NEW DELHI: Criminal trials are not ritualized dramas. The harsh penal consequences flowing from criminal charges demand that guilt be established beyond reasonable doubt. The prosecution’s case and the sequence of events it alleges must be proved to be the only one possible – and not merely one of the probabilities. This is what distinguishes courtroom proceedings from drawing room gossip – or even television chat shows. And this, we must bear in mind while discussing the Mahmood Farooqui case. Idle chatter on social media and news debates are framing the case as an apocalyptic battle between righteous feminists and evil forces of patriarchy. A television anchor hosting a show on the case made a clever editorial decision: opposite a feminist, he cast a representative of some ‘Male Protection Force’. The voice of patriarchy became the voice of all those doubtful of the conviction. It is being suggested that any criticism of the sessions’ court judgment – and indeed the new rape laws – is tantamount to participation in ‘rape culture’. Ostensibly clinching evidence is being cited, and the Farooqui judgment is being hailed as the harbinger of a new era of justice in sexual crimes.

Facts around such cases are best discussed in courtrooms to protect the dignity of all involved, but given that the judgment and the events surrounding the alleged incident are being summoned in the public domain with such authority, it is only in order that those be placed in context.

The Emails:

First, the issue of emails, which was discussed threadbare on a TV show. It is the prosecution’s case that the complainant sent emails to Farooqui accusing him of rape. It was argued – and accepted by the court – that Farooqui’s brief reply to the complainant “my deepest apologies” is unshakeable admission of guilt. An article on the blog Kafila analyzing the verdict also said: “Perhaps the most clinching evidence supporting the survivor’s testimony is Farooqui’s own apology when confronted with his crime, and his wife’s response to the survivor’s email accusing him of rape.”

Stated this way, it does indeed appear to be so. However, does the first email, to which Farooqui replied allege rape? It professes “love”, “respect” and “attraction” for Farooqui. It says that she “went along” and “in the end consented” to avoid escalation of the situation. If one were to go by the prosecution case strictly, in her first email, the complainant says she consented but not out of free will.

Is this then the question of interpretation of that consent – freely given in the mind of the accused, and forcibly given according to the complainant? In her complaint later, she also writes that she feigned an orgasm to end her ordeal. If by her own admission she is allowing the man to think that she is actually participating in the act by pretending to orgasm then did Farooqui have any reason to disbelieve at that time – even going by the prosecution’s case –that the consent was not freely given? “My deepest apologies” is hardly an admission of guilt or crime. And then, is a man who will stop at the woman’s expression of pleasure, an unmistakeable rapist?

Also, does this email – where the complainant expresses hope that their friendship will remain unaffected by this incident – not conflict with the statement of the main prosecution witness Danish Hussain that the complainant had earlier communicated to him, immediately after the incident, the trauma and rage at being sexually assaulted, both through WhatsApp messages and over the phone. Is it natural human conduct to express love and attraction, and hope for continued friendship when enraged? Moreover, when in her complaint later she writes that she did not resist because she was reminded of Nirbahaya’s brutal murder and feared a similar fate. Is it natural human conduct to declare love to someone who has triggered the fear of violent death in you less than 48 hours ago?

It is only in her second email, two weeks later on12th of April that she explicitly accuses Farooqui of having violated her. At this time, Farooqui was already in rehab undergoing therapy for his bipolar condition. During this period, his wife Anusha Rizvi operated his email account to keep track of their professional commitments. She came across the complainant’s second email. She was stunned to read the email, and replied to it from her own email account.

“I am deeply disturbed by your email. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.”

She wrote what only an extremely sensitive person would have when confronted with such an allegation. She promised her support and wished her recovery from her ordeal. How does this email become clinching evidence of Farooqui’s guilt?Farooqui was in rehab not accessing his email account; Rizvi was not in communication with him except for evening phone calls allowed by the rehab centre. Her email to the complainant was sent without speaking to her husband, as she clarifies in her second email to the complainant:

I understand how angry you must be and therefore misread my categorical position on such matters. The reason I mentioned Bi-polar is because that is the reason whyI don’t have access to Mahmood and therefore I am unable to confront him at present.

In essence, she is a third party, with no knowledge of what transpired that evening. Her emails can have no legal bearing on the case at all. The judgment therefore is fatally misconceived in holding that “The scrutiny of the emails sent by the wife of the accused to the prosecutrix shows that at no point of time she has refuted the allegations of rape made by the prosecutrix against the accused. Rather she has expressed her sympathy with the plight of the prosecutrix and advised her to take appropriate action.”

Yes, indeed she sympathized, indeed she offered help; indeed she did not refute the allegations. But this shows her to be a sensitive person, willing to trust the complainant’s word even without cross checking with her husband. In fact there was no occasion to cross check with her husband. It is leap of legal imagination to take her email to be ‘clinching evidence’ of her husband’s guilt.

“The True Colours” of Mahmood Farooqui and Anusha Rizvi

What is perplexing is Anusha Rizvi’s vilification at the hands of the prosecution. It would hardly have been easy for her to respond to an accusation of such a nature against her husband. Yet, she reached out. To this the complainant’s lawyer had this to say:

“Strangely, Anusha did not express even an iota of surprise on reading her emails describing how her husband forced oral sex on her. This leads to an inference that she was well aware of the accused’s behaviour particularly in matters related to his sexual conduct….The silence, apology and admission only imply that the accused and Anusha both knew that the accused had committed forced oral sex upon the prosecutrix. Subsequent actions of Anusha Rizvi and the accused upon learning about the registration of FIR as reflected in the CDRs revealed their true colours.”

These kinds of nebulous speculations – whether Anusha Rizvi was surprised or not, even though her emails communicate a deep sense of shock – have little legal bearing, but are significant to creating an image of the accused as a habitual offender and the wife being used to his sexual misconduct.

Contextualizing the Communications

It gives me no pleasure to quote personal communication, or records of who called who and how many times, but since the entire case in the court and in public imagination now rests on such communication, it is imperative that it be placed in context.

a. The prosecution tries to construct a picture of the accused pursuing the prosecutrix. It does so by showing that he invited her home for dinner, asked her to accompany him to Gorakhpur which was her area of research (which she declined), met her in Hauz Khas, and also asked her to come home for dinner on the day of the alleged incident. First, in none of these meetings was the accused ever alone with the complainant. The first was adinner party,with other guests and hiswife present; the visit to Gorakhpur was a trip with his wife and for a show organized by the Farooqui family where family and co-actors would have been present. Gorakhpur was, moreover the place of the prosecutrix’s research and the reason for her contacting Farooqui in the first place; again the meeting at HauzKhas was in the company of others.

What this leaves out are the persistent messages and calls made from the prosecuterix to the accused, for meetings but also, on her birthday in the middle of her party to which Farooqui did not go (14th March); the day after invites him to “partake in a birthday drink” (15th March); then the following day, to her house, where she has “xxxxloads of leftover alcohol” (16th March).

Farooqui turned down each one of the invites.Therefore it is simply not true that the accused repeatedly issued social invitations to the prosecutrix and that she only contacted him for research work.

b. The Call Detail Records in fact negate a very crucial section of the complainant’s statement. The complaint is as follows:

“On March 28th 2015, I called Mr. Farooqui to inform him I would need tickets to his performance the next day. He invited me over his house for dinner that night. Around 4 o’clock he called me + informed we would be going to a wedding instead, with who I presumed would be his wife.”

There is no phone call or messages at all from accused to the prosecutrix on that day. In fact there is no incoming or outgoing call on the prosecutrix’s CDRs between 2.12 pm and 6.42 pm. At about 6.20 pm, she sends him a text message asking for his address, to which he does not respond. She calls him at 6.47 pm and then again at 6.51 pm. She sends the accused another message at 8.08 pm that she has booked the cab – again receiving no response. So, on the fateful day, Farooqui does not call her even once, or reply to her messages. She calls and messages him several times.

c. While these emails, particularly Farooqui’s expression of contrition are being turned into the cornerstone of a supposedly watertight case, there is no explanation for the phone call Farooqui made to the complainant minutes after sending off the email. It is the defence’s arguments that he replied to her email after reading the first few lines as he was on the phone constantly and not paying much attention to it. (CDRs show he was on the phone till the second before the mail was sent and confirm that he certainly was on the phone when the email must have been composed). Only about an hour later when he was done with organizing his day (they had a show the same day and it was the week of ten years of celebration of dastangoi), that he read the complete email, and shocked at its contents, promptly called up the complainant. The CDRs show that he made a call to the complainant at 12.35 pm.

And yet, this phone conversation is not mentioned in her complaint, or her 164 statement. In her cross-examination she denied the conversation and stated, “It is completely false”. It is baffling that the email sent by the accused becomes the centerpiece of evidence but the call made by him in quick succession is elided out of evidence, and the judgment altogether.

d. The whatsapp messages and phone calls on the night of 28th March exchanged between the complainant and the prosecution witness Danish Hussain are cited by the complainant’s counsel as evidence that “must be read together as a composite communication and a contemporaneous corroboration of the prosecuterix’s testimony of rape”. It is the prosecution’s case that the complainant indicated a “sexual assault situation” when she whatsapped Danish from the house of the accused.

Here is the thread of the messages:

Complainant - Wtf

Danish Husain – What happened baby

Complainant – Mehmood baby it’s a mess

Danish Husain – Why

Danish Husain – What happened

Complainant - I’m stuck here. He told me we were going to wedding, he got super drunk Anusha lft him then is back I don’t know what to do

Complainant – Dan I wish you were here

Danish Husain – What wedding baby

Danish Husain – You are stuck with Mahmood and Anusha is gone?

Complainant – I don’t know I talked to him in the and then later he said wedding I got here and he’s crying. People are here anush just got back. Locked in room. I’m in living room and can’t get a cab.

Complainant – Dan when I get in auto I need to talk

Danish Husain – You mean at his home?

Danish Husain – Wtf is happening?

Danish Husain – Who else is here?

Complainant – Yes. I don’t know two guys

Complainant – Yes at home

Danish Husain – Ok

Complainant – My uber is not working and meru won’t get me. They ordered me cab

Complainant – I’m in dress for wedding but I just want to go

Danish Husain – And MaFa is locked in his room and crying?

Danish Husain – Where is Anusha?

Complainant – No he’s here. Anusha is locked in room

Danish Husain – Who are those two guys

Complainant – I can’t remember names

Complainant – Baby

Danish Husain – Ok

Danish Husain – Just say goodbye

Danish Husain - Leave

Complainant – I am really upset

Complainant – Ok

Danish Husain – And you will find an auto at the exit of the colony

Sun, March 29th

Danish Husain – How are you baby?

Complainant – Better just woke up

Complainant – I have to go meet someone but I’ll talk to you in a bit

Danish Husain – Ok baby

First, these messages do not mention any sexual assault. Whatever one might read into them later, the messages make reference to many trivial things, but there is not even a hint of personal misbehavior towards the prosecutrix.

Second, if the complainant’s lawyer was so convinced that the whatsapp messages were unimpeachable contemporaneous evidence of rape, why was the prosecuterix reluctant to place them before the court? The production of these messages was resisted by the prosecuterix even when the Defence moved an application for a copy. It is only when the FSL was directed to produce her laptop and phone didthe complainant reveal that the messages had been deleted by her ‘inadvertently’. It was demonstrated in the court by the defence counsel that deletion of a thread of messages would be a three-step act, and cannot be done by ‘mistake’. Similarly, the prosecution witness Danish Hussain too claimed that the messages had been deleted from his phone when it crashed and caused loss of all data.

Third, the judge allowed printouts of screen shots of these whatsapp messages as ‘evidence’.This, as one will observe, is very a different standard of evidence than that applied to those witnesses who did not conform to the prosecution case.

For Part Two: Here

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

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MANISHA SETHI