The Supreme Bench of Justice S. A. Bobde and Justice L. Nageswara Rao, on Friday, refused to admit the Special Leave Petition (SLP) arising out of the judgement of the Delhi High Court dated September 25, 2017, acquitting popular Hindi film Peepli Live’s co-director Mahmood Farooqui from the charges of raping an American research scholar.
At the outset, Advocate Vrinda Grover, for the petitioner, submitted that a completely new factual defence argument of consensual sex was made for the first time at the appellate stage; there was no record to that effect in the evidence before the trial court”.
“Let us take it in the correct perspective. The present petitioner and the accused were no strangers to each other. They had a close relationship”.
“No, Your Lordship, they were mere acquaintances. But they were not in a relationship”, replied Advocate Vrinda Grover, who appeared for the petitioner.
“We are not using the term ‘relationship’ colloquially. We mean that they met willingly, made and had drinks together gladly. But we are not judging or saying that any such act amounts to waiver of the right to be protected against rape”, said the bench.
“The High Court held the victim to be a sterling witness. I wish to submit that on the grounds of paucity of time and of the presence of another person, it is clear that she did not consent to the specific sexual activity”, contended Vrinda Grover.
“What we want to say is that such a case is extremely hard to adjudicate. But it has been very well decided by the Delhi High Court”, said the bench.
Thereupon, Grover referred the bench to the term “consent” as defined in Explanation 2 appended to section 375 of the IPC. “With the insertion of Explanation 2 by the Amendment Act of 2013, section 90 of the IPC dealing with consent known to be given under fear or misconception has no place now”, argued the counsel for the petitioner.
“There is a positive response from her end which she says was fake. How was the respondent to know that the response is false? Explanation 2 makes no difference. She may have been afraid, but what she did was opposite of being afraid. She responded to the allegedly forced sexual act in a positive manner”, replied the bench.
The bench directed the counsel for the petitioner to read out the first email addressed by the victim to the alleged assailant after the incident- “...you did become forceful...I went along because I feared that something bad would happen and things would escalate... In the end, I consented because of the pressure from your end and your physical force...I love you and wish you the best...”
The bench, laying weight on the admission of the victim in the email to having “consented”, inquired rhetorically, “You are an experienced lawyer. How many instances of rape have you come across where the victim says ‘I love you’ to the assailant after the incident?”
“It is a possibility in cases where the victim and the accused are known to each other, like in instances of incest”, replied the counsel.
“We are not concerned with such particular instances. Please tell us how many times did the present petitioner meet with the respondent alone prior to the incident? Not that we are implying that being friends with the respondent or meeting with him alone means that the petitioner has given up the right to be protected against rape”, said the bench.
“She had only once visited him at his house and that too in the presence of other persons, another time at a restaurant and the third time at a show”, replied the counsel.
Thereafter, upon the reading by the counsel of the admission by the present petitioner to consented engagement in a particular act of physical intimacy with the respondent twice, the bench observed, “This kind of behaviour is not acceptable between persons who are just friends”.
“Can two prior instances influence determination of consent in respect of the specific sexual act complained of?”, the counsel for the petitioner sought to submit.
However the bench concluded, “we are not satisfied” and refused to even issue notice at the request of the counsel.
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.”