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

Aditi Rai ,
  29 November 2022       Share Bookmark

Court :
Delhi High Court
Brief :

Citation :
2022 DHC 005071

State v. Mohd. Javed Nasir & Ors.

23 November 2022

Swarna Kant Sharma

Petitioner- State
Respondent- Mohd. Javed Nasir & Ors.


In the present case, the learned Judge of Delhi High Court condemned the 'overzealous approach’ adopted by trial Courts of appreciating evidence in detail at the time of framing of the charges only. It was observed by the Court that such tendency of concluding the entire case even before it could begin is ‘fatal to the justice and faith of the victim in the criminal justice system’.



Section 164- confers power upon the Magistrate to record confessions and statements during the course of investigation.

Section 376- provides for punishment for rape in the form of imprisonment of either description which lasts up to at least 7 years, but may extend to 10 years or life imprisonment, and the convict is also liable to pay fine.


  • It was alleged by the victim, who was a 5 month pregnant lady, that on Nasiruddin (accused) made some wrong gestures toward her. On her accusation, a quarrel broke between the victim, the accused and his sons.
  • About three days later, the accused persons entered the victim’s house forcefully and assaulted her with the intention to outrage her modesty.
  • An FIR for the same was registered by the victim. She was also subjected to medical examination on account of stomach ache and bleedings from her genital.
  • In her statement to the Magistrate u/s 164 CrPC, the victim stated that one of the accused persons had inserted his finger inside her genitals. As a result, a charge against section 376 IPC was added.
  • A charge sheet under sections 376/323/354/354-B/458/509/34 IPC was filed.
  • The Trial Court, however, held that no case is made out against the accused party as far as section 376 IPC is concerned. Prima facie, only a case against other sections(as stated in the charge sheet) is made out.


  • That the Trial Judge has appreciated the evidence in detail at the stage of framing of charges, which is against the intention of the Code.
  • That the learned Judge had failed to take into account the settled law that if two views are possible at the stage of framing of charges, the view that favors the plaintiff should be resorted to.
  • That the victim had admitted that she did not mention the occurrence of the incident earlier due to the fear of her honour being compromised.


  • That the allegation of rape is a concocted story. The absence of any history of sexual assault or pain in the abdomen etc. in the medical report of the victim points out towards the same.


  • While adjudicating upon the matter, the learned Judge relied on various judgements passed in the light of the matter at hand.
  • A reference was first made of the case of Sajjan Kumar v. CBI [ (2010) 9 SCC 368], where in the Apex Court made the following observation:
  • “At the time of framing of the charge, the probative value of the evidence can not be gone into but before a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible”
  • Similarly, in the case of Asim Sharoff v. National Investigation Agency [(2019) 7 SCC 148] it was observed that at the time of framing of charges the court is not supposed to conduct a ‘mini trial by marshalling the evidence on record.’
  • The learned Judge further went on to refer the case of Neha Monga v. State [(2012) 10 AD (Delhi) 338] which dealt with the same issue as the present case. The Delhi High Court in that case held that the trial Court had surpassed its jurisdiction, which was not permitted by law, by discharging the accused on the ground that nothing had been said about them being rapists in the FIR but was only so admitted in the statement made u/s 161 & 164 CrPC before the Magistrate. It was further held that the question as to why this information was omitted to be registered in the FIR could be gone into only at the time of the trial and not at the stage of framing of charges.
  • The case of Hazrat Deena v. The State of Uttar Pradesh was also taken into consideration by the learned Judge. In Hazrat Deena Case, it was held that discrepancies between FIR and any subsequent statement u/s 164 can not be a ground for discharge without trial.
  • The Court held that, in the present case, the trial Judge went on to ‘marshal the evidence and find contradictions in the same’ at the stage of framing of charges. In light of the above judgements cited and the settled position of law with regard to framing of charges, it was held that such an approach is not in keeping with what the Code of Criminal Procedure intends and thus, the impugned order of the trial Court must be set aside.


The learned Judge while concluding that a statement made under section 164 CrPC disclosing the offence of rape shall be sufficient to frame charges u/s 376 IPC, took into account the need for opting a considerate and liberal approach, at the time of framing of charges, while taking into account the statements made by a victim of sexual offences as such victim is the only witness in majority of cases of sexual offences. The Court should also take into account the physical and mental agony that the victims of sexual offences face after incidents of such nature.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

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