Bombay HC: Whether the court can convict accused based on S 164 CRPC statements of prosecution witnesses?

 Trial Court was wrong in convicting the Appellant by taking recourse to statement under Section 164 of the Criminal Procedure Code. On the basis of the evidence of the learned Magistrate and the medical evidence, statement recorded under Section 164 of the Code can be treated as previous statement only. There are certain differences recognized by the legislatures in the statement under Section 161 on one hand and statement under Section 164 of the Code on the other hand. They can be summarized as follows :--

SECTION 161: statement before the Police need not be signed

SECTION 164: the statement before the Magistrate is signed.However this is not so in statement before the Police. Prior to recording the statement, learned Magistrate can administer the oath to the maker. This is not the case herein. the statement under Section 164 stands on higher pedestal {Para 70}

71. So if we look at the weightage and value of evidence of judicial officer from all the angles, we may find that his evidence cannot be said direct on the point of happening of the incident. Because he is not giving the evidence on the basis of facts seen by him. His evidence is on the point of what he has heard through the mouth of the victim.

72. So for what purpose this provision is included in the Code. The mechanism created by the Code is investigation carried out by the police including recording the statement of the witnesses. Recording statement through the Magistrate is also a part of investigation. Such statement stands on higher pedestal than the police statement. Still we can not attach more value than recognized by the law. Such statement falls within the category of 'previous statement' only. Its use is permissible in the mode prescribed in the Evidence Act only.

73. Does it mean to say that this statement can be the basis for conviction just because it is recorded by judicial official and oath is administered? Answer is 'No'. The reason is this statement is not recorded in the presence of the accused and there is no opportunity of the cross-examination to the maker of the statement when such statement is recorded by the Magistrate. So ultimately, when Magistrate gives evidence, his evidence is not the evidence about the witnessing the incident but it is evidence of facts stated before him by the victim.

• Use of such statement

74. If the victim reiterates what she has stated earlier, such statement can be used for corroboration under Section 157 of the Evidence Act. If there is variance in between the particulars stated in such statement and the oral evidence, that statement can be used for the purpose of the contradiction by the defence. So also if the victim has resiled from the statement, it can be used for cross-examination by prosecution. In this case, prosecution has availed of this opportunity. The victim has disowned the contents.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full judgment here: Click here.

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