Rape Accused Should Not Be Discharged Merely Because...: Delhi High Court

The Delhi High Court has said an accused should not be discharged of the offence of rape merely because the survivor had not levelled the allegation at the stage of the FIR.

Justice Swarana Kanta Sharma said the survivor's statement before a magistrate disclosing the offence of rape shall be sufficient to frame charges under section 376 (punishment for rape) of the Indian Penal Code (IPC) and courts must consider the "aftermath" of such an incident, which causes physical and emotional trauma to the survivor and that at times, she might not be in an emotional or physical state to take an immediate stand against the assailant.

The judge emphasised that the survivor's statement should be viewed from a considerate and liberal perspective at the time of framing charges and an "overzealous approach" to conclude the entire case by appreciating evidence even before it begins is fatal to the case as well as to justice and the faith of the survivor.

"Many a times, a person may not be in an emotional or physical state to take an immediate stand against the assailant or to go through further trauma of investigation by the police or through an intrusive medical examination, and an accused should not merely be discharged under section 376 because the prosecutrix has not stated about the same in her FIR or during MLC (medico-legal case)," the court said in its order dated November 23.

"An overzealous approach to appreciate evidence in detail and conclude the entire case even before it begins is fatal not only to the case at hand, but, at times, to justice and the faith of the survivor in the criminal justice system," it added.

The court's order came on a revision petition filed by the State assailing a trial court's order that discharged an accused under section 376 of the IPC while framing charges for other offences.

The trial court had said no case was made out to proceed against the accused for the charge of rape because the prosecutrix "never stated in her complaint that she was raped" and also did not mention it in the MLC, and the allegation was made only in her statement under section 164 (recording of confessions and statements by magistrate) of the Code of Criminal Procedure (CrPC).

Setting aside the decision, the high court observed that at the stage of framing charges, the trial court must not venture into the appreciation of evidence when it is bound to frame charges where there is a prima facie case to show that an offence has been committed.

"In the given facts, a charge under section 376, IPC could have been framed solely on the basis of the statement made under section 164, CrPC even if such an allegation was not made in the FIR or in the statement under section 161, CrPC (examination of witnesses by police). This is so because in offences like rape, where only the survivor is the witness in majority of the cases, the statement made by the survivor should be looked at from a considerate and liberal perspective at the time of framing charges," the judge said.

"A statement made under section 164, CrPC disclosing the offence of rape shall be sufficient to frame charges under section 376 of the IPC," the court said.

It allowed the State's petition and framed a charge under section 376, IPC against the accused, in addition to the other charges already framed against him.
 

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