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3. The prosecutrix has stated that in the first instance, she was scared because of the strength of the appellant but because she did not want to get hurt, she pretended an orgasm. The appellant tried to repeat what he had done but in the meantime the door bell 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 (PW10). She also told Ashish (PW12) that she wanted to go but was asked by Ashish to stay back for a while as in case the wife of the appellant, Anusha (not examined) did not return, she will have to feed the appellant. The prosecutrix, in the event of the driver of the MERU cab not locating the house of the appellant, wanted to get a rickshaw but she was dissuaded and was told that it was dangerous for her in the night to take a rickshaw ride. The wife of the appellant in the meantime returned and the appellant asked her to go. Taxi was fetched by Ashish. When the prosecutrix got into the car, she immediately called Danish Hussaini (PW10) and told him about what had happened between her and the appellant. She has stated in her complaint that she wanted to take legal action against the appellant for his act and that she did not want to go through the medical examination.

15. What is new and different in the deposition of the prosecutrix as compared to the averments made in the FIR is that she claims to have remembered the case of Nirbhaya, whose offender had declared that if she (Nirbhaya) had not protested, she would have lived her life. The prosecutrix claims that she kept quiet and faked an orgasm in order to avoid any physical harm to her. It was at that time that the door bell rang; when she got up and found that Ashish and another person, namely the brother of the appellant (Mashood @ Roomi) had come back. The aforesaid two persons again started comforting the appellant. The prosecutrix went back to the living room and called a MERU cab. She told Ashish that she was wanting to leave but Ashish insisted her to stay on for five more minutes, as in case, the wife of the appellant did not return, somebody would be needed to feed the appellant. The prosecutrix suggested to Ashish to order a pizza for the appellant. The prosecutrix waited for the MERU cab. The cab driver could not find out the house of the appellant and finally refused to come. The prosecutrix wanted to leave by rickshaw but it was told by Ashish that it was dangerous in the night. Ashish thereafter offered to fetch a cab for her. It was at this point of time that the prosecutrix started texting Danish Hussaini (PW10) through WhatsApp from her mobile. The wife of the appellant, in the meantime had arrived. The appellant came back to the living room and asked the prosecutrix to leave the house. The prosecutrix wanted to talk to someone who knew her and the appellant, both. So she texted Danish Hussaini through WhatsApp and told him that the appellant was in a mess, that she was invited by him for a wedding but the appellant was drunk and his wife had left the house and had come back only at that time when the prosecutrix wanted to get out of the house but she was having a problem in getting a cab. She texted and asked Danish Hussaini to talk to her. Danish is said to have replied to her by suggesting that she should leave the house and get an auto and once she is into the car, Danish would talk to her. Ashish by that time had called a cab. After getting into the cab, the prosecutrix called Danish and told him that accused has committed forced oral sex on her and she is very upset. Then Danish asked her as to whether she had protested, she replied in the affirmative. She talked to Danish for about half an hour. Since she was not in a good shape of mind and did not want to be left alone, she went to Hauz Khas Village where she reached at 11.30 p.m. and sat there till around 1.30 a.m, when she finally left that place for her house at Jung Pura Extension.

(b) The prosecutrix had been cracking jokes and indulged in playful banter immediately prior to the occurrence.

(c) During the act, the prosecutrix feigned orgasm.

(d) Prior to the act, the appellant had asked her for sexual favours to which she did not stoutly resent or deny.

(e) The prosecutrix continued to remain in the company of the appellant.

46. With reference to the e-mail dated 30.03.2015, it has been argued that the e-mail was affectionately remonstrative that the appellant went a bit too far on the other night and that the prosecutrix went along and feigned orgasm. The history of intimacy and the unabashed liking/attraction of the prosecutrix towards the appellant may have given an impression to the appellant of consent. The orgasm which was feigned by the prosecutrix, avowedly for the purposes of preventing further damage to her, may have been taken by the appellant as willingness on the part of the prosecutrix because it understood/misunderstood as a non-verbal communication of consent. Absence of any real resistance of any kind re-affirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.