Now, for the phone call conversation between the complainant and the prosecution witness. Danish claims that she described in detail her ordeal, including the pinning of the arms, and her resistance, as well as the invocation of her fears of being killed if she did not go along. If she had communicated to Danish her ordeal, two questions arise:

  • Why Danish failed to remain in touch with the complainant (as his CDRs show) subsequent to her narration of her traumatic rape? On the contrary, he maintained his relations with the accused, even sending him congratulatory message for a NDTV programme on dastangoi. It is only on 12th April, the day the complainant sends her second email (which she also forwarded to Danish) that he calls her.
  • Why the complainant adopts a different tone in her first email to Farooqui, which is at odds with her purported conversation with Danish.


The answer is perhaps that she never conveyed to Danish that she had been raped on the night of 28th. His subsequent statements are a reproduction of the email she had sent to Farooqui on 12th April where she first vividly described a specific act, and which she had forwarded to Danish.

The neutrality of Danish Husain that is being extolled by the world consists of failing to call the victim and extending warm appreciation to the perpetrator!

And what of the subsequent conduct which apparently revealed their true colours?

The prosecution argued that “the deletion of the email by AnushaRizvi as coming in the statement of the accused u/s 313 statement amounts of destruction of evidence and proves the complicity with the accused.”

Firstly, the court threw out all charges of destruction of evidence in the beginning of the trial so it serves no purpose to continue to trump them up repeatedly. Second, when the accused and his wife presented themselves at the police station upon hearing of the complaint being filed, and they themselves, voluntarily, handed over the printouts of these emails to the police. This is hardly “destruction of evidence”. When we are being asked to abandon all questions regarding the inconsistencies in the conduct and statements of the complainant and the key prosecution witness, on grounds that those traumatized by sexual violence may behave in inexplicable ways, how sensitive is it to damn the accused’s wife – dealing as she was with a husband in a rehab facility and an ailing father in the ICU, who passed away soon after.

Influencing the victim:

An article whose author claimed closeness to both the accused and the complainant has stated that the accused and his wife exerted pressure on the complainant to withdraw her complaint. The prosecutrix’s lawyer has argued on similar lines in the court, and this allegation is repeated again in the Kafila piece. On social media, this has acquired a life of its own, embracing within its ambit even the defence lawyer, who stands accused of attempting to engineer a ‘compromise’.

Towards this, the testimony of Danish Hussain, and his sms and call records on the intervening night of 19-10 June 2015, are being touted as evidence.

According to the Kafila article:

“SMS records showed that on the intervening night of the 19-20 June the wife of the accused Anusha Rizvi sent two SMS to Danish; one, on 20.6.2015 at 1:44 a.m, said “need to speak urgently. Very urgent” and another at 3:30 a.m said “Dan whatever we need to do will need to be done now. Thanks. Danish testified that he had been sleeping and saw the messages (one from Anusha’s and another from Darrain’s number) and called Darrain back. Danish testified that Darrain “handed over the phone to Anusha where they asked me if I can get in touch with the prosecutrix and intervene so that she does not press charges.” He testified that he did then “call the complainant on which the complainant became very angry and said after the trauma she has gone through, she would not withdraw her complaint. She disconnected the phone and I remember later that she called me back and reiterated the same which I conveyed to the wife of the accused and the accused the next morning.”

a. What is so unnatural about calling up your old acquaintance and friend upon hearing the news that he isnamed as a confidante in a case against you, especially since he has never hinted to you that anything was amiss?

b. So, if Danish called up the complainant at the behest of Darain Hussain and Anusha Rizvi, why is it that his CDRs show that it was in fact the prosecuterix who called him first and spoke to him for 12 minutes? It was only later that he called her.

c. Nowhere in his statement under Section 161Cr.PC, does Danish Hussain mention the attempt to influence the complainant, and neither does the complainant make this charge in her statement before the magistrate. Even by the prosecution’s claim, there was no request made for any intervention prior to the night of 19th June. By this time, the FIR was already lodged. How would it have been possible to withdraw the complaint once it was lodged?

d.Most important of all, the prosecutrix herself denies any communication at all from Farooqui or his wife after 15 April. Indeed, she resolutely states in her statement to the Magistrate on 20June that no one tried to influence her in anyway before filing the case.

e. Darain Shahidi has denied the vague charges being made that he or Anusha Rizvi tried to influence the complainant through Danish’s intervention. Why did the prosecution not examine him on this aspect, so that it could come in the evidence? Why allow such a charge to circulate as mere rumour and not crystallize it as evidence of a frank confrontation with the man who was supposed to have carried this influence to Danish Husain? In court records what stands unchallenged is Darain’s denial that he ever made any attempt to persuade the complainant to not implicate the accused.

Why was the testimony of Ashish Singh discarded?

Some evidence has not come on record. Like Ashish Singh’s text message to his wife “Back to Mahmood’s place with Roomi, will take sometime” sent at 10.02 pm (the time alleged by the complainant that she was alone with the accused), and where his tower location shows 12, SukhdevVihar (under which falls the accused’s house) has been dismissed as not credible. Sure, the court gives a reason for discarding his testimony. The question is if this reasoning meets legal standards.

The evidence of the text message is discarded on grounds that he had failed to give his mobile phone to the police initially. The judgment notes:

“I fail to understand what had prevented him from giving his mobile phone to the police to prove his veracity as to his coming in the house of the accused prior to the incident to prove the innocence of the accused. It is also to be noted that the said instrument was not sent to the laboratory for its authenticity. He introduced the facts of coming to the house of the accused before 10.00 p.m for the first time when he appeared in the court for evidence.”

First, one must bear in mind that Ashish was a prosecution witness, not a defence witness. What beats logic is why a friend would conceal something so crucially in Farooqui’sfavour at such an early point of time if he were so partisan in Farooqui’s interest. It could have shaken the very basis of the charge.

Then, he had indeed told the police that he was out for only 15 minutes. The prosecutrix’s own case is that Ashish left soon after she reentered the drawing room some 20 minutes after she had arrived, which would make it about 9.20-9-30. Ashish’s CDRs also show his exit around that time. Where then is the concealment?

The court holds that this sms “does not imply that he had reached the house of the accused or he was inside the accused’s house.It cannot be conclusively held that PW12 Ashish Singh was in the house of the accused at the time of the alleged call.”

This assertion by itself does not discredit the claim that Ashish was indeed present in the house. The text message as well as the tower location cannot simply be explained away by the court’s observation that it was not established that he was present in the house. What is there to disprove the fact of the message and the tower location?

Timing and the possibility of the alleged rape

The judgment holds that:

“Thus, the incident happened between the time from 22:09:04 to 22:11:47 which is the time period of 2 minutes and 43 seconds…. There is no reason to disbelieve the claim that the said act as described by the prosecutrix on the part of the accused took place within the time frame as discussed by me above.”

Concurring with the judgment, the Kafila piece tries to defray commonsensical understanding of rape as “a long-drawn-out, dramatic affair involving physical injury is what we are led to believe by popular culture. In reality, even two minutes is a long time – more than enough for a man to pin a woman down, pull down her underwear and force oral sex on her.”

They probably did not carefully read the prosecuterix’s own statement as to what ensued between 22:09:04 and 22:11:47. Between this period, the accused and the complainant are said to have chatted “for a while”, cracked jokes, the complainant is said to have rubbed/ ruffled his hair. In her cross-examination too, she accepts “conversation of a few minutes”; exchanging of jokes “later” as well as some discussion on her research. He is then said to have attempted to kiss her repeatedly. It is thereafter that the act of forced oral sex is said to have taken place; following this the doorbell rings, the accused goes to open the door, the complainant goes into the kitchen and observes Ashish and Roomy enter, returns to the living room and books a cab on her Meru app at 22.11.47.

The point is not to recall and deconstruct crude characterizations of sexual violence in popular culture but to ascertain the possibility of what is being alleged. Is it within the realm of the possible that all this – as stated by the complainant herself – could have taken place in the given time period? We are after all discussing a criminal trial and evidence, on which depends the course of someone’s life and liberty.

Postscript:

The Mahmood Farooqui trial was not to determine the definition of rape.

Forced oral sex has already been incorporated into the definition of rape in the Criminal Law Amendment 2013. We did not need Farooqui’s ‘landmark’ trial to establish this. What was on trial was whether there was conclusive proof of Farooqui’s guilt. The defence too operated within the existing framework of law. Quoting sundry commentators (a la Mehrotra) or lawyers who distinguish between ‘real’ and ‘unreal’ rape on television is to tarnish the Farooqui defence by allusion and insinuation.

Yes, there is deep disquiet over the new law, both on account of the minimum sentencing rules and the expanded criminalization it entails. There is as well a critique of carceral feminism and its unspoken alliance with a punitive state. But that calls for another reflection, unburdened by the specifics of this case.

(Manisha Sethi is the author of Kafkaland: Prejudice, Law and Counterterrorism in India (2014).) (HardNews)

For Part One: Here

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MANISHA SETHI