The High Court recently dealt with an appeal against the conviction of appellant under Section 376 IPC for raping a scholar from New York and studying in Delhi University in India and was seeking help from the appellant over some research project. The trial court awarded Farooqui a seven year jail term for sexually abusing the prosecutrix. On the day of the alleged incident, Farooqui (appellant) had invited the prosecutrix to his house for dinner.
The Court on being apprised of the fact that the appellant was drunk that night, explained with it the prosecutrix despite knowing that he is intoxicated nodded for his company in the house. The High Court took notice of this statement of prosecutrix in light of another fact admitted by her that she did not oppose when the appellant kissed her and had hugged him on her own and put forth its observation that relationship between the prosecutrix and the appellant extended beyond a normal friendship or a relationship between a guide and a researcher and at the same time very cautiously said that past conduct would definitely not amount to consent for what happened in the night.
On noting down the difference in meaning of consent in general parlance and sexual consent, the Court went on to clarify and explain the meaning of consent in the context of trending definition of consent. The Judge elucidated,
“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.”
The Court further went on to remark that what is the truth of the matter is known to only two persons, namely, the appellant and the prosecutrix who have advanced their own theories/versions.
It was further contemplated by the High Court that the normal rule is that the consent has to be given and it cannot be assumed and at the same time, pointed out that recent studies revealed that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent.
The main issue to be decided by the Bench of Ashutosh Kumar, J. was whether there was consent on the part of the prosecutrix. Senior Advocate Kapil Sibal, appearing for appellant, argued that even if the sexual act was without her consent, she had failed in communicating the same to appellant and communicated something different to the appellant.
The Court also took into account the delay in registration of FIR as it was lodged after the prosecutrix had gone back to US and then, she came back only to lodge the complaint against appellant. Justice Kumar also made certain observations regarding infallibility of human memory and how it can’t be termed sacrosanct always. It also noticed that the appellant was suffering from bipolar disorder. Finally, taking into the account all the facts and circumstances and mainly noting down what a sexual consent would mean, the Court decided to give benefit of doubt to the appellant and acquitted him. [Mahmood Farooqi v. State, decided on 25th September, 2017]