Two very well settled principles of criminal law are – Innocent till proven guilty and to be proved guilty beyond reasonable doubts. Both are not absolute and have subtle variations differing from case to case. A criminal trial; especially of grievous offences is a hefty exercise, both for the bar and for the bench. It must be, and I must repeat, it must be free from any external factor other than facts, laws and evidences. It is in this light that the judgment showing the trial of renowned writer and dastangoi performer Mohd. Farooqui must be read.
In a nutshell, the allegation against Mohd Farooqui (accused) was that he committed rape u/s 375(d) read with Explanation 2 of the Indian Penal Code, 1860 on the prosecutrix which is punishable with minimum seven years and can punish upto life imprisonment. Sec 375(d) terms application of mouth to genitals of a woman as rape and Explanation 2 defines consent to mean unequivocal voluntary agreement including gestures or any form of verbal or non-verbal communication showing willingness to participate in the specific sexual act.
The judgment, a landmark and probably the first in the context of punishing ‘oral sexual activity’ as rape, unfortunately leaves room for doubts. More importantly, as now penetration is no more a requirement for constituting an offence of rape, this is perhaps the first matter resulting in conviction. The FIR was lodged some 60 days after the incident. It is well settled that in cases of sexual offences, delay in filing FIR cannot work as a fatal instrument against the prosecution case but in the instant matter, during this period, it cannot be completely rejected that there was a probability that the prosecution case could have been thought of. The use of ‘selfie with the cat’ to show presence of prosecutrix at the relevant time at the relevant place (which of course was not denied by the accused) and the repeated reference to ‘Nirbhaya in the mind’ stated by the prosecutrix at the time of commission of offence, shows how the prosecution has made an attempt to influence the bench. The trial also witnesses rejection of the crystal clear admission by the prosecutrix that she pretended to have orgasm during the act which may have amounted to showing consent during a sexual activity through gestures and non verbal communication, further non usage of statement by the prosecutrix that she had kissed the accused twice before the date of incident and once on the day of incident which shows proximity of the relationship they shared & past history and the fact that unanswered calls, missed calls and whatsapp details could not be shown vide the CDR was relevant. The court has refused to adhere to the categorical mention by the prosecutrix in her email post incident that she liked the accused, she was attracted to him and even more importantly that she had consented to the sexual act (with a rider that it was due to pressure). The court also overlooked that the prosecutrix was admittedly rubbing the head of the accused immediately before the incident, which in my view was again vital. The Court’s reliance on treating ‘my sincerest apologies’ as an unequivocal admission also seems to be flawed. An admission requires something more than a mere shrugging away of the issue vide a ‘sorry’. The very fact that the accused is undergoing treatment for bipolar disorder has also been neglected. This, if thoroughly checked, could have attracted the exception u/s 84 of the Code. It has also not been examined that whether the prosecutrix herself was intoxicated. Apart from minor aberrations like mentioning the phone number of the prosecutrix, the judgment goes in depth with the evidences made available to it but somehow fails to weigh them properly. It is also notable that the arguments of the counsel for prosecutrix & accused have been dealt in detail but that of the state are completely missing.
The two emails sent by the prosecutrix directed to the accused post- incident, have focussed on ‘I own my sexuality’. The major positive shift in the understanding of our rape jurisprudence comes through acceptance of the ‘control over one’s sexuality’ phenomenon. It is one step ahead from the loss of honour, collective conscience and the disrobe theories. Acceptance by judiciary that a woman owns her sexuality can also be stretched to every human including those gifted with different sexual orientations. The very fact that an understanding seems to have developed that an individual controls his/her sexuality, is important and marks a progressive view in judicial understanding in interpreting laws against sexual offence including Section 377.
It is a settled principle of law that every possibility in favour of the defence must be taken and the prosecution must exclude every possibility in favour of the defence. It is also very well settled that in a criminal trial, prosecution has to prove its case beyond reasonable doubt and the doubts must be free from a zest for abstract speculation. The few doubts listed above leave a spacious room craving for something more to conclude that the charge of rape has been satisfactorily proved against the accused. On one hand, it gives me immense pleasure to see judicial recognition vide a radical acceptance of an individual’s control over one’s body, one’s sexual identity and sexual choice but on the other hand it gives me immense pain to note that the prosecution case was left much below the threshold of reasonable doubt. Nevertheless, the judgment is landmark and expands the penal horizon of rape jurisprudence.
Namit Saxena is a Lawyer practicing in the Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].