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2015 DIGILAW 45 (RAJ)

Sahoon v. State of Rajasthan

2015-01-06

RAGHUVENDRA S.RATHORE

body2015
Hon'ble RATHORE, J.—Heard the learned counsels for the parties. 2. The prosecution case, initiated on a report lodged by Sattar son of Emrat on 9.2.2014, is that the named accused Sahoon and Eliyas had committed the offence of rape against Sabroona aged about 13 years when she was working at the agricultural field. Accordingly, the first information report was registered for the offence under Section 376(2)(G) IPC. Thereafter, the investigation commenced and during the course of it, the statement of the prosecutrix Sabroona was recorded under Section 161 Cr.P.C. by the first investigating officer, namely Chandan Dan Bareth on 15.2.2014. The statement of the prosecutrix under Section 164 Cr.P.C. was got recorded on 5.3.2014 by investigating officer Rajpal Godara and a statement of the prosecutrix Sabroona under Section 161 Cr.P.C. was recorded by Ms. Shahana Khanam on 10.9.2014 wherein the prosecutrix had specifically alleged against the petitioner Sahoon for having committed the offence of rape. 3. Apart from it, the investigating agency seized the cloths of the prosecutrix (Salwar) on 9.2.2014 which was having stains of semen and stool. The police had also collected the evidence with regard to date of birth of the prosecutrix which is 30.7.2001 as noted in the record of Government Upper Primary School, Ahalwari, Panchayat Samiti Kaman, District Bharatpur. The medical examination of the prosecutrix had also taken place but no specific opinion was given by the medical jurist. As a matter of fact, samples of semen, blood samples and internal vagina swab were sent to FSL for investigation and opinion. 4. Another case against the accused petitioner (FIR No. 158/2010) had been registered for the offence under Section 147, 341, 323 and 354 IPC and after conclusion of investigation charge-sheet was filed against him on 30.8.2010. It has also come in the case diary (No. 16 dated 20.9.2014) that the wanted accused has to be arrested as he could be a threat and put pressure on the victim side so as to bring them on his side. Apart from it, it has also been mentioned that the accused may induce or threat family members or the villagers so as to win them over. After the incident, the accused party had gone to the victim and her family members for settlement. Apart from it, it has also been mentioned that the accused may induce or threat family members or the villagers so as to win them over. After the incident, the accused party had gone to the victim and her family members for settlement. The accused party had, in order to put pressure, lodged a false report (FIR No. 58/2014) for the offence under Section 376(2)(G) IPC and though the accused had been absconding since the day of incident, in order to pressurise the victim side, the accused may commit any offence. Therefore, it was found necessary to arrest the accused. It was only thereafter that the accused was arrested on 23.9.2014. In the aforesaid facts and circumstances of the case, there is no just reason to enlarge the petitioner on bail. 5. Consequently, this bail application under Section 439 Cr.P.C. is dismissed. 6. Before parting with this order, it is deemed just and proper to take note of the manner in which the investigation had been conducted in the present case and the conclusion, by way of charge-sheet, having been submitted before the Court of ACJM, Kaman on 15.10.2014. After lodging of the report on 9.2.2014, the investigation in the case was handed over to Shri Chandan Chan Bareth, C.O., Kaman, as given in the police karyavahi appended to the report. In furtherance thereof, the investigating officer seized the cloths of the prosecutrix (Salwar) on 9.2.2014 itself at 4.40 pm. The medical examination of the prosecutrix was got conducted on 9.2.2014 and in respect of opinion, the medical jurist stated in the report that we are sending samples for FSL which includes (i) semen, (ii) Blood Samples, (iii) Internal Vagina Swab, for relevant investigation. All the samples were sent to the Director, FSL for investigation and report on 9.2.2014. Thereafter, the police prepared the site plan on 15.2.2014 at 10.25 am. The statements of the witnesses, namely Satar, the informant and the prosecutrix Sabroona were recorded on 15.2.2014. On account of transfer of investigating officer Shri Chandan Dan Bareth on 1.3.2014 as C.O. Reengus, the record was handed over for investigation to C.O. Deeg, Shri Rajpal Godara on 5.3.2014. The statement of the prosecutrix was then recorded under Section 164 Cr.P.C. on that very day. On account of transfer of investigating officer Shri Chandan Dan Bareth on 1.3.2014 as C.O. Reengus, the record was handed over for investigation to C.O. Deeg, Shri Rajpal Godara on 5.3.2014. The statement of the prosecutrix was then recorded under Section 164 Cr.P.C. on that very day. The new investigating officer Shri Rajpal Godara recorded the statement of Smt. Sunny wife of Shaukat and Hasan @ Hasan Mohammed on 28.3.2014 and that of Hazi Mallu Khan, resident of Ladla whereas incident took place in village Ahalwari. The statement of Bhikkan Hazi and Ramla @ Akhtar, both resident of Ahalwari, Mosam resident of village Ladla were recorded on 21.6.2014 and the statement of Gafoor resident of village Ahalwari on 1.7.2014. After the medical examination of the prosecutrix, which was got conducted on 9.2.2014, the investigating officer sought specific opinion from the medical jurist on 5.4.2014 and in reply to it, the investigation officer was asked to seek the same from a gynecologist at Bharatpur. Thereafter, again an opinion from Medical Officer, PHC Jurhera, District Bharatpur was sought on 15.5.2014 and this time, the same medical jurist had given the opinion on 24.5.2014 that no sexual intercourse had taken place on the prosecutrix. Further, he had stated that further information would be given after receipt of the FSL report. 6. The investigation was then handed over to another investigating officer, third in number, namely Shahana Khanam on 7.9.2014. She recorded a third set of statements of the witnesses, namely Kumari Mahroona, Sattar, Kumari Sabroona, Smt. Sunny, Hasan @ Hasan Mohammed on 10.9.2014. It is pertinent to note here that in the statements of the prosecutrix Sabroona, recorded by Ms. Shahana Khanam, she had categorically alleged against the accused petitioner for having committed the offence of rape. 7. A careful perusal of these statements, many of which were recorded for second or third time, goes to show that efforts had been made to distort the facts. In some of the statements, specific name of the accused has not been given whereas in the other, the name is very much there. In some statements, allegation of rape has been clearly made but in the later part of the investigation, where the name of the accused petitioner had been mentioned, facts with regard to the offence under Sec. 354 IPC along have been given. In some statements, allegation of rape has been clearly made but in the later part of the investigation, where the name of the accused petitioner had been mentioned, facts with regard to the offence under Sec. 354 IPC along have been given. Such recording of statements during investigation, particularly that of Kumari Sabroona needs to be taken note of because she has very clearly mentioned the name of the petitioner as well as allegation against him in respect of offence of rape in her statement under Sec. 164 Cr.P.C. recorded on 5.3.2014. 8. Another important aspect of the investigation is that though the samples were sent to FSL on 9.2.2014 for relevant investigation so that final opinion in respect of commission of offence of rape could be given by the medical jurist, the packet containing the cloths of the prosecutrix which she was wearing at the time of incident, had not been sent to FSL for its opinion. The evidence collected by the investigating agency from the concerning government school, with regard to the age of the prosecutrix, clearly establishes on the basis of birth certificate issued by the Principal of the school and also student admission register, that her date of birth is 30.7.2001 that is to say 13 years at the time of incident. 9. Despite of the aforesaid evidence coming on record during the course of investigation, the investigating officer Ms. Shahana Khanam had given an opinion on 13.9.2014, which is available in the case diary, that the offence under Section 376 IPC and Section 4 and 5 of the Prevention of Children from Sexual Offences Act are not made out. Further that offences made out against the accused Sahoon are only in respect of Section 341, 323 and 354 IPC and Section 8 of the POCSO Act. 10. After considering the aforesaid overwhelming evidence on record, including the Naksha Mauka; seizure of the cloths of the prosecutrix; statements u/S. 161 Cr.P.C.; statements u/Sec. 164 Cr.P.C. and the subsequent statements of the prosecutrix recorded under Sec. 161 Cr.P.C. on 10.9.2014, leaves no room of doubt that the offence under Sec. 376 IPC is prima facie made out. It is also to be noted that on the cloths of the prosecutrix, stains of semen had also been found. On perusal of the conclusion given by the investigating officer Ms. It is also to be noted that on the cloths of the prosecutrix, stains of semen had also been found. On perusal of the conclusion given by the investigating officer Ms. Shahana Khanam on 13.9.2014 (at Rojnamcha No. 15) on the basis of which the charge-sheet has been prepared on 30.9.2014 and filed before the court concerned on 15.10.2014, reveals that offences under Secs. 341, 323, 354 IPC are only made out and therefore the offence under Sec. 376(2)(G) has been dropped, which in no manner can be said to be based on the material on record collected during the course of investigation. Moreover, in the statement of the prosecution u/Sec. 161 Cr.P.C. recorded by the said investigating officer herself on 10.9.2014, clear allegation of rape has been levelled against the accused petitioner. Even then, she has overlooked the same at the time of submitting the conclusion. It leaves no room of doubt that the investigating officer had not been fair and rather she was biased and inclined towards the accused party. A perusal of the conclusion arrived at by the Investigating Officer goes to show that much emphasis has been led on the report given by the medical jurist from which it has been inferred that no offence of rape has been committed. The fact is that a bare perusal of the medical report dated 9.9.2014 goes to show that no opinion as such, has been given by the medical jurist and he has rather sent the samples to FSL for relevant investigation. Meaning thereby, the opinion would have been given only after receipt of the report from the FSL. Besides, it appears that after having not received any specific opinion about commission of rape in the report from the medical jurist, the investigating officer was in a hurry to obtain the same before the receipt of the report from the FSL and as such, he sought it from the medical jurist, vide letter dated 5.4.2014. However, the medical jurist PHC, Jurhera, District Bharatpur had stated that opinion in respect of rape having been committed on Kumari Sabroona aged about 13 years should be taken from a gynecologist. However, the medical jurist PHC, Jurhera, District Bharatpur had stated that opinion in respect of rape having been committed on Kumari Sabroona aged about 13 years should be taken from a gynecologist. But the Investigating Officer was definitely in haste to seek the opinion and as such he again sent a letter to the medical jurist on 15.5.2014 and succeeded in getting the same from the medical jurist that there had been no sexual intercourse. But again the medical jurist had specifically stated that further information would be known only after receipt of the FSL report. 11. Apart from the manner in which the Investigating Officer had submitted the conclusion, as mentioned above, her conduct at a later point of time when the bail application of the accused was being considered by this Court, also needs to be deprecated. A Co-ordinate Bench of this Court had initially directed the learned Public Prosecutor on 14.11.2014, to ensure the presence of the Investigating Officer on 24.11.2014. Thereafter on 15.12.2014, this Court was informed that the officer who had conducted the investigation and submitted the conclusion was working as Dy. S.P. (Traffic) Alwar. Accordingly, the learned Public Prosecutor was directed to call for the said Officer on 16.12.2014. On 16.12.2014 also, the said officer did not appear. Subsequently on 18.12.2014, it was taken note of by this Court that Dy. S.P. (Traffic), Alwar was called on 16.12.2014 to appear on the next date. The learned Public Prosecutor informed that Ms. Shahana Khanam, Dy. S.P. (Traffic), Alwar is now posted as Dy. S.P. PTS Kherwara, District Udaipur. Accordingly, the learned Public Prosecutor was directed to call the officer from her present place of posting. But even then, the officer did not appear before the Court on the next date i.e. 18.12.2014. As such the directions issued to the learned Pubic Prosecutor on the earlier date 15.12.2014, was taken note of on record. Further, the Court was informed by the learned Public Prosecutor on 18.12.2014 that a massage was duly sent to the investigating officer to remain present before the Court. The learned Public Prosecutor also informed that the present C.O. (Dy. S.P.), who is present in the Court, had also sent a massage to her. But despite of aforesaid information/massage, Ms. Shahana Khanam did not appear before the Court. The learned Public Prosecutor also informed that the present C.O. (Dy. S.P.), who is present in the Court, had also sent a massage to her. But despite of aforesaid information/massage, Ms. Shahana Khanam did not appear before the Court. Ultimately, directions had to be issued to the Superintendent of Police, Udaipur to convey the massage to the said officer for appearing before the Court on the next date and he was to ensure her presence before the Court on the next date i.e. 6.1.2015 at 10.30 am. 12. The matter was taken up today and after hearing the parties on merits, the bail application was dismissed. The aforesaid investigating officer, who is now posted at PTS Kherwara, seems to have filed her explanation with regard to non-appearance on the earlier dates, during the course of the day. In the explanation, mention has been made only with regard to non-appearance on 18.12.2014 whereas the directions for appearance of the officer were being issued since 15.12.2014. It is stated in the explanation that she was on leave from 16.12.2014 to 20.12.2014 and as such could not appear before the Court. Further, it is stated that she had applied for leave on 15.12.2014 to the Commandant, Police Training School, Kherwara. On perusal of the documents annexed to the explanation, it is revealed that permission for leave was granted on the same day i.e. 15.12.2014. It is to be noted that no affidavit in support of the explanation has been filed. This appears to have been deliberately avoided. The complainance of the order of the Court has not been made, firstly because directions were issued for her present on 15.12.2014 for the next date i.e. 16.12.2014. As per the explanation, the leave was granted from 16.12.2014 upto 20.12.2014 and one day holiday for 21.12.2014. But a bare perusal of the letter dated 17.12.2014, written by Commandant, PTS Kherwara to the Government Advocate, Jaipur, which was received by fax on 6.1.2015 at 12.33 pm., goes to show that Smt. Shahana Khanam had proceeded for leave in the afternoon of 15.12.2014 itself. Moreover, a copy of another radiogram dated 16.12.2014, which had also been received through fax on 6.1.2015 at 12.01 pm. mentions that as the officer is on leave, further date may be granted. The explanation submitted by the officer shows that the same was done today itself, meaning thereby that she is in Jaipur. Moreover, a copy of another radiogram dated 16.12.2014, which had also been received through fax on 6.1.2015 at 12.01 pm. mentions that as the officer is on leave, further date may be granted. The explanation submitted by the officer shows that the same was done today itself, meaning thereby that she is in Jaipur. The fact that after sending the copy of the radiogram dated 16.12.2014 at 12.01 p.m., another fax has been sent today on 12.33 pm. by the Commandant giving the fact that Ms. Shahana Khanam had proceeded on leave in the afternoon on 15.12.2014 does to show that an endeavour has been made to give explanation for her non-appearance in the Court. But the fact memains that ever since 14.11.2014, particularly on 15.12.2014 when the learned Public Prosecutor was directed to call the officer on the next date of hearing and the Court was informed that she is now posted at Kherwara and then directions were issued to the learned Public Prosecutor to send massage to that place, goes to show that intimation for appearance before the Court was very mush received by the officer on 15.12.2014 and this was the obvious reason that the officer went away in the afternoon of 15.12.2014 itself whereas the leave granted was from 16.12.2014 onwards. Moreover on 18.12.2014, the learned Public Prosecutor informed that the massage was duly sent to her for appearance before the Court. The C.O. present in Court on 18.12.2014 had also informed the learned Public Prosecutor that he had also sent a massage to the officer at Kherwara. But despite of all such informations, the officer did not appear before the Court on 18.12.2014. Even if, the officer was on leave, it was her duty to appear before the Court after receipt of the intimation or send a request before the Court when she proceeded on leave on 16.12.2014 or thereafter. It is only today that she had disclosed the reason for non-appearance earlier whereas she had returned from leave much earlier i.e. 22.12.2014.The circumstances of the present case clearly show that the officer at Kherwara received information on 15.12.2014, but she had proceeded to leave in the afternoon on that day. It is an admitted case of the officer concerned that the leave sanctioned was from 16.12.2014. It is an admitted case of the officer concerned that the leave sanctioned was from 16.12.2014. Ultimately it was only when the Superintendent of Police, Udaipur was directed to ensure the presence of Dy.S.P. PTS Kherwara, District Udaipur on 18.12.2014 that she had come and filed the explanation today. 12. The aforesaid circumstances not only reflects deliberate disrespect to the Court by non-appearance despite of intimation having been received which had been corroborated by the submissions made by the present C.O. who was present in the Court and the manner in which the investigation has been conducted by her where she has not only overlooked the statement of the prosecutrix recorded by the Magistrate under Section 164 Cr.P.C. but has also failed to give any sanctity to such statements by submitting the conclusion for dropping the offence under Section 376(2)(G) IPC. Above all, the statement of the prosecutrix recorded by herself, after the statement under Section 164 Cr.P.C., on 10.9.2014 wherein also the prosecutrix had directly levelled allegation. The delay in submitting the conclusion of the investigation, in the present case, where the incident took place on 9.2.2014 has certainly given long rope to the accused party not only to give threat and pressurise the complainant party but also to lodge a false case against them for the offence under Section 376 IPC (FIR No. 58/2014). 13. After taking into consideration the facts and circumstances of the case cumulatively, it leaves no room of doubt that the investigating officer Ms. Shahana Khanam had not submitted a correct conclusion on the basis of evidence collected during investigation and had rather overlooked the clinching evidence on record such as the statement of the prosecutrix under Section 164 Cr.P.C. and such act on her part smacks dishonesty for which a separate probe, on departmental side, needs to be initiated against her by an officer, not below the rank of Additional Director General of Police. 14. A copy of this order be sent to the Principal Secretary, Department of Home; Government of Rajasthan, Jaipur; Director General of Police, Jaipur and the Principal Secretary, Department of Personnel, Jaipur to make compliance of this order forthwith. The Deputy Registrar (Judicial) of this Court is directed to immediately sent a copy of this order to the respective authorities through fax, forthwith.