A common slogan goes, ‘common sense is not so common’. In the same way, regrettably, common sense and basic compassion was often missing when victims of rape tried to obtain justice. Rape is an unspeakably traumatic act, and in a punishing society, predictably, women hesitate, and have hesitated to come forward. Often, it takes days or weeks for a victim / survivor to even make up their minds as to whether they want to report. To the untrained but sympathetic person, this was obvious – that a victim of such a heinous act has innumerable reasons why they may not immediately come forward. Ordinary citizens will normally understand that shame, trauma, denial, and fear will dominate the mind of a rape survivor. Sadly, courts were not always this sympathetic. A delay in filing of the First Information Report under S. 154 (the first complaint) used to be treated as fatal to a prosecution of rape. It was earlier badly reasoned that the ‘delay in the complaint’ was a sign that the complaint was maliciously motivated or false, and did not account for the many obvious reasons why there may be a delay.
Thankfully, that started to change in the last few years, and the Supreme Court has repeatedly noted that a delay in filing of FIR, if it could be explained by the victim / survivor, would not be taken to impact the credibility of a victim. Some of the judgments reflect a reasonable variety of circumstances where the delay cannot be taken to be fatal to the prosecution case. Still, unfortunately, some lower Courts continue to ignore this jurisprudence. This section has a selection of case notes highlighting relevant Indian jurisprudence in this regard.
Case notes curated by Nivedita Mukhija and Linda Louis
