Rajasthan High Court - Jaipur
Lada Devi W/O Pradhan Jat vs State Of Rajasthan on 11 November, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 3681/2020
Smt. Lada Devi W/o Pradhan Jat, R/o Village Pratappura, P.S.
Lambaharisingh, District Tonk (Rajasthan)
----Petitioner
Versus
The State Of Rajasthan, through Public Prosecutor
----Respondent For Petitioner(s) : Mr. N.A. Naqvi, Senior Advocate, with Mr. Nawab Ali Rathore, Adv. and Mr. Syed Adil Ali Naqvi, Adv For Respondent(s) : Mr. F.R. Meena, PP Mr. Rajendra Yadav, AAG Smt. Vandita Rana, IPS, I.O., present in person HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 06/11/2020 Pronouncement on 11/11/2020
1. This instant criminal misc. petition has been filed by mother of the prosecutrix.
2. Brief facts giving rise to this petition are that the petitioner lodged a report at Police Station, Lambaharisingh, District Tonk on 28/06/2020 against accused namely; Rajendra Loor, Jeetram, Nand Kishore, Girraj Loor S/o Polu, Nanda and Vikas alleging therein that they abducted her minor daughter namely Sarita and all the name accused ravished her minor daughter whereupon an FIR No.0131/2020 at Police Station Lambaharisingh was registered under Section 143, 363, 342, 323, 506, 376(D)(A) IPC and Sections 5(g) & 6 of POCSO Act.
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3. It is stated that the date of birth being 21/10/2005, the victim is aged about 14 years and 6 months. The statement of prosecutrix has been recorded under Section 164 Cr.P.C. wherein she mentioned of having been abducted by one Jeetram and Rajendra from her house and taken to 'Tatia' village in a 'Bara' where Nandkishore, Vikas and Girraj were already present and all five of them threatened her of her life and Rajendra, Jeetram raped here in the 'Bara' and thereafter Nandkishore, Vikas and Girraj took her to another room in other house in the same village and all three of them raped her and left her in the morning at 4.00 AM where here uncle Kushiram and Raju came while searching her and brought her to the house. The date of incident is intervening night of 27th June, 2020 to 28th June, 2020 and the FIR was registered on 28/06/2020 immediately thereafter. On the complaint made under Sections 143, 363, 342, 323, 506, 376(D) (A) IPC and Sections 5(g) & 6 of POCSO Act, the petitioner-mother submits that the local police is not investigating the matter and despite specific names mentioned of all the accused persons, the Police only filed charge-sheet against one Rajendra and did not arrest the remaining four persons and kept the investigating pending under Section 173(8) Cr.P.C.
4. Learned Senior Counsel for the petitioner submitted that all the five accused were called by the Investigating Officer and after obtaining sample of their semen and underwear, the Investigating Officer has left all the four persons scot-free and did not conduct proper investigation. Learned Senior Counsel further submitted the entire investigation is being done in a manner to help the accused persons who are guilty of committing gang-rape on the petitioner's minor daughter and at the same time, the petitioner is (Downloaded on 12/11/2020 at 10:29:20 PM) (3 of 12) [CRLMP-3681/2020] being threatened to withdraw her case against them. The accused persons are from nearby places and the petitioner and her family is afraid of their life being harmed on account of the police being casual and supporting the accused persons and it is submitted that the petitioner does not have any hope to get justice and it has been prayed that the investigation be transferred to an independent agency and monitored by the Court.
5. The Investigating Officer was present in the Court and the case diary was also called. The learned Government Advocate has submitted status report dated 05/11/2020 wherein it is stated that the case is not found to be proved as against other persons namely; Jeetram, Nandkishore, Vikas and Girraj while Rajendra was found to have committed offence under Section 363, 366-A, 376 IPC and Section 3/4 POCSO Act and he was arrested on 29/06/2020 and charge-sheet has also been filed against him while against the others, the investigation has been kept pending under Section 173(8) Cr.P.C.
6. It is also stated by the present IO that the investigation was conducted initially by one Mr. Ashok Kumar Butolia (RPS) from 29/06/2020 to 13/07/2020 and thereafter by Mr. Govardhan Lal Sokariya (RPS), Addl. SP, Malpura from 14/07/2020 to 16/07/2020 whereafter the IO was changed and one Vipin Sharma (RPS), Addl. SP, Tonk remained as IO from 16/07/2020 to 20/08/2020. Thereafter, Mr. Ashok Kumar Butolia (RPS) was again made IO from 21/08/2020 to 08/09/2020 and from 09/09/2020 to 23/09/2020 one Mr. Shivraj (SI), SHO, Lambaharisingh was made as IO who submitted charge-sheet against Rajendra. The present IO Smt. Vandita Rana (IPS), Assistant SP, Circle Deoli has been made as IO from 24/09/2020 and is continuing as IO. (Downloaded on 12/11/2020 at 10:29:20 PM)
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7. The present IO has stated that after being appointed as IO on 24/09/2020, she has received the file and has conducted the investigation and verified the investigation which was already conducted and has further stated that the case diary was sent to the Government Advocate on 21/10/2020 and the investigation is still continuing and record is to be collected and a decision shall be taken with regard to involvement of the concerned persons.
8. Learned Sr. Advocate appearing for the petitioner has pointed out that once the statement of the prosecutrix, who is a minor, has been recorded and it has come on record that at least five persons were directly involved in committing rape and all the five persons were present before the IO, there was no occasion to have not arrested them and conducted thorough enquiry against all the accused persons. The action of the Police is dubious and clearly shows that they want to save the accused who committed abduction and rape on the prosecutrix, a young girl of 14 years and 6 months of age. It is submitted that conduct of the present IO also shows that she is not following the procedure required tobe followed while investigating cases of gang rape.
9. Heard learned senior counsel for the petitioner as well as learned Additional Govt. Advocate.
10. The Supreme Court in order to save incident relating to gang rape, has suo-motu registered Writ Petition (Criminal) by the name of IN RE: ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES, SMW (CRL.) NO(S). 04 OF 2019 and after considering the law and the amended provisions of Cr.P.C. has called for the status report from all the States with regard to the process of recording of the statements of victims vide order dated 18/12/2019 which reads as under:- (Downloaded on 12/11/2020 at 10:29:20 PM)
(5 of 12) [CRLMP-3681/2020] "Thus, we consider it appropriate to call for status report with regard to the following: -
(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?
(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?
(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim? (5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same? (6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?
6.By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub- Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty.
Thus, we consider it appropriate to call for status report with regard to the following:-
(1) whether any case has been registered under theSection 166Aof IPC against any public servant?
(2) whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?(Downloaded on 12/11/2020 at 10:29:20 PM)
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11. However, this Court finds that upon registration of the FIR in the present matter, the concerned authorities have taken up the investigation as if it is a normal case of offence under IPC without looking into the aspect and observations of the Supreme Court and a lady officer was not appointed as an IO in the case and instead one Mr. Ashok Kumar Butolia, Dy. SP, Women Offences Investigation Cell, Tonk was asked to conduct the investigation.
From the case diary placed before this Court, this Court finds that the said Dy. SP Ashok Kumar Butolia, in-spite of there being statements of the prosecutrix and her parents, did not arrest the concerned four persons namely; Jeetram, Nandkishore, Vikas and Girraj whose names were mentioned in the statement recorded under Section 164 Cr.P.C. Neither they were arrested nor information was obtained from them under Section 27 of the Evidence Act. However, it is noticed that semen of the concerned persons was collected and sent for FSL and DNA test and the investigation was kept pending. The aforesaid action of the IO is to be seen in the light of the fact that the statement of the prosecutrix was already recorded before the Judicial Magistrate, Malpura, District Tonk on 01/07/2020 itself. Her statement under Section 161 Cr.P.C. was also recorded by the IO wherein she has mentioned names of six persons (Name of Nanda has not been mentioned in the statement under Section 164 Cr.P.C.). A statement made in Court by a prosecutrix with regard to rape is required to be seen and examined in light of the provisions of the Evidence Act. The IO, has his own level, could not have ignored the statement made before the Court on oath by the concerned prosecutrix. Section 114-A of the Indian Evidence Act provides as under:-
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(7 of 12) [CRLMP-3681/2020] "114A. Presumption as to absence of consent in certain prosecution for rape.-- In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she not consent.
Explanation.-- In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860)."
12. It is noticed from the case diary that the investigation was transferred thereafter to one Addl. SP Mr. Vipin Sharma who has stated that names of other co-accused is on account of social and political enmity although from the evidence collected by the Addl.SP, no document has come on record showing social or political enmity between the parties and it is a case where the Investigating Officer has tried to save the concerned accused persons whose names were mentioned by the prosecutrix making specific allegation of rape against them while stating under Section 164 Cr.P.C.
13. In the opinion of this Court, the IO ought to conduct investigation strictly within the framework of law and the opinion with regard to rape matters cannot be subjective. It is for this reason that the Supreme Court has observed post Nirbhaya incident that the Police Station ought to have women Police Officers or Women Officer to record statement of the victim which has not been done in the present case. In fact, the matter has come up before this Court only after there is a complaint made by the concerned prosecturix through her parents. (Downloaded on 12/11/2020 at 10:29:20 PM)
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14. Section 53 and 164 (5A) Cr.P.C. provided as under:-
"53. Examination of accused by medical practitioner at the request of police officer.
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
Explanation.- In this section and in section 54,-
(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956 ) and whose name has been entered in a State Medical Register."
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(9 of 12) [CRLMP-3681/2020] "164(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police;
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement;
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial".
15. The present IO, who is an IPS Officer informs that she has been now appointed for conducting the investigation and assured the Court that fair investigation would be done and the other accused would be arrested if found involved in the incident. (Downloaded on 12/11/2020 at 10:29:20 PM)
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16. From the case diary and as noticed above, it appears that there is a doubt about the statement made by the prosecutrix and the other evidence which has been recorded by the earlier IOs does not give credence to the statement made by the prosecutrix.
17. In Jogendra Nahak & Ors. Vs. State of Orissa & Ors.: (2000) 1 SCC 272, the Supreme Court has observed that the statement of a person can be recorded under Section 164(1) Cr.P.C. on an application moved by the investigating agency and the same cannot be recorded otherwise. By adding Section 164(5A) Cr.P.C., it has become binding on the Judicial Magistrate to record statement of such person against whom such offence has been committed as soon as commission of offence is brought to the notice of the Police. In the opinion of this Court, however, if the investigating agency wants a fresh statement to be recorded of the prosecutrix or any witness, it has a right to get the statement recorded under Section 164(1) by moving appropriate application. The power of the IO thus still continues even after the statement has been recorded of the victim under Section 164(5A) Cr.P.C. by the Judicial Magistrate.
18. Section 26 of the POCSO Act provides as under:-
"26. Additional provisions regarding statement to be recorded.
(1) The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.
(2) Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance of a translator or an interpreter, having such (Downloaded on 12/11/2020 at 10:29:20 PM) (11 of 12) [CRLMP-3681/2020] qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child.
(3) The Magistrate or the police officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of the child.
(4) Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the statement of the child is also recorded by audio-
video electronic means."
19. Keeping in view the aforesaid provisions and taking into consideration the contents of the case diary and the manner in which the case has been investigated, this Court is of the view that the present IO shall be allowed to take her own decision with regard to the method and manner in which further investigation is required to be conducted. In this regard, if the present IO feels that statement of any particular witness including that of the prosecutrix is required to be recorded on oath before the concerned Judicial Magistrate in terms of Section 164 Cr.P.C. and follow the provision of Section 26 of the POCSO Act, she would be entitled to get the statement recorded. However, it is made clear the present IO shall have to get her investigation conducted strictly within the framework of law and shall keep in mind the provisions of Section 114-A of the Evidence Act for the purpose of submission of accusation as against the concerned accused. In this regard, she would also be free to make arrest and conduct fair investigation.
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20. Granting the aforesaid liberty, it is directed that the investigation shall be conducted and supplementary charge-sheet under Section 173(8) Cr.P.C., if any, shall be filed within a period of three months henceforth.
21. The instant criminal misc. petition is disposed of in the terms as indicated above.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 12/11/2020 at 10:29:20 PM) Powered by TCPDF (www.tcpdf.org)