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2015 DIGILAW 1931 (ALL)

Mohd. Sajan @ Sarfuddin v. State of U. P.

2015-07-16

SHASHI KANT

body2015
JUDGMENT Shashi Kant, J. – Heard learned counsel for the applicants, learned A.G.A. for the State of U.P. and perused the material available on record. 2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 09.03.2015, passed by Additional Sessions Judge/Fast Track Court, Varanasi, inSessions Trial No. 415 of 2008 - State v. Mohd. Sajan and Others, arising out of Case Crime No. 44 of 2008, under Sections 363, 366 and 376(2)(G) I.P.C., Police Station - Adampur, District - Varanasi, whereby the application for correction of charge was allowed and Section 376 I.P.C. was replaced by Section 376(2)(G) I.P.C. 3. Brief facts giving rise of this application are that : - 3.1 A first information report, was registered on 22.02.2008, as Case Crime No. 44 of 2008, under Sections 363, 366, 376 I.P.C., Police Station - Adampur, District - Varanasi (Annexure No. 2), against the applicants, alleging therein that applicants have committed rape with the sister of opposite party no. 2. 3.2 The prosecutrix was medically examined on 23.02.2008 and her Radiological Examination was also conducted for determination of her age on 26.02.2008, in which her age is shown as 19 years. 3.3 Thereafter statements of prosecutrix under Section 164 Cr.P.C. was recorded in which she stated that all the accused persons have committed rape with her. 3.4 After investigation a charge sheet was filed against all the three accused persons under Sections 363, 366 and 376 I.P.C. and cognizance of the same was taken by the Court below, on 09.05.2008. 3.5 During trial statements of PW-1 (first informant - Kurban Ali) and PW-2 (Prosecutrix) were recorded. 3.6 On 01.09.2014, an application 99Ka' was filed by D.G.C. (Criminal) before Additional District and Sessions Judge, Court No. 1, Varanasi, seeking inclusion of Section 376(2)(G) I.P.C. on the ground that as per F.I.R. and statements recorded under Section 161 and 164 Cr.P.C. allegation of rape has been levelled against all the accused persons. The applicants filed their objections 100kha'. 3.7 The learned Court below vide order dated 09.03.2015 (Annexure No. 10), allowed the application for correction of charges and accordingly Section 376 I.P.C. was replaced by Section 376(2)(G) I.P.C. 3.8 Hence this application under Section 482 Cr.P.C. has been filed challenging the correctness and validity of change in Sections made by the Court below on the grounds mentioned in the affidavit filed in support of this application. 4. Learned counsel for applicants has urged that the impugned order dated 09.03.2015 is against the settled principles of criminal law as once deposition of PW-1 and PW-2 (first informant and prosecutrix respectively) have been recorded during trial, the same will hold primacy over the statements recorded under Sections 161 and 164 Cr.P.C. The Trial Court has completely ignored this concept while passing the order impugned, therefore, same is liable to be set aside. 5. Per contra learned A.G.A. has opposed the submissions made on behalf of applicant stating that allegation of rape has been made against all the accused persons in the F.I.R. as well as in the statements recorded under Section 161 and 164 Cr.P.C., charge sheet has also been filed against the accused under Sections 363, 366 and 376 I.P.C., but when confronted with the fact that deposition of prosecution witnesses before the Trial court would hold supremacy over the statements of prosecution witnesses recorded under Section 161 and 164 Cr.P.C., he could not satisfactorily explain the legal position in this regard. 6. Having heard learned counsel for parties and on perusal of record, it is evident that in the statement recorded before the Trial Court the first informant - PW-1 stated that it was only co-accused Sajan (Applicant no. 1) who had committed rape with the prosecutrix and no such allegation has been made in respect to other two co-accused. The victim - PW-2, in her statement before the Trial Court has also stated the same facts. As such both the above witnesses have not supported their statements recorded under Sections 161 and 164 Cr.P.C., in which they have levelled allegation of rape against all the accused. 7. It is quite clear from the above discussion that PW-1 and PW-2 both have given substantially different version in their statements recorded before the Trial Court, which is not supporting their earlier statements recorded under Sections 161 and 164 Cr.P.C. 8. In this case charge has been modified, after recording evidence of witnesses, on the basis of first information report and statements of victim and witnesses recorded under Sections 161 and 164 Cr.P.C. 9. For proper appreciation of rival submissions of the parties, I find it desirable to have a bird eye view of relevant provisions relating to first information report, statements recorded under Sections 161 and 164 Cr.P.C. etc. For proper appreciation of rival submissions of the parties, I find it desirable to have a bird eye view of relevant provisions relating to first information report, statements recorded under Sections 161 and 164 Cr.P.C. etc. and relevant legal position in this regard, which read as under : Section 161 Cr.P.C. "Examination of witness by police. 161. (1) Any police officer making an investigation under this Chapter, or by any police offier not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records : [Provided that statement made under this sub-section may also be recorded by audio-video electronic means : ] Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.]" Section 164 Cr.P.C. "Recording of confession and statements. 164. 164. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial : [Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence : Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.] (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate" Section 145 of Evidence Act. "145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 10. In Baldev Singh v. State of Punjab [ AIR 1991 SC 31 ], the Court held as under : "6.............Needless to stress that the statement recorded under Section 161 of the CrPC shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) and that the first information report is not a substantial piece of evidence. The High Court has mislead itself into relying upon these two statements and thereby has falled into a serious error..........." 11. In the case of Ram Swaroop and Ors. The High Court has mislead itself into relying upon these two statements and thereby has falled into a serious error..........." 11. In the case of Ram Swaroop and Ors. v. State of Rajasthan [ (2004) 13 SCC 134 ], the Court has held as under : "22. We cannot approve of this approach of the High Court because the version disclosed in the first information report is so different from the version disclosed in the course of deposition of PW-8 that it cannot be said to be merely clarificatory. 23. We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of PW-7 has clearly treated the statement of PW-7, recorded in the course of investigation, as substantive evidence in this case. The High Court observed : - "He is consistent in his statement under Section 161 Cr.P.C. that while he along with Kishore (PW-10) were sitting in front of the house of Kishore, which is just near the Shiv Temple, Ramswaroop and his sons Ram kalyan and Hiralal armed with lathies came and gave beating to Bhanwar Lal and specifically head injury is attributed to Ramswaroop. In the statement in court, he only attributed injuries to Hbiralal and Ram kalyan. Even he is consistent on the tact that while Madan Lal and his mother came and tried to save Bhanwar Lal from these persons, they were caught hold by Dakhan and Ram Kanya and Dakhan and Ram Kanya have given beating to Madan lal and his mother." 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under Section 161 of the Code of Criminal Procedure. The inconsistency between the two versins is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous." 12. In Bashapaka Laxmiah and Anr. The inconsistency between the two versins is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous." 12. In Bashapaka Laxmiah and Anr. v. State of Andhra Pradesh [2001 CriLJ 4066], the High Court of Andhra Pradesh has held as under : "20. ..... Statement under 164 Cr.P.C. is not a substantive piece of evidence. It is not necessary to call the Magistrate to give evidence to prove 164 Statement. Statements under 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies......." 13. In Guggillasanthosh Reddy v. State of A.P. [2001 Cri.L.J. NOC (AP)], the High Court of Andhra Pradesh while dealing with evidentiary value of statement recorded under Section 164 Cr.P.C. has held as under : "it is only a previous statement and cannot be taken as substantive evidence. It can be used by defence for purpose of contradiction under Section 145 of Evidence Act. Conviction of accused relying on statement of eye-witnesses recorded under Section 164 Cr.P.C. even though he/she turned hostile is not proper." 14. The High Court of Calcutta in Tarun Chakaraborty v. State of West Bengal [2010 CriLJ 3745], has held that : "25.........The statement of the witness before the I.O. Recorded under Section 161 Cr.P.C. can be used for the purpose of contradiction, but, not for corroboration. The importance of the statement under Section 161 Cr.P.C. is circumscribed to the point of contradiction only and if the statement of the witness on material particulars or vital points differs from his testimony on oath before the Court, then it can be urged by the defence that his testimony being at variance with his earlier statement made before the I.O. cannot be believed because he is making statement for the first time at the time of trial and it is an after thought. So, that portion of statement made by P.W. 5 to the I.O. cannot be taken into consideration being not permissible under the law. It cannot be used as substantive evidence." 15. A Division Bench of this Court in the case of Munesh v. State of U.P. [2004 CriLJ 1529], observed as under : "16. So, that portion of statement made by P.W. 5 to the I.O. cannot be taken into consideration being not permissible under the law. It cannot be used as substantive evidence." 15. A Division Bench of this Court in the case of Munesh v. State of U.P. [2004 CriLJ 1529], observed as under : "16. ........We make no bones in observing that in Criminal cases, evidence of witnesses can only be accepted, if on the core/substratum of the prosecution case their statement in the trial Court is consistent with their statement under Section 161, Cr.P.C. and where it is not, as is the case here, the Court would have no compunction in rejecting it." 16. In Billal Mia and Anr. v. The State of Tripura [2010 Cri.L.J. 3920], the Agartala Bench of Gauhati High Court has observed as under : "7. ...........As provided by Section 162 Cr.P.C., the purpose of recording the statement under Section 161 Cr.P.C. is very limited. Such statement, if duly proved can be used by the accused and with the permission of the Court, by the prosecution to contradict such witnesses in the manner as provided under Section 145 of the Indian Evidence Act, 1872. ..........." 17. Having heard learned counsel for the parties and on perusal of record it appears that first information report was lodged against the accused-applicants under Sections 363 and 366 I.P.C., the charge sheet was filed against the applicants under Sections 363, 366, 376 I.P.C., but subsequently, on an application moved by D.G.C. (Criminal), the Trial Court amended charge from Section 376 I.P.C. to Section 376(2)(G) only on the basis of earlier statements of PW-1 and victim/PW-2, recorded under Section 161 and 164 Cr.P.C. which are not substantive piece of evidence. Therefore, the prosecution version, which emerged before the Trial Court shall prevail over the prosecution version given in the statements recorded under Sections 161 and 164 Cr.P.C. The substantial evidence of above witnesses was recorded before the Trial Court, in which they stated that rape was committed only by applicant no. 1 and not by other applicants. Ignoring the evidence of PW-1 and PW-2, which was recorded by the Trial Court itself, modification of charge from Section 376 I.P.C. to Section 376(2)(g) I.P.C. is wholly misconceived and is neither justified nor permissible under the law. 18. 1 and not by other applicants. Ignoring the evidence of PW-1 and PW-2, which was recorded by the Trial Court itself, modification of charge from Section 376 I.P.C. to Section 376(2)(g) I.P.C. is wholly misconceived and is neither justified nor permissible under the law. 18. In view of discussion made above and in the light of settled legal position, this application deserves to be allowed and impugned order is liable to be set aside. 19. Application is accordingly allowed. Order dated 09.03.2015, passed by Additional Sessions Judge/Fast Track Court, Varanasi, in Sessions Trial No. 415 of 2008 - State v. Mohd. Sajan and Others, arising out of Case Crime No. 44 of 2008, under Sections 363, 366 and 376(2)(G) I.P.C., Police Station - Adampur, District - Varanasi is hereby set aside. Application Allowed.