Giving the “benefit of doubt” to ‘Peepli Live’ co-director Mahmood Farooqui, the Delhi high court on Monday set aside his conviction in a rape case, observing that there were doubts over the claim of the US-based complainant that he had oral sex with her without her consent.
“No” may not always mean no, Justice Ashutosh Kumar said in his ruling, adding that there were examples of “woman’s behavior (where)… afeeble ‘no’ may mean a ‘yes'” in cases of past intimacy. The 35-year-old woman had alleged that Farooqui, a writer, director and story-teller, had raped her at his Delhi home on March 28, 2015.
A fast-track court had last year sentenced Farooqui to 7-year term. The HC’s order revolved around the question of consent. It found the claim of rape unreliable, noting the woman had faked an orgasm during the alleged crime, justifying it on the grounds that she feared violence similar to Nirbhaya’s if she resisted. “In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no,” the judge held.
In the judgment, the high court also took into account factors such as past intimacy between Farooqui and the woman, noting that they had kissed twice in the past. It remains in doubt, the court said, “as to whether such an incident (the rape)… took place, and if at all it had taken place, (whether) it was without her consent, and if it was without her consent, whether the appellant could discern/understand the same.”
The court demanded a higher level of “clear no” to convey lack of consent in cases where “parties are known to each other, are persons of letters and are intellectually proficient, and if, in the past, there have been physical contacts.” It said 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”. The court added that the relationship between Farooqui and the woman “extended beyond a normal friendship or a relationship between a guide and a researcher”.
Citing the woman’s testimony in court, Justice Kumar noted that “physical contact with Farooqui in the nature of a kiss or a hug was being accepted by her without any protest”. HC discussed how in early February 2015, the complainant met Farooqui at Hauz Khas village with a friend where he was drunk. They all went to a cafe in the village where they had liquor and food.
From there, they all went to another friend’s place and then to Nagaland Kitchen in Farooqui’s car where he kissed her and she returned his kiss. It also referred to another episode when Farooqui invited her for dinner at his house. With his wife present, the three “consumed liquor and during the period of brief absence of his wife who was moving from one room to another, the appellant and the prosecutrix exchanged kisses.
She was also asked by the appellant to stay over and sleep on a couch, which she refused. She has deposed before the trial court that since she did not want the relationship to go any further, she left the house of the appellant by calling an Uber taxi.” In the 82-page judgment, the court said although Farooqui’s mental condition — he reportedly suffered from bipolar disorder — may not be a ground to justify any act prohibited under law, it can be taken into consideration while deciding whether he had the correct cognitive perception to understand the exact import of any communication by the other person.
It, however, added that any foray into this subject would be fraught with “speculative imagination”, which the court did not intend to undertake. Advocate Vrinda Grover, who represented the US woman, said they will appeal against the high court order. Grover had claimed on March 30, 2015 that Farooqui, in his email reply to the woman, had admitted the crime and apologised to her for having committed the act without her consent and against her will.
Grover had also argued that Farooqui never raised the question of consent during the trial and hence it shouldn’t be considered in the appeal stage. But the HC brushed aside the objection saying, “It is a well-settled proposition that from attending circumstances and evidence already collected, if it appears that some circumstance could be gleaned from such already collected evidence which goes to the benefit of the accused… (it) cannot be brushed aside on the slender ground that such plea was not taken before the trial court.”
The HC also noted that Farooqui’s wife had read the communication between her husband and the woman and informed her that he was under a rehabilitation regime for a bipolar mental condition. The trial court, on August 4 last year, had observed that Farooqui had taken advantage of the situation when the victim was alone in his house. The police had on June 19, 2015, lodged the FIR against Farooqui on the woman’s complaint after which he was arrested. On July 29, 2015, the police had filed its chargesheet against Farooqui alleging he had raped the research scholar from Columbia University.
Whatever the merits of this specific case, the court may have set a potentially dangerous precedent by arguing that a no does not always necessarily mean no in the context of consent. It is easy to see defence lawyers lapping this up in cases of rape and other sexual offences even where there the alleged victim has explicitly said no to argue that the accused may not have perceived it as a firm no. It is a slippery slope the court should have avoided stepping onto.