Victim's Statement Under Section 164 CrPC Disclosing Offence Of Rape Sufficient To Frame Charges Under 376 IPC : Delhi High Court

The Delhi High Court on Wednesday said a victim's statement under Section 164 CrPC disclosing the offence of rape shall be sufficient to frame charges against the accused under section 376 of Indian Penal Code.

Justice Swarana Kanta Sharma said an accused should not merely be discharged in a rape case because the prosecutrix has not stated about the same in her FIR or during MLC.

"This is so because in offences like rape where only the victim is the witness in majority of the cases, the statement made by victim should be looked at from a considerate and liberal perspective at the time of framing charges. A statement made under Section 164 Cr.P.C. disclosing the offence of rape shall be sufficient to frame charges under Section 376 of IPC," the court said.

Observing that courts must give a careful consideration to the "aftermath of an incident of sexual violence against any person", Justice Sharma said

"There is no doubt about the trauma which a victim goes has to face, both physically and emotionally, after incidents of such a nature. 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."

The court said an "overzealous approach" to appreciate evidence in detail and conclude the entire case even before it begins is at times "fatal to the justice and faith of the victim in the criminal justice system."

Stating that there might be instances where MLC will not be able to disclose the actual incident, the court said the trial courts must not venture into the appreciation of evidence and start assessing the same at the stage of framing of charges.

"One such example is when it has been alleged that an act of rape has been committed by a finger or by any other object or in any manner where restraint marks or other medical evidence could not be adduced," the court said.

It said rather the trial courts are "bound to frame charges" where there is a "prima facie case" to show that an offence has been committed.

The court made the observations while dealing with a revision petition filed by Delhi Police against a trial court order discharging accused for the offence of rape. While discharging the accused under Section 376, the trial court in 2016 charged them under 323, 354, 354B, 458, 509 and 34 of IPC.

It was the prosecution's case that in March 2016, the accused persons unlawfully entered the house of the victim who was five months pregnant and assaulted her with an intention to outrage her modesty. After the complainant intimated the same to police, she was taken to the police station for registering an FIR.

A day later, the victim went to the hospital due to stomach ache and bleeding from her genitals where she was medically examined. During the course of investigation, a torn piece of kurta pyjama was handed over to the Investigating officer by the victim.

Subsequently, victim's statement was recorded by the magistrate under section 164 of CrPC in April, 2016 wherein she disclosed that one of the accused persons had inserted a finger inside her genitals. The statement led to addition of Section 376 IPC in the case. The trial court in October 2016 discharged the accused of the charge under Section 376 IPC.

Justice Sharma said the learned trial court, at the stage of framing of charge, went on to marshal the evidence and find contradictions in the same.

Setting aside the trial court order to the extent of discharging the accused for offence under Section 376 IPC, the court framed charges under the offence of rape against them, in addition to the other charges framed against them.

Observing that three things were considered by the trial court at the stage of framing of charge i.e., FIR, MLC and statement of the victim under Section 164 CrPC, Justice Sharma said that the court below committed an error in discharging the accused by giving undue weightage to the discrepancies in the statements of prosecutrix.

"It is further noted that the prosecutrix has only mentioned about the offence for the first time during the statement given to the learned Magistrate under section 164 Cr.P.C. wherein it was stated that one of the accused persons inserted a finger in her genitals and had hit her stomach despite the prosecutrix stating to the accused persons that she was pregnant. It was observed by the learned Trial Court that the MLC does not mention any sexual assault rather only the physical assault," the court said.

The court thus observed that a charge under the offence of rape could have been framed solely on the basis of the statement made under section 164 Cr.P.C., even if such an allegation was not made in the FIR or in statement under Section 161 Cr.P.C.

While allowing prosecution's plea, the court however clarified that its observations are only for the purpose of deciding the State's plea and the same shall not have any bearing on the merits of the case during the trial.

Title: STATE v. MOHD. JAVED NASIR & ORS.

Citation: 2022 LiveLaw (Del) 1107

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