Xxx vs State Of Chhattisgarh
2022 Latest Caselaw 6777 Chatt

                                      1

                                                                     AFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 121 of 2022


          XXX

                                                           ---Appellant

                                    Versus

          State of Chhattisgarh through Aarakshi Kendra Bijapur,
          Distt. Bijapur, Chhattisgarh.

                                                         ---Respondent




          For Appellant     :-   Mr. Vikash A. Shrivastava, Advocate
          For Respondent/State :-     Mr. Animesh Tiwari, Dy. A.G.
                                      Mr. Ashish Tiwari, G.A.
                                      Mr. Arjit Tiwari, P.L.




                   Hon'ble Shri Justice Sanjay K. Agrawal
                 Hon'ble Shri Justice Rakesh Mohan Pandey
                            Judgment on Board
                                14/11/2022
Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374

(2) has been preferred by the appellant against impugned

judgment dated 23/12/2021 passed by learned Additional

Sessions Judge (FTC), South Bastar, Distt. Dantewada in

Special Sessions Case No. 12/2021 whereby the appellant

has been convicted for offences punishable under Section

376(3) of the Indian Penal Code and Section 6 of Protection

of Children from Sexual Offences Act, 2012.

Prosecution story :-

2. Case of the prosecution, in brief, is that the appellant

herein, on the pretext of marriage, committed sexual

intercourse with the victim, aged less than 16 years, on

02/08/2020 at about 11 AM and on 15/08/2020 at his

mother's house in Forest Colony Deepopara within the

ambit of Police Station Bijapur on account of which she got

pregnant and he thereby, committed the aforesaid offences.

3. Further case of the prosecution is that a memo was received

at the Bijapur Police Station vide Ex. P/22 from the District

Hospital, Bijapur pursuant to which the Gopal Singh

Thakur (P.W.-9), A.S.I, Police Station Bijapur went to the

Hospital wherein upon enquiry, mother of the victim (P.W.-

2) informed him that on 28/12/2020, she brought her

daughter (victim) to the Hospital wherein after medical

examination, the Doctor confirmed that the victim was

pregnant and she was informed by the victim that the

appellant had committed sexual intercourse with her twice,

on 02/08/2020 and 15/05/2020 on the pretext of

marriage. On the complaint of victim's mother (P.W.-2),

dehati nalishi was registered vide Ex. P/2 and thereafter,

first information report was registered against the appellant

for offence punishable under Section 376 of IPC and

Sections 4 and 6 of POCSO Act vide Ex. P/23. During

investigation, nazri naksha was prepared vide Ex. P/4 and

patwai naksha was prepared vide Ex. P/13 and thereafter,

panchnama was prepared vide Ex. P/14. With regard to the

date of birth of the victim, Dakhil Khariz Register (Ex.

P/11C) was seized vide Ex. P/9. After obtaining consent

from the victim as well as her mother vide Ex. P/3 and P/5,

medical examination of the victim was conducted vide Ex.

P/1 and certain articles were seized from her vide Ex. P/25

which were sent for FSL and as per the FSL report (Ex.

P/28), no incriminating evidence was found against the

appellant. Thereafter, statement of the victim under Section

164 of CrPC was recorded by the Chief Judicial Magistrate,

Bijapur vide Ex. P/6 in which she has clearly implicated the

appellant. The statements of the witnesses were recorded

under Section 161 of CrPC and after due investigation, the

appellant was charge-sheeted for offences punishable under

Section 376(3) of the IPC and Sections 5(j)(ii) and 5(l)/6 of

the POCSO Act which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

The appellant/accused abjured his guilt and entered into

defence.

4. In order to bring home the offence, prosecution examined 9

witnesses and brought on record 28 documents. The

statement of the appellant/accused was examined under

Section 313 of CrPC wherein he denied guilt, however, he

examined none in his defence.

5. Learned Special Judge, after appreciating the oral and

documentary evidence on record, convicted the appellant for

the aforesaid offences and sentenced him as aforesaid on

the basis of the statements of victim's father (P.W.-8) and

mother (P.W.-2) and Dr. Monika (P.W.-1) as well as on the

basis of the victim's statement recorded under Section 164

of CrPC vide Ex. P/6.

Submission of the parties :-

6. Mr. Vikash A. Shrivastava, learned counsel for the

appellant/accused, would submit that learned Special

Judge is absolutely unjustified in convicting the appellant

for the aforesaid offences in absence of legally admissible

evidence as the victim's mother (P.W.-2) has not supported

the case of the prosecution at all and only on the basis of

the medical evidence of Dr. Monika (P.W.-1), conviction of

the appellant cannot rest. He would further submit that the

Special Judge has also erred in relying upon the statement

of the victim recorded under Section 164 of CrPC vide Ex.

P/6 as it is not a substantive piece of evidence, as such, the

instant appeal be allowed and after setting aside the

impugned judgment, the appellant be acquitted from the

aforesaid charges levelled against him.

7. Per contra, Mr. Arjit Tiwari, learned State counsel, would

support the impugned judgment and submit that victim's

mother (P.W.-2) has supported the case of the prosecution

and as the victim herself has stated in her statement under

Section 164 of CrPC that appellant committed sexual

intercourse with her twice on the pretext of marriage after

which she became pregnant, and she was less than 18

years of age on the date of the offence, the appellant has

rightly been convicted for the aforesaid offences and the

instant appeal deserves to be dismissed.

8. We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went

through the records with utmost circumspection.

9. The short question for consideration is, whether the Special

Judge is justified in convicting the appellant on the basis of

the oral testimonies of victim's mother (P.W.-2) and Dr.

Monika (P.W.-1) as well as on the basis of the statement of

the victim recorded under Section 164 of CrPC vide Ex.

P/6 ? We shall look into the correctness of both of these

findings one by one.

Oral evidence of victim (P.W.-3), her mother (P.W.-2) and

Dr. Monika (P.W.-1) :-

10. Victim (P.W.-3) herself has been examined before the Court

and a careful perusal of her statement would show that she

has not supported the case of the prosecution at all. She

has clearly stated that appellant did not do anything wrong

with her on the dates of the offence. Thereafter, the trial

Court permitted to open her statement under Section 164 of

CrPC pursuant to which, upon being declared hostile, she

was subjected to leading question to which she has refuted

the fact that appellant took her to his mother's house and

on the pretext of marriage committed sexual intercourse

with her and she has further refuted that she did not state

anything of this sort in her statement under Section 164 of

CrPC.

11. Similarly, victim's mother (P.W.-2) has also turned hostile

and not supported the case of the prosecution. Firstly, in

paragraph 6 of her statement, she has stated that when she

asked the victim about the incident, she informed her that

appellant committed sexual intercourse with her on the

pretext of marriage but thereafter, upon being subjected to

cross-examination, she has stated that victim did not

inform her about anything.

12. Dr. Monika (P.W.-1), who conducted victim's medical

examination on 28/12/2020 at the District Hospital,

Bijapur and submitted her report (Ex. P/1), has clearly

stated that on being inquired, the victim herself stated that

the appellant committed sexual intercourse with her on

02/08/2020 and 15/08/2020 on the pretext of marriage

but in cross-examination, she has stated in paragraph 8

that the victim did not inform her about the name of the

person who committed sexual intercourse with her. It is

pertinent to note here that Dr. Monika (P.W.-1) also did not

mention anything in victim's examination report (Ex. P/1)

about such a statement allegedly made by the victim to her

at the time of her medical examination.

13. After going through the statements of the aforesaid

prosecution witnesses, it is quite vivid that there is no such

oral evidence to hold that it was the appellant who

committed sexual intercourse with the victim on account of

which she got pregnant. As such, we are of the considered

opinion that with regard to the entire oral evidence available

on record, there is no legally admissible evidence to

implicate the appellant for the crime in question.

Statement of the victim under Section 164 CrPC :-

14. Now, we shall consider the statement of the victim recorded

under Section 164 of CrPC vide Ex. P/6, which has been

relied upon by the Special Judge to convict the appellant for

the aforesaid offences. In her statement under Section 164

of CrPC (Ex. P/6) made before the Chief Judicial Magistrate,

Bijapur, the victim has clearly stated that it was the

appellant who had committed sexual intercourse with her

on two different dates whereas in her statement before the

Court which has been marked as P.W.-3, she has refuted

that she made any such statement before the Magistrate

under Section 164 of CrPC.

15. The question that arises for consideration herein is, whether

the statement of the victim under Section 164 of CrPC

would come within the meaning of evidence under Section 3

of the Evidence Act, 1872 ?

16. In Brijbhusan Singh v. Emperor1, the Privy Council has

observed that a statement made under Section 164 CrPC

cannot be used as a substantive piece of evidence and it can

be used to cross-examine the person who made it, and the

result may be to show that the evidence of the witness is

false. But that does not establish that what he stated out of

Court under Section 164 CrPC is true. Similarly, in

Mamand and others v. Emperor2, it has been observed by

the Privy Council that the statement of a witness made

under Section 164 CrPC can be used only to discredit the

evidence given by him in Court, and not for any other

purpose. Such a statement cannot be treated as substantive

evidence of the facts stated.

17. In the matter of Ram Kishan Singh v. Harmit Kaur and

another3, with regard to the value to be given to a

statement under Section 164 CrPC, the Supreme Court has

held that "a statement under Section 164 of the Code of

Criminal Procedure is not substantive evidence. It can be

used to corroborate the statement of a witness. It can be

used to contradict a witness."

18. The Supreme Court, in the matter of Sunil Kumar and

others v. State of Madhya Pradesh 4, has held that

statement recorded under Section 164 of CrPC can be used

for corroboration or contradiction.

1 AIR 1946 38 2 AIR 1946 45 3 AIR 1972 SC 202 4 AIR 1997 SC 940

19. Similarly, in the matter of George and others v. State of

Kerala and another5, their Lordships of the Supreme Court

have considered the issue as to whether the statement

recorded under Section 164 CrPC constitutes substantial

evidence and held that a statement of a witness recorded

under Section 164 CrPC cannot be used as substantive

evidence and can be used only for the purpose of

contradicting or corroborating the maker of such statement.

20. Furthermore, in the matter of R. Shaji v. State of Kerala 6,

similar proposition of law has been laid down by their

Lordships of the Supreme Court, which state as under :-

"27. So far as the statement of witnesses recorded under Section 164 is concnered, the object is twofold; in the first place, to deter the witness from chaingin his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. Stae of Orissa7 and CCE v. Duncan Agro Industries Ltd.8)

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence."

21. Finally, in the matter of Somasundaram alias Somu v.

State represented by the Deputy Commissioner of

5 (1998) 4 SCC 605 6 (2013) 14 SCC 266 7 (2000) 1 SCC 272 8 (2000) 7 SCC 53

Police9, a three judge bench of the Supreme Court

considered the purport and value of Section 164 CrPC and

further considered the issue which is similar to the issue in

hand before us as to, what would be the position if the

person giving the statement resiles from the same

completely when he is examined as s witness ? In

paragraph 81 of the report following question was framed by

their Lordships :-

"81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement or confession under Section 164 ? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time."

22. Thereafter, considering the decisions rendered in the

matters of George (supra) and R. Shaji (supra), their

Lordships held in paragraph 84 as under :-

"84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position ? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164."

9 (2020) 7 SCC 722

23. From the aforesaid principle of law laid down by their

Lordships of the Supreme Court in the aforesaid judgments

(supra) qua statement under Section 164 CrPC, it is quite

vivid that statement under Section 164 of CrPC is not an

evidence, much less, substantial evidence within the

meaning of Section 3 of the Evidence Act and it can be used

only for the purpose of corroboration or contradiction. In

absence of any other legally admissible evidence

corroborating the evidence under Section 164 of CrPC, no

conviction can be recorded. In the instant case, there is no

direct evidence available including that of the victim to

implicate the appellant herein for the offences in question.

The medical evidence sought to be produced qua

commission of the offence is also not reliable as Dr. Monika

(P.W.-1), in her cross-examination, has clearly stated that

the victim did not name the person who committed sexual

intercourse with her. Apart from that, the statement of the

victim under Section 164 of CrPC is the only piece of

evidence, on the basis of which, conviction of the appellant

for the aforesaid offences has been recorded by the Special

Judge, which is absolutely perverse and bad in law as the

statement of the victim under Section 164 of CrPC, though

it was recorded before the Magistrate, would not be

substantive evidence and on the strength of the said

statement, no conviction can be based. At the most, if the

deponent or victim, as he/she has turned hostile and not

supported the case of the prosecution, he/she can be

prosecuted for perjury but no conviction can be based and

recorded, on the basis of that statement.

Conclusion :-

24. In view of the aforesaid analysis, we are of the considered

opinion that prosecution has miserably failed to bring home

the offences punishable under Sections 376(3) of IPC and

Section 6 of POCSO Act against the appellant and the

Special Judge is absolutely unjustified in convicting him for

the said offences. We hereby set aside the impugned

judgment of conviction and order of sentence passed by the

Special Judge and acquit the appellant from the charges

levelled against him. He be released forthwith, if his

detention is not required in any other case.

25. Accordingly, this criminal appeal stands allowed.

                Sd/-                                Sd/-
     (Sanjay K. Agrawal)               (Rakesh Mohan Pandey)
            Judge                                Judge




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