The Delhi High Court on Monday gave writer and filmmaker Mahmood Farooqui the benefit of doubt and acquitted him of charges of raping a US researcher at his home in a drunken state.
The judgment refers to past instances where the relationship between Farooqui and the victim extended beyond “friendship”. The court said it is not clear whether Farooqui had any intention to rape her.
The court asks whether Farooqui's bi-polar condition at the time of the alleged incident in March 2015 made him mistake some verbal or non-verbal communication from the woman as sexual consent. The woman however rubbished this defence by Farooqui's legal team led by senior advocate Kapil Sibal. She stated that the alleged rape had to do more with his physical power than his mental condition.
But the court remained unimpressed, choosing to respond to the woman with an explanation of how bipolar disorder was one of the most severe of the mental illnesses.
“Though the mental makeup/condition of the appellant (Farooqui) 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 he had the correct cognitive perception to understand the exact import of any communication by the other person,” the court reacted.
The judgment doubts if the woman even chose to communicate to Farooqui the “fear in her mind” about the sexual act. The suspicions raised by the court belied arguments led by the woman's lawyer, advocate Vrinda Grover, that her client was “scared and a thought passed in her mind that she would also meet the same fate as Nirbhaya”. The prosecution said she had pretended to co-operate to “end the traumatic encounter”.
But Justice Ashutosh Kumar went on to elaborate how there were different ways for a woman to communicate her sexual consent, and it was the “underlying/dormant communication which could lead to confusion in the mind of the other”.
“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' is actually a denial of consent,” the judge wrote.
The woman, a Columbia University student and a PhD scholar, had met Farooqui in regard to her research on Nath Sampraday. Farooqui co-directed the film, Peepli Live , which was India's official entry for the 83rd Academy Awards for the best foreign film category.
The 82-page judgment ends with a paragraph doubting whether the incident of rape complained by the woman ever occurred at all.
“It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix (researcher), 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,” Justice Kumar wrote.
The judge acknowledged that the woman had indeed shown signs of post-rape trauma, but said it remained unclear “at what point of time and for which particular move, the appellant (Farooqui) did not have the consent of the prosecutrix is not known”.
“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,” Justice Kumar observed.
The high court ordered the release of Farooqui, who was serving a seven-year sentence in Tihar Jail. The trial court had found him guilty of rape in July 2016.
