Legal Advice

Five months delay FIR in rape case

Query

I recently came to know that daughter of my maid has raped. She is twenty three years old and a married woman. Her husband has thrown her out from his home because she is pregnant. Now she has been living with her mother. The offence was committed five months ago. So this would be the five months delay FIR in rape case. Can she lodge an FIR after such a long delay? Husband of my maid is trying to lodge the FIR but still no FIR has been lodged. The accused is her relative and used to come to her home. Accused also knows her husband and they were friends.  Husband of the victim does not agree to lodge an FIR. Now I want to take action against the accused because he has ruined her life. She said that the accused came to her parental home and gave her some food to eat. After eating the food she became senseless and went into unconscious condition. In that situation he raped her. She did not disclose the incident to anybody until getting pregnant. Sir, please suggest how to lodge an FIR and what will be the consequence of that case?

Advice

Prima facie the facts of your case infer that prosecutrix (victim) is a consenting party in rape. She might gave her consent for sexual intercourse. Accused is her relative, she is a major and married woman. She did not disclose this incident to anyone until she became pregnant. 

Explanation about delay in lodging FIR

Five months delay is too much time. However, the victim does not lodge prompt FIR in rape case. But there should be some proximity between the offence and lodging of FIR. If you have a proper explanation then you can lodge the FIR even after a delay of five months [Mukesh v. State of Chhattisgarh 2014 AIR SCW 5618].

Satisfactory explanation of delay is mandatory for the prosecution case. Otherwise the accused will get the benefit of doubt. Satisfactory explanation in delay of lodging FIR will rule out the possibility of false implication of accused. This will eventually fortify the case of prosecution [State of H.P v. Shree Kant Shekari AIR 2004 SC 4404]. 

How to lodge FIR when SHO has refused?

The officer incharge of the police station (SHO) has refused to lodge an FIR. Hence, you should invoke Section 154(3) crpc. You should send the information to the Superintendent of Police (SP) by registered post. The SP has the power to direct his subordinate officer to lodge the FIR and do the investigation.

If the SP does not take any action on your information then you have to approach the Magistrate under Section 156(3) crpc. Section 156(3) crpc empowers the Magistrate to direct the concerned police officer to lodge the FIR and initiate the investigation. This is the procedure of lodging FIR when the SHO has refused to lodge it. However, the police officer cannot refuse to lodge an FIR if information disclosed a cognisable offence. 

Also read: Police officer is bound to register FIR

Consequence of the case

I cannot say anything about the probable consequences of the case. Evidence of the victim about her consent will form the basis of conviction. If she successfully proves that she has not given consent for sexual intercourse then acused may be convicted. 

Victim was in unconscious state of mind at the time of sexual intercourse. It is hard to prove, after five months, that the accused had given intoxicated food to the victim. Incident occurred when no one was present in the house. 

Accused is a relative of the victim, he had smooth access in the victim’s house. All these facts prima facie suggest that victim might have given consent of sexual intercourse. Five months delay in FIR of rape case is also goes against the victim. The accused may get benefit of doubt on the fact of inordinate delay in lodging FIR.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Criminal Law

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