The Delhi High Court today set aside the order of a trial court convicting Director Mahmood Farooqui of rape..Farooqui was sentenced to seven years in prison by a Special Fast Track Court in Saket after he was found guilty of forcing oral sex upon a foreign national in 2015..The brief facts of the case are that Farooqui had invited the prosecutrix – who was in India to pursue her PhD work in the field of Hindi literature and Nath Sampraday – to his house for dinner. When she arrived, the prosecutrix found that the appellant was visibly upset and intoxicated. After talking for a while, the appellant allegedly communicated his desire to perform oral sex on the prosecutrix..Though the prosecutrix refused, the appellant proceeded with the act and the prosecutrix went with it, presumably out of fear of his physical strength. Later, other guests of the appellant would come over to his house, and the prosecutrix would remain there for another 45 minutes before leaving in a cab. At this juncture, she would inform her friend, Danish Hussaini of the incident..The prosecutrix thereafter went to New York and saw a counsellor at Columbia University because she was very traumatized. By late April, she had decided to file a report about it in the Department of Gender Based Misconduct at Columbia University. It was at that point of time that she decided to return to India to file a complaint against the appellant and also to continue with her research..The main question to be determined by Justice Ashutosh Kumar was whether there was consent on the part of the prosecutrix. Senior Advocate Kapil Sibal, appearing for Farooqui, argued among other things that even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant..At the outset, the judge noted that the two parties were very familiar with each other and that the appellant’s history of alcoholism was known to the prosecutrix..“According to her own version, physical contact with the appellant in the nature of a kiss or a hug was being accepted by the prosecutrix without any protest…True it is that such past conduct will definitely not amount to consent for what happened in the night of 28.03.2015, if at all it had happened, as for every sexual act, everytime, consent is a must. The consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms.”.He then went on to explain the import of the term “consent”..“Instances of woman behavior 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.”.According to the judge, as per Section 90 of the Indian Penal Code, the accused must know that the consent, which was given, was under a fear of injury or misconception of fact..“There is no communication regarding this 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, 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.”.Justice Kumar then goes into the theories of consent, and states that the affirmative model, where ‘yes’ is ‘yes’ and ‘no’ is ‘no’, may not be used in all cases..“There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other….… In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no…The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent.”.The Court stopped short of analyzing whether the prosecutrix was suffering from Rape Trauma Syndrome (RTS), as prayed for by the appellant. The behavior of the victim post the incident, such as late registration of FIR and not running away from the place of the alleged rape, the Court held, need not be looked into..“It would thus be unfair to the complainant/victim to judge the veracity of her accusation on the basis of RTS displayed by her. If a rape victim resorts to an individual/specific coping mechanism, that ought not to delegitimize her reaction to rape. For the aforesaid reason, this Court does not propose to analyze the post rape conduct of the prosecutrix as suggested on behalf of the appellant.”.After going into great detail about the fallibility of human memory, the Court found that minor discrepancies in the timing of incidents before and after the alleged rape were immaterial. Justice Kumar also rejected the argument of Vrinda Grover, counsel for the appellant, that the consent aspect, having not been looked into at the trial stage, cannot be brought up by the appellant now..“It is well-settled proposition that from the attending circumstances and the evidence already collected, 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.”.At the end of the judgment, Justice Kumar notes that Farooqui had been suffering from Bipolar Disorder, despite the fact that it had not been brought up by his lawyers..“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. Since no evidence has been led on this aspect, any foray into this field would only be fraught with speculative imagination, which this Court does not intend to undertake.”.This fact, it seems, has indirectly influenced the judge’s ultimate decision, which was to give Farooqui the benefit of the doubt and acquit him of the rape charge..“But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, 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….…Under such circumstances, benefit of doubt is necessarily to be given to the appellant.”.Therefore, the High Court set aside the trial court’s conviction of Farooqui and directed that he be released immediately..Read the judgment:.Image taken from here.