CrPC Doesn't Permit Keeping Rape Complaint Pending For Pre-Investigation: Rajasthan HC

Preface

While very rightly taking the most strongest exception and so also frowning most seriously upon the utter condemnable conduct of the Investigation Officer in a rape case for keeping the complaint pending for about a week under the pretext of conducting a "pre-investigation" before filing the FIR, we see that a Single Judge Bench comprising of Hon’ble Mr Justice Anoop Kumar Dhand of the Jaipur Bench of the Rajasthan High Court in a most learned, laudable, landmark, logical and latest judgment titled Ghulam Mohammed vs State of Rajasthan through Govt Advocate in S.B. Criminal Appeal No. 90/1992 that was reserved on 9/5/2024 and then pronounced on 20.5.2024 and finally downloaded on 9.6.2024 has very commendably minced just no words to state in no uncertain terms most unequivocally and most precisely that there is no such provision in the CrPC or principal in criminal jurisprudence to keep any report of offence of rape or any offence pending for pre-investigation for considerable time. It must also be noted that the Bench was most appalled and so also most aghast to discover most shockingly and astonishingly that the statement of the prosecutrix was recorded before filing the FIR. As if this was not enough, it went on to note further that the Investigating Officer (IO) had not even cared to prepare a site plan of the places where the incidents of rape were allegedly committed with the prosecutrix as is done in such cases of heinous crimes which clearly reveals the shoddy investigation, gross negligence and even the Bench had to concede that such kind of action of IO amounts to misuse of the power.

Introduction

By all accounts, we need to pay attention towards the irrefutable fact that the Court was dealing with an appeal that had been filed by a father who was convicted by the Trial Court of the offence of raping his step-daughter on multiple occasions. It was found on seriously scrutinizing and analyzing the case by the Court that the entire prosecution case was resting solely on the testimony of the prosecutrix. However, it was very rightly observed by the Jaipur Bench that her testimony was not inspiring confidence. So the conviction as we see was accordingly set aside.

Factual Matrix

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Anoop Kumar Dhand of Jaipur Bench of the Rajasthan High Court sets the ball in motion by first and foremost putting forth aptly in para 1 that, "The appellant herein calls into question the impugned judgment dated 27.02.1992 passed by the Special Judge, Sati Nivaran and Additional Sessions Judge, Jaipur City, Jaipur in Sessions Case No.1/1991 by which the accused-appellant (hereinafter referred to as ‘the appellant’) has been convicted for the offence punishable under Section 376 IPC and has been sentenced to undergo seven years’ rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, further to undergo two months’ additional simple imprisonment."

Prosecution Case

To put things in perspective, the Bench then while elaborating in detail on the entire prosecution case envisages in para 3 that, "PW-1 ‘R’ lodged First Information Report (FIR) (Ex.P-1) with Police Station Ramganj, Jaipur City, Jaipur alleging therein that her second marriage was solemnized with Ghulam Mohammed under the Special Marriage Act. From the first wedlock with Late Rampal Meena, two children were born. The age of the son ‘K’ is 18 years and of daughter ‘S’ is 13 years. Two years back, she went to Godha Bhawan and stayed there for some days. Taking benefit of her absence, her husband Ghulam Mohammed committed rape upon her daughter. A month back, her daughter told her that Ghulam Mohammed committed rape thrice upon her and even the same act was done at the house of Sayeed etc."

As it turned out, the Bench then enunciates in para 4 that, "Upon this report, FIR was registered for the offence under Section 376 IPC against the appellant and after investigation, the appellant was charge – sheeted under Section 376 IPC and charge was framed for the same offence. The appellant denied the charge and claimed trial. The prosecution examined five witnesses. Thereafter, the appellant in his explanation under Section 313 CrPC claimed himself as innocent but no evidence was produced in defence. After completion of trial, the trial Court found him guilty and convicted and sentenced him as indicated hereinabove."

Analysis & Discussions

Needless to say, the Bench states in para 7 that, "Heard and considered the submissions made at Bar and perused the material available on record."

Do note, the Bench notes in para 8 that, "Having gone through the statements of PW-1 ‘R’, who is mother of the prosecutrix, at whose instance, the entire investigation was set into motion and she herself has not supported the case of prosecution and she has been declared as hostile."

Be it noted, the Bench notes in para 9 that, "PW-2 ‘S’ has stated that her mother PW-1 ‘R’ went to meet her brother and she was at home where the accused committed rape upon her. Then they shifted to a newly rental house at Ramganj, there also the accused committed rape upon her, and the accused told her not to tell about the incident to her mother and she kept mum. After some days, again the accused tried to remove her cloths in the rainy reason when her mother was sleeping. In her cross-examination, this witness has admitted that the incident was committed with her two years back, one month prior to lodging of FIR by her mother. She has also stated that on many occasions, the appellant made the same attempt even in the presence of mother when she was sleeping. In the cross-examination, she has submitted that the incident of rape was committed with her at home situated at Chhoti Chopar then she changed her version and submitted that it occurred at the home at Kishanpole. She has admitted in her cross-examination that she remained silent for two years after the incident and thereafter she told the police about the incident of rape. She has denied the suggestion that the report was lodged at the instance of Rajendra Godha."

Shoddy Investigation

It is extremely vital to note that while laying bare the shoddy investigation, the Bench points out in para 10 that, "The Investigating Officer Vishambhar Dayal (PW-3) investigated the matter and recorded the statements of the witnesses and arrested the appellant vide arrest memo (Ex.P-3) and he got the prosecutrix medically examined from the Doctor and her vaginal swab was sent by him to FSL for analysis vide receipt (Ex.P-4). In his cross-examination, he has admitted that though the report (Ex.P-1) was received by him on 26.06.1990 but the same was kept pending for pre-investigation and the FIR was registered on 02.07.1990 while the statements of informant/complainant ‘R’ were recorded on 01.07.1990. He admitted that this fact came up during his investigation that the informant ‘R’ was residing at the house of one Rajendra Godha but his statements were not recorded by him. He admitted that no site plan of the place of occurrence was prepared by him because there was no need for doing so and he has not gone to the place at the instance of the prosecutrix where the incidents of rape were allegedly committed upon her."

Quite forthrightly, the Bench mandates in para 11 postulating that, "There is no provision under the Code of Criminal Procedure or criminal jurisprudence to keep any report of offence of rape or any offence pending for pre-investigation for considerable time and record the statement prior to lodging of FIR. Here in this case the FIR (Ex.P-1) was registered on 02.07.1990 while the statement of the informant ‘R’ was recorded on 01.07.1990 vide exhibit P2. The investigation made by this Investigating Officer is so defective that no site plan of the places of occurrence were prepared by him to prove the case of prosecution where the incidents of rape were allegedly committed with the prosecutrix ‘S’."

Most forthrightly, the Bench minces absolutely just no words to mandate in para 12 holding that, "Recording of police statement (Ex.P2) of PW-1 ‘R’ by the Investigating Officer (I.O.), Vishambhar Dayal (PW-3) on 01.07.1990 i.e. prior to lodging of FIR (Ex.P.1) is quite surprising because the motion of law came into picture on 02.07.1990 when the FIR was registered under Section 154 CrPC. Even in a serious case of rape where the incident has occurred at two-three different place of occurrence and the Investigating Officer has neither prepared the site plan of all the places of occurrence nor taken the prosecutrix ‘S’ (PW-2) and the informant/complainant ‘R’ (PW-1) to the ‘scene of offence’ where the occurrences of rape have taken place. When this Investigating Officer was put to cross-examination about his such inaction, he answered that "he did not deem it just and proper to prepare the site plan and take the prosecutrix at the scene of offence". Such kind of action of I.O. amounts to misuse of the power. This Court is surprised to note that the trial Court has overlooked this critical aspect of the matter. The independent witness Rajendra Godha has not been examined by this Investigating Officer. Hence, there is a serious doubt created about the genuineness of the prosecution case."

It would be vital to note that the Bench notes in para 14 that, "The prosecutrix ‘S’ (PW-2) was medically examined by Dr. Manju Sharma (PW-5) on 03.07.1990 and she prepared her Medical Report (Ex.P-7) and she did not find any injuries on her private and external parts of the body and her hymen was found old teared and ruptured and she was not found virgin. In absence of chemical report, no opinion regarding rape was given by her In her cross-examination, she admitted that generally the hymen of 11 year old girl remains intact and if intercourse is done then bleeding might occur in hymen. Hymen may rupture due to sustaining of any injury. She was unable to explain how hymen of the prosecutrix was ruptured."

As things stands, the Bench notes in para 15 that, "On perusal of the Medical Report (Ex.P-7) and statements of the Medical Officer Dr. Manju Sharma (PW-5), it is clear that no injuries were found on the private and external parts of the body of the prosecutrix ‘S’ (PW-2) and no opinion regarding rape was given in absence of chemical report i.e. Forensic Science Report (FSL). It is worthy to note here that vaginal smear was not taken but only vaginal swab of the prosecutrix ‘S’ was taken when she was medically examined and the same was sent to FSL vide receipt (Ex.P-4) for chemical analysis but no FSL report has been exhibited on the record. Hence, there is no corroborative evidence available on the record that the prosecutrix ‘S’ was raped or recent sexual intercourse was committed with her."

Most significantly, what turned the tables most in favour of the appellant is then encapsulated in para 17 expounding that, "Truly, it is settled law that the Court can base the conviction of the accused in rape cases solely on the basis of evidence of the prosecutrix if it is found to be trustworthy and worthy of credence. It may be mentioned here that there is no rule of prudence that in every case there must be corroboration of the statements of the prosecutrix before a conviction can be based thereon, but as matter of prudence, the necessity of corroboration must be present in the mind of the Court, especially when it is found that the prosecutrix is not giving any true facts. Here in the instant case, the prosecutrix remained silent for two years even after the alleged act of the appellant and she did not narrate the incident even to her mother for about two years from the date of first incident of rape. Then again she kept mum for more than a month when the second incident of rape was committed with her. Keeping silence for such inordinate and considerable time makes the prosecution case suspicious and improbable."

It is worth noting that the Bench notes in para 18 that, "Her statements does not stand corroborated by medical evidence as no marks of injury was found on her private and external parts of her body and no FSL report was exhibited by the prosecution to establish the recent act of sexual intercourse with the prosecutrix ‘S’ (PW-2)."

It would be worthwhile to note that the Bench notes in para 19 that, "At one point of time, she has alleged that the appellant attempted to commit the incident with her in the presence of her mother when she was sleeping. Even then she did not narrate this incident to her mother. Such allegation appears to be highly improbable."

What further also exposes the fallacies of the prosecution case is that the Bench points out in para 20 that, "The entire case is based on the report of the incident lodged by the mother of the prosecutrix ‘R’ (PW-1) and she has not supported the case of prosecution and she has been declared as hostile. Hence, the case of prosecution does not inspire any confidence."

Truth be told, the Bench observes in para 21 that, "The learned Trial Court on the basis of the fact that the child victim maintained her version throughout the proceedings and was consistent, convicted the appellant on the sole testimony of the child victim and with there being a lack of any evidence to prove the defence of the appellant."

While citing the relevant case law, the Bench states in para 26 that, "The Hon'ble Supreme court, in its decision, Tameezuddin @ Tammu v. State of (NCT) of Delhi reported in (2009) 15 SCC 566, provided that in a case of rape, the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. In the present matter, the discrepancies create doubt about the factum of occurrence, and the evidence by the child victim is not of sterling quality."

It cannot be glossed over that the Bench notes in para 28 that, "The sole testimony of the child witness (PW-2 ‘S’) does not inspire confidence. In the absence of any witnesses or medical evidence to corroborate, reasonable doubt on the commission of the offence by the appellant-accused can therefore be inferred. This court is of the opinion that the discrepancies in the testimonies of the witnesses and the deficiencies noted above, casts a shadow of doubt on the prosecution case, and the appellant’s involvement is thus not proved beyond reasonable doubt."

Quite significantly, the Bench observes in para 29 that, "A bare perusal of the record and the statements of the prosecutrix ‘S’ (PW-2) indicates that she has revealed three different sets of events having occurred on three different occasions i.e. two year back, one month back and few days back. But the inordinate delay in lodging of FIR has not been explained by the prosecution, thereby a shadow of doubt is cast upon the whole prosecution case."

To top it all, what made the prosecutrix case fall flat is then laid bare in para 30 stating that, "Delay of more than two years in lodging of FIR, not narrating of repeated incidents of rape by the prosecutrix ‘S’ (PW-2) to her mother ‘R’ (PW-1) or anyone for two years, no marks of injury or violence on the private and external parts of the body of the prosecutrix, absence of evidence of recent sexual intercourse in absence of FSL chemical report, non-preparation of site plans of the places of occurrence and not supporting the case of prosecution by the mother of the prosecutrix create serious doubts on the entire prosecution story."

As a corollary, the Bench then holds in para 31 that, "In view of the above analysis, it is found that the learned trial Court has not properly appreciated the material evidence available on the record. The prosecution has failed to prove its case beyond reasonable doubt against the appellant."

Conclusion

Adding more to it, the Bench then resultantly observes in para 32 that, "In view of the aforesaid discussions, the impugned judgment is not found to be sustainable and deserves to be set aside and accordingly, the same stands quashed and set aside. Appeal stands allowed. The appellant is acquitted by extending the benefit of doubt."

Further, the Bench directs in para 33 that, "The appellant is on bail. His bail bonds stand discharged."

What’s more, the Bench directs in para 34 that, "Keeping in view the provision of Section 437-A CrPC, the appellant is directed to furnish personal bond of Rs.1,00,000/- and two surety of Rs.50,000/- each before the trial Court within a period of one month, which shall remain effective for a period of six months, so that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof shall appear before the Apex Court."

Still more, the Bench directs in para 35 that, "Record of the trial Court be sent back forthwith."

Directions

It would be crucial to note that the Bench then directs in para 36 that, "The Director General of Police (DGP) of the State of Rajasthan shall cause an enquiry to be made into the conduct of the Investigating Officers. Needless to add, appropriate action shall be initiated against all the erring officials after affording due opportunity of hearing to them strictly in accordance with law."

Finally, we see that the Bench then concludes by directing in para 37 that, "Let a copy of this order/judgment be forwarded to the Director General of Police (DGP) of the State of Rajasthan for necessary action and compliance."

Gist of judgment

In the ultimate analysis, we thus see that the Rajasthan High Court very rightly acquits the appellant by giving him the benefit of doubt. It is made indubitably clear by the Rajasthan High Court that CrPC doesn’t permit keeping rape complaint pending for pre-investigation. It is also made crystal clear by the Court that the investigation done was shoddy and definitely not at all worth relying upon.