MAHMOOD FAROOQUI Vs. STATE (GOVT. OF NCT OF DELHI)
Rape is a criminal offense explained under section 375 of the Indian penal code. Section 375 clause (a) to (d) deals with the meaning of the term sexual intercourse. Sexual intercourse means penetration of male organs in the vagina, urethra, anus, and mouth of a woman. Earlier only penis-vaginal penetration was considered but later the urethra, anus, and mouth were added by an amendment. Also, there are 7 descriptions provided in the section which covers the areas where the person enters into sexual intercourse against the will of women, without her consent, on the basis of misrepresentation, when a woman is insane or minor i.e. below 15 years of age, is intoxicated and is not able to understand the true nature and consequences of her actions or where she was not able to give her consent.
Further 2 explanations are also attached and explanation 1 says that the term vagina also includes labia majora and explanation 2 deals with the definition of consent as an unequivocal agreement communicated by gestures, words, or by verbal or non-verbal communications.
Two exceptions to this section are that any medical procedure for the treatment of a disease is not to be considered as rape and second that if a man enters into sexual intercourse with his wife provided, she is not under 15 years.
FACTS OF THE CASE
1.The prosecutrix was a student at the University of Columbia and was also affiliated to Delhi University and was pursuing her Ph.D. in Hindi literature and Nath Sampraday. She came to Delhi in June 2014 and was in search of contact that could help her getting information on Nath Sampraday. Then in connection to gain the information on the same she met the appellant via her friend Danish Hussaini. On the day of occurrence (28.03.2015) of this incident, she has asked the appellant to arrange tickets for her for the performance that was staged a day after. Then the appellant asked the prosecutrix to come to his home for dinner and later at 4 o’clock informed her that he had gone to attend a wedding and the prosecutrix assumed that both appellant and his wife had to go for attending the wedding.
2.The prosecutrix then reached his home at around 9 pm and saw 2 students leaving the house of the appellant and then she went upstairs and the door was opened by the appellant’s friend Ashish Singh, she found the appellant in an intoxicated condition and was asked to wait in the office. Then prosecutrix exchanged the courtiers with him and then Ashish left them alone and the appellant called Danish and he informed them that he won’t be able to come. After this, the appellant left the room and prosecutrix called Danish to tell the state of appellant and Danish told her that it was not possible for him to come and will surely talk to her the next day and then the appellant returned and started kissing the prosecutrix to which she responded by saying that she did not think that it was what he needed.
3.The appellant kept on kissing the prosecutrix and wanted to suck her and she denied for the same. He tried to pull her underwear down and she kept on pulling it up. The prosecutrix was thereafter immobilized by him and forced oral sex upon her.
4.The prosecutrix became scared and pretended to have an orgasm and in the meantime, 2 friends of the appellant came to his house and the prosecutrix wanted to leave the place and booked a MERU cab and also texted Danish. She also told Ashish that she wanted to leave but was made to stay by saying that if the appellant wife did not return, she will have to feed the appellant. As the location of the prosecutrix could not be detected, she wanted to take a rickshaw and was dissuaded by saying that it will be dangerous for her. The wife of the appellant returned and the appellant asked her to go. A taxi was fetched by Ashish for her and after getting into the cab she called Danish and explained to him the whole incident and wanted to take legal action against the appellant and stated that she did not want to go through a medical examination.
5.On 30.03.15, the prosecutrix sent an email to the appellant and in the email, she wrote that:
I consider you to be a good friend and like you and also understand that you were going through a difficult space but last night what happened wasn’t right as you repeated that you want to suck with me and I repeatedly refused for the same but that night you went too far and became forceful. I was afraid that something bad would happen if I didn’t do it but the tings escalated and it was not what I wanted. She told him that not to do the same with another woman as this is highly unacceptable and I own my sexuality and the other woman may not be so understanding as I am with you. She also says that she also prays for his well-being and says that may this incident not affect their friendship and was willing to deal with the repercussions if there are any.
6. The prosecutrix received a mail from the appellant and he expressed his sincere apologies on what happened. She wanted to ignore this but could not do so and on 1.04.2015 she wrote to her academic advisor and informed about the alleged incident and wanted to go home, she did not get any response from the advisor till 08.04.2015. she even wanted to go to her mother but was waiting for the reply from the advisor. Then again on 12.04.2015, she wrote a mail to the appellant telling him as to how he had afflicted her life and the life of her family members. On the same day, she received the mail that was sent by the wife of the appellant where the appellant’s wife stated that she was sorry for what happened and told that the appellant was not mentally well and is in rehabilitation. Then the prosecutrix returned to India and again received a mail from the appellant wife stating that she and the appellant brother will support her at every moment.
1. Whether or not there was consent given by the prosecutrix
2. Whether the appellant mistakenly accepted the moves of the prosecutrix as consent
3. Whether the feelings of the prosecutrix could be effectively communicated to the appellant and whether mistaking all this for consent by the appellant is genuine or only a ruse for his defence.
CROSS-EXAMINATION OF WITNESSESS
1. ASHISH SINGH - He is a journalist working with Aaj Tak channel, and hails from Gorakhpur. He was his childhood friend. On 28.03.2015, at about 8:30/9:00 p.m. he went to the house of the appellant when Ankit and Poonam (students) were having a discussion with the appellant and the students left the place in few minutes. While he and the appellant were talking, the prosecutrix arrived, who was introduced to him by the was asked by the appellant to go to the study room since the appellant wanted to talk to him. The prosecutrix joined him and the appellant. He went downstairs to bring something and came back with the brother of the appellant after 20-25 minutes. He found them that they were sitting in the living room. He sat there for some time and also talked to the prosecutrix and the appellant. The prosecutrix thereafter wanted to go and he called a taxi on which the prosecutrix left. During cross-examination, he categorically stated that he left the house at about 9:30 p.m. and returned definitely before 10:00 p.m. He had telephoned his friend Radhika at about 10:15 p.m. He knew that Darrain was expected there between 9:00 p.m. to 9:30 p.m. He then dropped a message to his wife after reaching the home of appellant.
He had talked to prosecutrix after his return. The prosecutrix had taken his telephone number. He affirmed that Anusha, wife of the appellant, had gone to her parents' house and to bring food. He has also that the prosecutrix was talking to somebody. The wife of the appellant (Anusha) returned before the prosecutrix had left the house. While going, the prosecutrix had hugged and had waved goodbye to the appellant. He had gone downstairs to see her off and was later called up by the prosecutrix and lest the appellant house at around 11 or 12.
2. ANUJ PAWRA- He is the owner of Moonshine Cafe and Bar at Hauz Khas. He told that the prosecutrix used to stay at Hauz Khas Village and was his regular customer. He had met her in September/October 2014. On the day of occurrence, his restaurant had completed one year, and to celebrate that event, he had called his customers. He even contacted prosecutrix to invite her but she told him that she won’t be able to come as she had to go for dinner at her friend’s house. With respect to a call on the day of occurrence, he stated that he could not talk to prosecutrix due to some connectivity fault. However, he has told that the prosecutrix did come to his restaurant at 11:30 p.m. on the same day. When asked by the prosecutrix about the call which he had received from her, she expressed her ignorance.
3. VIKRAM KUMAR- He is a business Analyst, IT Corporate, MERU Cab Company Pvt. Ltd., Hyderabad. He has stated before that the servers of the MERU cab are located at Bombay and the technical team at Hyderabad. He had accessed the booking data and trip data of a customer which stood in the name of the prosecutrix. On that day three booking was made from the mobile phone of prosecutrix through the mobile app at 20:07, 22:12 and 22:35. The receipt of the request for booking on the server and the difference of the time between the pressing of the button for request and its receipt can vary, depending on the speed of the network. He also told that the normal time taken varies from 30-60 seconds, depending upon the make of the telephone and the network which is being used as well as the personal speed of the customer on the apparatus.
STATEMENT OF PROSECUTRIX
The prosecutrix told that on the day on the occurrence of the alleged incident, she had gone to the house of her friend Sonal Shah at Jangpura extension at 10 am and her friend told her that she had a keen desire to learn Urdu, then the prosecutrix requested the appellant to arrange for 2 tickets for his performance. The appellant promised for the tickets and also invited prosecutrix for dinner. Then at 4 pm, the appellant informed prosecutrix about the change in the plan and also asked her to bring a gift. Prosecutrix assumed that she will also accompany the appellant and his wife to the wedding. She reached the house of the appellant at 9 pm. Rest she reiterated the same facts that were mentioned in the FIR.
ARGUMENTS ON BEHALF OF APPELLANT
1. It has been argued on behalf of the appellant that there are certain undisputed facts that have emerged after the examination of the witnesses. The prosecutrix reached the house of appellant between 8:54 pm and 10:56 pm on the day of the occurrence. Ashish Singh was present in the house and then went outside at around 9:30 pm and returned after approximately 20 to 25 minutes. The prosecutrix was in the house for the next 45 minutes and then Ashish escorted her downstairs and saw her off. Then the prosecutrix called Ashish at 11:25 pm on reaching Hauz Khas. Thus, the claim of the prosecutrix that assault took place after 10:09 pm in the absence of Ashish is false in nature.
2. The second argument on behalf of the appellant was that the occurrence took place with the consent of the prosecutrix. Section 375 explanation 2 clearly states that consent refers to an unequivocal agreement entered via gestures, signs and also by verbal and non-verbal communication. The email sent by the prosecutrix clearly shows that there was an intimate relationship between the prosecutrix and the appellant. She had herself provided an explanation for same and told that she understands that the appellant is going through a rough space. She also stated that the appellant was constantly demanding sexual favours from her and she denied for the same but when the appellant became forceful then she consented for the same. As she did not want the things to go bad, she decided to tell the appellant that she felt the wellbeing of the appellant. However, to what she was subjected to, was unacceptable and in case the appellant tried this with another woman this while under intoxication, she would not be as understanding. Thus, it was concluded that even if her consent was not taken, she actually communicated something that can be termed as consent.
3. The appellants have also proved how consent was there. Firstly, that even after knowing that the appellant heavily drunk then also she exchanged hugs and kisses with him. Secondly, the prosecutrix was cracking jokes and was indulged in a playful banter immediately before the incident took place. Thirdly, That the prosecutrix was under fear, was absolutely unknown to the appellant, (refer to Section 90 of the IPC which provides that consent is not such consent if it is given by a person under fear and 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 such.
4. Also, within a few hours of the e-mail exchange of 30.03.2015 referred to above, the appellant had called the prosecutrix on her phone which lasted for 76 seconds. This fact was not told by the prosecutrix.
5. The appellant replied to the email as deepest apologies only after he had first 2 lines of the mail as the appellant was busy in communication with the artists and writers regarding the performance.
6. With regard to the conduct of prosecutrix, it was argued that she has deliberately avoided to come with clean hands and has also deleted the messages and has destroyed potential pieces of evidence. She also concealed the pretty long conversation that she had with the appellant after the exchange of mail. Also, the booking of her MERU cab she has concealed certain vital information, coupled with the delay in lodging the FIR.
ARGUMENTS ON BEHALF OF THE PROSECUTION
1. It was argued that the averments made by her in the FIR and statement gave under section 164 of Cr.P.C. and disposition before the rial court is consistent with the guilt of the accused.
2. The appellant had committed forced oral sex upon her under section 375(d) of IPC. Also, the appellant has apologised for the same for committing it against the will and consent of the prosecutrix.
3. It was further submitted on behalf of the prosecutrix that she was unable to cope with the emotional and mental trauma and therefore she returned to the USA. Only when she became confident of the support from her family and her friends in the USA that she gathered the courage to return to India and lodged FIR at New Friends Colony police station on 19.06.2015.
4. Also, the prosecutrix did not take action as she was afraid of more serious repercussions. It was held that she became scared on the thought that she would also meet the same fate as met by Nirbhaya and thus faked orgasm as she wanted to leave the appellant as soon as possible.
5. After the alleged incident, the prosecutrix informed the appellant that the act took place without her consent and was in violation of her sexuality and the behaviour of the appellant was highly unacceptable.
6. Also, after the alleged incident, she informed about the same to Danish and gave a detailed description of the event and wanted to talk to him a, to which he replied that he will talk to her the next day. She informed about the incident to her advisor and thus granted for leave as she wanted to go to her mother’s place. The appellant also reverted back to the mail claiming sincere apologies for the act he has done.
7. The act of booking the MERU cab also clearly shows that she wanted to leave the appellant’s place as soon as possible and when she was not able to get the confirmation from the same, she tried to go in an auto rickshaw but she was made to wait on the pretext that it is dangerous for her to go in a rickshaw at night.
After looking at all the facts, circumstances and pieces of evidence produced it has been decided by the honorable court that the appellant is not guilty of any offence and all allegation and charges against him are set aside and is thus acquitted. The appellant is ordered to be released, if not wanted in any other case.
VIEWS ON THE JUDGEMENT GRANTED BY THE HONOURABLE COURT
After looking at the facts and circumstances of the case it can be concluded that there are certain points that are in favour of the appellant and some in favor of prosecutrix.
If we look at the strong points from the side of the appellant it can be said that if the appellant, in reality, was suffering from bipolar disorder then, in that case, he can claim the defense of insanity under section 94 of IPC. This is because an insane person is not aware of the nature and consequences of his act.
If we look at the strong points of prosecutrix then the 1st one will be that that consent was not a free consent rather it was given under fear and was taken by the application of force. Section 90 of IPC clearly states that consent taken from a person by causing fear or threat is not a valid consent in the eyes of law. Also, consent refers to an unequivocal voluntary agreement between the two parties which can be communicated by verbal or non-verbal means. Secondly, the girl was afraid that if she would complain of the appellant as he was in a good position then it could be a case that she will have to face the same incident as was in the Nirbhaya case.
After taking into consideration the facts and circumstances and pieces of evidence produced in the case the judgement given but the honorable court should be set aside or quashed as the decision for the acquittal was not correct because the consent of the girl was taken under fear and threat and thus was not free consent.