Gujarat High Court Allows Rape Accused To Use Victim’s Section 161 CrPC Statement Of Different Case To Contradict Her Allegations

The applicant-accused moved an application under Sec 233 of Cr.P.C. for the issuance of process upon the witness, who had recorded the statement of the victim in connection with the case registered with Naranpura Police Station for the offences under Section 307 IPC. The reason for examination of the witness was that she in her statement recorded under Section 161 CrPC had made certain admission with regard to consensual physical relationship, as per the accused.

It was argued by the counsel for the applicant-accused that the presence of the witness is necessary to ascertain the truth and to contradict the evidence of the victim and impeach her credibility. 

The trial court in its order observed that the offence registered under Section 307 has no any co-relation with the offence registered under Section 376 of the IPC. The trial court had also observed that unless and until she is not examined by the court, the statement recorded under Section 161 of Cr.P.C. is not relevant fact.

"The statement recorded under Section 161 of Cr.P.C. shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) of the Cr.P.C. and that too, in the trial of Section 307 of the IPC," the trial court had observed.

It was submitted before the high court that the accused has been charged with a serious offence and at the relevant time, the victim was major aged about 29 years. Before the registration of rape case, the victim's brother had lodged the FIR under Section 307 IPC and there the investigating officer had recorded the victim's statement in which she has referred to the "elements of consent of the alleged act of sexual relationship", the counsel representing the accused said.

While allowing the writ petition, Justice Ilesh J. Vora observed that the trial Court failed to appreciate the true purport and object of Section 233 of the Cr.P.C.

"It provides that, if the accused applies for issuance of any process for compelling the attendance of any witness, the Court shall issue such process, unless, the Court considers that such application should be refused on the ground that, it is made for the purpose of vexation or delay or for defeating the ends of justice," said the court.

The bench further observed that the trial court mainly considered the evidentiary value of the statement recorded by police under Section 161 and held that the statement recorded is not relevant as it has been recorded for the distinct and different offence

“The statement dated 24.11.2020, alleged to have been recorded by the P.I., K.G. Zala having direct bearing on the incident of rape for which the applicant-accused tried to prove his defence of consensual relationship, as the FIR, registered under Section 307 of the IPC is prior in point of time and the victim in her statement dated 24.11.2020, had categorically referred the alleged act of rape and same has been confronted by the defence counsel in the cross-examination of the victim,” said the court.

It further observed that there is no doubt that a statement under Section 161 of CrPC is not substantive piece of evidence and it can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the proviso to Section 162(1) of the Cr.P.C.

"The defence wants to use the previous statement of the witness to contradict the version of the victim stated on oath. In such circumstances, this Court is of the considered view that, fair trial includes fair and proper opportunities to prove the innocence and considering the mandate of Section 233 of the Cr.P.C. which imposes the duty upon the Court to summon any witnesses to be examined to prove the innocence of the accused, unless the Court considers that, such application should be refused for any reasons specified in the sub-section. The trial Court is not of the view that, the application has been tendered with malafide intention with a view to delay the trial of the case."

The court, while quashing the impugned order, directed the trial court to issue process upon the said witness and fix one effective date for examination.

"The applicant-accused directed to cooperate with the trial proceedings and complete the evidence on the date fixed by the Court," it added.

Case Title: Anandbhai Bharatbhai Vaghela v. State of Gujarat

Case Citation: 2023 Livelaw (Guj) 30

Coram: Justice Ilesh J. Vora

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