The Rajasthan High Court directed the Director General of Police to take departmental action and initiate departmental proceedings for major penalty against the concerned Investigating Officer after suspending him from service immediately for tardy probe in a rape case of a minor.
Justice Sanjeev Prakash Sharma while considering a bail plea held that the IO is found to have prima facie committed serious delinquency and requires to be dealt with departmentally.
The petitioner had filed a second bail application in connection with FIR registered for the offences under Sections 366 and 376 IPC.
The main contention of the Petitioner was statement of the prosecutrix recorded under Section 164 Cr.P.C. specifically made allegation against the present petitioner and other person Taufik and that that the Police had not conducted the investigation in proper manner and only present accused petitioner has been made an accused.
The Court had then directed to call the I.O. who had conducted the investigation and in what manner the investigation has been done and the other accused person named in the FIR viz., Taufik has been left out in the investigation by not filing charge sheet against him.
The I.O. stated that Toufik was not made as an accused as during the investigation, his mobile was found to be located at different places in Haryana as per call details received and therefore, it was presumed that Toufik was not involved in abducting and raping the prosecutrix along with accused-petitioner–Munfed.
The Court remarked that is was not satisfied with the explanation keeping in view the statement made under Section 164 Cr.P.C. by the prosecutrix wherein she has stated that she was raped by Toufik.
Justice Sharma opined that it is a case where the Investigating Officer has attempted to save co-accused Toufik by doubting the statement made under Section 164 Cr.P.C. by the prosecutrix.
The Bench asserted that it goes contrary to the provisions of the Indian Evidence Act especially Section 114A of the Indian Evidence Act which provides for 'Presumption as to absence of consent in certain prosecution' and henceforth, the Investigating Officer could not presume otherwise than the statement which is on record.
"It also weakens the case as against the co-accused." stated Justice Sharma.
The Court noticed that the prosecutrix has given the statement under Section 164 Cr.P.C. where her age has been mentioned as 14 years.
However, the IO has also on the basis of some report obtained from the Radiologist treated the age of the prosecutrix as between 19 to 21 years which is not possible age of a girl stated to be 13 years by the parents in the FIR and mentioned in the statement under Section 164 Cr.P.C. as 14 years has been changed to 19 years.
The Judge concluded that the IO has tried to save the accused persons which is a serious offence.
Dismissing the second bail application, Justice Sharma stated that the accused-petitioner shall be free to approach the Court after the statement of the prosecutrix is recorded.
The Court concluded by issuing directions to the Trial Court to get the statement of the prosecutrix recorded at the earliest.