Facts:
The prosecutrix was a student of Columbia University, New York and was a Fulbright fellow affiliated with Delhi University, History Department and had been pursuing her PhD work in the field of Hindi literature and Nath Sampradaya. She had come to Delhi in June, 2014 and was in search of some contact at Gorakhpur for the purposes of getting information regarding Nath Sampradaya. It was in this connection that she was introduced to the appellant through a friend, Danish Hussaini.

On the day of the occurrence i.e. on 28.03.2015, she had called the appellant requesting him to arrange for tickets of his performance which was to be staged a day after. The appellant invited her over to his house for dinner. Later, at 4 o'clock in the afternoon, the appellant informed her that he would be going to a wedding. The prosecutrix thought that perhaps the appellant and his wife would be going to the wedding.

She thereafter arrived around 9 p.m. at the house of the appellant and saw two student leaving the house. After exchanging brief courtesies with them, the prosecutrix went upstairs and the door was opened by Ashish Singh, a friend of the appellant. The prosecutrix found the appellant to be in an intoxicated and lachrymose state. The prosecutrix was asked to go to the office room of the appellant.

After waiting there for about 20 minutes, the prosecutrix came out of the office room for smoke on the porch when she was asked by the appellant to sit down near him. The prosecutrix hugged the appellant, enquired from him as to whether there was a need for a group hug and also asked him about the reason for his sadness. At that point of time, the appellant is said to have told Ashish to leave the room and also informed that one Darrain would be coming. After Ashish left the company of the prosecutrix and the appellant, the appellant called Darrain and also put him on speaker phone.

The prosecutrix heard Darrain saying that he would not come. The prosecutrix then called Darrain when the appellant had left the room. Darrain was informed by the prosecutrix that the appellant was drunk and that Darrain needed to come to his house. Darrain expressed his inability and promised to talk to her the next day.

Thereafter, the appellant came back and he and the prosecutrix had a talk for a while. It has been alleged by the prosecutrix that thereafter the appellant kissed her, to which she responded by saying that she did not think that it was what he needed. The appellant kept on kissing the prosecutrix and telling her about her being a great woman. He also disclosed his intention of sucking her to which she promptly denied.

The appellant and the prosecutrix were seated on the couch. The prosecutrix has then alleged that the appellant tried to pull down her under garments and she kept on pulling it up. The prosecutrix was thereafter immobilized by the appellant who forced oral sex upon her. The appellant tried to repeat what he had done but in the mean time the doorbell rang and the two friends of the appellant returned. Thereafter, the prosecutrix wanted to leave and so she booked a MERU cab and simultaneously texted her friend Danish Hussaini.

On 30.03.2015, the prosecutrix is said to have sent an e-mail to the appellant. The email was as follows:

"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 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."[1]

The prosecutrix has deposed that on the receipt of the e-mail referred to above, the appellant expressed his sincerest apologies ["My deepest apologies"]. The prosecutrix has deposed that she wanted to ignore this fact but she could not.

The appellant, was convicted under Section 376(1) of the IPC vide judgment dated 30.07.2016 passed by the Additional Sessions Judge - Special Fast Track Court, Saket Courts, New Delhi. He has been sentenced by order dated 04.08.2016 to undergo Rigorous Imprisonment for 7 years, and to pay a fine of Rs. 50,000/-. This conviction was then appealed in the Hon'ble Delhi High Court.

Issues:

• The issues which the Hon'ble Delhi High Court dealt in this matter:
1. Whether or not there was consent.
2. Whether the appellant mistakenly accepted the moves of the prosecutrix as consent.
3. Whether the feelings of the prosecutrix could be effectively communicated to the appellant.
4. Whether mistaking all this for consent by the appellant is genuine or only a ruse for his defense.

Arguments Advanced On Behalf Of Appellant:

1. On behalf of the appellant, it was argued that from the deposition of the witnesses, certain undisputed facts emerge. The advocate appearing for the appellant has submitted that the veracity of this sequence of events could be tested from other evidence on record.
    
2. The second argument on behalf of the appellant was in the nature of an alternative argument that, if at all, such an occurrence had taken place, it was with the consent of the prosecutrix. The advocate argued that even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant.
    
3. The appellants have also proved how consent was there. Firstly, that even after knowing that the appellant heavily drunk then also she exchanged hugs and kisses with him. Secondly, the prosecutrix was cracking jokes and was indulged in a playful banter immediately before the incident took place. Thirdly, That the prosecutrix was under fear, was absolutely unknown to the appellant.
    
4. Mr. Sibal has argued that within few hours of the e-mail exchange of 30.03.2015, the appellant had called the prosecutrix on her phone which lasted for 76 seconds. This fact has not been stated by the prosecutrix and when she was confronted, she denied the same.

Arguments Advanced On Behalf Of Prosecutrix:

1. It was argued that the averments made by her in the FIR and statement gave under section 164 of Cr.P.C. and disposition before the trial court is consistent with the guilt of the accused.
    
2. The appellant had committed forced oral sex upon her under section 375(d) of IPC. Also, the appellant has apologized for the same for committing it against the will and consent of the prosecutrix.
    
3. It was further submitted on behalf of the prosecutrix that she was unable to cope with the emotional and mental trauma and therefore she returned to the USA. Only when she became confident of the support from her family and her friends in the USA that she gathered the courage to return to India and lodged FIR at New Friends Colony police station on 19.06.2015.
    
4. Also, the prosecutrix did not take action as she was afraid of more serious repercussions. It was held that she became scared on the thought that she would also meet the same fate as met by Victim in the Nirbhaya Rape Case.
    
5. The act of booking the MERU cab clearly shows that she wanted to leave the appellant's place as soon as possible and when she was not able to get the confirmation from the same, she tried to go in an auto rickshaw but she was made to wait on the pretext that it is dangerous for her to go in a rickshaw at night.

Point Of View Of The Court/ Judgement
The court interprets the concept of consent, with the help of section 375 (explanation 2) read with section 90 of the IPC, even though it is a principle that when a specific section defines a concept for the purpose of an offence, the general explanation/definition provided in the statute need not be accepted and for the purpose of that section, the former understanding needs to be used.

The explanation (2) of Section 375, IPC and the provision make it very clear that consent must be categorical, unequivocal, voluntary and could be given by words, gestures, or any form of verbal or non-verbal communication signifying willingness to participate in a specific sexual act. The Court also took note of the Section 90 of the Indian Penal Code. The Court noted that it mandates that the accused must know that the consent which was given was under a fear of injury or misconception of fact.

The Court also held that prosecutrix was regarded as a "stellar witness" and the court accepts that in a rape case the testimony of the victim needs no corroboration for the conviction. The court also tried to read into consent the stereotypes that it itself disregards, by saying that a 'feeble no' from a woman can be considered a 'yes' in some occasions, and by differentiating the 'no' of a learned woman, when compared to a more orthodox women, and when the victim knows the accused when compared to a situation when they are strangers.

The Court has noted that in this case, the appellant has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix. The court also discussed on the nature of his bi-polar condition of the appellant, on how memory works in human beings and how it can be clouded in certain situations of extreme nature.

Finally, the Hon'ble Court after looking at all the facts, circumstances and pieces of evidence produced before it held that the benefit of doubt regarding the consent is necessarily to be given to the appellant and the judgment and order of conviction and sentence of the appellant was set aside and the appellant was acquitted of all the charges. The appellant was ordered to be released forthwith, if not wanted in any other case.

End-Notes:

1. (2017) 243 DLT 310