How a ‘No’ becomes ‘yes’ in a Rape Case-Farooqui Case
Farooqui Judgement can be used as best defense by any Rapist
In the ancient city of Delhi, witness to hundreds of stories, in seven avatars of its existence, lived a filmmaker and artist named Mahmood Farooqui. In July 2016 denizens of the city woke up to the astounding news of the conviction of this Dastangoi performer and co-director of the acclaimed film Peepli Live for rape, of all crimes. The minimum sentence of seven years being mandatory under the law, Farooqui was packed off to prison to pay his debt to society. Like a story from Arabian Nights, lo and behold, on 26 September 2017, the same denizens see the picture of a smiling Farooqui cleared of the rape charge by the Delhi High Court!
An internal appeal to the Division Bench of the Delhi HC, and then to the Honourable Apex Court which is Supreme, not because it is infallible, but is because it is final, may be made
As the Punjabi saying with its pastoral flavour goes, “Kadi dhup te kaddi chaun” (At times blazing sunshine, at times shadow). However, the rollercoaster ride is far from over. The acquittal is by a single judge of the Delhi High Court. An internal appeal to the Division Bench of the Delhi High Court, and then to the Honourable Apex Court which is Supreme, not because it is infallible, but is because it is final, may be made.
It is important to keep in mind that the evidence remains the same before the courts. Sanjiv Jain, Additional Sessions Judge, Fast Track Court, Saket, New Delhi convicted Mahmood Farooqui, and Hon’ble Justice Ashutosh Kumar of the Delhi HC has acquitted him, based on the same materials and testimony. Therein lies the conundrum in the quest for truth and justice. The testimony of the prosecutrix remains the same and yet gets a volte face in law.
In grappling with the rape law, the Verma Commission, the latest amended rape law and the presumptions in favour of women, Justice Ashutosh Kumar in something of a googly confronts us with Section 90 of the Indian Penal Code from 1860!
“Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception…”
The lynchpin of the acquittal is the phrase, “…and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception…”
The High Court judge takes the view that other materials like the timelines of the arrival of the survivor, other witnesses, calling of the cab:
“…pale into insignificance when it is doubtful as to whether the appellant had the requisite mental intent of violating the prosecutrix and whether he had genuinely mistaken some verbal/non verbal communication as consent and whether the element of fear in the mind of the prosecutrix was made known or communicated to the appellant.”
In the context of the intoxication and bipolar disorder of the accused, the judge observes:
“Though the mental makeup/condition of the appellant may not be a ground to justify any act which is prohibited under law, but the same can be taken into consideration while deciding as to whether the appellant had the correct cognitive perception to understand the exact import of any communication by the other person.”
The commission of an offence in law requires the fulfilment of two ingredients – the actus reus, the physical acts which constitute the crime, and the mens rea, the guilty state of mind of the perpetrator. The awareness and knowledge that the prosecutrix has not consented combined with the actus reus complete the offence.
She was very scared
Going back to the judgment of the trial court that convicted Farooqui, the judge, Sanjiv Jain, had noted:
“She was very scared. She then thought two things. First thing she thought that she had seen a clip of documentary of Nirbhaya case where the rapist had said, ‘if she (victim) did not fight, she would still be alive’.”
Justice Kumar, however, observed that as the prosecutrix did not articulate these thoughts, it could not be said that the element of fear was made known to Farooqui. Therefore it could not said that there was the necessary intention to violate on his part. It is possible that the articulation of fears by the survivor can at times egg on the perpetrator. The High Court judgment records the finding that there was room for Farooqui to be genuinely mistaken about some verbal/non-verbal communication as consent.
The testimony of the prosecutrix recorded by the trial judge reads: “He then kissed her. She said ‘no’ and pushed him away. He then tried kissing her again and said ‘I want to suck you’ but she said ‘no’. He started putting his hand up her dress and pulling down her underwear from one side. She was trying to pull up her underwear from the other side.”
The foundation of the finding of the High Court that there was “little or no resistance” and that a “feeble no”‘could not be deciphered as denial of consent, and there was room for a genuine mistake, is difficult to fathom. The testimony in the trial court records:
“He then held her arms and pinned her arms and body on the diwan. She said ‘no’ and struggled to push him away but he was stronger than her.”
The HC judgment seems to have given a new spin to the issue of consent, placing the perception of the perpetrator as the central point to be considered.
The HC judgment seems to have given a new spin to the issue of consent, placing the perception of the perpetrator as the central point to be considered. Mental elements like mens rea are necessarily in the arena of speculation and have no tangible existence. Intoxication and mental disorders are likely to affect cognition and perceptions of reality. There seems to have been unequivocal verbal and non-verbal communication of “no” and clear physical coercion as per the testimony of the woman survivor.
Giving the benefit of doubt to the accused on the ground of lack of cognitive perception to understand the communication in the circumstances seems to be a far stretch even by norms of progressive reform-oriented criminal jurisprudence.
Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997
