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What precaution Magistrate should take if he is recording the statement of victim U/S 164 of CRPC for the second time?

IN THE HIGH COURT OF ALLAHABAD

Criminal Misc. Writ Petition No. 2027 of 2018
Decided On: 19.03.2018

Manisha Sahu

Vs.

State of U.P. and Ors.

Hon’ble Judges/Coram:Ramesh Sinha and K.P. Singh, JJ.

Equivalent Citation: 2018(6)ADJ250, 2018 (104) ALLC C 53, MANU/UP/2581/2018

1. Heard Shri S.K. Chaubey, learned counsel for the petitioners, Shri Ashish Kumar (Nagvanshi), learned counsel for respondent No. 4 and Shri Vikas Sahai, learned Additional Government Advocate for the State and perused the record of the case. By means of this writ petition the petitioners have prayed that the subsequent statement of the victim recorded on 13.12.2017 under Section 164 Cr.P.C. in Case Crime No. 115 of 2017, under Sections 363, 366(A) IPC and 7/8 of the Protection of Children from Sexual Offences Act, 2012 police station Sakaldeeha, district Chandauli be declared void ab-initio. It is further prayed that a direction be issued to the respondents not to rely upon the second 164 Cr.P.C. statement of the victim while submitting the report under Section 173(2) Cr.P.C.

2. The brief facts of the case are that on 16.7.2017 a report was lodged by the first informant Sheela Devi, mother of the victim at the police station Sakaldeeha, district Chandauli to the effect that her daughter, Km. Poonam Yadav, aged 17 years has been enticed away by Manisha Sahu, wife of Manoj Gupta and took her to village Timilpur, police station Sakaldeeha and in order to sell her for prostitution and other misdeed, she has got her eloped with her husband Manoj Gupta. It is further mentioned in the first information report that after a hectic search her daughter, Km. Poonam Yadav, the victim and Manoj Gupta are not traceable. It is also mentioned that the victim has been kidnapped by Manisha Sahu and Manoj Gupta and that the life of her daughter is in danger.

3. On the basis of the aforesaid report a case was registered against the petitioners at case crime No. 115 of 2017, under Sections 363, 366(A) IPC and 7/8 of the Protection of Children from Sexual Offences Act, 2012 police station Sakaldeeha, district Chandauli.

4 . After the recovery of the victim on 18.7.2017, her statement under Section 161 Cr.P.C. was recorded in which she has stated that on 15.7.2017 she went with Manoj Gupta out of her own freewill to Varanasi and thereafter she has gone to Nepal Border and solemnized the marriage with Manoj in a Temple. She also stated that Manoj has not done any misdeed with her and that she wants to live with Manoj.

5 . On 18.7.2017, the investigating officer has produced the victim before the Chief Medical Officer of District Women Hospital, Chandauli for getting the medical examination of the victim done, but the victim has straight away refused in writing to get her medical examination either internal or external conducted.

6. On 19.7.2017 the investigating officer of the case has produced the victim before the learned Civil Judge (SD) for getting her statement under Section 164 Cr.P.C. recorded. The learned Civil Judge (SD) has recorded her statement, in which she has stated that she is aged about 18 years. She is well known to Manisha Yadav and Manoj Gupta. On 15.7.2017, she had gone to Banaras to fetch medicine out of her own sweet will. Nobody has enticed her away. She was lovelorn with Manoj Gupta for the last six months. When Manoj has come to Banaras alongwith her to fetch medicines, she had gone to Nepal and performed marriage in a Temple. After the marriage although they were together, but they did not make any physical relation. Manoj, even did not touch her private parts.

7. It appears that after recording of the statement of the victim under Sections 161 and 164 Cr.P.C. the father of the victim, namely Shri Ram Dularey has moved an application before the Superintendent of Police, Chandauli alongwith an affidavit of the victim, stating therein that the statement of the victim has been recorded in collusion with and under the influence of police with the accused. On the basis of that application, the Superintendent of Police, Chandauli directed the investigating officer to produce the victim again before the learned Court below for recording her statement under Section 164 Cr.P.C. Thereafter the second statement of the victim was recorded under Section 164 Cr.P.C.

8. Learned counsel for the petitioners submits that since there is no provisions in the Code for recording the statement of the victim under Section 164 Cr.P.C. twice, the subsequent statement made by the victim should not be read against the petitioners while submitting the charge-sheet.

9. On the other hand, Shri Ashish Kumar, learned counsel for respondent No. 4 and Shri Vikas Sahai, learned Additional Government Advocate submitted that since the earlier 164 Cr.P.C. statement of the victim was recorded in collusion of the accused with the police and under the influence of the police and that is why on an application being made by the father of the victim, the second statement of the victim was recorded.

10. They further submit that perusal of the first statement of the victim goes to show that the victim was under the pressure of the accused as she stated that she had gone to Nepal and performed marriage in a Temple. After the marriage although they were together, but they did not make any physical relation. Manoj, even did not touch her private parts.

11. Learned counsel for the complainant and learned AGA submits that the second part of the first statement of the victim that after the marriage although they were together, but they did not make any physical relation and that Manoj did not touch her private parts seems unnatural and suggests that the first statement under Section 164 Cr.P.C. was recorded under pressure and threat and, therefore, on an application being made by the father of the victim leveling allegations of threat, the second statement of the victim was recorded.

12. It appears that for quashing of the FIR, the petitioners earlier approached this Court by filing Criminal Misc. Writ Petition No. 15112 of 2017, which was disposed of by a coordinate Bench of this Court vide order dated 2.8.2017 with the directions that the petitioners shall not be arrested till submission of police report under Section 173(2) Cr.P.C. before the Court concerned, subject to their cooperation in the investigation, which will go on and shall brought to a logical end. The aforesaid order was passed by the Bench considering the first statement of the victim under Section 164 Cr.P.C.

13. From the perusal of the record it appears that the first statement of the victim under Section 164 of the Code was recorded on 19.7.2017 and on 21.7.2017 the father of the victim has given an application to the Superintendent of Police, district Chandauli mentioning therein that on 15.7.2017, the victim was abducted by Manoj Kumar with the help of his wife in respect of which a case was registered at police station Sakaldeeha. Accused Manoj raped her daughter for three days and on pressure of the police on the family members of the accused, he came to the police station alongwith the victim. Accused Manoj is very influential person, due to which the police has let him off after a short while and the victim could not be medically examined till date. It is further mentioned in the application that (as told by the victim) that the police has got the statement of the victim recorded under the pressure of the accused. The victim has also told to her father that the accused had threatened her if she gives statement against him, he will get her brothers eliminated.

14. In her subsequent statement to the police under Section 161 Cr.P.C. she has stated that she did not know Manoj Gupta. She has been introduced from Manoj Gupta by Surendra and Surendra used to put pressure on her for taking to Manoj Gupta and when she refused to talk to Manoj, he threatened her that Surendra had got her video clipped and if she does not speak him, he shall show that video to her family members. Thereafter Manoj took a room at Sakaldeeha Kutcheri and called her on the pretext that he will only talk. When she went to his room, he committed rape with her and asked her that her video has been clipped and threatened her not to disclose this fact to any one otherwise he shall show that video to everyone. Thereafter Manoj used to do such misdeed for six months. It is also mentioned in the application that Manoj has also threatened her that in case she refused to accompany him, she alongwith her family members will be eliminated. On 15.7.2017, when she was going to school for admission, Manoj met her on the way and asked her to go with him and on her refusal, he threatened to kill her and took her to Lucknow. It is further mentioned in the statement that Manoj asked her that he has given Rs. 500,000/- to Surendra in lieu of her. Manoj used to drink her intoxicated medicine and commit rape. When she was brought to the police station, on the way the accused threatened her of dire consequences if she does not give statement favorable to the accused.

15. In the statement the victim has also stated that SI Radhey Shyam has asked her that as to when she went for medical examination, she should only state that she does not want to get her medical examination done and wants to live with Manoj. In the hospital when she enquired from the doctor as to what Daroga Ji has said, she replied that you should only say that you do not want your medical examination done and want to live with Manoj. Thereafter she was compelled to sign on a blank paper.

16 . In her second statement under Section 164 Cr.P.C. which was recorded on 13.12.2017, the victim has leveled serious allegations of rape, blackmailing her and life threat against Manoj and his wife, the petitioners. In the second statement both under Section 161 and 164 Cr.P.C., the victim has given a very clear and lucid picture of the incident, i.e. as to how she has been enticed away and raped by petitioner Manoj and what happened thereafter till the recording of her earlier statement under Section 161 and 164 Cr.P.C.

17 . From perusal of the subsequent statement of the victim, it appears that in addition to the petitioners, one Surendra is also involved in the present episode, whose complicity should also be enquired into. The role of Radhey Shyam (Sub Inspector) is also under cloud.

In respect of the statement of a witness or victim recorded under Section 164 Cr.P.C. and its value, the Apex Court in Ram Kishan Singh v. Harmit Kaur, MANU/SC/0169/1971 : AIR 1972 SC 468, held as under:

“A statement under Section 164 of the Code is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness…”

In Ram Prasad v. State of Maharashtra, 1996 Cri LJ 2889, Apex Court has held thus: “Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before “any authority legally competent to investigate the fact” but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.

18. In Bhuboni Sahu v. King, MANU/PR/0014/1949 : AIR 1949 PC 257, the Privy Council has held that a statement made under Section 164 of the Code of Criminal procedure can never be used as substantive evidence of the fact stated, but it can be used to support or challenge evidence given in Court by the person who made the statement.

19. In Manik Gazi v. Emperor, MANU/WB/0104/1941 : AIR 1942 Cal 36, a Division bench of 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.

20. In Brij Bhushan Singh v. Emperor, MANU/PR/0041/1945 : AIR 1946 PC 38 and Mamand v. Emperor, MANU/PR/0044/1945 : AIR 1946 PC 45, the Privy Council has 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.

21. We have considered the purpose and relevance of the statement of the victim recorded under Section 164 of the Code of Criminal Procedure. It has been stated by the father of the victim that the first statement of the victim both under Section 161 and 164 Cr.P.C. were got recorded by the police under pressure and in collusion with the accused, but the same appears only to lame excuse by the father of the victim who moved an application alongwith an affidavit to the Superintendent of Police Chandauli, who directed the Investigating Officer to get her statement again recorded under Section 164 Cr.P.C., for which the Investigating Officer moved to the POCSO Court and Additional Sessions Judge directed the Magistrate to record second statement of the prosecutrix/victim under Section 164 Cr.P.C. and the learned Magistrate following the mandate of the POCSO Court recorded the second statement under Section 164 Cr.P.C. on 13.12.2017 without questioning or confronting the victim/prosecutrix about earlier statement recorded under Section 164 Cr.P.C. on 19.7.2017 in which she did not level any allegation against the accused Manoj though the said statement was made on oath by her before the competent Magistrate in view of the provisions of Section 164(5) Cr.P.C.

22 . In the said circumstances the second statement of the victim recorded under Section 164 Cr.P.C. can be an afterthought and also under influence of her father, possibility of which cannot be ruled out and just to defeat the earlier statement recorded under Section 164 Cr.P.C. of the victim, the Investigating Officer at the behest of her father again got recorded her statement under Section 164 Cr.P.C. leveling allegations against the accused and his wife.

23. The statement made by the victim/prosecutrix under Section 164 Cr.P.C. before the Magistrate stands on high pedestal and sanctity during the course of investigation as compared to her statement recorded under Section 161 Cr.P.C. by the Investigating Officer.

24 . The statement made by the victim under Section 164 Cr.P.C. before the Magistrate on oath at the first opportunity time after she was recovered can be taken true unless it is shown that it was made by the victim under influence, duress or for any other oblique motive or purpose.

25. In the present case neither the learned POSCO Judge, who ordered for recording the second statement of the victim under Section 164 Cr.P.C. nor the learned Magistrate, who recorded the second statement on 13.12.2017 has taken due care or precaution which necessitated the recording of second statement under Section 164 Cr.P.C. of the victim and also not confronted the victim of her earlier statement under Section 164 Cr.P.C.

26 . It is true that law does not bar recording the statement of the victim under Section 164 Cr.P.C. twice, but at the same time the second statement should not be recorded to negate or defeat the earlier statement of the victim whether it is in favour or against the accused otherwise the sanctity of the statement under Section 164 Cr.P.C. will loose its value. Hence, the learned Magistrate while recording statement of the victim under Section 164 Cr.P.C. should be very cautious and vigilant and record the statement strictly in accordance with provision of Section 164 Cr.P.C. explaining the victim about the pros and cons of his or her statement, as the case may be, as the said is administered to the victim on oath in order to give its sanctity during the course of investigation.

27 . However, as the arrest of the petitioners has been stayed by the Coordinate 17-09-2018

Bench of this Court vide order dated 2.8.2017 till submission of report under Section 173(2) Cr.P.C., considering the earlier statement of the victim under Section 164 Cr.P.C., it is provided that the investigating officer shall proceed with the investigation and submit his report as directed by the Coordinate Bench of this Court vide order dated 2.8.2017 on the basis of the material collected during investigation.

28. It goes without saying that the investigating officer shall be free to collect all other materials during investigation, which he deems fit and proper in the circumstances of the case.

29 . It is further provided that the investigating officer shall also investigate the matter in respect of complicity of Surendra, whose name has been surfaced in the subsequent statement of the victim.

30. With the aforesaid directions, this petition is disposed of. The Registrar General is directed to send a copy of this order to all the District/Sessions Judges of the State for necessary information and its compliance.

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