india

Updated: Sep 26, 2017 12:25 IST

The Delhi high court on Monday acquitted Peepli Live co-director Mahmood Farooqui of raping a US citizen, setting aside a lower court verdict sentencing him to seven years in jail.

The court, in its judgment, said there were doubts whether such an incident took place in the manner alleged by the woman concerned. “And even if it did occur, (there is lack of clarity on) whether it was without the consent/will of the prosecutrix,” it added, ruling in favour of Farooqui.

Justice Ashutosh Kumar further recorded that the appellant “had no idea that the prosecutrix was unwilling, and there are instances when a feeble ‘no’ on the part of a woman may mean ‘yes’ during the course of a sexual act”. “In cases where the parties are known to each other, it could be really difficult to decipher whether a feeble ‘no’ – (accompanied by) little or no resistance – actually amounts to denial of consent,” he noted.

The Delhi Police had lodged an FIR against Farooqui on June 19, 2015, after an American citizen of Indian origin accused him of rape. The charge sheet stated that Farooqui had raped the complainant, a research scholar from Columbia University, at his Sukhdev Vihar residence in south Delhi on March 28, 2015.

The trial began on September 9, 2015, and the woman appeared in a sessions court on September 14 to record her statement. The court held Farooqui guilty of rape on July 30, 2016, and awarded him seven years in jail with a fine of Rs 50,000.

The co-director immediately challenged the verdict in the Delhi high court.

The high court cited the theory of sexual consent among its reasons for acquitting Farooqui. “Sexual consent would be the key factor in defining sexual assault,” the court recorded. “There is a recent trend of suggesting various models of sexual consent. The traditional and most-accepted model would be the ‘affirmative model’, meaning that ‘yes’ is ‘yes’ and ‘no’ is ‘no’. However, there would be some difficulty in the universal acceptance of the aforesaid model of consent.”

Further elaborating on the subject, the high court said that the traditional theory can be safely applied in cases where both the parties involved are strangers. “However, the same wouldn’t be the situation when the parties are known to each other, are intellectually/academically proficient, and if there has been physical contact in the past. In such cases, it can be difficult to decipher whether little or no resistance and a feeble ‘no’ actually amount to denial of consent,” it added.

The high court also refused to buy the woman’s argument that she had given in to Farooqui’s sexual advances under fear. “There was no communication regarding this fear in the mind of the prosecutrix to the appellant. The prosecutrix made a mental move of feigning orgasm, so as to end the ordeal. However, the appellant was made to believe – although wrongly and mistakenly – that the prosecutrix had participated in the act. The appellant had no opportunity to know that there was an element of fear that forced her to go along,” it said.