Statement Recorded U/S 164 Or 161 CrPC Can't Be Treated As Substantive Evidence Without Opportunity Of Cross-Examination To Defence: Patna High Court

The Patna High Court, while acquitting an accused under the POCSO Act, has reiterated that if the defence is denied an opportunity to cross examine a witness whose statement is recorded under Section 164 or Section 161 CrPC, then such statements cannot be treated as evidence of substantive character.

The bench of Justice Alok Kumar Pandey relied upon Supreme Court's decision in R. Shaji vs. State of Kerala. It was dealing with a criminal appeal filed against the judgement of conviction under Section 366(A) (Procuration of minor girl) and 376 of the IPC read with Section 4 of POCSO Act (Punishment for penetrative sexual assault).

The prosecution case was that the victim, who happens to be the daughter of the informant, aged about 14 years was kidnapped by the appellant with the intention of marriage. The informant registered a written report under Section 366(A) of the IPC initially, and later on Sections 376/34 of IPC and 4 of POCSO Act were added. The trial court convicted the appellant-accused. However, the co-accused were acquitted by the trial court by the same judgement.

Based on the scrutiny of evidence adduced at the trial, Justice Pandey agreed with the appellant that the prosecution failed to prove, beyond all reasonable doubts, the fact that the victim was minor as on the date of occurrence, and made no effort to establish the age of the victim in accordance with the statutory provisions.

Justice Pandey noted that no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Juvenile Justice (Care and Protection of Children) Act in the light of reasoning put forth by the Supreme Court in case of Jarnail Singh v. State of Haryana (2013) 7 SCC 263.

"In the present case the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or evidence that prosecutrix did not attend any school. The finding recorded by the doctor in the medical report which has determined the victim’s age to be 17-18 years based on radiological examination and opinion of the dentist is not available in the medical report and said finding in court opinion cannot be treated to be accurate for the purpose of applying the provision of POCSO Act," Justice Pandey pointed out.

The bench noted that as per law, evidence given in court on oath coupled with opportunity of cross examination to the accused has great sanctity and that is why the same is called substantive evidence.

The bench further noted that it is well settled by a catena of judicial pronouncement that statements under Section 154 CrPC (Information in cognizable cases) or under 161 CrPC (Examination of witnesses by police) or under 164 CrPC (Recording of confessions and statements) can be used for corroboration and contradiction only.

Justice Pandey also noted that as the defence had no opportunity to cross examine the witness whose statement was recorded under Section 164 CrPC or under Section 161 CrPC, such statements cannot be treated as substantive evidence.

The bench found that the entire prosecution story was full of doubt, and the statement of victim which was adduced before the trial court was quite inconsistent with the statement under Section 164 CrPC and it did not inspire confidence.

Justice Pandey referred to Section 53A of the CrPC (​​Examination of person accused of rape by medical practitioner), and opined that the said provision enables the prosecution to conduct the examination of victim in a manner as to substantially establish a charge of committing an offence of rape. In this respect, reliance was made on the judgement of Supreme Court in Chotkau v. State of Uttar Pradesh AIR 2022 SC 4688 wherein it was observed that failure of the prosecution to subject the appellant to medical examination was certainly fatal to the prosecution’s case especially when the ocular evidence was found to be not trustworthy.

Agreeing with the contention of appellant in the light of Section 29 of POCSO Act (Presumption as to certain offences) to be quite tenable in the light of the fact that there was failure on the part of prosecution to establish the essential fundamental facts to attract the provision of POCSO Act, Justice Pandey stated, "From all counts from the analysis of evidence adduced during trial, contention of learned counsel of the appellant it is crystal clear that offence under Section 366A, 376 of the IPC and 4 of POCSO Act have not been proved beyond reasonable doubt and benefit of doubt goes in favour of the appellant."

Justice Pandey found the trial court to have fallen in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence. He held, "In the result, in my view, the prosecution case suffers from several infirmities, as noticed above, and it was not a fit case where conviction could have been recorded."

While setting aside the impugned judgement and order of sentence, the appellant in custody was ordered to be released.

Case Title: Deepak Kumar Vs State of Bihar Criminal Appeal (SJ) No.1011 of 2022

Citation: 2023 LiveLaw (Pat) 17

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