SECTION 376, IPC

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CASE ON THE
“MAHMOOD FAROOQUI
VS.
THE STATE (GNCT OF DELHI) CASE”

Author- Anshika Sharma

FACTS OF THE CASE

The case involved the charge of the offence of rape i.e. Section 376 of the IPC. The accused was charged with the offence of committing forceful oral sex upon the prosecutrix in his apartment on the 28th of March 2015, without the consent of the prosecutrix. At the trial Court Stage, the accused took the defence that such an incident had never taken place, but after the conviction, he introduced an alternative argument that even if the incident took place, it was with the consent of the prosecutrix and this statement was also accepted by the Court.

Evidences were procured from both sides and included various call details, oral testimonies and Whatsapp chats. Further, the High Court had acquitted the accused on the grounds that the events as shown by the prosecutor were improbable and was unclear whether the incident took place without the consent of the prosecutrix. Also, even if the incident had taken place without the consent of the prosecutrix, it was unclear whether the accused understood the lack of consent.

ISSUES OF THE CASE

  • The first issue posed before the Court of law was that whether rape had occurred as per Section 375(d) (2) of the IPC and the relevance and understanding of section 90 of the IPC was also needed to be analyzed.
  • The second issue was that whether the decision that was given abided by the principle of a strict interpretation of penal statutes and whether the correct interpretation of the literal rule was followed or no?

RULES

The rules of interpretation have a bearing on the present case and fall under the broad overview of strict interpretations of penal statutes, which is an accepted principle when it comes to offences that are criminal in nature. The mischief and the literal rule also have an operation in this judgement. When it comes to the strict interpretation of the penal statutes, it is very important to interpret them as stated and stick to the ambit that has been provided.

Preference should be given to the accused if the specified statute has various possible constructions, however, in saying that it is also important if the section has a possibility of having a broad understanding and application to bring the mischief/crime at hand under control, it is not necessary to choose a narrow understanding which saves the accused.

Therefore, one must interpret the statute comprehensively and not stick to the narrow understanding. Also, it is important to understand that it is through the Jurisprudence that the over-bearing principle has been developed and the presumption of innocence of accused and a fair trial for an accused should only go as far as the fact that it should remain a fair trial for all the parties involved.

The literal rule interprets that the words and phrases in a statute must be given their most common meaning, i.e. a meaning which could be easily understood in common parlance. As far as the mischief rule is considered, it is understood that if there is any loophole that existed in the law earlier, then the Court needs to interpret it in such a way that the mischief that was originally meant to be targeted has to be suppressed or tackled.

ANALYSIS

According to the Court, the former understanding needs to be used rather than accepting the general explanation and definition provided in the statute, even though it interprets the concept of consent from section 375 (2) read with section 90 of the IPC. The prosecutrix has been regarded as the “stellar witness” and the court accepts that in a rape case the testimony of the victim needs no corroboration for the conviction. The court read into the consent by stating that a ‘feeble no’ from a woman can be considered as a yes in some situations, and by differentiating the ‘no’ of a learned woman, when compared to more orthodox women, and when the victim knows the accused when compared to a situation when they are strangers.

According to section 375, men should receive affirmative expressions and an unequivocal willingness from the other person to do the sexual act. However, nowhere does it state that nuances add up to consent. Literal interpretation has blatantly been disregarded as firstly, section 375 has been differently interpreted by the Court and secondly, as per the interpretation of section 90, an act will not qualify for consent only when the perpetrator knows that the consent was given due to fear.

Thus, the Court came to the conclusion that the accused was unaware of the fact that consent was given under fear and thus it does not qualify for consent. However, it is seen that there is a misinterpretation from the Court’s end as in terms of the literal interpretation, as the consent was given under fear and such interpretations have not been warranted under the conviction for rape as envisaged under section 375 and the Court had failed to go ahead with the strict interpretation of the statute.

It was the recommendations of the Justice Verma Committee through which amendments were made with regards to the explanation of consent in order to deliver improved justice in cases of rape and sexual offences. This clearly shows that the purpose and the intent of the legislature to suppress the mischief and lacuna that existed in the law prior to the introduction of Explanation 2 of section 375, which was strongly based on stereotypes like previous sexual activity of the woman, the chastity of the woman to name a few, that existed in the minds of judges and which came through in their judgements. But the judgement given by the Court was unfair as the Court disregarded the mischief rule of interpretation as he agreed with the very stereotype and tried drawing a relation with the prosecutrix.

CONCLUSION

One thing is clear about this judgement that it was the first to discuss and deliver the judgement on the concept of consent post the amendment of 2012 set a very dangerous and archaic precedent, also, the Supreme Court of India had refused the special leave petition to challenge the acquittal and this judgement also brought in with it the age-old stereotypes which the earlier judgements had tried to remove and bring in a change. With this, many of the fundamentally accepted interpretations of the statue were blatantly disregarded.

In my opinion, I feel that the Court should have dealt with the case with equality and not with a misogynistic mind. This has made the vision of consensual and non-consensual sex blurred for the citizens. However, because of such cases and judgements only will there be a place and scope for the betterment and improvement in the laws which are related to rape.


Author Anshika Sharma is a second-year law student from ILS LAW COLLEGE, PUNE. She strongly believes that such a decision was very much needed to provide security for any organization and treat everyone with equity and justice.