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Synopsis

The Bombay High Court has recently observed that the testimony of the minor rape victim cannot be discarded merely on the ground that there was a delay in lodging an FIR.

“In our conservative society, people remain back footed to lodge a report of sexual assault, which has many repercussions. Therefore, merely on the ground of delay, the reliable testimony of the victim cannot be discarded,” the order stated.

In its order dated October 4, 2023, a division bench of the high court at Nagpur comprising Justice Vinay Joshi and Justice Valmiki SA Menezes stated that the mental condition of the victim should be considered, especially, when the head of the family is the culprit.

“FIR itself bears explanation that out of fear of defamation, the report was not lodged initially. One should imagine the mental condition of the victim when the protector and head of the family itself is a culprit,” the order reads.

The high court was hearing an appeal against the order of the Special POCSO Court convicting a father of sexually assaulting his own minor daughter.

The minor had returned from school in the afternoon after which her father asked her to change the clothes. While she was changing her clothes, the father pulled her out of the bathroom and took her to the kitchen. On the point of a knife, he compelled the daughter to undress and forcibly had sexual intercourse with her. The father also threatened her not to disclose the incident to anyone.

The minor informed her mother and elder sister about the incident. Due to the father being the head of the family and the fear of defamation, the matter was not immediately reported to the police. Therefore, the FIR was lodged after a delay of five days.

The division bench noted the delay in filing the FIR was due to the fear of defamation.

“The defence has also criticised the delay in lodging of the FIR. True, though the alleged incident occurred on 06.04.2018, however, the report has been lodged on 11.04.2018 i.e. after five days. It is to be born in mind that it is a case of rape of minor by her own father. The FIR itself bears explanation that out of fear of defamation, the report was not lodged initially,” the court said.

However, the division bench modified the trial court’s order regarding the quantum of punishment. The trial court had awarded a life sentence to the father, but the high court modified it to 14 years of rigorous imprisonment

Case title: Shekhar Dhakhate vs State of Maharashtra & Ors