yes' is 'yes' N 'no' is 'no'' may nt always be universally accept

Judge sets aside conviction of writer-director, saying he doubted whether the incident took place without the victim's consent and if it did whether Farooqui could "discern/understand the same.

New Delhi: The Delhi high court today 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 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 immediately.

Farooqui had challenged his conviction and the sentence given by the trial court.

In giving Farooqui the benefit of the doubt, the judge, inter alia, cited his wife's statement that he suffered from bipolar disorder and argued that what constituted the grant or denial of consent was not always clear.

In a key paragraph of his judgment, Justice Kumar wrote:

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. If the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic "no would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. 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 judge then went on to say that the "affirmative model of consent "meaning thereby that yes' is yes' and no' is no' may not always be universally acceptable "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.

However, he said, regardless of whether consent was verbal or conveyed through actions, "the capacity to withdraw the consent by either party at any point of time is inherent to it. Yet in the present case, "as was stated, the victim did not communicate "or least it is not known whether she had communicated her denial of consent to Farooqui, said Justice Kumar.

Acquitting Farooqui, the judge concluded that "it remains in doubt as to whether such an incident, as has been narrated by the victim, "took place and if at all it had taken place, it was without [her] consent/will ... and if it was without [her] consent, whether the appellant could discern/understand the same.