The main legal point established in the judgment is the requirement of a prima facie view at the stage of framing the charge, the importance of the initial complaint, and the distinction between rape and consensual sex.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. The present petition is directed against the order on charge dated 06.01.2016 and order dated 21.01.2016 whereby the trial court has framed charge against the petitioner for the offence punishable under Sections 417/376 IPC in FIR No. 1561/2015 registered at P.S. Malviya Nagar.

2. The brief facts of the case, as noted in the impugned order, are as follows:-

“1. The case of the prosecution as per the chargesheet is that on 14.08.2015 the prosecutrix gave her statement in police station Malviya Nagar stating to the following effect: She was living with her 3 children in a rented accommodation. Since the past 2 years she was staying in different rented accommodations in Chirag Delhi. She was a permanent resident of village Kalani in district Gorakhpur Uttar Pradesh. Her one daughter was living with her in-laws. When she was living in her in-laws house in Bihar her husband used to beat her because of this she became fed up and came with someone to Chirag Delhi. Here she started doing the job of cooking in houses. After 10 years of coming to Delhi her husband also came to Chirag Delhi. He used to beat her. In September 2014 she along with her children and husband started staying in T-265 Chirag Delhi. One day when her husband was beating her the accused who was living in the opposite house got her freed from her husband and assured her that he was unmarried. He assured her that he would look after her and her children and would bear all the expenses and that she should stay with him. He told her to leave her husband. She believed the accused and the accused used to come to her room and established physical relations with her. The accused took full advantage of her helplessness. Because of these reasons her husband left her and went away. Since September 2014, the accused established physical relations with her in her rented accommodation and also in his house. It was on 18.07.2015 that he for the last time in her room had physical relations with her. About 15 days before her filing her complaint the accused went away somewhere. The accused had taken advantage of her helplessness and established physical relations with her. Now she learnt that the accused was married and his wife are living in Ghaziabad. The accused played with her honour and established physical relations with her and now had left. She wanted legal action against him.

2. On the basis of the above complaint of the prosecutrix the FIR was lodged under Section 376 IPG. On 17.08.2015 the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Wherein she stated to the following effect: She worked as a domestic help in houses. She came from her village in Gorakhpur 2 years back. Her husband used to beat her that is why she left her house and came to Delhi in search of work. Her husband also after 10 days came to Delhi. After coming here he used to fight with her as he did earlier. 3 to 4 times she had to change her house as because of the fights no one was ready to keep them for long. One day her husband beat her and she got badly hurt. Her husband ran away. Since then she did not allow her husband to enter the house, in Chirag Delhi in front of her house the accused was living. Everyday he used to see them fighting. About 5 months back when her husband ran away the accused gave the false promise of marriage. When earlier there used to be fights and her husband used to go away the accused used to come and stay with her. For the past 8 months he was living with her as husband and wife. The accused did not tell her that he was already married. For the past 8 months he was establishing physical relations with her saying that he would marry her. About 20 days back the accused ran away. He had also switched off his phone. Thereafter she filed a police complaint The prosecutrix was taken for her medical examination however, she refused to undergo a gynaecological examination. The accused was arrested. He was sent for his medical exami