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The “golden thread” and “consent”: the question of reasonable doubt and a rape case

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The “golden thread” and “consent”: the question of reasonable doubt and a rape case

[vc_row][vc_column][vc_column_text]~By Jayant Tripathi

In the famous case of Woolmington vs DPP, decided by the House of Lords in UK [reported in 1935 AC 462], it was held that Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…”.

This “golden thread” has been the backbone of criminal jurisprudence in India as well, and has been articulated by the Supreme Court over and over again, in a number of cases.  One such case was the attack on Akshardham temple, where, in 2014, the Supreme Court let off 6 accused persons, who had been sentenced to varying punishments ranging from prison terms to the death sentence, giving them benefit of doubt and holding that the prosecution had failed to prove its case beyond “reasonable doubt”.

The three cardinal principles of criminal law are (a) a consistent presumption that the accused is innocent, which therefore leads to the second principle (b) the prosecution has to prove its case beyond “reasonable doubt”, and (c) the onus upon the prosecution, to prove its case beyond ‘reasonable doubt”, never shifts, i.e., the accused is not required to prove his innocence.

What this effectively means is that if there is “doubt”, i.e., the prosecution has not been able to prove its case beyond “reasonable doubt”, then the “benefit of doubt” has to be given to the accused.

The passionate stand taken by a lot of persons, lawyers, and non-lawyers alike, in reaction to the recent decision of the Delhi High Court letting off Mehmood Farooqui, accused of raping a woman, appears to have forgotten the above cardinal principles of criminal jurisprudence.

According to Section 375 of the Indian Penal Code, 1850, the crime of rape has to be committed, inter alia, against the will, or without the consent of the victim.

There has also been a lot of confusion in the media as to what the judgment actually says.  A number of media sources have made the mistake of confusing the arguments of the defense as being the findings of the judge, which have led to ill-informed outbursts in the media.

So what does the judgment actually say?

The defense team for Farooqui raised many arguments, nearly all of which were dismissed by the Judge as not being relevant.

The defense also advanced the following arguments to show that the sexual act was consensual-

(i) the prosecutrix not running away from the place of occurrence;

(ii) her remaining present in the house of the appellant for about a good 45 minutes post rape;

(iii) not divulging about the act to either Prosecution Witness 12 or brother of the appellant who came along with PW.12 or to the wife of the appellant;

(iv) no communication with the appellant till 30.03.2015;

(v) first communication to the appellant being in the nature of a minor abjuration;

(vi) the prosecutrix booking a MERU cab and cancelling the same;

(vii) going to the restaurant at Hauz Khas after the incident;

(viii) calling PW.12 after reaching Hauz Khas hotel;

(ix) taking an inordinately long time to register the FIR

Dealing with all these arguments for the defense, the Judge has negated all of them, and has held that these could be attributable to “rape trauma syndrome”.

The defense team also attempted to argue that there was a huge discrepancy in the sequence of events, which would mean that there was no more than one or two minutes for the act complained to have taken place.  Dismissing this argument, the Judge has held that the complainant is a sterling witness, and the discrepancies in timings are not significant.  As a matter of fact, the Judge goes into a small digression on studies of how memory works, and holds that “…the hunt for accuracy to the seconds and minutes is nothing but chasing illusion.”

The defense tried to argue that there was a past history of physical intimacy between the parties, and therefore there was consent in the past.  The Judge dismissed this argument by saying 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 argument that the accused suffered from bi-polar disorder was also not accepted by the Judge, who said that no evidence had been led on that aspect.

Section 375 of the Indian Penal Code defines “Rape”.  Explanation 1 to Section 375 defines consent to mean “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”

However, as set out in section 90 of the Indian Penal Code, consent ceases to be consent, if it has been given for fear of injury and that the accused knows that the consent is being given out of such fear.

The core issue before the Judge was whether there was consent by the complainant for oral sex to be performed on her by the accused.

The complainant, writing about the incident, two days after the incident has said “I tried calling you, but was unable to get through, I want to talk with you about what happened the other night. I like you a lot. You know that I consider you a good friend and I respect you, but what happened the other night wasn’t right. I know you were in a very difficult space and you are having some issues right now, but Saturday you really went too far. You kept asking me if you could suck me and I knew you were drunk and sad and things were going awful. I knew that this wasn’t going to help things and I told you many times I didn’t want to. But you did become forceful. I went along, because I did not want things to escalate, but it was not what I wanted. I was just afraid that something bad would happen if I didn’t. This is new for me. I completely own my sexually (sic) and I consider you a good friend. I like you. I am attracted to you, but it really made me feel bad when this happened. I haven’t known what to say to you since then, I wasn’t sure if I would say anything. In the end I consented, but it was because of pressure and your own force physically on me. I did not want things to go bad. I have only decided to tell you how I feel for your own well being. I am afraid that if you don’t realize that this is unacceptable, you may try this on another woman when you are drunk and she will not be so understanding. I do love you and wish you well. I want the best for you, whatever that is, but I also need you to know doing what you did the other night is unacceptable. I hope this doesn’t affect our friendship, but am willing to deal with the repercussions if it does.”

In a slight deviation from the complaint as recorded in the FIR and the above email, the complainant during her testimony before the trial court stated that after the act was initiated, she remembered the case of Nirbhaya (where resistance had resulted in a gruesome death), and therefore she went along with what was happening.

Reading the judgment in its entirety, it appears that the initial advances of the accused were rebuffed.  When the accused held down the complainant to perform oral sex on her, the complainant (for fear of meeting the same fate as Nirbhaya) gave non-verbal consent, which was taken by the accused to be true consent.

It is in this context that the judgment says that while in most cases reluctance will have to be seen as denial of consent, but in cases where the persons involved are known to each other, and there has been a prior history of intimacy, it is “really difficult to decipher whether little or no resistance and a feeble “no”, was actually a denial of consent.”

 Should the accused have stopped at the first instance of a feeble no and little resistance, and not persisted any further?  When he persisted, and the complainant stopped resisting (for fear of injury, which unfortunately was not communicated to the accused), was there consent, at least in the mind of the accused? Just as consent can turn to non-consent during the act, is it possible for non-consent to turn to consent?  Does persistence form a part of courtship / mating rituals, especially when the parties are in a relationship, and if yes, how are limits and boundaries to be determined?  These are issues which will require greater thought and debate, and perhaps even a change in law relating to consent, and the manner in which it is required to be communicated.

The judgment does not state that the incident did not take place.  The judgment also does not state that there was no rape as was alleged.  The judgment also does not say that the version of the complainant is incorrect.  The judgment also does not find Farooqui innocent of the charges against him.

What the judgment does is apply the “golden thread” and finds that the prosecution has not been able to prove its case “beyond reasonable doubt”. The judge has observed that “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…”.

The benefit of doubt has been given on account of the fact that the complainant, who initially resisted, later feigned consent for fear of injury.  However, the accused was never made aware that the consent was feigned and was being given for fear of injury.  As the judgment states, it could not be proved, beyond reasonable doubt, that the accused was aware that his act was against the will of the complainant and was without her consent. (Jayant Tripathi is a lawyer practicing in the Delhi High Court)[/vc_column_text][/vc_column][/vc_row]

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Indian Navy submarine collides with fishing boat near Goa coast, 2 fishermen missing

A spokesperson from the Navy told the media that eleven crew have been rescued so far.

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Indian Navy submarine collides with fishing boat near Goa coast, 2 fishermen missing

Indian Navy officials on Friday said that an Indian fishing vessel with a crew of 13 collided with an Indian Naval submarine near the Goa coast. 

Following the incident, a massive search and rescue operation has been launched by the Indian Navy, which has deployed six ships and aircraft. Reportedly, while 11 crew have been rescued, two are still missing.

The Ministry of Defence issued a statement and said that the vessel, Marthoma, collided with a Scorpene-class submarine about 70 nautical miles off the Goa coast. It added that search and rescue efforts for the remaining two are underway and are being coordinated with Maritime Rescue Coordination Centre Mumbai (MRCC). It further mentioned that additional assets including from the Coast Guard have been diverted to the area to augment the efforts.

The statement said that the cause of the incident is being investigated. Notably, Scorpene-class submarines are a major part of India’s naval power in the Indian Ocean as they can undertake multifarious types of missions, including anti-surface warfare, anti-submarine warfare, intelligence gathering, mine laying, and area surveillance.

Reports said that the state-of-the-art technology utilised for the construction of the Scorpene-class submarines has ensured superior stealth features such as advanced acoustic silencing techniques, low radiated noise levels, hydro-dynamically optimized shape and the ability to launch a crippling attack on the enemy using precision-guided weapons. Furthermore, the attack can be launched with both torpedoes and tube-launched anti-ship missiles, whilst underwater or on the surface.

Meanwhile, the Indian Navy in its statement said that 13 crew members were aboard the fishing vessel at the time of the collision. It added that while 11 crew have been rescued so far, two fishermen are still reported missing.

A spokesperson from the Navy told the media that eleven crew have been rescued so far. He stated that search and rescue efforts for the remaining two crew members of Marthoma are in progress and are being coordinated with the Maritime Rescue Coordination Centre (MRCC), Mumbai. Additional assets including from the Coast Guard have been diverted to the area to augment the efforts, he continued.

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10 Naxalites killed in encounter in Chhattisgarh’s Sukma

The District Reserve Guard (DRG) and the Central Reserve Police Force (CRPF) continue their search operation in the area.

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Ten Naxalites were killed in an encounter with security forces in the Sukma district of Chhattisgarh on Friday.

The confrontation started in the morning within a forest area under the jurisdiction of the Bhejji police station, where a joint operation was being conducted by security personnel as part of an anti-Naxalite initiative, according to Inspector General of Police (Bastar Range) Sundarraj P. 

This operation was initiated following intelligence regarding the presence of Maoists connected to the Konta and Kistaram area committees, situated in the forested regions around Korajguda, Dantespuram, Nagaram, and Bhandarpadar villages.

So far, the bodies of ten Naxalites have been recovered at the scene. Additionally, a significant cache of weapons was seized, including an INSAS rifle, an AK-47, and a Self Loading Rifle (SLR). 

The District Reserve Guard (DRG) and the Central Reserve Police Force (CRPF) continue their search operation in the area. This incident contributes to the year-to-date total of 207 Naxalite fatalities recorded in various clashes across the Bastar region of Chhattisgarh, comprising seven districts. 

On Wednesday, Chhattisgarh Chief Minister Vishnu Deo Sai met with Union Home Minister Amit Shah in the national capital, North Block. Their discussion focused on developmental progress in Naxal-affected areas of Chhattisgarh and efforts aimed at enhancing peace and stability in these regions. 

The Chief Minister emphasised that both the state government and security forces are diligently working to eradicate Naxal influence in Chhattisgarh, aligning with the Union Home Minister’s commitment to eliminate Naxalism by 2026.

“I met with Union Home Minister Amit Shah and updated him about the Naxal activities in Chhattisgarh. Over the past 11 months, close to 200 Naxals have been neutralized, and approximately 600-700 have surrendered. We are making significant strides towards the goal set by the Prime Minister and Home Minister to achieve a Naxal-free India by March 2026,” CM Sai told reporters following the meeting.

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Canada fact checks own media, rejects report claiming PM Modi knew of Nijjar murder plot

The clarification comes after a Canadian newspaper cited an unnamed national security official, claiming the alleged plot to murder Nijjar was orchestrated by Union Home Minister Amit Shah.

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Canada fact checks own media, rejects report claiming PM Modi knew of Nijjar murder plot

The Canadian government clarified that there is no evidence to connect Prime Minister Narendra Modi or his top officials to any criminal activity in Canada, including the killing of Khalistani terrorist Hardeep Singh Nijjar.

The clarification comes after a Canadian newspaper cited an unnamed national security official, claiming the alleged plot to murder Nijjar was orchestrated by Union Home Minister Amit Shah. The media report further alleged that PM Modi, External Affairs Minister S Jaishankar, and National Security Adviser Ajit Doval were informed about the plan.

Nonetheless, the same report acknowledged that the Canadian government had no direct evidence to support these claims against PM Modi. Issuing a statement, the Canadian government distanced itself from these allegations, mentioning that there was no substantiating evidence.

The statement underlined that on October 14th, because of a significant and ongoing threat to public safety, the RCMP and officials took the extraordinary step of making public accusations of serious criminal activity in Canada perpetrated by agents of the government of India.

It added that the government of Canada has not stated, nor is it aware of evidence, linking Prime Minister Modi, Minister Jaishankar, or NSA Doval to the serious criminal activity within Canada. It remarked that any suggestion to the contrary is both speculative and inaccurate.

Earlier, India furiously rejected the Canadian daily’s report as ludicrous, terming it detrimental to diplomatic ties that have been frosty since Canadian Prime Minister Justin Trudeau first accused India of involvement in Nijjar’s killing last year.

Ministry of External Affairs spokesperson Randhir Jaiswal said that they do not normally comment on media reports, but such ludicrous statements made to a newspaper purportedly by a Canadian government source should be dismissed with the contempt they deserve. He added that smear campaigns like this only further damage our already strained ties.

Diplomatic ties between India and Canada weakened when the Royal Canadian Mounted Police (RCMP) accused Indian government agents of involvement in criminal activities on Canadian soil, including murder, extortion, and intimidation. As the diplomatic rift intensified, both the countries expelled top envoys in response.

Hardeep Singh Nijjar was gunned down outside a gurdwara in Surrey, British Columbia, in June 2023. Earlier in 2024, Canadian authorities arrested and charged four Indian nationals for the murder.

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