‘No injury, delay in filing FIR could mean false implication’

Court gives bail to man accused of raping stepdaughter.

Written by Sadaf Modak | Mumbai | Published:June 5, 2017 5:32 am

WHILE DECIDING on the bail application of a man accused of raping his stepdaughter, a court has recently observed that it was “highly impossible” that the sexual abuse had not been noticed by the girl’s family members. The court has also made observations on the delay in filing the FIR as well as the victim’s marriage, to state that the “possibility of false implication cannot be ruled out”.

The accused has been booked under sub-sections of Section 376 of the Indian Penal Code along with relevant Sections of the Protection of Children from Sexual Offences Act (POCSO) Act. The prosecution submitted before the court that the accused is the minor victim’s stepfather, who had taken advantage of her age and committed penetrative sexual assault on her more than once.

The court was informed that the alleged crime first took place in June 2012. The prosecution submitted that “forceful sexual assault” continued on the victim till August 28, 2016, after which she filed an FIR on August 29. The court has, however, said that the FIR came to be lodged after the “huge delay of four years”, for which “no plausible explanation has come on record”.

It also said there were 12 members in the family of the accused and the victim. “Considering the number of family members, it is highly impossible that the alleged act was not noticed or witnessed by any member at any time. Incident put forth dated 28.8.2016 appears to be improbable as six members of the family were present in the house or near the house,” the court said.

The court also took into consideration the submission made by the defence advocate that the victim got married within two days of the man’s arrest, on November 21, 2016. The defence had argued that had the sexual assault taken place, “no boy would have married the victim, that too within a short time of the incident”. The advocate also said that the medical report of the victim showed “no evidence of fresh injuries”.

“Prima facie, it appears that if the victim had really been sexually assaulted forcefully twice on 28.08.2016, then some injuries would be found either on her private parts or other parts of her body. Hence, considering the delay in lodging the FIR, marriage of the victim within two days of the arrest of the accused and considering 12 family members in the house, possibility of false implication cannot be ruled out,” the additional district sessions court in Vasai said.

Legal experts have said this amounts to putting the burden of proof on the victim. “At the stage of bail, the court need not comment on the facts of the case as the trial is yet to commence and witnesses are still to be examined. The parameters to be examined are whether the child will be secure if the accused is granted bail or whether there is a possibility of tampering of evidence by the accused,” said Flavia Agnes, legal scholar and women’s rights activist.

She added that in cases of sexual abuse by family members, the victim may be under pressure to not report the offence or there could be suppression, which has to be taken into account when hearing such matters.

Supreme Court rulings in previous cases have held that injuries are not necessary for confirmation of rape. The court has also ruled that while ordinarily, delay in filing of an FIR would be looked upon as favouring the accused, the criterion is different in a case involving rape of a woman, as the delay could be due to variety of factors.

While granting bail to the stepfather, the court said that since the victim was now married and lived in another city, there may not be much danger of her being pressured by her stepfather. The accused has been released on a surety of Rs 15,000 with the condition of not influencing or intimidating prosecution witnesses or tampering with prosecution evidence.

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