The court reiterated that a promise of marriage does not constitute consent in cases of sexual assault, emphasizing the need for prima facie evidence for charge framing.

JUDGMENT

Swarana Kanta Sharma, J.

1. The instant revision petition has been filed by petitioner under Section 397 read with Section 482 Code of Criminal Procedure Code, 1973 ("Cr.P.C.") against the impugned order dated 03.08.2022 passed by learned Additional Sessions Judge (SFTC), Dwarka Courts, New Delhi in Case No. SC505/2022 titled as "State v. Dharmender".

2. Brief facts as disclosed in the petition are that prosecutrix /respondent no. 2 had filed a complaint against the petitioner on 17.12.2021 and on basis of same FIR was got registered for offences punishable under Sections 376/377 Indian Penal Code, 1860 ("IPC"). The prosecutrix/respondent no. 2 alleged that in the year of 2018, petitioner had sent friend request on Face book and they become friends as both belong to the same village and knew each other very well through their families. They remained friends for around 3 years. Petitioner convinced the family members of the prosecutrix and planned a tour of Vaishno Devi on 22.07.2021. As per complaint, it is alleged that in Vaishno Devi for the first time the petitioner forcibly made physical relation with prosecutrix without her consent and after that promised to marry her. To appease the complainant he had put vermilion on her hairline. A matrimonial dispute was going on between prosecutrix with her husband and the petitioner knew about the same and during the tour of the Vaishno Devi the petitioner convinced the prosecutrix that he will engage a good lawyer and get matrimonial dispute settled soon and will marry her. On 31.07.2021, to settle the old matrimonial dispute, the petitioner asked prosecutrix to meet some good lawyers dealing with divorce matter in Goyla Dairy and the petitioner forcibly took her in his car and offered some drink in the car. After consuming the drink, she became disoriented and was taken to a Hotel in Goyla dairy. On that day 31.07.2021, the petitioner forcibly made physical relation with prosecutrix and also made video containing her nude picture etc. before dropping her home. The petitioner had shown her nude photos and videos which has caused trauma and pressure as her matrimonial case was pending. Next morning, the prosecutrix had called the petitioner and had requested him to delete the nude photos and videos. The petitioner had assured him that he will not misuse the same and again assured her that he will marry her. Thereafter on several occasions, physical relations were made between the two. On 28.11.2021, the petitioner met prosecutrix at her house and made physical relations with her and thereafter, he stopped meeting her. He had also threatened on phone that he would kill her. On 09.12.2021 at 11:30 AM, the petitioner asked the prosecutrix to meet him or he will viral the nude photos and videos on social media. Based on the complaint, an FIR was registered on 17.12.2021 and charge sheet was filed under Sections 376/377/328/506 IPC.

3. The learned counsel for the petitioner argued that the learned Trial Court has committed error in framing charges and has failed to appreciate that there is no prima facie evidence against the petitioner. The Prosecutrix has not clearly mentioned any specific date of the commission of offence and has given contradictory versions in her complaint and her statement under section 164 Cr.P.C.regarding the alleged offence.

4. The learned counsel on behalf of the petitioner further argued that there is no medical evidence against the petitioner regarding administration of intoxicating substance as alleged by the Prosecutrix and the statement under Section 161 Cr.P.C. of PW Ms. Shalu has not been appreciated by the learned Trial Court. He further argued that in the absence of FSL report, the charge has been wrongly framed under Section 328 IPC against the petitioner.

5. The learned counsel for the petitioner relied on the following judgments:-

a) Mahinder Kumar &Ors. v. The State, 2017(3) JCC 1510

b) State (NCT of Delhi) v. Jiwan Kant Jain an