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Allahabad High Court · body

2016 DIGILAW 1933 (ALL)

MOHD. YASEEN v. STATE OF U. P.

2016-05-18

KARUNA NAND BAJPAYEE

body2016
JUDGMENT : Hon'ble Karuna Nand Bajpayee, J. This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the part of joint order dated 28.7.2012 passed by learned lower court in S.T. No. 592 of 2007, State vs. Munna and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.-Dhoomanganj, District-Allahabad pending before the A.D.J. 23rd, Allahabad whereby the prayer to summon the Magistrate who had recorded the statement of the victim u/s 164 of Cr.P.C. as well as the prayer that the court should do the spot inspection, both have been rejected. Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel for the opposite party no. 2. Perused the entire record. Submission of the counsel for the applicant is that during the course of statement given by the victim-girl, some topographical facts relating to geographical or topographical situation of the town Allahabad have been denied and it was in this connection that an application under Section 310 of Cr.P.C. was moved in the court below. But the court below has wrongly rejected the same. Further submission is that some contradictory statements were made before the Magistrate, who had recorded the statement of the alleged victim-girl under Section 164 of Cr.P.C. and for that purpose the accused-applicant wanted to examine the Magistrate in order to prove those contradictory statements. Submission is that as the prayer with regard to summoning the Magistrate has already been rejected by the trial court, the accused will be deprived of their intrinsic right to impeach the worth of the witnesses' testimony and the contradictions contained in the previous statement shall remain unproved and, therefore, it shall cause prejudice to him and shall also affect the fairness of the trial. It was also submitted by counsel for the applicant that the trial court had only allowed the prayer to summon two other witnesses in order to show previous marriage of the victim with the accused. It was also submitted by counsel for the applicant that the trial court had only allowed the prayer to summon two other witnesses in order to show previous marriage of the victim with the accused. The counsel has also tried to buttress his submission by placing reliance on a Full Bench decision given by this Court in Sheo Raj vs. State, AIR 1964 All 290 and has tried to show that summoning of Magistrate is necessary in order to prove the statement given by the victim u/s 164 Cr.P.C. I have perused the record and the impugned order in the light of the submissions made at the Bar. The impugned order indicates judicial application of mind and the facts and circumstances of the case have been carefully gone into and judicious decision has been arrived at by the trial court. So far as the application under Section 310 of Cr.P.C. is concerned, it is true that the courts have the power to examine the spot at any stage of inquiry or trial, if in its opinion, it is necessary to do so for the purpose of proper appreciation of evidence. But it does not mean to say that whenever an application to the same effect is moved on behalf of either side, the court shall be under compulsion to inspect the spot. It is for the court to adjudge the exigency of the spot inspection. In the considered view of the trial Court such an application was not needed in the light of the available record of the case and, therefore, this Court has also no reason to take a different view in the matter and meddle with the judicial discretion of the trial court. So far as the prayer with regard to summoning of the two witnesses of 'Nikah' are concerned, the same prayer has already been allowed and therefore, there is no need to go into that aspect of the matter. So far as the prayer with regard to summoning of the two witnesses of 'Nikah' are concerned, the same prayer has already been allowed and therefore, there is no need to go into that aspect of the matter. The only question alive for this Court to consider is the expediency or the need to summon the Magistrate, who had recorded the statement of the victim-girl under Section 164 of Cr.P.C. In this regard, it may be very relevant to mention that the trial court has primarily rejected the application seeking the summoning of the Magistrate on the ground that before recording the statement of the accused under Section 313 of Cr.P.C. a similar application seeking the summoning of the Magistrate was also made on behalf of the accused but the same was rejected by the court by a speaking order dated 18.3.2011. The trial court was of the view that because a similar application had already been rejected and therefore, there was no need to pass another order again and allow the same application. Though this order dated 18.3.2011 has not been brought on record by applicant's counsel, but the perusal of the counter affidavit filed on behalf of opposite party no.2 would reveal that the same has been annexed as CA-1 along with the counter affidavit. This Court is not having the advantage to go through the statement of the victim girl given before the trial court as the same has not been brought on record on behalf of either side but it transpires from the perusal of the earlier order dated 18.3.2011 passed by the trial court that the court had considered one very relevant aspect of the matter and it was taken note of by the trial court that when the victim-girl was examined in the court, she specifically admitted her previous statement recorded by the Magistrate under Section 164 of Cr.P.C. It appears that the statement was read out to the victim and she has in categorical terms admitted that she had given the said statement which was recorded by the Magistrate. It is also so clear from the perusal of order dated 18.3.2011 that the previous statement recorded under Section 164 of Cr.P.C. has already been exhibited by the court in the light of the admission made by the victim girl. It is also so clear from the perusal of order dated 18.3.2011 that the previous statement recorded under Section 164 of Cr.P.C. has already been exhibited by the court in the light of the admission made by the victim girl. As the statement has already been exhibited therefore, if this witness at some later stage of her examination, has prevaricated or denied some part of her statement subsequently then such denial shall not be of any significance and in the light of the admission of the victim-girl itself, it is not, at all, necessary that a Magistrate, who recorded the statement of the victim-girl under Section 164 of Cr.P.C., should again be called in order to prove something which has already been admitted at some stage of victim's examination and on the basis of which the statement has already been exhibited as exhibit Ka-2. Even otherwise, this statement was recorded by the Magistrate in the official capacity and the correctness of the same may be presumed by the court u/s 114 of the Indian Evidence Act. It may be of use to quote Section-114 of the Indian Evidence Act here which reads as follows : 114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-- (a) .................... (b) .................... (c) .................... (d) .................... (e) That judicial and official acts have been regularly performed; It is abundantly clear from the perusal of the above statute and the relevant illustration given therewith that the correct recording of the statement given before a Magistrate u/s 164 Cr.P.C. may be safely presumed under law. In this regard reference may be also made to the observations made by a Division Bench of this Court in the case of Raju vs. State of U.P. And others, Crl. Misc. Writ Petition No.3567 of 2012, which were to the following effect : "On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. Misc. Writ Petition No.3567 of 2012, which were to the following effect : "On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164 Cr.P.C. had regularly been performed as is envisages by Section 114 of the Indian Evidence Act. ......" No doubt, such a presumption like many other presumptions shall be rebuttable and the party concerned if it so desires can always challenge the same and also bring material or proof to demonstrate, if it can do so, that the statement in question was not legitimate or has not been correctly recorded. It also goes without saying that it shall require very strong, cogent and convincing material to dislodge a statutory presumption and a mere bald suggestion challenging the legitimacy of such official acts will not be sufficient or be of any avail. It must also not be lost sight of that such a presumption is only about the correct recording or the regular performance of the act, and certainly not about the truthfulness of its contents. So far as the context of the case at hand is concerned, considering the fact that the previous statement of the victim under Section 164 of Cr.P.C. was recorded by the Magistrate in the official capacity, coupled with the fact of admission of the victim-girl itself and also keeping in perspective the fact that the statement has already been exhibited, this Court is of the view that no useful purpose shall be served by calling the Magistrate again for the purpose of proving the statement which has already been admitted at some stage by the victim during the course of her examination. It is not unknown in our experience that a witness may admit sometimes one fact and then deny the same at a later stage. But such prevarication on the part of the witness is not a good ground to summon the Magistrate to prove something which has already been exhibited. What shall be the value of the previous contradictory statement is for the court to adjudge. Calling the Magistrate again shall only result in profligate waste of public time and money in such circumstances. But such prevarication on the part of the witness is not a good ground to summon the Magistrate to prove something which has already been exhibited. What shall be the value of the previous contradictory statement is for the court to adjudge. Calling the Magistrate again shall only result in profligate waste of public time and money in such circumstances. The exhibited copy of the same shall be sufficient to prove the contradictory previous statement recorded by the Magistrate. In fact in the peculiar facts and circumstances of this particular case even a certified copy of the statement could have been sufficient as there is nothing on record to indicate that the prosecution side of the state has either challenged its correctness or is not accepting it to be a genuine document. This court also must hasten to add that there may be some cases in which the trial court in its discretion may find it expedient to summon the Magistrate to be examined by the prosecution or by the accused at appropriate stage at their request or even to examine the Magistrate at its own instance in order to arrive at a just decision of the case, if the facts and the circumstances of the case warrant such course of action. That power of the court shall always remain unmitigated and untrammelled. The question is more of the appropriateness, expediency or the desirability to undertake such a course even when there may be no compulsive mandate of law to do so. It all depends upon the peculiar facts of each case which may infinitely vary. Both the counsels have also admitted that the original statement recorded by the Magistrate forms part of the lower court's record. But as the applicant's counsel has placed reliance on the Full Bench decision of this Court given in Sheo Raj Vs. State (supra) and has tried to show that in the light of what has been held in case of Sheo Raj, the summoning of the Magistrate is necessary to prove the statement given by the witness u/s 164 Cr.P.C., it would be appropriate to reflect and deal with this aspect of the argument raised on behalf of the applicant at some length. The point in issue involved before the aforesaid Full Bench had emanated from the background that in the case of Asharfi Vs. The point in issue involved before the aforesaid Full Bench had emanated from the background that in the case of Asharfi Vs. State, 1960 All LJ 595, it had been found by a Division Bench of this Court that the common practice prevailing in Uttar Pradesh was to summon the Magistrates during the trial for proving the contents of the identification memos prepared by them during the course of the identification parade. The practice was held totally unnecessary as the same caused needless waste of public time and money. It was opined therefore that if the identification parade was held by the Magistrate of the first Class or by the Magistrate of second class specially empowered for this purpose such an identification memo shall be admissible as evidence without proof. But in another Division Bench case of State Vs. Chandrapal (Govt. Appeal No. 1931 of 1961 DA 18.8.1962 (Alld) a conflicting view was expressed by the court and it was held that the identification memo cannot be presumed to be genuine and it must be proved to be so by evidence. In the earlier case of Asharfi, section 80 of the Indian Evidence Act was found applicable to such identification memos while in the latter case Section 80 of Indian Evidence Act was held inapplicable. It was in the backdrop of this dichotomy of judicial views that the matter was placed before the Full Bench. After expatiating upon several related aspects and the legal terms involved in the controversy the Full Bench expressed its disagreement with the view taken in Asharfi's case (supra) and it was held that the identification memo by itself cannot be read as evidence and the same has to be proved by calling the identifying witness or the Magistrate. The contention raised by the applicant's counsel before this Court is that identification memo is also a kind of statement of the witness given before the Magistrate and recorded by him u/s 164 Cr.P.C., therefore, all kind of statements recorded by the Magistrate u/s 164 Cr.P.C. can be proved only by calling the Magistrate otherwise the same shall remain inadmissible or unusable by the accused and the contradiction between the two versions shall remain unproved. This Court has carefully considered this aspect of the matter but after going through the aforesaid cases and other authorities on the point and also the relevant provisions of the Indian Evidence Act as well as those of the Criminal Procedure Code it is difficult to fall in agreement with the submissions raised by the counsel in this regard for various reasons. First of all it may be mentioned that the actual controversy involved before the Full Bench was whether contents of the identification memo be treated as substantive piece of evidence without the maker of the statement or the Magistrate who recorded the same being produced in the court. Before referring further to the dicta of the Full Bench, it must be kept in perspective that in order to prove the truthfulness of any fact the witness must come in the court and state about the same on oath. The statement given by the witness in court is substantive piece of evidence. But in order to give credibility to his version and draw corroboration, he can also prove some documents in that regard. For illustration it may be said that if an accused ''A' has killed the deceased ''B' and this commission of murder has been witnessed by one ''C' then in order to prove the aforesaid fact, the witness ''C' must may come in the court and state on oath that he has seen ''A' committing the murder of ''B'. Such a statement will be the evidence of murder or, to express it even more precisely, it will be the substantive evidence in proof of the murder committed by ''A'. Now if the witness ''C" is also the first informant of the case, he can also prove the F.I.R. lodged by him containing the same version in order to draw corroboration in support of what has been stated by him in the court. The First Information Report is the previous statement of the first informant witness ''C" given at or about the time of occurrence with regard to the same. If what has been stated by the witness ''C' in the court happens to be in consonance with the contents of the F.I.R. then the prosecution may seek to use such F.I.R. as corroborative piece of documentary evidence. If what has been stated by the witness ''C' in the court happens to be in consonance with the contents of the F.I.R. then the prosecution may seek to use such F.I.R. as corroborative piece of documentary evidence. The F.I.R. by itself cannot be used as substantive piece of evidence and can be used either to corroborate or to contradict the maker thereof after complying with the requirements of Section 145 of the Indian Evidence Act. So far as the method to prove it is concerned, the F.I.R. may be proved either by the author himself, if it is in his handwriting or is under his signature. It can also be proved by the scribe if the same was taken down by him in his hand at the dictation of the first informant. Under certain circumstances, the person acquainted with the handwriting or the signature of the author can also prove the same. But it shall always remain a corroborative piece of evidence and shall not become substantive piece of evidence in the proof of the contents thereof, unless some specific provision of law declares it to be evidence in proof of the same. There are situations and there are provisions specifically enacted by the Legislature in the Code where a particular document by itself may be treated as evidence in proof of its contents without production of its author in the court. It may be useful here to refer to Section 293 and Section 294 of Cr.P.C. in this regard. Section 293 reads as follows :- 293. Reports of certain Government scientific experts- (1) Any document purporting to be a report under the hand of a Government Scientific expert to whom this section Applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) ............................................................................................... (3)................................................................................................ (4)................................................................................................. Similarly Section 294 Cr.P.C. may also be quoted which reads as follows: 294. (2) ............................................................................................... (3)................................................................................................ (4)................................................................................................. Similarly Section 294 Cr.P.C. may also be quoted which reads as follows: 294. No formal proof of certain documents.-(1) Where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of document shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: It is so clear from the aforesaid provisions that a particular document containing some version of some author by itself can not be treated as evidence in proof of its contents unless it is specifically provided by law. In fact it shall also be very pertinent to take note of one more very crucial amendment made in the Criminal Procedure Code with regard to the admissibility of the identification memos. This amendment seems to have directly addressed the subject matter of the controversy involved before the aforesaid Full Bench decision of Sheo Raj vs. State. The legislature in its wisdom has inserted Section 291-A of Cr.P.C. by the Act No.25 of 2005 (w.e.f. 13.6.2006) which is being reproduced as follows :- [291-A. Identification report of Magistrate. (1) Any document purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such Magistrate is not called as a witness: Provided that where such report contains a statement of any suspect or witness to which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), apply, such statement shall not be used under this sub-section except in accordance with the provisions of those sections. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine such Magistrate as to the subject-matter of the said report.] A bare reading of the aforesaid section would make one thing very clear that now so far as the identification memos are concerned they can be read as evidence in any inquiry or trial or other proceedings although such Magistrate is not called as witness. The object and the rationale of dispensing with the production or summoning of the Magistrate as was expressed by the Division Bench in Asharfi's case (supra) appears to have been fully recognized by the legislature as a result of which the aforesaid amendment has been brought into the effect in this regard. The necessity of producing the Magistrate seems to have been obviated by the aforesaid amendment and to a great extent, subject to the certain conditions and limitations as have been laid down in the proviso, the ratio of the aforesaid Full Bench decision, so far as it relates to the admissibility of identification memos as evidence is concerned, seems to have been rendered nugatory by this amendment. But again it is so manifestly demonstrable that it has been made possible to use the previous statements as contained in the form of identification memos as evidence only by a specific enactment made in this regard by law. Otherwise in ordinary course and in ordinary circumstances where there is no such specific law declaring a particular document containing some version made by some witness to be treated as evidence there shall be very strict and limited uses permissible for such a document. Elaborating upon the illustration given hereinbefore it may be further emphasized that If the aforesaid first informant ''C' comes in the court and only states this much that he had lodged the F.I.R. of the case available on record under his signature, such a statement shall only prove the factum of lodging of the F.I.R. by him containing a particular version and not its truthfulness. If the first informant does not state before the court on oath as to what was seen by him or to say it in other words if he does not give the statement in the court that he had seen the accused ''A' killing the deceased ''B' then in the absence of such statement which alone could be the evidence or the substantive evidence in proof of the factum of murder done by accused ''A', the mere proving of the factum of lodging of the F.I.R. by him containing the same version will by itself not prove anything. The version given in the court about the happening of murder will be substantive piece of evidence while the F.I.R. containing the same version will be only the corroborative piece of evidence. It goes without saying that the contents of the F.I.R. like any other previous statement of the witness can also be used for purpose of contradicting the maker thereof if the same contains any conflicting version. Similar is the situation of many other documents. The medical examination or the post-mortem examination done by the doctor can be another patent example of the same. Everyday we see the doctor being produced in the court stating on oath that he had the occasion to examine such and such injured or to have done the autopsy of some deceased and that he had found such and such injury on the person of the victim or the deceased. This statement given by the doctor on oath in the court becomes substantive piece of evidence in proof of the injuries present on the body of the injured or the deceased. In order to draw the strength of corroboration the doctor also proves the post-mortem examination report or the injury report prepared by him in his handwriting. By proving the post mortem examination report the doctor draws corroboration to his statement given in the court by virtue of Section-157 of Indian Evidence Act because the post-mortem report was prepared by him at or about the time of such medical examination. If the doctor himself does not state before the court as to which injuries were found by him on the person of the victim then by merely proving the post-mortem report or the injury report the factum of the presence of injuries will remain unproved. If the doctor himself does not state before the court as to which injuries were found by him on the person of the victim then by merely proving the post-mortem report or the injury report the factum of the presence of injuries will remain unproved. Substantive evidence is the statement of the doctor given in the court to the effect that he had seen and had found such and such injuries on the body of the victim. This piece of evidence gets only its corroboration from post-mortem report, if both are in consonance with each other. Now it shall not be difficult to see that the statement of a witness recorded by the Magistrate u/s 164 Cr.P.C. is only his previous statement and the proof of this document either by the Magistrate who recorded it or by the witness who made such statement shall by itself not be substantive piece of evidence in proof of the contents thereof. Such a statement like any other previous statement can be used by the prosecution for the purpose of corroboration or by the accused for the purposes of contradicting the witnesses. If the witness or the maker of the statement recorded u/s 164 Cr.P.C. has not been produced in the court then such statement, which is nothing except the previous statement of particular witness, is of hardly any use for the simple reason that this by itself not being substantive piece of evidence there is nobody whom it may corroborate or contradict. The truthfulness of what was stated by the witness in his statement given u/s 164 Cr.P.C. will remain unproved in such a situation. In fact the most crucial part of Full Bench decision given in case of Sheo Raj (supra) much before the insertion of Section-291-A in the Cr.P.C., is just the same and it was held therein that the statement recorded u/s 164 Cr.P.C. (in the form of identification memo) by itself cannot be held admissible as evidence in proof of its contents by raising the presumption of its genuineness u/s 80 of Indian Evidence Act. It may be useful to quote the observations given by the Full Bench in this regard in para 23 of the judgment, the relevant part of which is being extracted herein below : "23. It may be useful to quote the observations given by the Full Bench in this regard in para 23 of the judgment, the relevant part of which is being extracted herein below : "23. Even after a statement or confession, recorded under Section 164, Cr.P.C. has been formally proved, it will still not be substantive evidence and can be put to no other use than that of contradicting the deponent thereof under Section 145, or of corroborating him under Section 157 of the Act. (See AIR 1948 PC 38 and MANU/PR/0014). The same is the position of an identification memorandum which contains statements within the meaning of that word occurring in Section 164 Cr.P.C., of persons who had gone to identify the suspects at the test identification parade. (See Sarju Singh V. Emperor MANU/OU/0167/1925 and Lal Singh V. Emperor AIR 1925 tan 19). That being the law, it cannot be held that by not formally proving it and simply filing the memorandum of identification in Court, the position of the party relying upon it is improved and it can raise presumptions mentioned in Section 80 of the Act in its favour, so as to read the identification memorandum as substantive evidence, .............................." So far as the facts of the present case are concerned, the controversy at hand in the present case is entirely different as neither the accused nor the prosecution wanted to use the previous statement of the victim girl as substantive evidence. The victim girl has herself been produced and examined in the court wherein she had also admitted to have given her statement before the Magistrate which was recorded u/s 164 of Cr.P.C. As there was some alleged contradiction in the two versions, the accused wanted to contradict her from her previous statement recorded u/s 164 of Cr.P.C. It is so very obvious that there was no occasion for the prosecution to have wanted the aforesaid statement to be used as substantive piece of evidence as the witness herself had been produced before the court where she gave her statement against the accused which was substantive piece of evidence. Nor did the accused intend to use the same as such, who had desired to use it only for the purposes of contradiction. Therefore, what has been held by the Full Bench in this regard does not go very far to help the applicant's counsel. Nor did the accused intend to use the same as such, who had desired to use it only for the purposes of contradiction. Therefore, what has been held by the Full Bench in this regard does not go very far to help the applicant's counsel. The question involved in the case at hand is not at all whether the statement recorded u/s 164 Cr.P.C. is usable as substantive evidence or evidence in proof of its contents as such or not. The real question is whether the previous contradictory statement given u/s 164 Cr.P.C. can stand proved without calling the Magistrate or not. In this regard as has already been observed hereinbefore that so far as the question of using or proving the statement recorded u/s 164 Cr.P.C. for the purpose of contradicting the witness is concerned, the factum of having given the contradictory statement before the Magistrate is provable in more than one manner. As has already been discussed in the earlier part of this order such a statement apart from having the advantage of being an official act, whose correct and regular performance may be presumed under law, it can also be proved by Magistrate concerned or even by the victim herself. As has already been noted hereinbefore that when the witness was examined in the court she was shown the aforesaid statement recorded by the Magistrate and the question was put to her in this regard on which she answered in affirmative and admitted to have given the same statement so much so that the statement in question recorded u/s 164 of Cr.P.C. was duly exhibited by the court and marked as exhibit Ka-2. In the background of these peculiar facts and the girl's own admission in this regard the whole issue becomes redundant and gets reduced only to its academic value. In view of what has been discussed, the impugned order does not call for any interference and the prayer for quashing the same is therefore refused. The application being sans merit stands dismissed in the light of the aforesaid observations.