Mere presence not enough for rape charge: Delhi HC

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Mere presence of a person without any “overt” act at the time of rape won’t attract the charge of gang rape, the Delhi high court has said.

“An offence under Section 376D of the IPC is made out when one or more person commits the offence of rape in furtherance of a common intention,” justice Mukta Gupta noted in a recent order, granting bail to a boy who landed up in a party at the invite of his girlfriend whose friend claimed she was gang-raped.

A “chilling out” session by youngsters where they created a WhatsApp group to plan a get-together, booked a room on Air BnB in south Delhi last year, landed three of them in jail.

The complainant girl alleged she was tricked into going to the room booked by her friends and was given sedatives after which she was raped by two of the boys.

The police also booked the petitioner’s girlfriend as an accused as it was alleged she facilitated the offence by bolting the door.

However, the high court, while granting bail to one of the accused youngsters, found that the complainant girl was the one who made the initial programme for the get-together and even created a WhatsApp group of all the accused to discuss the plan.

“There is no allegation against the petitioner that he committed rape on the prosecution, rather her case was that the petitioner and Ananya were dating each other,” HC noted while granting bail to one of the accused, who said he was invited to the party by his girlfriend Ananya and doesn’t even know the victim.

While the girl alleged when she came to her senses the three threatened her to keep quiet about the incident, claiming that the boys had her naked pictures and video, HC highlighted that nothing was recovered from the seized mobile phones.

It also highlighted that probe into the offence has been completed and besides the main chargesheet, two supplementary chargesheets have been filed.
“Co-accused Ananya against whom the allegations are that she bolted the door and took away the phone of the prosecutrix has already been granted bail. The mere presence of the petitioner at the spot without any overt act would not prima facie make out a case under gang rape,” it observed

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