By Anuradha Gandhi and Isha Sharma
Introduction
“Delay in a case of sexual assault cannot be equated with a delay in a case involving other offenses since several factors weigh on the mind of the victim and member of her family”
It is a sad reality that victims of sexual assault often fear of their reputation, discouraging them from seeking justice. The trauma, anxiety about the family’s honour and social stigma are factors that a victim of sexual assault has to consider before taking any action against the perpetrator. Courts in India have taken judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim and delay in lodging the First Information Report in a case of this nature is a natural phenomenon.
The case of Shreekant Sharma v. State of West Bengal1 is a key judgment of the Calcutta High Court that highlighted the discouragement to file an FIR that victims of sexual assault experience, often leading them to not seek justice.
Hon’ble Justice Bibek Chaudhuri highlighted the issue while declining to quash a case registered under the Protection of Children from Sexual Offences Act (POCSO Act) by a minor girl, who alleges to be a victim of sexual assault.
Whether a delay in filing FIR be a reason for quashing the investigation?
The victim filed a case against a senior citizen who is her grand uncle for molesting her on two occasions between the ages of 15 to 16 years old. While the instances took place when she was still a minor, the victim filed an FIR against the alleged perpetrator only after having turned 18 years of age. The accused approached the High court to quash the FIR against him in this case. One of the key grounds on which the quashing was sought was the delay in filing the FIR.
The victim, on the other hand, contended that the reason for delay was that her father refused to believe her. She informed the Court that her father was one of the first few people she spoke to after the first instance but he accused her of lying and having a “dirty head who is misunderstanding things”. As a result, the victim did not dare to narrate the incident to her mother as she herself was going through marital problems.
There was a history of criminal proceedings and pending litigation between her parents and had since been separated, they were sharing the custody of the girl. Since the family was going through extensive financial hardships, her mother suggested to return to her father’s house. Upon hearing this suggestion, the victim vehemently opposed it and communicated with her mother what she had been through. After this, the FIR was filed. The victim also claimed that after the FIR had been filed, there was considerable threats from her family to show criticism towards her action of approaching authorities.
It was argued that the FIR was laced with material contradictions and suppressions as it was lodged after an inordinate delay of two years and was an outcome of concoction and afterthought and lodged with ulterior motive to humiliate the accused and lower his prestige in the estimation of people in the society.
The Court’s view
One of the key questions of law that the Court had to deal with in this case is whether a delay in filing FIR by the victim should be a cogent reason for quashing the investigation against the accused. The Court answered this in negative, pointing out that a plethora of judgements, from various High Court and the Supreme Court, have held that the delay in filing an FIR in cases of sexual assault should not be equated with other cases to quash proceedings or hold an accused not guilty.
The case of Satpal Singh vs State of Haryana2 was relied upon to reiterate that:
“13. In a rape case the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society’s attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR 1995 SC 2472; and State of Punjab Vs. Gurmeet Singh & Ors. AIR 1996 SC 1393)
14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets benefit of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. (vide State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15 SCC 582)
15. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criterial may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon” [vide Satyapal Vs. State of Haryana AIR 2009 SC 2190]”
Additionally, the Court reminded the parties that in the case of State of Himachal Pradesh Vs. Prem Singh3, it was held that
“So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences.” In a tradition-bound country like India, multiple factors are considered by the victim and her family before filing an FIR but it would be quite unfair to quash an FIR basis any delay caused by such consideration.
The Calcutta High Court also relied on the decision of the Supreme Court in the case of Tulsidas Kanolkar v State of Goa4 wherein it was held that, “delay per se is not a mitigating circumstance for the accused when accusations of rape are involved.” Delay in filing an FIR cannot be taken as a ‘ritualistic formula’ for throwing away the case or for casting a doubt on the authenticity of the prosecution’s claims.
The Court also took into account the fact that the victim did try to seek help from the elders around her when she approached her father regarding the first instance of sexual assault right after it took place but was discouraged heavily. Hence, she chose to not confide in him after the second instance. Moreover, her brothers were also threatened by the family when they tried to speak up for her.
Hence, the Court is inclined to believe that there were cogent reasons that caused a delay in the filing of the FIR and technical grounds cannot be cited as a reason for quashing of the investigation in a heinous crime like sexual harassment of a girl child.
It was pointed out by the Court that a victim of sexual assault, especially as minor, has to take into account multiple things before approaching the police for filing an FIR. To begin with, the authorities often tend to not believe young victims of sexual assault. This is coupled by the fact that when a victim comes forward with an allegation of sexual assault, it tags along with the person and their families for the rest of their lives and it is given that they would have to face ostracization by the society in case the accuses is proved innocent. Most importantly, experiencing a sexual assault is an extremely traumatizing thing that often last lifelong. Hence, it is practically impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint. In view of the facts and circumstances, the Court ruled that there were plethora of reasons that were sufficient to explain the cause of delay in filing the FIR.
Conclusion
Victims of sexual assault have to find immense courage within themselves to come out with what they’ve been through due to societal stigma, discouragement for filing an FIR, the fear of not being believed and anxiety about their family’s honour. The Calcutta High Court in the referred case has reiterated that the allegation in the FIR makes out a prima facie case against the accused and hence the FIR registered should not be quashed on a mere ground of technicality.
It must be acknowledged that such is the society that multiple factors play a role in the victim lodging an FIR after a considerable amount of time has passed. The said judgment marks a landmark ruling emphasizing that those who are able to come out with their story to seek justice must not be unheard on grounds of technicality such as delay in filing the FIR.
1 https://www.livelaw.in/pdf_upload/displayp-482928.pdf
2 (2010) 8 SCC 714
3 AIR 2009 SC 1010
4 (2003) 8 SCC 590
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