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Rape Law in Transition, Part 5: Investigation and Delay

29 September 2026 · 12 min read

This is Part 5 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

VI. Investigation

Most rape trials are decided by what the investigating officer did in the first seventy-two hours: who recorded the complaint, how quickly the woman reached the doctor and the magistrate, and whether every sample reached the laboratory under an unbroken record. The new Sanhita has codified much of this, and the Supreme Court has added directions of its own.

The complaint

A first information may be given at any police station, whatever the place of the offence, and it may be given orally or electronically. An electronic complaint is taken on record once the informant signs it within three days (section 173(1)).

Where a woman reports an offence under sections 64 to 71, 74 to 79 or 124 of the Nyaya Sanhita, the information must be recorded by a woman police officer or a woman officer.

Where the victim is temporarily or permanently disabled, the statute adds four requirements: the information is recorded at her residence or a place of her choice; an interpreter or special educator is present; the recording is videographed; and the police must have her statement recorded by a magistrate under section 183(6)(a).

The informant or victim is entitled to a free copy (section 173(2)). The preliminary enquiry permitted by section 173(3) applies only to offences punishable with three years or more but less than seven. It has no application to rape, or to section 69.

An officer’s refusal to register a rape complaint was itself an offence under section 166A(c) of the Penal Code. The informant’s remedies lie to the Superintendent of Police and to the magistrate (sections 173(4) and 175(3)). A complaint made after July 2024 about an earlier offence is registered under the Penal Code and investigated under the new Sanhita (Deepu).

The victim’s statements

The victim’s statement to the police is recorded at her residence or a place of her choice, as far as practicable by a woman police officer. Her parents, a guardian, near relatives or a local social worker may be present. It may also be recorded by audio-video electronic means, including a mobile phone (section 176(1), proviso; section 180).

At trial that statement may be used only to contradict her (section 148 of the Sakshya Adhiniyam). An omission from it counts as a contradiction only in three situations, as a bench of six judges explained in Tahsildar Singh v. State of U.P.1: where the omitted fact is necessarily implied by what was recorded; where it is the negative aspect of a positive recital; and where the two versions cannot stand together.

It is submitted that where the statement was recorded on video, the defence should always call for the recording and test the written version against it. Over time, electronic recording will turn the contest over omissions and contradictions from a matter of argument into a matter of evidence.

For offences under sections 64 to 71, 74 to 79 and 124, the magistrate must record the victim’s statement as soon as the offence comes to the notice of the police (section 183(6)(a)). The statement is to be recorded as far as practicable by a woman magistrate, or else by a male magistrate in the presence of a woman. A victim with a disability is assisted by an interpreter or special educator, and her statement is recorded by audio-video means.

That statement is not substantive evidence, because it is not made on oath at the trial and is not tested by cross-examination. It may be used to corroborate the witness under section 160 of the Sakshya Adhiniyam, or to contradict her under section 148.2 It follows that a conviction cannot rest on the statement alone. Where the victim and every other witness of fact resile at the trial, a conviction founded solely on the earlier statement cannot stand.3

The position is different where she supports the prosecution in chief and resiles only in a cross-examination recorded months later. Her evidence in chief does not then disappear. If it is consistent with her first information, her statement to the magistrate and the medical evidence, a conviction can rest on it.4

The medical examination

The victim must be sent for medical examination within twenty-four hours of the information being received. The examination is conducted by a registered medical practitioner, with her consent or that of a person competent to give it on her behalf (section 184). The report must record: her name and that of the person who brought her; her age; the material taken for DNA profiling; any marks of injury; her general mental condition; the reasons for each conclusion; and the exact times at which the examination began and ended.

The doctor must forward the report to the investigating officer within seven days, and the officer sends it to the magistrate with the other papers (sections 184(6) and 193(6)(a)). The examination of the accused is governed by section 52, formerly section 53A of the Code. Both examinations are considered in Part VIII.

The scene and the forensic chain

For offences punishable with seven years or more, section 176(3) requires the police to send a forensic expert to the scene of the crime and to videograph the process. The obligation runs from a date to be notified by the State, within five years. Practitioners in Uttar Pradesh should check whether that notification has issued.

The ordinary seizures in a rape case are the clothing of both parties, the bedding, the swabs taken by the doctor, and reference blood samples from each. Their handling is now governed by directions of the Supreme Court. In Kattavellai @ Devakar v. State of Tamil Nadu a bench of three judges acquitted a man sentenced to death because the DNA evidence against him could not be trusted. It then laid down directions for every case involving DNA evidence.5

The directions follow the sample through its life. Its collection must be documented with the FIR number and date, the sections, the investigating officer, the police station and a serial number, and the record must be signed by the doctor, the investigating officer and independent witnesses, although the absence of independent witnesses is not fatal if bona fide efforts to secure them are shown. The investigating officer is responsible for carrying the samples to the laboratory with dispatch, and in any event within forty-eight hours of collection, and any delay must be explained in the case diary. A chain-of-custody register must be kept from collection until the case ends in conviction or acquittal; every movement is countersigned, and the register is appended to the trial record. As extracted by the Allahabad High Court, the directions also forbid the samples to be opened or resealed without the leave of the trial court.6

In Neerajpal the High Court sent its judgment to three officers for strict compliance: the Director General of Prosecution, the Director General of Police, and the Director of the Forensic Science Laboratory, Uttar Pradesh.

Electronic material deserves equal care, and Part X considers it. Both parties’ phones should be seized and forensically imaged with hash values. Call detail records should be obtained through the service provider’s nodal officer. CCTV footage should be secured before the recorder’s retention cycle overwrites it.

Completion of the investigation

The investigation must be completed within two months of the information being recorded (section 193(2)). That limit covers offences under sections 64 to 68, 70 and 71, and under sections 4, 6, 8 and 10 of the Protection of Children from Sexual Offences Act. Section 69 is not included. The police report must state whether the woman’s medical report is attached (section 193(3)(i)(h)). The informant or victim must be told of the progress of every investigation within ninety days, an obligation not confined to sexual offences (section 193(3)(ii)). No decision on the consequence of exceeding these limits was found in the preparation of this essay.

The victim’s identity and her care

The victim’s identity is protected by two offences. One is disclosing her identity (section 72 of the Nyaya Sanhita, formerly section 228A of the Penal Code). The other is publishing any matter relating to the proceedings without the court’s permission (section 73).

In Nipun Saxena v. Union of India the Supreme Court held that the prohibition extends beyond her name to any detail from which her identity can be discerned.7 It gave three directions: FIRs in these cases are not to be placed in the public domain; a victim who appeals may be described as “X”; and the police must keep documents bearing her name in a sealed cover.

She is entitled to compensation under the State’s scheme, even where the offender is not traced or identified (section 396). And every hospital must give her first aid or treatment free of cost (section 397).

VII. Delay in Lodging the First Information

Delay is not fatal in itself, but unexplained delay may be. The question the court asks is not how long the woman waited. It is whether her explanation for waiting is satisfactory, and consistent with the rest of the evidence.

Explained delay: the prosecution’s authorities

The Supreme Court has repeatedly recognised that in sexual offences delay often reflects the reluctance of the victim and her family to go to the police, not any want of truth. In Gurmit Singh a delay of two days, spent in an attempt to settle the matter through the panchayat, was held to be explained.8 In Karnel Singh the Court observed that women are slow and hesitant to complain of such assaults, so that delay alone does not make a complaint false, and that a casual and defective investigation does not by itself require an acquittal.9 In Gian Chand it held that delay is not a ritualistic formula for throwing out a prosecution; the delay there was explained by a widowed mother waiting for her family’s support, by an attempt at settlement, and by the particular stigma of an offence committed by a relative.10 And in Tulshidas Kanolkar, where the complaint followed the discovery that the victim was pregnant, the Court held that delay is not in itself a circumstance in the accused’s favour.

Unexplained delay: the defence’s authorities

The defence line is equally settled. In State of Himachal Pradesh v. Rajesh Kumar the Supreme Court held that unexplained delay is commonly regarded as fatal. There the delay was never explained, nor even acknowledged. The victim’s mother had also turned hostile, and the victim had not cooperated with the medical examination. The Court upheld the acquittal.11 In Rajesh Patel v. State of Jharkhand an unexplained delay of eleven days, coupled with an improbable account, was held fatal.12

In relationship cases delay bears on intention. A complaint made years into a continuing relationship makes it hard to infer that the promise was false at the outset (Mahesh Damu Khare). A complaint made sixteen years after the first act speaks for itself (Rajnish Singh).

Using delay at trial

For the prosecution, the task is to put the explanation on the record early. The first information should say who was consulted, why and when; the person who can prove the explanation, whether the relative consulted or the counsellor approached, should be examined; and the explanation should be tied to the reasons the courts have recognised, namely stigma, fear, threats, a family’s attempt at settlement, or the discovery of a pregnancy.

For the defence, the task is to fill the interval. A precise timeline from the act to the complaint, populated with the complainant’s own conduct in between (meetings, messages, travel, gifts), persuades more than any argument about the number of days. Counsel should identify what finally triggered the complaint, and should ask the investigating officer when the police first learned of the matter and whether any earlier entry or complaint exists. Delay should always be argued with the other infirmities in the case, never alone; that is the pattern of every acquittal in which it has counted.

It is submitted that delay in reporting must be kept distinct from delay in medical examination. A late report can be explained by fear or stigma, and the court will accept a good explanation. A late examination loses evidence, whatever the reason, and no explanation restores it.

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 (bench of six judges; majority opinion of K. Subba Rao J for four; no paragraph numbers on Indian Kanoon). ↩

  2. R. Shaji v. State of Kerala, (2013) 14 SCC 266 (Dr B.S. Chauhan and V. Gopala Gowda JJ), paras 14–16. The case concerned murder; the rule is general. ↩

  3. Lal Babu v. State of U.P., 2026:AHC-LKO:43052, decided on 2 July 2026 (Subhash Vidyarthi J), paras 13 and 22. The conviction there was for abduction under section 366; the rule is general. ↩

  4. Selvamani v. State, 2024 INSC 393, decided on 8 May 2024 (B.R. Gavai and Sandeep Mehta JJ), paras 9, 10, 12 and 13. ↩

  5. Kattavellai @ Devakar v. State of Tamil Nadu, 2025 INSC 845, decided on 15 July 2025 (Vikram Nath, Sanjay Karol and Sandeep Mehta JJ), para 44. ↩

  6. Neerajpal v. State of U.P., Criminal Appeal No. 372 of 2018, decided on 23 July 2026 (Allahabad High Court, Lucknow Bench, Division Bench: Rajesh Singh Chauhan and Rajeev Bharti JJ), paras 24, 78 and 79. ↩

  7. Nipun Saxena v. Union of India, (2019) 2 SCC 703 (Madan B. Lokur and Deepak Gupta JJ), paras 11, 12 and 43. ↩

  8. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (Dr A.S. Anand and Saghir S. Ahmad JJ; no paragraph numbers on Indian Kanoon). ↩

  9. Karnel Singh v. State of M.P., (1995) 5 SCC 518 (A.M. Ahmadi CJI and S.C. Sen J; no paragraph numbers on Indian Kanoon). ↩

  10. State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71 (no paragraph numbers on Indian Kanoon). ↩

  11. State of Himachal Pradesh v. Rajesh Kumar @ Munnu, 2025 INSC 331, decided on 20 February 2025 (Surya Kant and N. Kotiswar Singh JJ), paras 7, 8, 10, 12 and 13. ↩

  12. Rajesh Patel v. State of Jharkhand, (2013) 3 SCC 791 (Chandramauli Kr. Prasad and V. Gopala Gowda JJ), paras 8 and 9. ↩

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