CrPC Doesn't Permit Keeping Rape Complaint Pending For Pre-Investigation: High Court Slams Rajasthan Police, Asks DGP To Intervene

The Rajasthan High Court has frowned upon the 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.

A bench of Justice Anoop Kumar Dhand said 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.

The bench was also appalled to discover that the statement of the prosecutrix was recorded before filing the FIR. "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."

It went on to note that the IO had not even prepared a site plan of the places where the incidents of rape were allegedly committed with the prosecutrix.

"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."

Court has now asked the DGP to intervene in the matter and cause an enquiry into the conduct of the Investigating Officers and initiate appropriate action against all the erring officials.

The Court was dealing with an appeal filed by a father who was convicted by the trial court for the offence of raping his step-daughter on multiple occasions.

On analysing the case, the Court concluded that the entire prosecution case was resting solely on the testimony of the prosecutrix. However, it was observed that her testimony was not inspiring confidence.

“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.”

The Court highlighted that it is a settled law that in rape cases, accused can be convicted solely on the basis of testimony of the prosecutrix. However, only if the testimony appeared to be absolutely trustworthy, unblemished and of sterling quality. To elaborate the concept of 'sterling witness', the Court referred to certain Supreme Court cases. In Rai Sandeep v State (NCT of Delhi), the concept of 'sterling witness' was enumerated in the following manner:

“The “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation…What would be more relevant would be the consistency of the statement right from the starting point till the end, namely at the time when the witness makes the initial statement and ultimately before the court…There should not be any prevarication in the version of such a witness…and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material.”

Accordingly, the conviction was set aside.

Title: Ghulam Mohammad v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 111

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