The Delhi High Court through Justice Ashutosh Kumar today acquitted popular Hindi film Peepli Live's co-director Mahmood Farooqui from the charges of raping a US research scholar.
In a nutshell, the allegation against 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 up to 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 trial court awarded Farooqui a seven year jail term for sexually abusing the research scholar from Columbia University. In the appeal filed by Farooqui represented by Senior Advocates Kapil Sibal, and his legal team , Justice Ashutosh Kumar exonerated him by granting him benefit of doubt for the incident that was alleged to have taken place at his South Delhi flat on March 28, 2015. The court cast its doubt over the incident and concluded that it was not clear if there was consent of the victim and if Farooqui was able to understand it.
After analysing the facts of the case, the single-judge said, “It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix (victim), took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.”
“If it appears that some circumstance could be gleaned from such already collected evidence, which enures to the benefit of the accused, the same cannot be brushed aside on the slender ground that such plea was not taken before the trial court,” the bench said. The court also held that consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms.
“Instances of woman behavior are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied…But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.”
Although the High Court said the victim can of course be called a sterling witness but it has to be examined if her allegations that the act was without her consent and she was sexually abused were true. Going through the facts of the case, the court said, “There is no communication regarding a fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act.”“The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along. After completing the act, the appellant asks the prosecutrix that he wishes to do it again,” the court added. It was found that in the present case, the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant.
However, the single judge has made certain observations about memory, consent etc which have caused an uproar in social media.