‘Why Didn’t She Resist?’ Bombay HC Doubts the Plausibility of Rape

Justice Badar granted bail to rape accused Sameer Jadhav when he found loopholes in the woman’s story. 

On 15 March, the Bombay High Court granted bail to Sameer Jadhav, accused of rape, when the judge called into question the plausibility of the version of events of the day of the rape, as narrated by the woman.

Justice Anant Dadar, while hearing Jadhav’s appeal, questioned how a 23-year-old adult woman could be dragged into a car by only one man who would then gag her, take her to a lodge and rape her.

The Incident

The woman alleges that she was raped by Jadhav in June 2014 when she was walking to her sister’s house in Shiroda, Sindhudurg. She has testified that it was around 8 am when Jadhav drove by in a Sumo car, stopped it, dragged her inside, gagged her with a handkerchief and drove her to a lodge nearby where he raped her.

Jadhav admits to having sexual relations with the woman but denies all charges of rape and the “implausible” morning described by the woman.

In May 2015, 11 months later, the woman filed a rape complaint against Jadhav. He was tried by the sessions court and was convicted of rape, with a seven-year jail sentence. He then moved the Bombay HC to challenge this verdict. His appeal was heard by Justice Badar who granted him bail and suspended his jail time pending his appeal process in the court.

The Judgement

After considering depositions and submissions from both sides, Justice Badar found something amiss in the woman’s version of the incident:

Prima­ facie, it appears that the theory put up by the [woman] is improbable in the sense that she wants the court to believe that an adult woman can be dragged inside [a] Sumo vehicle by only one male person and then her mouth can be tied by a handkerchief and in that position, a man is able to drive vehicle for taking her to the hotel while her hands were not tied. (sic)

Justice Badar found it highly implausible that the woman didn’t put up a fight or escape the vehicle: “[Her] evidence does not show any resistance by her despite the fact that her hands were free and the Sumo vehicle was being driven by Jadhav”.

The second reason which made the woman’s story weak in Justice Badar’s judgement was the fact that she complained 11 months after the incident had occurred.

During this period as admitted by the [woman], she was undergoing her routine activities [...] It is seen that she has not cited any evidence to corroborate her version, in the light of fact that prima ­facie the incident appears to be improbable.

Making Sense of the Judgement

Getting Into the Car

Upon looking for precedents in almost 50 cases over the last three years, most include either a woman being abducted in a car to be raped somewhere else or in the car itself, or the man is armed, or the woman enters the cab in good faith (known person, for a lift, taxi drivers) or false pretences, or the woman is assaulted or drugged. More often than not, it is a case of gangrape.

This is not to dismiss the possibility of the incident happening or stating that such rapes have not or cannot happen. This is to only demonstrate the logical pattern followed by the judge while reaching the verdict. When put together with the fact that her hands were not tied and that Jadhav was the only other person in the car who was driving, the High Court was possibly led to ask - Why didn’t she fight him? Why didn’t she resist or jump out? Couldn’t she have taken off the gag?

Not Resisting

‘Why didn’t you resist?’ is a common question rape survivors often get asked, especially by law enforcement officials and even the judiciary. While it is up to the court to decide whether Jadhav raped the woman or not, the premise of asking this question to doubt the veracity of the rape survivors’ accounts is intrinsically problematic.

If we were to assume the rape did in fact take place, there is a perfectly sound reason why the woman did not react. Psychologists studying the neurobiology of trauma suggest that in situations like rape, a third instinct called freezing can kick in, where the body is paralysed in fear or disassociation, where the mind spaces out and disconnects from what is happening. This is not evidence of consent.

Reporting After 11 Months

Justice Badar was also not satisfied by the woman filing an FIR after a period of 11 months during which the judge points out, “she resumed routine activities.”

In Puran Chand vs the State of Himachal Pradesh in the Supreme Court , a 17-year old girl accused Chand of rape. One of his defences was that she had filed a complaint after a gap to falsely frame him. The court dismissed the argument:

In fact, we are prone to infer with reason that if the woman had an intention of really planting a false story of rape, it is highly improbable that they would have created a story having a huge time gap between the date of incident and the date of lodgement of the FIR leaving the scope of weakening [her own] case. If it were a well thought-out concocted story so as to lodge a false case, obviously the prosecution would not have taken the risk of giving a time gap of more than 20 days between the incident and the lodgement of the FIR.

What is to be noted here is that there is no statute of limitations on filing an FIR for rape, precisely to encourage women to come forward and report rape without the fear of society, family and friends, consequences from the accused’s side or – a fear of not being believed by the authorities in charge.