She will fear being considered promiscuous. And thus, except for urban sophisticated
educated women, Indian women will be shy and reluctant in reporting rape.  Opposed to this, the
court prepared a list of supposed qualities of ‘western women’, who, in the opinion of the court, are
more likely to file false cases. Court held that Western women may be ‘gold diggers’, they may act
out of jealousy or vengeance.

“To be believed by the court, a woman has to feel a ‘deep sense of deathless shame’, she should feel that
her ‘most important jewel has been taken away’ on being raped”
 

Prof. Mrinal Satish in his work on rape sentencing has noted that in addition to the burden of fitting
the profile of the stereotypical rape victim, courts appear to expect a certain behavior from rape
victims, both during the act of rape and subsequently.[xii] To be believed by the court, a woman has
to feel a ‘deep sense of deathless shame’, she should feel that her ‘most important jewel has been
taken away’ on being raped.[xiii] It is based on this understanding that courts refuse to believe the
testimony of a victim who does not resist or has no injuries on her body.

It is submitted that the act of arrest directly affects freedom of movement of the person arrested by the police, and
speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take
his trial.