"Contradict according to the Oxford Dictionary meant to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other."
Bombay High Court
Siddharth S/O Atchutrao Sawant vs State (Through Public ... on 20 January, 2000
Equivalent citations: 2000 (5) BomCR 673, 2000 BomCR Cri, 2000 (3) MhLj 46
1. This criminal appeal arises from the judgment and order convicting the appellant-accused under section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years imprisonment. It was further ordered that if the fine amount is paid, the same shall be paid to the prosecutrix (P.W. 1) as the compensation.
2. The case of the prosecution in brief is that, the prosecutrix of below sixteen years of age, while she was returning from the house of one Ramrao, after attending to her household duties on June 12, 1996 during the afternoon at about 16.15 hrs., on her way to her residence and when she had reached in a cashew garden, the appellant-accused caught her from the back and lifted her and took her to the bushes and committed an offence of rape by overpowering her. Thereafter the accused threatened the prosecutrix that if she were to disclose the said fact to her parents or any one else, she would be killed. After getting herself freed from the clutches of the accused, the prosecutrix ran to her house and on seeing her aunt-Mira in the neighbourhood of her house the prosecutrix collapsed before her and narrated the entire incident to her. On narration of the incident to the father of the prosecutrix, he tried to question the accused about the incident whereupon the accused tried to rush on the person of the father of the prosecutrix with Koyta and thereupon the prosecutrix along with her father approached the police and lodged the complaint. The investigation having started thereupon, the accused was arrested on the same night and the accused as well as the prosecutrix were referred to the Goa Medical College for necessary medical examination. After conducting the necessary panchanama of the scene of offence and recording the statements of Mira, father of the prosecutrix and on receipt of the medical report, the necessary prosecution was launched and the accused stood trial of charge of commission of rape on the prosecutrix.
The prosecution examined five witnesses including the prosecutrix (P.W. 1), Dr. Sapeco (P.W. 2), the prosecutrix's aunt-Mira (P.W. 3), Panch-Bapusaheb (P.W. 4) and Investigating Officer (P.W. 5). The Additional Sessions Judge, on analysis of evidence on record, held the charge against the accused to have been proved and convicted him under section 376 of the Indian Penal Code.
3. While assailing the impugned judgment, Mr. S.G. Bhobe, learned Advocate appearing for the appellant-accused, submitted that the learned Additional Sessions Judge, ought to have appreciated that the deposition of the prosecutrix and her narration of the alleged incident was inherently incredible and unbelievable and was neither supported by the medical evidence nor by any other corroborative circumstances. Taking us through the evidence of the prosecutrix (P.W. 1), Dr. Sapeco (P.W. 2) as well as of Mira (P.W. 3), the learned Advocate submitted that the medical evidence rather than supporting the case of the prosecution negatives the version given by the prosecutrix. According to the learned Advocate, there are material contradictory statements in the evidence of the prosecutrix and Mira on relevant aspects of the matter and that the learned Additional Sessions Judge, having totally ignored the same has not appreciated the evidence in proper persective and has weongly convicted the accused of the offence under section 376 of the Indian Penal Code. He further submitted that the evidence of the prosecutrix having not been corroborated by any other evidence on record could not have been believed for the purpose of conviction of the appellant-accused under section 376 of the Indian Penal Code.
4. The contention on behalf of the appellant-accused have been contoverted by Mr. A.P. Lavande, learned Public Prosecutor, by placing reliance on the judgment of the Apex Court in the matter ofState of Himachal Pradesh v. Lekh Raj & anr., 1999(4) Crimes 337(S.C.), and submitting that when the testimony of the prosectrix is of sch a nature that on the face of it the same discloses truthful version of the incident that might have been occurred and for that reason to be believed to be a truthful witness, corroboration of such a testimony in each and every case cannot be considered as a matter of rule and cannot be invariably insisted upon, totally isnoring the facts of the particular case. According the learned Public Prosecutor, the testimony of the prosecutrix (P.W. 1) clearly makes out the case putforth by the prosecution against the appellant-accused and brings out the necessary ingredients of section 376 of the Indian Penal Code and requires no corroboration, apart from the fact that the same has been, in fact, fully corroborated by the testimony of the doctor (P.W. 2) as well as that of Mira (P.W. 3).
5. Before proceeding to consider the rival contentions sought to be raised in the matter, it will be worthwhile to bear in mind the observations of the Apex Court while dealing with matters pertaining to rape cases. In State of Maharashtra v. Chandraprakash Kewalchand Jain, , the Apex Court held thus:
"A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix; must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discussed that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
6. While expressing full agreement with the above ruling, the Apex Court in State of Punjab v. Gurmeet Singh & others, held that:
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive of its responsibility and be sensitive while dealing with cases involving sexual molestations."
The Apex Court further observed :
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole the case spoken of by the victim of sex crime strikes the judicial mind as probable."
7. Well established principle of law that if the prosecutrix is believed to be truthful witness, in her deposition, then no further corroboration need be insisted upon, as corroboration is only a rule of prudence, has been reiterated by the Apex Court in Lekh Raj's case relied upon by the learned Public Prosecutor.
8. Bearing in mind the law laid down by the Apex Court, if we analyse the evidence on record it is evident that the prosecutrix (P.W. 1) in her testimony has given detail narration of the incident that had occurred on June 12, 1996 when she had been the victim of sexual aggression by the appellant-accused. In her testimony she has given minute details of the acts of the appellant-accused. The birth certificate of the prosecutrix clearly proves her to be of below sixteen years of age at the time of the incident. The facts relating to over powering her by catching her from behind, lifting her and taking her in bushes, pulling down of her nicker, followed by lowering of his half pant, and then forcibly pushing his penis in her vagina, have been deposed by the prosecutrix with necessary precision and clarity and clearly establish the ingredients of section 376 of the Indian Penal Code. In fact, the testimony of the prosecutrix further disclose that even though she was subjected to lengthy cross-examination the same had remained unshaken.
9. Apart from there being nothing on record in the testimony of the prosecutrix to disbelieve her, the relevant facts narrated by the prosecutrix in her testimony are clearly corroborated by the other evidence on record. It is the case of the prosecution, as brought out through the testimony of the prosecutrix, that the incident of rape occurred in a cashew garden by the side of a path leading to her house from the house of one Ramrao where the prosecutrix had gone to attend to household duties. The prosecutrix, in her evidence, has clearly stated that in the course of the incident, she had lost her ear-ring, part of gold chain, a screw of another ear-ring and a chappal at the site. All those items were found at the site and this fact has been corroborated by the panch witness Bapusaheb (P.W. 4). The pancha has also deposed that the place, which was shown by the prosecutrix as the one to be scene of offence, was found in a disturbed state.
10. The prosecutrix in her testimony has stated that immediately after the incident of rape she ran to her residence and she saw her aunt-Mira (P.W. 3) in the neighbourhood of her house and she collapsed in front of her aunt-Mira and narrated her the entire incident. This statement of the prosecutrix is corroborated by the testimony of Mira (P.W. 3) who has also stated in her testimony that the prosecutrix came running towards her and collapsed before her and started crying and on being questioned, she narrated the entire incident to her. The evidence of the prosecutrix as well as that of Mira (P.W. 3) further disclose that the incident was thereafter informed to the father of the prosecutrix who was not present in the house at the relevant time and was called from the field where he was working and thereupon the father of the prosecutrix proceeded to the house of the accused to question him about the incident where the accused tried to assault the father of the prosecutrix with a Koyta.
11. The evidence of the Investigating Officer Chandrakant Salgaonkar (P.W. 5) discloses that after the First Information Report was recorded, the accused was arrested on the same night and he, along with the prosecutrix, was sent to the Goa Medical College along with police. Throughout the night between June 12 and 13, 1996, both of them alongwith the police remained at Goa Medical College Hospital and they were subjected to medical examination during the morning hours of June 13, 1996. The medical evidence produced on record and the testimony of Dr. Sapeco (P.W. 2) discloses that, "the genital development of the prosecutrix was good with 6 cms. curly black hair which appeared matted with sticky substance. There were blood tinged vaginal secretions and the vaginal walls had tenderness with bleeding on touch at six O'clock position of hymen. There were also old healed tears at 4 and 7 O'clock position of hymen. The vaginal contents were blood tinged vaginal secretions. There were no injuries on the anus. There was no enlargement of axillary, cervical and paratrochlear lymph nodes". The doctor has stated that the physical examination of the prosecutrix was suggestive of recent sexual intercourse. Similarly, the examination of the accused disclosed that, "he had a soft scabbed area of 1/8 cms. with another 1/4 cms. diameter of redness around equidistance by half cm. area at pronated aspect of left forearm 5 cms. from the wrist. These two injuries appeared to be due to the human canine imprint bite marks and were in consistence with the alleged history and were of within twenty four hours duration and were simple in nature and were caused by blunt and pointed object or force akin to the teeth bite marks". The doctor has opined in the case of the accused also that the physical examination was suggestive of recent sexual intercourse. The doctor has further stated in his cross-examination that under hypothetical circumstances, though the tenderness could have been caused on account of scraching of legs or scratching due to tight underwears or inserting a finger in the vagina, the damage caused to the vagina and the hymen on forceful insertion of the finger should invariably be restricted between the 10 and 2 O'clock position. The doctor has also stated that the discharge on the panty was otherwise than menstruation and the said discharge was sticky in nature and could be within the duration of twenty four hours. The doctor has categorically stated that there was sign of penetration of penis in the vagina of the prosecutrix.
12. The evidence discussed above clearly discloses that the appellant-accused had in fact, by over powering the prosecutrix, made her to lie down, removed her nicker and after removing his own half pant committed an offence of rape by penetrating his penis in the vagina of the prosecutrix on June 12, 1996, at about 16.15 hrs. when the prosecutrix was on her way back to her house after completing her household duties in the house of Ramrao. An attempt was made to persuade us that there was no case of penetration of penis in the vagina of the prosecutrix so as to justify the conviction of the accused under section 376 of the Indian Penal Code. In this regard heavy reliance was placed upon the opinion of the doctor on various hypothetical circumstances put to him. Our attention was drawn by Mr. Bhobe, learned Advocate for the appellant-accused, to the statement made by Dr. Sapeco (P.W. 2) that the injury on the forearm of the accused might have been caused if he had a fall in the bushes or in the field, or due to hitting of the pointed object. A reference was also made to the statement in the deposition of the doctor to the effect that the tenderness on retraction of the prepuce over glans could be caused by hand. There can be no doubt that, and as rightly opined by the doctor, under hypothetical circumstances such injuries can be caused in the circumstances which were suggested to the doctor. However, the fact remains that there is not an iota of evidence to disclose any such circumstances having occurred at the relevant time whereupon the accused might have suffered the said injuries. Much to the contrary, the evidence on record clearly discloses the fact of meeting of the accused and the prosecutrix at the relevant time and at the place, the immediate reaction of the prosecutrix and narration of the incident to her aunt-Mira (P.W. 3), the violent reaction of the accused towards the father of the prosecutrix when he had gone to enquire about the incident, the immediate medical examination of the prosecutrix and the accused disclosing recent sexual intercourse, and the injuries on the person of the accused as narrated by the prosecutrix. All these facts clearly rule out hypothetical circumstances as were suggested in the present case to be the probable causes of the injuries suffered by the accused. In fact, suggestions of such hypothetical circumstances to the doctor can be of no help to the accused in the absence of any material on record establishing such hypothetical circumstances having actually occurred at the relevant time. There is no corroboration to the alleged hypothetical circumstances by any of the prosecution witnesses. Moreover, a mere opinion regarding hypothetical circumstances cannot wipe out cogent and clear evidence brought on record in support of the charge against the accused.
13. Much grievance was sought to be made about the contradictions in the testimony of different witnesses, particularly that of the prosecutrix (P.W. 1) as compared to the testimony of Mira (P.W. 3). The contradictions stated to be are in relation to the statements of the witness pertaining to the narration of the incident by the prosecutrix to her father, statement regarding the pain suffered by the prosecutrix on entering the penies of the accused into her vagina and accompanying of the father by the prosecutrix when he had gone to the house of the accused. In this regard Mr. A.P. Lavande, learned Public Prosecutor, has drawn our attention to the judgment of the Apex Court in the matter of Rammi alias Rameshwar v. State of Madhya Pradesh, , and has submitted that the variance in the statements of the witnesses on irrelevant points cannot be sufficient to discredit the testimony of witnesses. Indeed, considering the fact that the charge was in relation to the commission of offence of rape on a minor girl, the point as to whether on account of rape the victim had suffered pain or not, is absolutely irrelevant and immaterial for the decision in the matter. Perhaps, the point regarding sufferance of pain in such cases may be relevant if the accused is legally able to plead consent of the prosecutrix for the act of sexual intercourse in an answer to the charge of rape. As regards the narration of the incident to the father and accompanying him by the prosecutrix to the house of the accused, in our opinion, even if there is some variance in the statements, the same cannot be of any assistance to the accused to persuade the Court to draw any adverse inference against the prosecution evidence or to discredit the testimony of any of the witnesses on that count. The evidence on both the points is absolute irrelevant for decision in the matter in question and considering the voluminous and satisfactory evidence on record in support of the charge, so called variance on the said two irrelevant points does not discredit either the testimony of the prosecutrix or that of Mira (P.W. 3). In this regard, the learned Public Prosecutor is justified in relying upon the judgment of the Apex Court in the matter of Rammi alias Rameshwar v. State of Madhya Pradesh, . The Apex Court therein has clearly held that :
"No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
Besides, appreciation of evidence in proper perspective does not prevent wholesome castigation of witnesses as liars. In that regard, the Apex Court in Laxman v. State of Maharashtra, has observed thus :
"Witnesses cannot, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute Judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common-sense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim "falsus in uno falsus in omnibus."
14. It was also urged on behalf of the appellant-accused that the testimony of the prosecutrix is not in consonance with her statements in the First Information Report and in that regard various contradictions, marked in the testimony of the prosecutrix by the trial Court, were pointed out by the learned Advocate for the accused. In this regard as rightly submitted by the learned Public Prosecutor, the Apex Court, long long ago in 1959, has observed that, "Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness". That was the law laid down by the Apex Court in the matter of Tahsildar Singh and another v. State of U.P, and repeatedly referred and relied upon by various High Courts and reiterated by the Apex Court lately in Rammi alias Rameshwar (supra). The Apex Court in the said Rammi alias Rameshwar (supra) has further observed thus :
"25. It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below :
155. Impeaching credit of witness.---The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him ... ... ... ...
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is injoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under section 161 of the Code) for the only limited purpose, i.e. to "contradict" the witness."
15. It is thus clear that a former statement, though apparently appeared to be inconsistent with the evidence before the Court, the latter need not necessarily be sufficient to be labelled as the contradictory. A perusal of the First Information Report by the prosecutrix and comparing the same with her testimony before the Court, it may appear that there are some statements in her deposition which are not in the form of verbatim reproduction of what was stated in the First Information Report. Nonetheless, the substance of the First Information Report has been narrated in her testimony before the Court. No doubt, there may be one or two additional facts narrated in the course of evidence before the Court; however, it is now well established that the First Information Report is not an encyclopaedia of circumstances. What is required to be disclosed in the First Information Report is the grievance of the complainant with precision disclosing basic and necessary information about the offence that might occur giving cause for the complaint. The First Information Report in the case in hand clearly disclosed the ingredients of the offence under section 376 of the Indian Penal Code. There are necessary facts mentioned in the First Information Report to sustain the charge of rape and all those facts having been narrated before the Court with one or two additional facts which are not contradictory to the facts narrated in the First Information Report in any manner, certainly cannot amount to discredit the testimony of the prosecutrix. In fact, the facts which are stated in addition to those stated in the First Information Report, as already observed above, are irrelevant for the decision in the matter in relation to the charge of 376 of the Indian Penal Code, nor they in any manner are sufficient to create any doubt about the credibility of the testimony of the prosecutrix.
16. Before parting with the matter, at this stage it is necessary to take note of the repeated mistakes those are being committed by the trial courts while recording evidence and more particularly while recording the contradictions in statements of witnesses. In the case in hand, the learned Public Prosecutor had brought to our notice that the trial Court in deposition of prosecutrix has noted that the statement of the prosecutrix to the effect, "In my complaint to the police I have stated that the penis of the accused went inside my vagina and I got pains", to be a contradiction on being confronted with her complaint. However, on perusal of the First Information Report (Ex. A) it is apparent that the prosecutrix had clearly stated therein that, "He also slapped me and slept on my stomach and removing his chaddi put his penis in my vagina". The statements in the First Information Report, therefore, clearly disclosed that the complainant had, in no uncertain words, stated the fact of insertion of the penis of the accused in the vagina of the complainant. As already observed above, the trial Court was dealing with a matter in relation to offence punishable under section 376 of the Indian Penal Code and the offence was of a rape on a minor girl. Being so, what was relevant for the prosecution was to establish the penetration of the penis of the accused in the vagina of the prosecutrix. Degree and depth of the penetration was immaterial. The painful effect of such entry was totally irrelevant to prove the charge of rape against the accused. Merely because in the course of her examination-in-chief the complainant had made grievance about the pains suffered by her on account of sexual assault by the accused, and that there was no mention about pains suffered by the prosecutrix in the First Information Report that by itself cannot give rise to any contradiction, more particularly considering the point being thoroughly irrelevant for the decision in the matter. That apart, while recording contradiction it is the duty of the Court to verify the former statement and to compare the same with the statement made before the Court to ascertain whether the two statements are really contradictory to each other. A mere statement of additional fact in the course of evidence cannot amount to contradiction by itself unless the same is material and relevant in the facts and circumstances of the case and for the decision in the matter. In this regard, we are reminded of the following observations of the Apex Court in Tahsildar's case (supra) :
"Contradict according to the Oxford Dictionary meant to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other."
17. Another disturbing factor which has been brought to our attention by the learned Public Prosecutor is the failure on the part of the trial Court to pay proper attention to the various provisions of law relating to the right of the accused to question the Investigating Officer about the statement made by persons who have not been examined as witnesses in the Court. In this regard, our attention is drawn to a question which was asked to Investigating Officer (P.W. 5) regarding certain statement made by one Ramrao to the Investigating Officer in the course of investigation and to the fact that it was objected to by the learned Public Prosecutor but the objection was overruled and Investigating Officer had to answer the said question. The relevant testimony of P.W. 5 in that regard reads as under :
"Ramrao Rane has stated that from 10-6-96 to 12-6-96 Goku had not come for work and instead P.W. 1 had come for work. Ramrao Rane did not state anything about the rape on P.W. 1. Nanarayan Gaonkar had not stated anything about the rape on P.W. 1. (The objection of Ld.P.P. for referring to the statements of the witnesses is overruled.)"
It is needless to say that the objection by the learned Public Prosecutor was in view of the provisions contained in section 162 of the Code of Criminal Procedure. Section 161 of the Code of Criminal Procedure empowers a Police Officer to examine and record statements of witnesses who can be of assistance in the matter. Section 162(1) of the Code of Criminal Procedure clearly provides that, "no statement made by any person to a Police Officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:" Proviso to sub-section (1) of section 162 states that, "when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, ; and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination." Sub-section (2) of section 162 provides that, "nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of section 32 of the Indian Evidence Act, or to affect the provisions of section 27 of the Act". The explanation to the said section provides that, "an ommission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
18. It is, therefore, abundantly clear that when a statement is recorded by the Police Officer in the course of investigation, the use of such a statement is to be made strictly in terms of the abovementioned provisions and not otherwise. This evidently means that a statement recorded in the course of investigation by police cannot be a subject matter of cross-examination of the Investigating Officer unless the person has been examined as prosecution witness before the Court and his statement is brought in evidence for the purpose of contradicting such witness or to point out the omission in his former statement before the police. Undoubtedly, the provisions are not applicable as far as they relate to the matter under section 32(1) and section 27 of the Indian Evidence Act. However, one cannot forget that the statements recorded under section 161 of the Code of Criminal Procedure cannot be used as substantive evidence either in favour of or against the accused. Such statements can be used only to test credibility of prosecution witnesses. What was sought to be done before the trial Court in the case in hand was to question the Investigating Officer about a statement made by a witness to the Investigating Officer whose statement had been recorded by the said officer but neither was the said person examined by the prosecution as the witness in the case nor did the Investigating Officer had brought on record anything before the trial Court regarding the statement made by the said witness during the course of the investigation. It is not permissible to question the Investigating Officer regarding some statements made by some person in the course of investigation except when such a person has been examined as prosecution witness before the Court and has made a statement contradictory to the one which was made by him to the Investigating Officer, or has made some improvement over the statement before the police.
19. Perusal of the impugned judgment discloses that after considering the evidence on record in detail, the learned Additional Sessions Judge arrived at the finding that the evidence on record clearly established commission of offence for which the accused had been charged. There is nothing on record even to suggest remotely that the accused had been falsely implicated by the prosecutrix. Indeed, the material on record does not in any manner suggest false implication of the accused in the case and the evidence unequivocally points out to the uncivilised and frightening experience that the prosecutrix had to undergo on account of sexual assault on her by the accused, and the accused alone.
20. We, therefore, find no justification for any interference with the impugned judgment.
21. The appeal fails and is dismissed.
22. Appeal dismissed
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