Hearing bail plea in a rape case the Rajasthan High Court ordered the DGP of the state to take actions against the Investigating Officer who helped the in saving the accused person which amounts to a serious offence. The Investigating Officer (IO) was present on the date fixed by HC. The IO explained that Toufik (the person IO is accused of helping) was not made accused as Toufik’s mobile was found to be located at different places in Haryana as per the call details received and therefore, the IO presumed that Toufik was not involved in abducting and raping the prosecutrix along with other accused Munfed. The court was not satisfied with the reason given by the IO as a statement was made under Section 164 of the Code of Criminal Procedure, 1973 by the prosecutrix where she stated that she was raped by Toufik. The court said that “It is a case where Investigating officer has attempted to save co-accused by doubting the statement made under Section 164 Cr.P.C by the prosecutrix”. Section 164 of Cr.P.C says that the statement should be recorded by the metropolitan magistrate or Judicial Magistrate made to him during the course of investigation in front of the council of accused after clarifying that person is making the statement voluntarily and the statement should be signed by the Magistrate. The magistrate should record the statement of the victim in the cases of offences punishable under Section 376 which is the case here. But the Investigation Officer disregarded this and the also the IO could not presume otherwise than the statement which is on-record. The court said “It also weakens the case against the co-accused.
The court further said that “It goes contrary to the provisions of Section 114 of Indian Evidence Act”. According to Section 114 of the Indian Evidence Act, 1872 if sexual intercourse is been proved by the accused and the question is whether it was consensual or not, and if the victim has stated before that it was not consensual the court shall presume that the victim did not consent. It was also observed by the court that according to the statement given by the parents the age stated to be is 13 years in the FIR and mentioned in the statement under Section 164 like 14 years but it is changed to 19, however, the IO submitted a report from the Radiologist which says the age to be around 19-21 which is not possible age of a girl stated to be 13 years by the parents in the FIR as stated before. The court on this said that “Apparently the IO has tried to save the accused person which is a serious offence while the concerned competent court may take appropriate action at the appropriate stage”. The court further directed the Director-General of Police that “The Director-General of Police is directed to take departmental actions and initiate departmental proceedings for a major penalty against the concerned Investigating Officer after suspending him from service immediately. The decision taken on disciplinary proceedings shall also be communicated to this court”.
As far as the bail of the co-accused or petitioner, in this case, was concerned it was denied as there was no case made out to grant bail to the accused petitioner according to the court. The bail petition was dismissed. [READ ORDER]