'When a feeble no means yes,' 82-page Peepli Live director rape verdict

The Delhi High Court on Monday, acquitted Mahmood Farooqui, co-director of Bollywood film Peepli Live, in a rape case involving a US researcher.

Justice Ashutosh Kumar set aside the trial court order which had awarded a seven-year jail term to Farooqui after convicting him for the alleged rape of a 30-year-old American researcher at his south Delhi residence in March 2015.

The High Court directed that Farooqui, who is presently in jail, be released forthwith. Farooqui had challenged his conviction and the sentence given by the trial court. In the appeal filed by Farooqui represented by Senior Advocates Kapil Sibal, and his legal team , the judge exonerated him.

Here are some excerpts from the judgement that freed director Mahmood Farooqui:

READ the entire judgement here

Initially, the trial court had sentenced the Peepli Live director because they were doubtful of the whether there had been consent and whether the director had misunderstood her consent.

After analysing the case, Justice Ashutosh Kumar said:

It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix (victim), took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.” “If it appears that some circumstance could be gleaned from such already collected evidence, which enures to the benefit of the accused, the same cannot be brushed aside on the slender ground that such plea was not taken before the trial court.”

 

On the woman’s consent, the court had this to say:

Instances of woman behaviour 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’s remarks on the woman’s defence:

There is no communication regarding a fear in the mind of the prosecutrix to the appellant. The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly is that the prosecutrix is okay with it and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along. After completing the act, the appellant asks the prosecutrix that he wishes to do it again.

The court is of the view here that the woman did not make her emphatic declaration of her wish not to participate in the act and since she faked an orgasm, it gave the director an incorrect communication of her intentions and consent.

In the detailed judgement it is mentioned how the victim and the director had on previous occasions met and also exchanged kisses, which was reciprocated by the victim. She was also aware of the excessive drinking habit of the director, it assumes importance since the alleged rape occurred while the director was drunk. It also states that when he asked her for a sexual favour, she denied and then she was subjected to forced oral sex, as mentioned in the FIR.

The victim initially tried softly confronting the director, then two weeks later when she was unable to deal with the trauma, she wrote back to Mahmood, this time the email was answered by his wife Anusha, who apologised for her husband’s behaviour and even said she would help if she needed to take legal action.