Absence of prior concert or intentional aid precludes charge of gang rape and abetment.

The Prosecutrix/Revisionist filed a complaint alleging she was sexually assaulted on 29.12.2020 at an Airbnb in Greater Kailash, Delhi, during a gathering with acquaintances Madhav Bhutani, Abhinav Malhotra, and Annanya Singh

She alleged her drink was spiked (Section 328 IPC), she was wrongfully confined, and Madhav committed rape while Abhinav and Annanya aided the act and Abhinav/Madhav later threatened her with videos (Section 506 IPC)

The Trial Court, vide order dated 16.02.2023, charged Madhav under Sections 323/341/342/354/376 IPC but discharged him under Sections 328/506 IPC

Co-accused Abhinav and Annanya were discharged of all charges, including Section 376D (Gang Rape) and 109 (Abetment), for lack of "grave suspicion"

The Prosecutrix challenged these discharges via revision petitions

The Court applied the principles of Sections 227 and 228 of the CrPC as interpreted in Sajjan Kumar v. CBI, which held that while a Judge can sift evidence to find a prima facie case, they cannot act as a mere mouthpiece for the prosecution; "grave suspicion" is required for charging, whereas "mere suspicion" warrants discharge

Regarding Section 328 IPC, it relied on Prashant Bharti v. State (NCT of Delhi), establishing that charges of poisoning/intoxication cannot stand without medical evidence or recovery of the substance

For Abetment (Section 107/109), the Court cited Shri Ram v. State of U.P. and Pawan Kumar v. State of H.P., which mandate proof of "intentional aiding" and mens rea, clarifying that mere facilitation or presence without the intent to aid the specific crime does not constitute abetment

The Court observed that the allegation of spiking drinks under Section 328 lacked any medical corroboration, recovery of substances, or mention in contemporaneous WhatsApp chats

It noted that the Prosecutrix admitted to voluntary alcohol consumption in chats with her cousin

Regarding Section 506, the FSL reports showed no existence of the alleged threatening videos, and no such threats were mentioned to friends immediately after the incident

Concerning Section 376D and Abetment, the Court found that the Prosecutrix herself initiated the party planning, contradicting the "pre-planned trap" theory

The evidence suggested Annanya took the phone to avoid a confrontation with the victim's mother due to the victim's intoxication, not to facilitate rape

Similarly, Abhinav’s purchase of condoms or booking the flat did not prove mens rea for rape; they could have been for personal use or general preparation

The Court concluded that since neither Abhinav nor Annanya were present during the specific alleged assault and no "prior meeting of minds" was evident, the threshold of "grave suspicion" for gang rape or abetment was not met

It held that while charges under Sections 376/341/342/323 IPC against Madhav were appropriate based on the victim's statement, the discharge of Abhinav and Annanya was justified as their actions did not constitute "intentional aiding" or "active complicity"

The Court affirmed that subjecting the co-accused to trial on "mere suspicion" without foundational facts for Gang Rape or Abetment would be an abuse of process