"Victim's Trauma Doesn't End With Rape" - Bombay High Court Recommends Amendment To Give Victim's 164 Statement The Status Of Examination-In-Chief

A division bench of Justices Prasanna B Varale and Shriram M Modak observed that the trauma of a victim does not end with the incident and real life issues may compel a victim to "forgo all the trauma which she had undergone and to take U turn," at the time of trial.

"We hope that legislatures will also consider the practical realities of the life which the victim has to face."

The bench passed the order while acquitting a 39-year-old man accused of raping his minor 14-year-old step-daughter, after the victim refused to support her statement given under section 164 of the CrPC, at the time of trial.

The court, however, upheld his conviction under the Information Technology (IT) Act for taking the child's nude photographs on his mobile phone. The bench held that the amendment was required to avoid similar situation in future.

"The situation warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to provisions of law." The bench observed that the Supreme Court in case of State Of Karnataka... vs Shivanna @ Tarkari Shivanna on 25 April, 2014 had expressed its desire to consider the 164 statement as examination-in-chief but an amendment is still not brough about.

Position of Law

The bench mentioned that a "section 164 Statement can be used only for the purpose of corroboration or contradiction and it cannot be treated as substantive evidence."

The Court noted an amendment was made to Section 164 of the CrPC, by introducing sub-section (5A)(a) and (b) which gives a 164 Statement, the status of examination- in- chief, in case of mentally or physically disabled. "However, such upgradation is not made universal."

The Court further said that section 26 of the Protection of Children from Sexual Offences Act, 2012 speaks about audio video graphic exercise of recording the victim's statement, and there are safeguards under section 24 and 25 of the Act, still we have got no provision wherein the statement under section 164 of Cr.P.C. has been given status of examination in chief.

Facts of the Case

The Bench was hearing an appeal by the watchman who was convicted by the Special Court, in Nashik, in July 2015, for rape u/s 376(2)(i), 506 (criminal intimidation) of IPC, Section 4 (penetrative sexual assault) under the Special Protection of Children from Sexual Offences (POCSO) Act and 67B (publishing or transmitting of material depicting children in sexually explicit act in electronic form) of the IT Act, 2000.

According to the prosecution the man took the young girl to the bungalow where he was working, sexually assaulted her, and threatened her of dire consequences if she spoke about the incident to anyone.

This was allegedly done several times. He also took victims nude images and threatened to publish them on social media. The case came to light when the girl narrated the incidents to her sister, who in turn informed the mother.

The prosecution has in all examined 8 witnesses, including the victim and the Magistrate who recorded her statement u/s 164 of the CrPC. The man's defence was of complete denial.

Advocate Aniket Vagal, during the appeal, argued that the victim had not supported her case before the trial court, and the court had had wrongly convicted his client by relying on the victim's statement u/s 164 of the CrPC.

On CORROBORATION

The Bench observed that the trial court could not have relied on the victims 164 statement to convict the accused, calling it "corroborative evidence," in the absence of her testimony.

We fail to understand what the trial Court meant to say, corroboration of which fact? If the evidence of principal fact is not there, the evidence adduced of subsequent fact how it can be used for corroboration."

OBSERVATIONs

The bench observed that the victim was the "sole witness" of the incident and this didn't seem like a case where she was initially tutored to make allegations against the father.

"It is difficult to opine what compelled the victim not to state those facts which she has stated before the police."

Lastly, the Bench said in the zeal of protecting the interest of the victim, it cannot give go-bye to accepted principles.

"In order to avoid similar situation in future we feel that appropriate authorities will speed up the process of making amendment as mentioned above."