(On 19 January 2018, the Supreme Court dismissed an appeal filed against the acquittal of Mahmood Farooqui by the Delhi High Court on rape charges. This article was first published on 27 September 2017 and is being reposted from The Quint’s archives in the light of Justice Bobde and Justice Nageshwar Rao's endorsement of the HC decision.)
Consent was always a slippery slope in the Mahmood Farooqui rape case.
Verbal Communication
In an e-mail to the ‘Peepli Live’ filmmaker, the 30-year-old scholar, who accused him of rape, wrote: “You were supposed to be my friend. Instead you manipulated me. You hurt me. I said no. I said no many times. You didn’t listen. You pinned my arms. You pulled my underwear down...”
Forced Consent
The FIR, quoted by the Delhi High Court in its judgement, states – “that at first instance she was scared because of the strength of the appellant, but because she did not want to get hurt, she pretended an orgasm.”
Consent out of Fear of Hurt
In her deposition before the Delhi High Court, Justice Ashutosh Kumar observed: “What is new and different in the deposition of the prosecutrix as compared to the averments made in the FIR is that she claims to have remembered the case of Nirbhaya, whose offender had declared that if she (Nirbhaya) had not protested, she would have lived her life.”
Legal Definition of Consent
As per the amended Indian Penal Code, consent is defined as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”
How Consent is (Dis)Proved in Court
Now, the law presumes the accused is not guilty. It is for the prosecutrix, or the victim in this case, to prove beyond reasonable doubt that she did not consent. The job of the defense lawyer is to create a doubt about the sequence of events. If they’re able to do that, the accused is entitled to be acquitted.
2016 Trial Court Ruling
The trial court that convicted Farooqui in August 2016 observed: “It can be safely held that the testimony of prosecutrix, being truthful and credible, can be relied upon as being sterling worth for the purpose of the conviction of the accused.”
Additional Sessions Judge Sanjiv Jain also held that Farooqui took advantage of the woman when she alone with him at his residence. “It was when the prosecutrix was alone with the accused… the accused, taking advantage of the situation, raped the prosecutrix,” he observed.
What clinched the case of the prosecution, according to the judgement, was the “conduct of the woman to dissociate herself from Farooqui, as well as the e-mail exchanges between her and the filmmaker.”
But a year later, a higher court reversed the order, set aside the seven-year sentence, and acquitted the filmmaker.
So, What Changed?
According to the victim, Farooqui assaulted her on 28 March 2015. He had invited her to attend a wedding with him and she had assumed that his wife would be accompanying them. According to her statement, when she arrived at Farooqui’s house, he was inebriated, emotional, and being consoled by his journalist-friend Ashish Singh.
She was asked to wait in another room, which she did for about 20 minutes. When she stepped out on to the porch to smoke a cigarette, Farooqui called her to join them. At some point, Singh left the house. It was then that he pinned her down and sexually assaulted her. He stopped when Singh rang the doorbell.
Shortly after, she left.
The woman also claimed that the two had been intimate on two prior occasions. Once while traveling in a car with friends, and another time at Farooqui’s house while his wife was moving in and out of the dining area.
Complete Denial in the Trial Court
In the trial court, the defense strategy was to assert that nothing happened, no sexual interaction took place between Mahmood Farooqui and the American scholar on the night of 28 March 2015. Farooqui denied that he’d been drinking or that he was crying at the time.
He admitted that Singh had gone downstairs to pick something up, but stated that he was working on his translation and intermittently speaking to the prosecutrix. He denied having committed oral sex with the prosecutrix.
In fact, contrary to the victim’s FIR and submissions before the court, Farooqui denied ever having any intimate contact with the victim.
Interestingly, during the trial court proceedings, the defense did not cross-examine the prosecutrix about the rape itself. In an attempt to poke holes in the victim’s version, the defense questioned her about the process of filing the FIR, the mobile number she’d been using, details of the MERU cab she booked, and even her trip to Rajasthan after the assault. But, not a single question was asked regarding the incident itself.
Also, the accused was not summoned by the defense as a witness, and so there was no opportunity to cross question Farooqui. As a result, there was nothing to prove or disprove the rape incident.
Total Acceptance in the High Court
Two things changed in the High Court. One, Kapil Sibal joined Farooqui’s legal team as legal counsel. Two, the defense made a 180-degree turn on its strategy. From refuting any relationship with the American scholar, Sibal now admitted to Justice Ashutosh Kumar that his client had been in a relationship with her since 2015.
He referred to the messages exchanged between the client and the woman before the lodging of the case and argued: “In a relationship, when people are attracted to each other, things do happen. But it does not mean it’s rape.” He contended that the “woman’s version is contradictory to the documentary evidence.”
Incidentally, Sibal had, earlier this year, appeared for a petition filed by activist Madhu Kishwar and two others, seeking changes to the “draconian” provisions recommended by the Justice JS Verma Committee in the aftermath of the 16 December 2012 gang-rape case. One of the changes sought was a new, stricter definition of ‘consent’.
The One Point of Agreement That Should've Closed the Case
There is one point on which both the trial court and the High Court agree on. The fact that the American scholar or the prosecutrix was a sterling witness.
On 30 July 2016, Additional Sessions Court Judge Sanjiv Jain stated: “It can be safely held that the testimony of the prosecutrix being truthful and credible can be relied upon as being of sterling worth for the purpose of the conviction of the accused.”
On 25 September 2017, Delhi High Court Judge Ashutosh Kumar stated: “The prosecutrix (PW5) can of course be called a sterling witness as, by and large, the sequence of events narrated/deposed by her matches with the evidence of the Prosecution Witness 10 and Prosecution Witness 12.”
According to the Supreme Court, the testimony of a sterling witness is enough for conviction.
And yet the High Court granted an acquittal to Farooqui by raising doubts over whether or not the victim was to be believed when she claimed that she was sexually abused without her consent and by use of force.
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