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

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. {Para 25}

2 6 . It is true that law does not bar recording the statement of the victim underSection 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.

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.

1 6 . 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.

1 7 . 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.

2 2 . 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.

2 4 . 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.

2 6 . 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.

2 7 . 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.

2 9 . 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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