The Patna High Court has re-iterated that if defence had no opportunity to cross-examine the witness whose statement was recorded under Section 164 Cr.P.C. or Section 161 Cr.P.C., such statements cannot be treated as substantive evidence.
The single-judge bench of Justice Alok Kumar Pandey while adjudicating upon appeal filed in POCSO case observed that it is well settled by catena of judicial pronouncement that statement under Section 154 Cr.P.C. or under 161 Cr.P.C. or under 164 Cr.P.C. can be used for corroboration and contradiction only.
Brief Facts of the Case
The appellant herein was found guilty for the offences punishable under Sections 366A and 376 IPC and under Section 4 of the POCSO Act and was sentenced to undergo ten years imprisonment, seven years rigorous imprisonment, and ten years rigorous imprisonment along with a fine of Rs. 20,000/- respectively and concurrently.
The prosecution case in brief was that victim aged about 14 years was kidnapped by the appellant with intention of marriage. It was further claimed that appellant was present at his house till the morning of 09.06.2015. It was further claimed on the basis of communication held between informant and appellant that informant’s daughter would reach at her house. It is further stated that mobile number as mentioned in the FIR was available with daughter of informant.
Counsel for the appellant submitted that the prosecution completely failed to discharge its onus of proving beyond all reasonable doubt that the victim was minor on the date of occurrence. On the said point he further submitted that victim claimed herself that her age is 20 years which the Trial Court too had recorded.
He further submitted that the prosecution has not challenged or even suggested the victim on the point of her age as she has claimed herself to be 20 years old and the informant as well has not stated the date of birth of victim even on specific question being raised. He further submitted that Medical Board suggested the age of the victim between 17-18 years showing variation would not be sufficient to come to any conclusion about the exact age.
Citing Hasmuddin and others vs. The State of Bihar, he argued that variation in age as opined by medical evidence should go in favour of the appellant. The Counsel further submitted that neither the victim nor any witness has given evidence of physical relation of victim with the appellant and no evidence to the effect that appellant had induced the minor girl with intention or knowledge that she will be forced or seduced to illicit intercourse with any other person, hence, there is no question for conviction under Sections 376, 366(A) of the IPC and Section 4 of POCSO Act. He also pointed out 6 prosecution witnesses have been declared hostile and didn't support the case.
He averred that the witness on the written report has not been examined, nor any explanation was given for his examination. The IO too has not been examined which has seriously caused prejudice to the defence since defence has got no proper opportunity to contradict the evidence of witnesses and no evidence has been deposed regarding sexual intercourse. Further pointing out the laxities in the prosecution story, he stated that one of the witness was hearsay witness whose evidence cannot be basis for conviction and one was not aware as to what has been written in the initial version of the story of the prosecution.
Citing S. Varadarajan Vs. State of Madras [1964] INSC 191 (9 September 1964) 1964 Latest Caselaw 191 SC, he contended that in the present case appellant is not guilty for taking away the victim as there is no averment made by the victim in her deposition that appellant is responsible for taking away the victim rather she went to Bettiah with her own volition.
Mentioning that the courts have not ascertained the age of the victim as per statutory provision and there is no finding with regard to age of the victim in judgment under challenge, he further submitted that statement under Section 164 of the Cr.P.C. is required to be specifically put to contradict the witnesses and the said statement is not substantive piece of evidence rather.
High Court's Observation
Based on the scrutiny of evidence adduced at the trial, the court found that substance in submission made on behalf of the appellant that the prosecution failed to prove, beyond all reasonable doubts, the fact that the victim was minor as on the date of occurrence and cited SC judgment Jarnail Singh Vs. State of Haryana [July 1, 2013] and observed that “though Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 have been framed under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as Act 2000) is applicable to determine the age of child in conflict with law, the aforesaid provision should be the basis for determination of age even of a child who is a victim of crime.
The Court remarked that there was hardly any difference insofar as the issue of minority was concerned, between a child in conflict with law, and a child who is a victim of crime.
It noted that apparently, no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Act.
"In the present case, the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or evidence that prosecutrix did not attend any school. The finding recorded by the doctor in the medical report which has determined the victim’s age to be 17-18 years based on radiological examination and opinion of the dentist is not available in the medical report and said finding in court opinion cannot be treated to be accurate for the purpose of applying the provision of POCSO Act. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision. It is necessary to evaluate, analyze and screen out the evidences of witnesses adduced before the trial court in the light of the offence punishable under Section 366A, 376/34 of the IPC and 4 of POCSO Act."
The Court went on to note that from perusal of statement under Section 164 of the Cr.P.C., it is crystal clear that her testimony during adducing evidence before the trial court is totally inconsistent with the statement recorded under Section 164 of the Cr.P.C. and the statement of victim before the trial court has not supported story of prosecution and she has been declared hostile."It is well settled law that evidence given in court on oath coupled with opportunity of cross examination to the accused has great sanctity and that is why same is called substantive evidence. It is well settled by catena of judicial pronouncement that statement under Section 154 Cr.P.C. or under 161 Cr.P.C. or under 164 Cr.P.C. can be used for corroboration and contradiction only," it ruled.
It reiterated that if the statement of a witness is recorded under Section 164 of the Cr.P.C., his evidence in court should be discarded, is not at all warranted. As the defence had no opportunity to cross-examine the witness whose statement was recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C., such statements cannot be treated as substantive evidence.
"Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the court is quite inconsistent with the story of prosecution. Her evidence does not inspire confidence and such evidence cannot be trustworthy."
The Court thus allowed the appeal.
CASE TITLE: DEEPAK KUMAR S vs The State of Bihar Bihar
CASE DETAILS: CRIMINAL APPEAL (SJ) No.1011 of 2022
CORAM: Justice Alok Kumar Pandey
Advocates for Petitioner: Mr.Bimlesh Kumar Pandey
Advocates for Respondent: Smt Abha Singh
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