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Contradictory statement in 376D

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. 9

Case :MISC. BENCH No. 16855 of 2018

Petitioner :Nazia

Respondent :State Of U.P. Thru. Prin Secy Home And Ors.

Counsel for Petitioner :Nutan Mishra,Santosh Kumar Bhatt

Counsel for Respondent :Govt.Advocate

A N D ::Case :MISC.BENCH No. 16832 of 2018

Petitioner :Zeeshan Haider

Respondent :State Of U.P. Thru Prin Secy Home And Ors.

Counsel for Petitioner :Santosh Kumar Bhatt,Nutan Mishra

Counsel for Respondent :Govt. Advocate

Hon’ble Ajai Lamba,J.

Hon’ble Dinesh Kumar Singh,J.

1. This order shall dispose of two cases viz. Writ Petition No.16855 (MB) of 2018 titled ‘Nazia v. State of U.P. and others’ and Writ Petition No.16832 (MB) of 2018 titled ‘Zeeshan Haider v. State of U.P. and others’. The petitions are being disposed of vide a common order for the reason that the petitioners in both the petitions seek the same relief in context of the same first information report, the petitioners being accused therein.

2. For reference to record, we are taking up Writ Petition No.16855 (MB) of 2018.

3. Order dated 13.08.2018 notices the gist of the issue raised by the petitioners. The order reads as under: ” 1. The petition seeks issuance of a writ in the nature of certiorari quashing impugned First Information Report No.202 of 2018, under Sections 328, 376, 354B, 452, 323, 506 Indian Penal Code, Police Station Talkatora, District Lucknow.

2. We have heard learned counsel for the petitioner and Shri S.P. Singh, learned counsel for the State.

3. Short counter affidavit has been filed on behalf of the prosecuting agency in Court which is taken on record. In the affidavit it has been stated that incriminating evidence has been found against all the three accused. Chargesheet has been prepared.

It is apparent that charge-sheet has not been filed as yet. 4. Learned counsel for the petitioner has pointed out that the impugned first information report has been registered in regard to an incident which is three years old. In fact, even the date of incident and time of incident have not been clarified by the complainant.

It has been highlighted that a victim of rape would certainly give such details. 5. On the second count it has been argued that it is not only improbable but also impossible for a wife to support the actions of her husband in committing offence of rape. There is not an iota of evidence to link the petitioner with the act of intoxicating the victim or colluding in committing rape on the victim. The investigation apparently has gone by the statement of the prosecutrix recorded under Section 164 Cr.P.C. The contents of the statement, however have not been investigated.

6. We have considered the contention. Indeed the relevant aspects of the incident in question have not been investigated.

Even contents of statement recorded under Section 164 Cr.P.C. have to be investigated.

7. Learned counsel has further pointed out that although there is no incriminating evidence against Zeesan Haider, however Zeesan Haider has been implicated for committing offence under Section 506 Indian Penal Code. From the short counter affidavit being filed in Court, even the ingredients of the said offence are not satisfied.

It has also been argued that even though Sadakat Husain had relations with the victim, they would be consensual, as is demonstrated from the sequence of events.

8. We find the investigation and the short counter affidavit filed on the basis of the investigation to be wholly inadequate so far as the alleged offence is concerned.

We hereby direct re-investigation in the matter. 9. The contents of statement under Section 164 Cr.P.C. have also to be investigated for fair investigation.

10. There are a large number of cases coming before us in which complainant/prosecutrix have been indulging in falsely implicating accused or whole family of the main accused. In such circumstances it becomes imperative to verify whether the victim is telling the truth in regard to the role played by each of the accused. The victim having given out her stand in her statement under Section 164 Cr.P.C., it needs to be verified whether she is telling the truth. The investigating agency or the Court cannot accept the statement as such and proceed against the accused.

Proceedings against a person as accused has serious ramifications for his personal life and his standing in the society. In law, no person should be wrongly investigated, prosecuted or tried.

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In such circumstances we are of the considered view that statement recorded under Section 164 Cr.P.C. is also required to be investigated in the interest of fair and effective investigation.

11. This issue cropped up before a Division Bench of this Court in which one of us (Ajai Lamba, J.) was a party. The following has been held in Nisharuddin vs. State of U.P. & Ors. – Writ Petition No.3402 (MB) of 2016 on 19.05.2016 (relevant portion):-

“17. Division Bench of this Court in Madhuri Devi v. Sate of U.P: Writ Petition No. 7590 of 2015 decided on 21.8.2015 in regard to investigation, has held as under (relevant paragraphs 12, 13, 14, 15, 39, 40, 42, 43 and 45):-ÿ12. “Investigation” is a term defined under Section 2 (h) of the CrPC in the following terms:ÿ”(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;”ÿ13. The dictionary meaning of investigation as per The New Lexicon Webster’s Dictionary of the English Language is “an examination for the purpose of discovering information about something”.ÿ14. As per Oxford Advanced Learner’s Dictionary of Current English, investigation is “an official examination of the facts about a situation, crime, etc”.ÿ15. “Investigate” has been defined in Oxford Dictionary (supra) as, “to carefully examine the facts of a situation, an event, a crime etc. to find out the truth about it or how it happened.”ÿ39. In the considered opinion of the court, although an accused would have no right of hearing, however, a duty is cast on the investigating agency to conduct fair and impartial investigation. If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. In case the investigation is select and one sided, the truth cannot be unearthed. If facts or some evidence/material is brought to the notice of the investigator, on consideration of which it can be demonstrated that the accused is not connected with commission of the crime, surely in such cases, the investigating agency would be obliged to investigate that aspect, in the interest of fair play and purity of administration of criminal justice. For this purpose, the information given by the accused cannot be ignored on the analogy that he has no right to be heard.ÿ40. The judgement rendered by the Hon’ble Supreme Court in Ram Lal Narang’s case (supra) (emphasized portion), also indicates that when it comes to the notice of the investigating agency that a person already accused of an offence has good alibi, it would be a duty of that agency to investigate the genuineness of the plea of alibi.ÿ42. Also, it may happen that the name of an accused is given by the complainant for mala fide reasons, however, at the point in time when the offence was committed that person was abroad. In the circumstances, manifest injustice would be caused in prosecuting that person. However, if the investigating officer also considers the version of the accused in that context, entries in the passport can be verified and a conclusion drawn that allegations in the First Information Report to that extent are false. Similarly, a person might not have anything to do in commission of an offence and he might have plausible and acceptable material and evidence to demonstrate that fact, surely it is the duty of the investigating officer to take those evidences/material into account and only thereafter conclude investigation. Objective of investigation is ‘to find out the truth’. It is the bounden duty of the investigating officer to find out as to how the incident/transaction/event happened. The investigation is required to be conducted through a scrupulous, unbiased, trustworthy and lawful manner. (emphasised by us)ÿ43. There might be another situation wherein only the accused might have access to material or evidence relevant for investigation of a crime which would elucidate, clarify and unfold the facts. Surely, investigation in regard to such material would help the investigating agency to come to the right conclusion. Thus, there can be no bar spelt out in law to the accused pointing out the material which is relevant for the investigation of the crime. It would, however, be solely for the investigating agency to draw a conclusion, on completion of investigation.ÿ45. From the definition of ”investigation’ provided under Section 2 (h) of CrPC, it is evident that it includes all proceedings for the ”collection of evidence’. The provision does not even envisage that only the version given by the complainant/informant is to be inquired or investigated.”

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18. From the above, it is evident that the investigation is process of finding out the truth. Investigation is in regard to an incident. There are a number of cases reported wherein a complainant/informant after committing offence has registered false criminal case against others. It therefore follows that statement of a complainant/victim cannot be accepted as such, and is required to be investigated whether he or she is telling the truth or not. Circumventing circumstances might come on record which may indicate/establish that the statement given by the prosecutrix is false and motivated under the influence of some other persons. This is particularly so when scientific/forensic evidence cannot be collected so as to prove commission of a particular crime. 19. When the allegations of commission of offence are only oral, veracity of statements of witnesses assumes utmost importance. In case the oral allegations cannot be confirmed by way of collection of physical evidence or forensic or medical evidence, it becomes imperative for the prosecution and the court to become cautious. In such circumstances, in the interest of substantial justice and so as to avoid malacious prosecution, the statement of such victim is required to be verified, whether she is stating the facts or not.

22. The Hon’ble Supreme Court of India in Ram Kishan Singh v. Harmit Kaur [AIR 1972 SC 468], has held the following :-

8. A statement under Section 164 of the CrPC is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness……………”ÿ24. In Ram Lakhan Sheo Charan v. State of UP [1991 Cri. L.J 2790], the following has been held by Hon’ble Allahabad High Court:-ÿ”12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old code of Criminal Procedure with little change are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36: (1942) 43 Cri LJ 277, a Division bench of the Calcutta High Court had held that the statements under section 164 of the Code can be used only to corroborate or contradict the statement made under section 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor AIR 1946 PC 45: (1946) 47 Cri LJ 344, the Privy Council had observed that the statement under section 164 of the Code cannot be used as substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observation as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257: (1949) Cri LJ 872, and in Bhagi v. Crown, 1950 Cri LJ 1004: [AIR 37 1950 HP 35]. It was also held by a single bench of the Himachal Pradesh Judicial Commissioner’s court that statement under section 164 of the code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642: (1960 Cri LJ 1167). A division bench of this court had also observed that statements under section 164 of the Code cannot be used as substantive evidence.

13. The above catena of cases go to show that where the witness do not support the prosecution story in the court, then their statements under section 164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as substantive piece of evidence”ÿ27. On perusal and consideration of the law above extracted, it becomes evident that statement of a witness recorded under Section 164 Cr. P.C is not substantive evidence. It can be used to corroborate the statement of the witness. It can be used to contradict the witness. Such statement would either be elevated to the status of evidence under Section 32 of the Evidence Act if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. Therefore, in case after recording of statement under Section 164 Cr. P.C, the witness dies before his or her statement can be taken as a prosecution witness in the course of trial, Section 32 of the Indian Evidence Act would be attracted.ÿ28. It has been clarified in the above referred judgments that where a witness does not support the prosecution story in the court, then only the statement recorded under Section 164 Cr. P.C cannot be used as substantive piece of evidence to record conviction of the accused. The basis of laying down this law is that the statement of a witness is recorded in the absence of the accused. At the time of giving statement by the witness, the accused has not had the occasion to cross examine the witness. Thus, so as to convert a statement under Section 164 Cr. P.C into substantive piece of evidence, it should be duly tendered before the trial court and then the witness should be produced by the prosecution for cross examination.ÿ29. Having considered the purpose and relevance of statement of the witness recorded under Section 164 of the Code of Criminal Procedure in the course of investigation, we must provide and clarify that such a statement is required to be verified by the investigating officer. Such a statement cannot be considered as complete investigation. A large number of cases are coming before us in which a highly exaggerated picture is painted by the witness which might ex facie seem absurd or inherently improbable. While such a witness might involve more than one person in commission of the offences, on verifying the contents of the statement, it might be found that some of the named accused were elsewhere and nowhere close to the place of incident to reiterate the law laid down in Madhuri Devi’s case (supra), the incident is required to be investigated. It cannot be ruled out that a statement given by the witness under Section 161 Cr.P.C or 164 Cr. P.C might not be truthful and therefore it follows that in the interest of fair and effective investigation, the same is required to be confirmed and verified, particularly when there is reason to suspect the truthfulness of the statement. There might be cases where absence (or presence) of medical and physical evidence reflect suspicion on the statement of the witness. There might be other cases where there is animus between the parties indicating the urge to falsely implicate the accused. There might be other cases where the case at issue is in counter blast. Therefore, such statement recorded under Section 164 Cr. P.C Cannot be accepted at its face value as the final truth and might require verification through investigation.”

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12. The contents of statement recorded under Section 164 Cr.P.C. be thoroughly investigated in all its relevant aspects.

Role, if any, of Nazia as also Zeesan Haider in the incident be investigated. 13. We hereby direct Superintendent of Police, (West) Lucknow to ensure that re-investigation is conducted by a competent officer, under the day-to-day supervision of Superintendent of Police, (West) Lucknow.

14. List on 04.10.2018.

15. In both the cases, the petitioners be not taken in custody till the next date of listing.

16. Let a copy of this order be placed in the file of Writ Petition No.16832 (M/B) of 2018 also. “ÿ4. Short counter affidavit has been filed on behalf of the investigating agency by Sri Vikash Chandra Tripathi, Superintendent of Police, West, Lucknow. In the affidavit it has been stated that reinvestigation was undertaken. During the course of investigation, it has been found that victim of offence had given contradictory statements under Section 161 Cr.P.C., and Section 164 Cr.P.C. The statements were found not consistent with the F.I.R. version. Some of the allegations are found to be baseless. No evidence has been found to indicate commission of offence under Section 376D of the Indian Penal Code, therefore, the said offence was converted into Section 376 of the Indian Penal Code. Accordingly, investigation was conducted.ÿ5. It has been stated that no incriminating evidence has been found against the petitioners in both the cases. Names of the accused have been deleted from the array of the accused.ÿ6. From the above, it is evident that causeofaction does not survive. Both the petitions are disposed of as infructuous.ÿ7. Let a copy of this order be placed in the file of Writ Petition

No.16832 (MB) of 2018.
Order Date :4.10.2018
GK Sinha

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