The absence of specific allegations against the petitioner regarding gang rape under Section 376D of the IPC necessitates the setting aside of the charge, reaffirming the need for prima facie evidence in framing charges.

ORDER :

1. The instant revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) seeking setting aside of the Order dated 13^th March, 2020 and Order dated 25^th August, 2022 qua the petitioner passed by the learned Additional Sessions Judge, South East District, New Delhi (hereinafter “ASJ”).

2. The brief facts of the case are that the petitioner along with other co- accused entered the house of the prosecutrix and allegedly physically assaulted the prosecutrix and her family members. It is also alleged that the petitioner misbehaved with the prosecutrix and took away valuable articles from her house.

3. Accordingly, the instant FIR dated 7^th May, 2016 was registered against the petitioner and other co-accused, and vide Order dated 13^th March, 2020, the learned ASJ held that a prima facie case is made out against the petitioner under Sections 376D/323/354/427/452/395/509/149 of the Indian Penal Code, 1860 (hereinafter “IPC”).

4. Thereafter, vide Order dated 25^th August, 2022, charges were framed against the petitioner along with other co-accused under Sections 323/354/376D/452/509/149/427/395 of the IPC. Aggrieved by the same, the instant revision petition has been filed by the petitioner.

5. Mr. Jitender Sethi, learned Senior Counsel appearing on behalf of the petitioner vehemently submitted that while framing of charges against the petitioner, the learned ASJ has not taken into consideration the material placed on record along with the chargesheet submitted by the Investigating Agency.

6. It is submitted that the charge under Section 376D of the IPC was framed against the petitioner merely on the ground that there are allegations made by the prosecutrix in the statement recorded under Section 161 and 164 of the Cr.P.C. It is further submitted that from a plain reading of the statements of the prosecutrix recorded under Section 161 and Section 164 of the Cr.P.C., it is clear that there is no allegation of commission of the offence of rape against the petitioner.

7. It is submitted that there is no role assigned to the petitioner with respect to the commission of the offence of rape to the prosecutrix by the petitioner. It is further submitted that as per the Section 164 statement, the prosecutrix has made specific allegations against the two other accused persons, namely, Ishwar Dayal and Deen Dayal, disclosing that they inserted their fingers in her private part, and that there are no allegations against the petitioner herein for the commission of offence punishable under Section 376D of the IPC.

8. It is submitted that there is no other material on the record which supports the allegations made against the petitioner for the commission of the offence under Section 376D of the IPC.

9. In view of the foregoing submissions, it is prayed that the said impugned order may be set aside or modified to the extent that the petitioner may not be charged for the commission of the offence under Section 376D of the IPC.

10. Per contra, learned counsel appearing on behalf of the prosecutrix submitted that the learned ASJ has framed charges against the present petitioner on the basis of the statements made by the prosecutrix under Section 161 and 164 of the Cr.P.C. It is duly conceded that in the aforesaid statements of the prosecutrix, there is no allegation against the present petitioner disclosing the commission of the offence of rape and that the only allegation against him is that he misbehaved with th