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2005 DIGILAW 101 (UTT)

Leeladhar Joshi v. State

2005-03-28

B.C.KANDPAL

body2005
Judgment This criminal appeal -arises out against the judgement and order dated. 21-09-2002 passed by Sessions Judge, Champawat in Sessions Trial No. 16 of 2002 convicting the accused/appellant under Section 376 I.P.C. and sentencing him to undergo 5 years rigorous imprisonment. 2. Brief facts of the prosecution case are that the accused Liladhar was posted as constable in police department and his family was .residing in the village Madhkot, District Pithoragarh. The appellant Liladhar had a daughter Kumari Bina whom she took with him to his house at Pithoragarh which was located in the campus of Police Line, Champawat. 3. As per the prosecution case, the accused/appellant one evening brought the mutton and liquor to his house and after taking the mutton and liquor, he also provided some liquor to his daughter describing that liquor to be a medicine Kumari Bina after having liquor started becoming unconscious therefore, the accused/appellant took her in his lap and thereafter unclothed her. Kumari Bina put objection instead of being under intoxication but the accused/appellant pressed her mouth and threatened her. Thereafter, accused/ appellant committed rape upon her. The accused/appellant after that night, off and on used to commit rape upon her. Kumari Bina did not disclose this fact to anyone out of fear but after certain time when she could not tolerate this behaviour of her father then she lodged a report on, 26-05-2002 at police station. 4. A case was registered under Section 376 and 506 I.P.C. at Police Station, Lohaghat. After registration of the case, the prosecutrix Kumari Bina was sent for medical examination and the Investigating Officer recorded the statement of the witnesses including the prosecutrix; The Investigating Officer also produced the prosecutrix before the Magistrate where her statement under Section 164 were recorded. 5. The Investigating Officer submitted the charge sheet against the accused. After submission of charge sheet the accused Liladhar was committed to the Court of Sessions for trial and the trial court on 30-07-2002 framed charge under Section 376 I.P.C. against the accused/appellant. The accused denied of the charge leveled against him and claimed his trial. 6. The prosecution in order to support its case produced Kumari Bina (P.W.1) - prosecutrix, Smt. Khila Devi (P.W.2) - mother of the prosecutrix, Pradeep Joshi (P.W.3) - brother of the prosecutrix, Dr. The accused denied of the charge leveled against him and claimed his trial. 6. The prosecution in order to support its case produced Kumari Bina (P.W.1) - prosecutrix, Smt. Khila Devi (P.W.2) - mother of the prosecutrix, Pradeep Joshi (P.W.3) - brother of the prosecutrix, Dr. Sushila Shah (P.W4), Mukhtar Ahmad Khan (P.W.5), Smt. Usha Chaudhary (P.W.6), Ashvani Kumar Chaudhary (P.W.7) and Alok Kumar Verma (P.W.8) - Magistrate. 7. After the evidence of the prosecution was over, the statement of the accused/appellant was recorded under Section 313 of the Criminal Procedure Code. The accused person did not adduce any evidence in his defence. 8. The learned trial court, after hearing learned counsel for the parties and having perused the entire evidence on record was pleased to convict the accused under Section 376 of I.P.C. and thereon sentence him for 5 years rigorous imprisonment vide judgement and order dated 21-09-2002. 9. Feeling aggrieved by the impugned judgement and order, the accused preferred the appeal, which has been placed before this Court for final disposal. 10. Heard the learned counsel for the parties and perused the record. 11. The record of the case shows that the prosecution has produced P.W.1 Km. Bina, prosecutrix, P.W.2 Khila Devi, mother of the prosecutrix and P.W.3 Pradeep Joshi, brother of prosecutrix. All the three witness have been declared hostile by the prosecution as they have not supported the prosecution case in any manner. 12. The prosecutrix Km. Bina is a star witness and she has stated in her deposition before the court that Smt. Usha Chaudhari got her signature obtained on the plain paper and on one written paper. She did not raise any objection when her signature was obtained. This witness has also deposed that whatever has been written in the F.I.R., is absolutely false and the recital made in the F.I.R. were not scribed on her dictation. 13. P.W.2 Smt. Khila Devi is the mother of the prosecutrix Km. Bina and she has also stated that her daughter never made any complaint with regard to the fact that any rape was committed upon her by the appellant. 14. P.W.3 Pradeep Joshi, has also stated that his sister Km. Bina had never disclosed this fact that she was subjected to rape. 15. Therefore, all the three material witnesses have turned hostile with regard to the factual aspects of the case. 16. 14. P.W.3 Pradeep Joshi, has also stated that his sister Km. Bina had never disclosed this fact that she was subjected to rape. 15. Therefore, all the three material witnesses have turned hostile with regard to the factual aspects of the case. 16. The evidence which has been considered by the trial court for recording the conviction of the accused/appellant is that of the statement of the prosecutrix recorded u/s 164 Cr.P.C. The prosecutrix in her statement recorded u/s 164 Cr.P.C. has in fact stated that she was subjected to rape by the appellant. She has also stated before the Magistrate u/s 164 Cr.P.C. that she was subjected to rape many times by the appellant. 17. It is important to mention here that the prosecutrix in her deposition before the court has stated that her statement was recorded u/s 164 Cr.P.C. but that statement was given by her under the influence of Smt. Usha Chaudhary who asked her to give wrong statement before the Magistrate. 18. The trial court while deciding the case and convicting the appellant made the statement of the prosecution which was recorded u/s 164 Cr.P.C. a basis for conviction. It appears from the judgement of the trial court that the trial court instead of proceeding in accordance with the law and as per the provisions of the Evidence Act has rather guided himself by the sentiments. 19. It is true that the statement of the prosecutrix recorded u/s 164 Cr.P.C. did not support the prosecution case/story in the court therefore, in view of the relevant provision of the law the statement of the prosecutrix u/s 164 cannot be used as a substantive piece of evidence. 20. From the judgement of the trial court, I noticed that the substantial parts of its observations are based on the statement of the prosecutrix recorded u/s 164 Cr.P.C. which was treated as substantive evidence, as would be evident following amongst other observations made by the trial court. 21. In making the above comments, the trial court again ignored the fundamental rule of Criminal jurisprudence that a statement of the witness recorded u/s 164 Cr.P.C. cannot be used as substantive evidence and can be used for the purpose of contradicting or corroborating her. Instead of appreciating the evidence of the prosecutrix before the court trial court confined its attention mainly to her statement so recorded and credited her. Instead of appreciating the evidence of the prosecutrix before the court trial court confined its attention mainly to her statement so recorded and credited her. This legal infirmity apart, factually also the trial court committed patent error. 22. I am surprised that the learned Sessions Judge little realizing the value of the statement u/s 164 Cr.P.C. of the code had placed implicit reliance on that statement and held the appellant guilty. 23. The Hon'ble Privy Council in "AIR 1946 PC 38 Brij Bhushan Singh Vs. Emperor" and in "AIR 1946 PC-45 Mamand and others Vs. Emperor" had observed that the statement u/s 164 of the code can not be used as a substantive evidence and can only be used to contradict and corroborate the statement of a witness given in the court. 24. So far as the statement of the prosecutrix u/s 164 is concerned, the learned trial Judge utterly misdirected himself in using the same as substantive evidence and it was obviously improper to use those statement. The statement u/s 164 Cr.P.C. can not be used as a substantive piece of evidence. It can be used to cross examine the person who made it and the result may be to show that evidence of the witness is false, but that does not establish that what she stated out of court u/s 164 Cr.P.C. is true. 25. Further the Hon'ble Apex Court in a case reported in "1972 (Cri L.J.) page 267 Ram Kishan Singh Vs. Harmit Kaur and another" as well as in "1998 SCC (Crl) page 1232 George and others Vs. State of Kerala" have clearly propounded that "the statement u/s 164 Cr.P.C. is not a substantive evidence. It can be used only to corroborate the statement of the witness or to contradict him." 26. The aforesaid catena of cases, go to show that where the witness did not support the prosecution story in the court, then the statement u/s 164 of the code cannot be used as substantive piece of evidence. 27. In the instant case, learned Judge has erred in using the Ex. Ka. 9 "Statement of the "prosecutrix Km. Bina recorded u/s 164 Cr.P.C. dated 2605-2002" as substantive piece of evidence. There was thus no evidence at all on the basis of which the learned Sessions Judge could come to the conclusion that the appellant had actually committed the crime. 28. Ka. 9 "Statement of the "prosecutrix Km. Bina recorded u/s 164 Cr.P.C. dated 2605-2002" as substantive piece of evidence. There was thus no evidence at all on the basis of which the learned Sessions Judge could come to the conclusion that the appellant had actually committed the crime. 28. On a comprehensive view of the materials on record, I am satisfied that the prosecution has utterly failed in establishing the guilt of the accused/ appellant and I, therefore, come to the conclusion that the conviction and sentence recorded by the trial court is liable to be set aside. 29. The appeal is therefore, allowed. Conviction and sentence recorded by the trial court vide judgement & order dated 21-09-2002 hereby set aside. 30. Accordingly the appellant is acquitted of the charge leveled against him. 31. The appellant shall be released forthwith unless wanted in any other case.