The importance of consent and the requirement to establish that the accused did not have any intention to fulfill a promise made to the prosecutrix.

Hima Kohli, J.

1. The present petition has been filed by the petitioner/State under Section 378 Cr.P.C. praying inter alia for grant of leave to assail the judgment dated 27.9.2010 passed by the learned ASJ in SC No.181/2012, whereunder the respondent has been acquitted in case FIR No.528/2008 registered under Section 376/506 IPC at PS Krishna Nagar, Delhi.

2. The brief facts of the case as culled out from the impugned judgment are that in October, 2007, the prosecutrix had come in contact with the respondent through internet chatting, whereafter both the parties had started meeting each other and the respondent had expressed to her that he was in love with her and had insisted that he wanted to marry her. One day on 17.02.2008, the respondent took the prosecutrix to his house and when his family members were not present there, the respondent had forcibly established a physical relationship with her and thereafter continued to exploit her while holding out a promise of marriage to her. The prosecutrix alleged that in the month of September, 2008, she had tried to commit suicide out of desperation and the respondent had got her admitted in a hospital for treatment. Thereafter, when the prosecutrix had informed her parents about her relationship with the respondent, the parents of both the parties had met with each other but they did not agree to their marriage. The prosecutrix then filed a complaint with the SHO, PS Krishna Nagar, Delhi on 18.11.2008 and subsequently, the aforesaid FIR was registered on 9.12.2008 under Section 376 IPC.

3. After the investigation was concluded, the case was committed to the Sessions Court and charges were framed against the respondent. The prosecution had examined 12 witnesses in support of its case, including the prosecutrix (PW-2), the Manager of a hotel in Mussoorie (PW-3), and IO Sarabjit Singh Minhas (PW-12). After recording the testimony of the prosecution witnesses, the statement of the respondent was recorded, wherein he had stated that he had established a physical relation with the prosecutrix with her implicit consent and there had never been any force, pressure or false assurance from his side. However, no defence evidence was led in the case.

4. After examining the ocular and the documentary evidence on record and considering the arguments addressed by the counsels for the parties, the trial court had arrived at the conclusion that the prosecution had miserably failed to prove the charge against the accused/respondent beyond reasonable doubt and resultantly, he was acquitted for the offence under Section 376 IPC. Aggrieved by the aforesaid acquittal order, the State has filed the present petition seeking leave to file an appeal against the said judgment.

5. Learned APP for the State submits that the trial court had erred in overly emphasising the events that had occurred after the incident of rape in the month of February, 2008 instead of taking note of the events prior to the incident, i.e., the act of the respondent taking the prosecutrix to his residence knowing fully well that there was nobody at home and using a ploy to persuade her to visit his residence to meet his parents. He further submits that the trial court had failed to appreciate the fact that till the stage when the respondent had established a physical relationship with the prosecutrix, there was no talk of any promise to marry her and therefore it could not be concluded that the prosecutrix was a consenting party to the physical relationship with the respondent. It is lastly argued that the delay in lodging the aforesaid FIR against the respondent cannot be treated as fatal to the case.

6. The Court has heard learned APP for the State, perused the impugned judgment and examined the trial court record. A perusal of the records reveals that at the time of the incident, the prosecutrix (PW2) was 24 years of age. She had stated in her cross-examination that when the respondent had requested her to meet his parents,