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The Delhi High Court has passed a judgment on 20-03-2023 in the case of X vs State ( NCT of Delhi) CRL.REV.P. 565/2019. Justice Swarana Kanta Sharma dismissed the petition.

FACTS OF THE CASE

To encapsulate briefly, the present FIR was lodged on the complaint of prosecutrix who had alleged that she had got married to one  ̳Mr. Y‘ in the year 2003. While travelling by a train in 2005, she had come in contact with the accused and both of them had become friends. He had started visiting her house and also meeting her family members including her husband. It was alleged that in November, 2005, the accused had come to factory at Dayabasti where the prosecutrix used to work. He had called her out, and thereafter, had offered her a glass of juice, after consuming which, she had become unconscious and the accused had taken her to a room in a rickshaw. Upon gaining consciousness, prosecutrix had realised that the accused had established physical relations with her.

It was alleged that the accused had also threatened to defame the prosecutrix. It was alleged that after about 10-15 days, the accused had shown some obscene photographs in a mobile phone to the prosecutrix and under threat, he had taken her to a railway quarter at Panchkuian Road, New Delhi. He had threatened to show photographs to her family members. Thereafter, the accused had compelled her to establish physical relationship with him several times till the year 2017. In July, 2017, the accused had visited the house of prosecutrix at Palam Colony, Delhi and had established physical relations with her. He had also asked her to establish physical relations with his friends. Thereafter, the prosecutrix had narrated the incident to her husband and a complaint was filed with the police, leading to registration of the present FIR.

During investigation, statement of prosecutrix under Section 164 of Cr.P.C. was recorded wherein she also stated that her son and daughter were born from the physical relationship between her and the accused. DNA test was conducted and the report revealed that the DNA profile of the children matched with the DNA profile of the accused and prosecutrix. The learned Trial Court, vide order dated 14.06.2018 discharged the accused.

This judgment shall govern the disposal of Crl.Rev.P. 772/2018 and Crl.Rev.P. 565/2019, along with pending applications. Since both the petitions arise out of same set of facts and contentions and the issue before this Court in both the petitions is also common, the same are being decided through this common judgment. The petitioner in Crl.Rev.P. 772/2018 is the  ̳State‘ whereas petitioner in Crl.Rev.P. 565/2019 is the  ̳prosecutrix/complainant‘.

The aforesaid revision petitions filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 assail the order dated 14.06.2018 passed by learned Additional Sessions Judge/SFTC- 2(Central), Tis Hazari Courts, Delhi (hereinafter referred to as ‘Trial Court’) in case FIR bearing no. 475/2017, registered at Police Station Sarai Rohilla, Delhi for the offences punishable under Sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), whereby the accused, i.e. respondent in Crl.Rev.P. 772/2018 and respondent no. 2 in Crl.Rev.P. 565/2019 (hereinafter referred to as ‘accused’) has been discharged of offences punishable under Section 376/506 of IPC.

JUDGMENT

In cases of rape, sexual violence and effective enforcement of sexual assault laws, conceptualization of definition of sexual consent is of utmost importance so that the delicate balance between rape and consensual sexual sex is fairly arrived at in such complaints and cases. The issue of consent, thus, merits close scrutiny for analysis of sexual assault offences. No doubt, in cases of rape depending on facts from case to case, consent cannot be said to be inferred or proved by passivity or silence alone from the complainant. However, continuous consent, as in the present, without any whisper of complaint assists the Court in consent analysis. The prosecutrix admittedly, as per her own admission used to herself go to the official accommodation of the accused at his asking continuously for 12 years. Therefore, the sexual element of the relationship and the assumption of ongoing consent to that sexual element are very material to have come to the conclusion regarding her conscious consent in the present case.

In the present case, the petitioner was capable of consciously evaluating the outcome of her consent and the act she was indulging in making her a conscious consenting partner to the sexual relationship.

The court thus concluded that it cannot, by any stretch of imagination, be said that a prima facie case is made out under section 375 of IPC for framing charge against the accused.

Accordingly, the petition stand dismissed. Pending applications, if any, also stand dismissed.

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JUDGMENT REVIEWED  BY ABHINAV CHATURVEDI

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