Wednesday, 20 January 2016

Whether Investigating Officer can be contradicted in respect of contents of F.I.R.?

In the case of Tahsildar Singh and another v/s State of Uttar
Pradesh, Full Bench of Hon'ble Supreme Court has held as folows. 
“The object of Legislature throughout has been to exclude the  
statement   of   a   witness   made   before   the   police   during   the  
investigation from being made use of at the trial for any purpose, 
and the amendments made from time to time were only intended 
to make clear the said object and to dispel the cloud cast on such 
intention.   The   Act   of   1898   for   the   first   time   introduced   an  
exception enabling the said statement reduced to writing to be 
used for impeaching the credit of the witness in the manner  
provided   by   the   Evidence   Act.   As   the   phraseology   of   the  
exception lent scope to defeat the purpose of the legislature, by 
the Amendment Act of 1923, the section was redrafted defining 
the limits of the exception with precision so as to confine it only 
to contradict the witness in the manner provided under section 

145 of the Evidence Act. If one could guess the intention of the 
legislature in framing the section in the manner it did in 1923, it 
would be apparent that it was to protect the accused against the 
user of the statements of witnesses made before the police during
investigation at the trial presumably on the the assumption that 
the said statements were not made under circumstances inspiring
confidence. Both the section and the proviso intended to serve 
primarily the same purpose i.e. the interest of the accused.”
It is further observed by the Hon'ble Apex Court that :
“except for a dying declaration and matters coming within the  
provisions of Section 27 of the Indian Evidence Act, 1872, no  
statement of any person made to a police officer in the course of 
investigation, if reduced into writing, could be used as evidence 
against accused. There was no restriction as to the extent of the 
right   of   an   accused   to   cross­ examine   a   prosecution   witness  
concerning his statement to the police. Section 162 of the Code 
of 1898 prohibited the use of a statement reduced into writing, as
evidence except any statement falling within the provisions of  
Section 32 of the Indian Evidence Act, 1872. The proviso to this 
section, however, expressly stated that in spite of the prohibition 
in the main provision, the accused could use such a statement to 
impeach the credit of the witnesses in the manner provided in 

the Indian Evidence Act of 1872. It will be seen therefore that 
until 1898 there was no restriction imposed upon the accused as 
to the extent of his right of cross examination.”
It     therefore   follows   that   the   statement   made   under   section
161/154   of   Code   of   Criminal   Procedure   can   be   used   only   for
contradicting a witness. The statement of prosecutrix (since deceased)
is the F.I.R. upon which the investigation had commenced. It was a
statement under section 154 of Code of Criminal Procedure. It is not a
substantive evidence, but it is a corroborative piece of evidence. It can
only be used to contradict its maker and no one else. Hence, F.I.R. in
the present case which is proved by the Investigating Officer, cannot be
treated as a substantive evidence. Investigating Officer could not have
been contradicted in respect of the contents of the F.I.R. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 705 OF 2014
WITH
CRIMINAL APPLICATION NO. 1396 OF 2014
IN
CRIMINAL APPEAL NO. 705 OF 2014
1) Gorakh Baban Mhasane 
V/s.
The State of Maharashtra
CORAM : SMT. SADHANA S. JADHAV, J.
DATED : NOVEMBER 14, 2014
Citation;2015 ALLMR(CRI)4697 Bom



1) Appellants herein along with Bajirao Mhasne have been convicted
for offence punishable under section 376 (2) (g) of Indian Penal Code
and sentenced to suffer 10 years rigorous imprisonment and fine of Rs.
1000/­   in   default   to   suffer   further   rigorous   imprisonment   for   one
month.   Appellants   are   also   convicted   for   offence   punishable   under

section 342 of Indian Penal Code and sentenced to suffer one year
rigorous   imprisonment   and   fine   of   Rs.   1000/­   in   default   to   suffer
further rigorous imprisonment for one month. Appellants herein are
also convicted for offence punishable under section 506 (II) of Indian
Penal Code and sentenced to suffer one year rigorous imprisonment
and   fine   of   Rs.   1000/­   in   default   to   suffer   further   rigorous
imprisonment for one month. Appellants are also convicted for offence
punishable   under   section   3   (1)   (xi)   of   the   Scheduled   Caste   and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to
suffer six months rigorous imprisonment and also to pay a fine of Rs.
1000/­   in   default   to   suffer   further   rigorous   imprisonment   for   one
month.   Appellants   are   also   convicted   for   offence   punishable   under
section   3   (1)   (xii)   of   the   Scheduled   Caste   and   Scheduled   Tribes
(Prevention of Atrocities) Act, 1989 and sentenced to suffer six months
rigorous imprisonment and also to pay a fine of Rs. 1000/­ in default to
suffer   further   rigorous   imprisonment   for   one   month   by   Adhoc
Additional Sessions Judge ­2, Nashik in Sessions Case No. 148/2008
vide Judgment and Order dated 28/08/2008. Being aggrieved by the

said Judgment and Order, appellants herein have presented this appeal.
2) It is the case of the prosecution that on 25/04/2006, prosecutrix
(since deceased) along with her husband Godiram Thakare approached
Igatpuri Police Station and lodged a report alleging therein that on
22/04/2006, she had been to the forest to collect fuel wood and her
husband had been to Borli to attend the marriage of a family member
of her sister Thamabai. She sold the fuel wood 'Cangu' for Rs. 35/­. She
had proceeded to purchase grocery from the said amount. At that time,
original accused no. 1 was sitting in dilapidated courtyard of Lahanubai
Pandit   and   original   accused   no.   2   Santosh   Tangade   was   standing
nearby. Appellant no. 1 called her. Since she was acquainted with them,
she went towards original accused no. 1. He assured to give her a job.
They took her inside the house. Santosh i.e. appellant no. 2 had latched
the house from outside and she was ravished by original accused no. 1
in the dilapidated house. She was trying to rescue herself and hence,
she ran towards forest. She was accosted by accused no. 2 and Bajirao
Mhasne. Accused no. 2 had solicited sexual favours from her and was

attempting to catch hold of her. 
3) On   the   next   day,   her   husband   returned   to   village   Borli.   She
informed her husband about the said incident. Thereafter, she, along
with her husband had proceeded to the house of the accused persons.
They were threatened of dire consequences. They returned home on
24/04/2006 and thereafter, complainant had been to the police station
along with her husband and had lodged the report. On the basis of the
report,   crime   no.   49/2006   was   registered   against   the   accused   for
offences punishable under sections 376 (2) (g), 342, 506 r/w 34 of
Indian Penal Code. Since the prosecutrix belonged to the scheduled
tribe, offence was also registered for offence punishable under section 3
(1)   (x)   of   Scheduled   Caste   and   Scheduled   Tribes   (Prevention   of
Atrocities Act), 1989. Present appellants were arrested on 04/05/2006.
Investigation was completed and charge­sheet was filed. Accused were
on bail during the pendency of trial. 
4) Prosecution examined 9 witnesses to bring home the guilt of the

accused. Prosecutrix has expired on 23/02/2007 and hence, she was
not available for recording of substantive evidence at the time of trial. 
5) P. W. 1 Khushal Chavan is the panch for the seizure of clothes of
the prosecutrix. He has proved the contents of the seizure panchanama
which is at exhibit 17. 
6) P.   W.  2   Tukaram   Kondaji   Mhasne   is   the   panch   for   seizure   of
clothes   of   the   accused.   He   has   proved   the   contents   of   the   seizure
panchanama which is at Exhibit 19.
7) P.   W.   3   Rangnath   Namdev   Chavan   is   the   panch   for   spot
panchnama   (Scene   of   offence   panchanama)   and   has   proved   the
contents of the panchanama which is at exhibit 21. 
8) P.   W.   4   Dr.   Yuvraj   Pawar   had   examined   appellant   no.   2   i.e.
Santosh Tangade and has proved the contents of the certificate which is
at exhibit 26 and X­ray plates which are at Exhibit 27 & 28. P. W. 4 had

identified the original accused no. 2 in the Court. He had given an
opinion that on the basis of ossification test and the X­ray plates, age of
original accused no. 2 was more than 19 years old. 
9) P. W. 5 Vijay Aghat is brother of prosecutrix (since deceased).
According to him, after the incident, prosecutrix (since deceased)had
visited the house and narrated all the facts and thereafter, they went to
the police station and lodged the complaint. It is alleged that accused
Bajirao   Mhasne   had   forced   the   prosecutrix   to   co­operate   with   the
present appellants, or else, she would face dire consequences. 
10) P. W. 6 Dr. Varsha Lakhade who has examined the prosecutrix on
26/04/2006. She has issued certificate and has proved the contents of
the said certificate which is at Exhibit 31. 
11) P.   W.   7   Dr.   Tejashree   Ranade   was   attached   to   Civil   Hospital,
Nashik. She had examined the prosecutrix in the casualty department
of the Civil Hospital. According to her, prosecutrix had given history of

sexual   assault   and   sexual   intercourse   by   Santosh   and   Gorakh   i.e.
present appellants on 22/04/2006 between 3.00 pm to 4.00 pm. She
has issued the certificate and proved the contents of the same which is
at Exhibit 33. 
12) P. W.  8 Jivansing Pardeshi  was  the  police  inspector, who  was
attached to Igatpuri Police Station. He has deposed before the Court
that on 25/04/2006, he was present in the police station. Prosecutrix
had approached the police station along with her husband and had
lodged the report. He had reduced the report into writing as per the say
of the prosecutrix. He has proved thumb impression of the prosecutrix.
He   has   proved   the   contents   of   the   F.I.R.   He   has   arrested   accused
persons and had taken steps in the course of investigation. It is elicited
in the cross­examination that P. W. 8 had not attested thumb impression
of the deceased. He has also admitted that he had not recorded the
statement of the witnesses. He had recorded the spot panchanama. He
has also admitted in the cross­examination that there were no wrappers
on the seized clothes. According to him, prosecutrix had stated that

appellant   had   threatened   her   with   knife.   However,   in   the   crossexamination,
he has stated that knife was not produced before him by
any of the accused. 
13) P. W. 9 Ghansham Malegaonkar was working as Sub­Divisional
Police Officer attached to Rural Division Nashik. Since the offence was
registered under the provisions of Prevention of Atrocities Act, he has
conducted the investigation. He has admitted in the cross­examination
that   he   had   not   recorded   the   statement   of   the   house   owner   i.e.
Lahanubai Pandit. 
14) The prosecutrix had expired prior to commencement of trial. The
prosecution has not taken any efforts to examine the husband of the
prosecutrix who had accompanied her to the police station. F.I.R. is
proved through Investigating Officer and has been exhibited. In fact,
F.I.R.   is   not   a   substantive   evidence,   it   is   a   corroborative   piece   of
evidence. Since the prosecutrix was not available at the time of trial,
prosecution   could   have   made   efforts   to   examine   the   husband   of

prosecutrix. 
15) In fact, no conviction can be recorded on the basis of statement
which   is   recorded   under   section   154/161   of   Code   of   Criminal
Procedure, 1973. 
16) In the case of Tahsildar Singh and another v/s State of Uttar
Pradesh, Full Bench of Hon'ble Supreme Court has held as folows. 
“The object of Legislature throughout has been to exclude the  
statement   of   a   witness   made   before   the   police   during   the  
investigation from being made use of at the trial for any purpose, 
and the amendments made from time to time were only intended 
to make clear the said object and to dispel the cloud cast on such 
intention.   The   Act   of   1898   for   the   first   time   introduced   an  
exception enabling the said statement reduced to writing to be 
used for impeaching the credit of the witness in the manner  
provided   by   the   Evidence   Act.   As   the   phraseology   of   the  
exception lent scope to defeat the purpose of the legislature, by 
the Amendment Act of 1923, the section was redrafted defining 
the limits of the exception with precision so as to confine it only 
to contradict the witness in the manner provided under section 

145 of the Evidence Act. If one could guess the intention of the 
legislature in framing the section in the manner it did in 1923, it 
would be apparent that it was to protect the accused against the 
user of the statements of witnesses made before the police during
investigation at the trial presumably on the the assumption that 
the said statements were not made under circumstances inspiring
confidence. Both the section and the proviso intended to serve 
primarily the same purpose i.e. the interest of the accused.”
It is further observed by the Hon'ble Apex Court that :
“except for a dying declaration and matters coming within the  
provisions of Section 27 of the Indian Evidence Act, 1872, no  
statement of any person made to a police officer in the course of 
investigation, if reduced into writing, could be used as evidence 
against accused. There was no restriction as to the extent of the 
right   of   an   accused   to   cross­ examine   a   prosecution   witness  
concerning his statement to the police. Section 162 of the Code 
of 1898 prohibited the use of a statement reduced into writing, as
evidence except any statement falling within the provisions of  
Section 32 of the Indian Evidence Act, 1872. The proviso to this 
section, however, expressly stated that in spite of the prohibition 
in the main provision, the accused could use such a statement to 
impeach the credit of the witnesses in the manner provided in 

the Indian Evidence Act of 1872. It will be seen therefore that 
until 1898 there was no restriction imposed upon the accused as 
to the extent of his right of cross examination.”
It     therefore   follows   that   the   statement   made   under   section
161/154   of   Code   of   Criminal   Procedure   can   be   used   only   for
contradicting a witness. The statement of prosecutrix (since deceased)
is the F.I.R. upon which the investigation had commenced. It was a
statement under section 154 of Code of Criminal Procedure. It is not a
substantive evidence, but it is a corroborative piece of evidence. It can
only be used to contradict its maker and no one else. Hence, F.I.R. in
the present case which is proved by the Investigating Officer, cannot be
treated as a substantive evidence. Investigating Officer could not have
been contradicted in respect of the contents of the F.I.R. 
17) In the case of Ram Swaroop and others v/s State of Rajasthan,
reported in 2004, Vol. 13, Supreme Court Cases, 134, Hon'ble Apex
Court has observed thus :
“It is well settled that a statement recorded under Section 161 of 

the Code of Criminal Procedure cannot be treated as evidence in 
the criminal trial but may be used for the limited purpose of  
impeaching the credibility of a witness.”
18) The statement under section 154 of Code of Criminal Procedure
is only to set the law into motion. It can be said that prosecutrix had set
the law into motion. Her supplementary statement was recorded. In the
present  case,   statement  of   the  prosecutrix   was   not   recorded   under
section 164 of Code of Criminal Procedure, 1973. In the eventuality
that the statement was recorded under section 164, it could have been
said that there was a statement on oath. However, in the absence of
statement on oath and the fact that there was no opportunity for the
accused to cross­examine the witness, conviction recorded on the basis
of statement under section 154 of Code of Criminal Procedure would
not be sustainable in the eyes of law. 
19) Section 145 of the Indian Evidence Act casts a right in favour of
the accused to confront the witness/complainant with his/her previous
statement   for   a   limited   purpose   i.e.   establishing   a   contradiction   in

his/her evidence or for the purpose of impeaching the credit of the
witness. An exception is carved out only in respect of section 32 of
Indian Evidence Act where the statement of the deceased can be relied
upon for the purpose of convicting the accused without there being any
substantive evidence. 
20) This Court has held that a conviction cannot be recorded in the
absence of substantive evidence. F.I.R. cannot be substantive piece of
evidence. Appellants had no opportunity to confront the prosecutrix
with her report and to contest the credibility of the allegations levelled
in the F.I.R. The conviction therefore, would be unsustainable in the
eyes of law. 
21) Appellants were arrested on 04/05/2006. Charge­sheet was filed
on 28/06/2006. They were enlarged on bail after filing of charge­sheet.
They were taken into custody on 28/08/2008 and were in custody till
31/10/2014. Appellants have undergone 8 years and 2 months. Hence,
it can be said that appellants have undergone the minimum sentence of

7   years   contemplated   for   offence   punishable   under   section   376   of
Indian Penal Code. 
22) Learned counsel appearing for the appellants submits that there is
a delay in filing the present appeal, since appellants had an impression
that they were co­appellants in criminal appeal no. 1256/2008 filed by
Bajirao Mhasne. That Bajirao Mhasne had filed criminal appeal in the
year 2008. Vide Judgment and Order dated 10/06/2014, appeal was
allowed and appellant was acquitted. It is only thereafter, that the
appellants had realized that no appeal was filed on their behalf and
hence,   they   have   approached   this   Court   in   the   year   2014.   Hence,
appellants also deserves to be acquitted. 
O R D E R
(i) Appeal is allowed. 
(ii) Judgment and order dated 28/08/2008 passed by Adhoc  
Additional   Sessions   Judge­2   Nashik   in   Sessions   Case   No.
148/2008 is hereby quashed and set aside. 
(iii) Appellants are acquitted of all the charges levelled against 

them.
(iv) Appellants be released forthwith, if not required in any  
other offence. 
(v) Criminal Application No. 1396 of 2014 in Criminal Appeal 
No. 705 of 2014 stands disposed of. 
Appeal stands disposed of. 
(SMT. SADHANA S. JADHAV, J.)

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