Court Denies Discharge for Accused in Brazilian Student Rape Case |

Mumbai: The sessions court recently rejected the discharge plea of a 57-year-old Cuffe Parade resident, accused of drugging and raping a 19-year-old Brazilian student who was in India in 2019 on a cultural exchange programme. The court ruled that happy photographs of the victim with Nandekar’s family, her hosts in India, do not imply consent for sexual relations with the accused.
Observing that, prima facie, there are sufficient grounds to believe that the accused sexually assaulted the victim, Additional Sessions Judge Shanaya V Patil said, “The victim, being a foreign national, was probably more open and advanced with her expressions, interactions, behaviour, and lifestyle. However, that cannot take the place of ‘consent’ for anything or everything on her part, especially for any sort of sexual relationship with the accused.” The judge also said that the age difference between the victim and the accused also prima facie points to an unnatural or abnormal aspect of the alleged consensual relationship.
In a 17-page detailed order made available on Dec 4, the judge said that there is nothing at this stage to believe that the victim had any reason to falsely implicate the accused. “As such, the prosecution has collected prima facie material to establish that the accused took advantage of his role as host parent under the…Exchange Programme in respect of the victim girl within India and committed rape on the victim in the absence of his family members at his own residence,” the judge said.
The woman, who was on a year-long youth exchange programme in India, lodged a rape complaint on May 20, 2019, against the accused. The programme was arranged through a club to which the man belonged. The man hosted the girl at his home, where she stayed with his family for six months. He was arrested the same day that charges were filed and was granted bail in Aug 2019. In addition to other alleged acts of sexual harassment, the woman said that on April 15, 2019, the accused raped her at his home after taking her out for dinner and spiking her drink. The victim said that before the incident, she moved to the home of another host as per the programme’s schedule and refused the accused’s invitations for dinner on some pretext or the other. She said that after she was sexually assaulted, she informed a friend from Brazil and later her psychologist. The psychologist advised her to confide in her parents. On May 13, 2019, she disclosed it to her mother.
The accused sought relief from the offence on the grounds that the alleged incident at dinner does not reflect any abnormal behaviour of the victim as she was seen comfortable with the accused. It is alleged that the FIR was delayed by 35 days and it is not explained. It was also argued that the medical examination does not show any adverse inferences. “That the conduct of the victim about joining the company of the accused again on the next day shows that it was not a forcible act in any manner. It is submitted that there are no signs of resistance by the victim,” the discharge plea said. However, refuting the defence of the accused, the judge said that considering the nature of the incident and the possible trauma suffered by the victim, it cannot be said to be an unexplained or inordinately long delay on her part in lodging the FIR. Referring to the medical reports, the judge further said that the medical examination was conducted more than one month after the incident. Under such circumstances, in view of the delayed medical examination, any fresh injury to the private parts was not expected to be found as evidence of an old act.
The judge said that IPC section 376(2)(f), which deals with aggravated forms of rape committed by specific individuals in positions of authority like a relative or guardian, is attracted in the case. “…it needs to be considered that the victim was a responsibility of the accused, he being the local host for her within India and as such, the accused was in a fiduciary relationship with the victim as her guardian within India. Such a degree of expected relationship enhances the gravit..,” the judge said.