• Date rape

Dear Sirs

I am writing to you regarding an incident that happened in 1999. My wife of present date who I met in 1999, was a nurse at a hospital and was in friendship with another boy at the same hospital. As she was new to Mumbai at the time she found his friendship to be interesting and one occasion the boy who was a doctor invited her out for dinner. He took her from Byculla to Versova and offered her alcohol with dinner. The girl being only 22 years old and being quite naive at the time accepted the drinks. 

After the drinks she was senseless and not in herself. He then took her to a room and had sex with her without her will or valid consent. He even tried to call her out again but she refused after realizing what had happened.

It took me 17 ears to get the full story out from her in bits and pieces as she was reluctant to talk about her past, which is understandable. She admits that the only thing she remembers is waking up in the morning with blood stained sheets and without her bottom clothes. She does not recollect the details of the incident and has been blaming herself for what has happened. 

I have explained to her that as she was not in a valid state to give consent and it was against her will it amounts to rape. I am a medical doctor by profession as well and I am aware of certain laws regarding rape. I would like to file a case against the bastard and would like to get some justice for my wife who has been living in guilt for the last 17 years..

The only evidence I have is short email from him which I believe can be traced back to the IP address as he has sent it from an iphone. I established contact with him under my wife's name by emailing him form an email id that I created in my wife's name. I then sent out emails to him posing to be my wife and asking for all the details of what happened that night. He then blurted out that my wife was not in her senses when he had sex with her, which means it was date rape while she was under the influence of alcohol. 

My wife does not recollect the name of the hotel but the police may be able to get a copy of the register by searching the local hotels where he spent the night with her, to bring about a claim against that rapist doctor. Or may be the police can extract that information regarding the hotel by putting pressure on that doctor. I am looking at a minimum 7 years RI for him.
Asked 6 months ago in Criminal Law from Australia
Religion: Christian
The incident is surely very old and the police is likely to face difficulty to trace out the truth by way of investigation.
However that does not mean your wife should remain silent.
She must now pluck up courage and will to fight against the monster for which she can now lodge complaint of rape.
It would be the job of Police to unearth the truth.
Do remember that there is no time limit to lodge complaint of heinous crimes like rape though delay in lodging complainant has inherent damaging effect on the merit of the case.
Best of luck.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
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1) your wife will have to come down to Mumbai and lodge police complaint in Versova police station against the doctor under section 376 of IPC 

2) she can rely upon emai correspondence exchanged with the doctor in support of the complaint 

3) Supreme Court  has held that the delay in lodging an FIR in a rape case is not of much "significance" as the victim has to muster courage to come out in open and expose herself in a "conservative social milieu".
"In rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu.

Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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The delay to launch a complaint of rape is far too long and prolonged, all evidences would have gone missing, semen samples, blood stained bed sheets etc., will no longer be available even if the police register the complaint, the doctor in question will deny the whole thing, email evidence will be treated as secondary evidence and not a direct confession from the accused. your wife will have to relive the horror she suffered 17 years ago in complete details stage by stage if the police were to register the complaint and start the investigation. Sit down with your wife explain to her about the due process of law, if she is willing to go ahead then start by telling her to give a complaint and registering an F.I.R against the accused doctor. 
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
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It was rape for sure but the delay of 17 years makes her case inherently fragile. There is no time limit to file a criminal complaint for rape but you require evidence of required degree to successfully prosecute the rapist. If he has specifically admitted in the email that he had sex with her when she was in an unconscious state then this is sufficient to prosecute him. Engage a lawyer forthwith and show him all the evidence to start the process. He can get more than 10 years if the guilt is proved.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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First of all you have to understand that a consensual sex does not fall under the penal offence of rape. When there is rape, it is natural that the victim would take recourse to law and file a complaint immediately . In this case no FIR/complaint was lodged. The delay in lodging the FIR is considered fatal to the prosecution. A convincing explanation is required to explain the delay. In this case lot of time has passed. it raises suspicion. Moreover rape cases depend more on medical report. You being a doctor must understand that no sample were picked of cloths of both victim and the accused. No report of injuries caused to the victim or the analysis of swabs of the victims parts. You must understand that the law jurisprudence   says that unless proved an accused is innocent. His admission in e-mail is not enough to nail him.   Staying in a hotel together is also not a clinching evidence of rape taken place. 
Yet considering the gravity of offence You can initiate prosecution but at the same time, your wife has to give evidence in person and being located outside India, it might be disturbing. Consider all + - . 
H. S. Thukral
Advocate, New Delhi
519 Answers
125 Consultations
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Rape is a very very serious offense. We believe that Rape, IF it has occurred and is proven, should be punished strictly and in accordance with law. There should be NO lenience or pardon in cases proven beyond reasonable doubt. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion.  The gravity of charge and the exact role of the accused must be properly comprehended. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise.

There are judgments by supreme court of India too in this regard wherein the rape was reported after a gap of long many years can be tried. 

You may proceed with the complaint with the evidences you have gathered so far, the culprit can be nabbed and proper legal action can be initiated against him on the basis of his admittance  of the crime in his email.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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Hi, As the incident taken place 17 years back. If you lodge a  police complaint against that guy  i don't think he will be convicted. He may get the benefit of doubt.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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The delay is inconsequential if you have fresh evidence of rape. She will have to inevitably go to court for her witness deposition. She will also have to face the accused as the latter also has the right to a free and fair trial.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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If case of rape is filed wife has to go to court to give evidence 

2) her testimony is crucial for conviction of the accused

3) she would be subject to cross examination by accused counsel 

4) accused would be present in court during trial 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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If the FIR is registered on the basis of complaint of your wife, the police is likely to submit charge sheet. 
Iff that is done then at the time of trial her statement would be recorded in court. So in the event oif initiation of the case there is no way by which you would avoid her presence in court.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
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Date rape (also known as acquaintance rape) is a form of rape in which there is a potential romantic or sexual relationship between the two partners in the moment the sexual assault occurs. The perpetrator uses physical or psychological intimidation to force a victim to have sex against his or her will, or when the perpetrator has sex with a victim who is incapable of giving consent because they have been incapacitated by drugs or alcohol.
The reasons what you have given are valid because in the circumstances like India, the women are victims on both the fronts i.e., victims of such incidences as well as victims of social fears  or wrath of society when such issues come to light.  Hence most of such cases go unreported and the perpetrators do such crimes increasingly.
If she has decided to take legal action against the culprit she has to appear before the court for deposing evidence, however if she so desires, she can have an in camera trial too wherein she can express the fear of confronting the accused and the court may allow her to be heard without the presence of the accused.
That will happen during trial, now arrange to lodge a complaint and register a FIR on the basis of available evidences.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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It is not question of delay only but the important evidence has been lost with the time. You must understand the law jurisprudence that an accused is innocent unless proved guilty. Cases of rape solely depend upon medical evidence which is lost with the passage of time. As I said you can lodge a FIR and may be a clever investigating officer can resurrect the evidence. As far as proceedings in court are concerned your wife has to depose his evidence and shall be subjected to cross examination. This is held in camera in chamber of the judge. The name of the victim is also not be disclosed but the accused in criminal proceeding is present in the court. 
H. S. Thukral
Advocate, New Delhi
519 Answers
125 Consultations
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you can file FIR because according to section 468 of the CRPC no limitation period for filing of FIR for the offence punishable with imprisonment for more than 3 years. 

but you must  have some prima fecie evidence to  establish commencement of this offence otherwise investigation can not be initiated. you have no medical report, no reasonable excuse for inordinate delay in filing FIR, it is impossible that you can collect any record from that hotel etc... 

Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
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if your wife recollect some information regarding exact venue, time and date, knowledge of their relation in their friend circle, any evidence regarding last seen together at the hotel etc.... you can prove that they were met in hotel and they had chance to establish bodily relation but court may presume that it was consensual sex because no complaint was made by your wife.
Shivendra Pratap Singh
Advocate, Lucknow
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41 Consultations
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