In the present case neither the learned POSCO Judge, who ordered for recording the second statement of the victim under Section 164 Cr.P.C. nor the learned Magistrate, who recorded the second statement on 13.12.2017 has taken due care or precaution which necessitated the recording of second statement under Section 164 Cr.P.C. of the victim and also not confronted the victim of her earlier statement under Section 164 Cr.P.C. {Para 25}
2 6 . It is true that law does not bar recording the statement of the victim underSection 164 Cr.P.C. twice, but at the same time the second statement should not be recorded to negate or defeat the earlier statement of the victim whether it is in favour or against the accused otherwise the sanctity of the statement under Section 164 Cr.P.C. will loose its value. Hence, the learned Magistrate while recording statement of the victim under Section 164 Cr.P.C. should be very cautious and vigilant and
record the statement strictly in accordance with provision of Section 164 Cr.P.C. explaining the victim about the pros and cons of his or her statement, as the case may be, as the said is administered to the victim on oath in order to give its sanctity during the course of investigation.
IN THE HIGH COURT OF ALLAHABAD
Criminal Misc. Writ Petition No. 2027 of 2018
Decided On: 19.03.2018
Manisha Sahu Vs. State of U.P. and Ors.
Hon'ble Judges/Coram:
Ramesh Sinha and K.P. Singh, JJ.
Equivalent Citation: 2018(6)ADJ250, 2018 (104) ALLC C 53, MANU/UP/2581/2018
1. Heard Shri S.K. Chaubey, learned counsel for the petitioners, Shri Ashish Kumar
(Nagvanshi), learned counsel for respondent No. 4 and Shri Vikas Sahai, learned
Additional Government Advocate for the State and perused the record of the case. By
means of this writ petition the petitioners have prayed that the subsequent statement
of the victim recorded on 13.12.2017 under Section 164 Cr.P.C. in Case Crime No.
115 of 2017, under Sections 363, 366(A) IPC and 7/8 of the Protection of Children
from Sexual Offences Act, 2012 police station Sakaldeeha, district Chandauli be
declared void ab-initio. It is further prayed that a direction be issued to the
respondents not to rely upon the second 164 Cr.P.C. statement of the victim while
submitting the report under Section 173(2) Cr.P.C.
2. The brief facts of the case are that on 16.7.2017 a report was lodged by the first
informant Sheela Devi, mother of the victim at the police station Sakaldeeha, district
Chandauli to the effect that her daughter, Km. Poonam Yadav, aged 17 years has
been enticed away by Manisha Sahu, wife of Manoj Gupta and took her to village
Timilpur, police station Sakaldeeha and in order to sell her for prostitution and other
misdeed, she has got her eloped with her husband Manoj Gupta. It is further
mentioned in the first information report that after a hectic search her daughter, Km.
Poonam Yadav, the victim and Manoj Gupta are not traceable. It is also mentioned
that the victim has been kidnapped by Manisha Sahu and Manoj Gupta and that the
life of her daughter is in danger.
3. On the basis of the aforesaid report a case was registered against the petitioners
at case crime No. 115 of 2017, under Sections 363, 366(A) IPC and 7/8 of the
Protection of Children from Sexual Offences Act, 2012 police station Sakaldeeha,
district Chandauli.
4 . After the recovery of the victim on 18.7.2017, her statement under Section 161
Cr.P.C. was recorded in which she has stated that on 15.7.2017 she went with Manoj
Gupta out of her own freewill to Varanasi and thereafter she has gone to Nepal
Border and solemnized the marriage with Manoj in a Temple. She also stated that Manoj has not done any misdeed with her and that she wants to live with Manoj.
5 . On 18.7.2017, the investigating officer has produced the victim before the Chief
Medical Officer of District Women Hospital, Chandauli for getting the medical
examination of the victim done, but the victim has straight away refused in writing to
get her medical examination either internal or external conducted.
6. On 19.7.2017 the investigating officer of the case has produced the victim before
the learned Civil Judge (SD) for getting her statement under Section 164 Cr.P.C.
recorded. The learned Civil Judge (SD) has recorded her statement, in which she has
stated that she is aged about 18 years. She is well known to Manisha Yadav and
Manoj Gupta. On 15.7.2017, she had gone to Banaras to fetch medicine out of her
own sweet will. Nobody has enticed her away. She was lovelorn with Manoj Gupta for
the last six months. When Manoj has come to Banaras alongwith her to fetch
medicines, she had gone to Nepal and performed marriage in a Temple. After the
marriage although they were together, but they did not make any physical relation.
Manoj, even did not touch her private parts.
7. It appears that after recording of the statement of the victim under Sections 161
and 164 Cr.P.C. the father of the victim, namely Shri Ram Dularey has moved an
application before the Superintendent of Police, Chandauli alongwith an affidavit of
the victim, stating therein that the statement of the victim has been recorded in
collusion with and under the influence of police with the accused. On the basis of
that application, the Superintendent of Police, Chandauli directed the investigating
officer to produce the victim again before the learned Court below for recording her
statement under Section 164 Cr.P.C. Thereafter the second statement of the victim
was recorded under Section 164 Cr.P.C.
8. Learned counsel for the petitioners submits that since there is no provisions in the
Code for recording the statement of the victim under Section 164 Cr.P.C. twice, the
subsequent statement made by the victim should not be read against the petitioners
while submitting the charge-sheet.
9. On the other hand, Shri Ashish Kumar, learned counsel for respondent No. 4 and
Shri Vikas Sahai, learned Additional Government Advocate submitted that since the
earlier 164 Cr.P.C. statement of the victim was recorded in collusion of the accused
with the police and under the influence of the police and that is why on an
application being made by the father of the victim, the second statement of the victim
was recorded.
10. They further submit that perusal of the first statement of the victim goes to show
that the victim was under the pressure of the accused as she stated that she had gone
to Nepal and performed marriage in a Temple. After the marriage although they were
together, but they did not make any physical relation. Manoj, even did not touch her
private parts.
11. Learned counsel for the complainant and learned AGA submits that the second
part of the first statement of the victim that after the marriage although they were
together, but they did not make any physical relation and that Manoj did not touch
her private parts seems unnatural and suggests that the first statement under Section
164 Cr.P.C. was recorded under pressure and threat and, therefore, on an application
being made by the father of the victim leveling allegations of threat, the second
statement of the victim was recorded.
12. It appears that for quashing of the FIR, the petitioners earlier approached this
Court by filing Criminal Misc. Writ Petition No. 15112 of 2017, which was disposed of
by a coordinate Bench of this Court vide order dated 2.8.2017 with the directions that
the petitioners shall not be arrested till submission of police report under Section
173(2) Cr.P.C. before the Court concerned, subject to their cooperation in the
investigation, which will go on and shall brought to a logical end. The aforesaid order
was passed by the Bench considering the first statement of the victim under Section
164 Cr.P.C.
13. From the perusal of the record it appears that the first statement of the victim
under Section 164 of the Code was recorded on 19.7.2017 and on 21.7.2017 the
father of the victim has given an application to the Superintendent of Police, district
Chandauli mentioning therein that on 15.7.2017, the victim was abducted by Manoj
Kumar with the help of his wife in respect of which a case was registered at police
station Sakaldeeha. Accused Manoj raped her daughter for three days and on
pressure of the police on the family members of the accused, he came to the police
station alongwith the victim. Accused Manoj is very influential person, due to which
the police has let him off after a short while and the victim could not be medically
examined till date. It is further mentioned in the application that (as told by the
victim) that the police has got the statement of the victim recorded under the
pressure of the accused. The victim has also told to her father that the accused had
threatened her if she gives statement against him, he will get her brothers
eliminated.
14. In her subsequent statement to the police under Section 161 Cr.P.C. she has
stated that she did not know Manoj Gupta. She has been introduced from Manoj
Gupta by Surendra and Surendra used to put pressure on her for taking to Manoj
Gupta and when she refused to talk to Manoj, he threatened her that Surendra had
got her video clipped and if she does not speak him, he shall show that video to her
family members. Thereafter Manoj took a room at Sakaldeeha Kutcheri and called her
on the pretext that he will only talk. When she went to his room, he committed rape
with her and asked her that her video has been clipped and threatened her not to
disclose this fact to any one otherwise he shall show that video to everyone.
Thereafter Manoj used to do such misdeed for six months. It is also mentioned in the
application that Manoj has also threatened her that in case she refused to accompany
him, she alongwith her family members will be eliminated. On 15.7.2017, when she
was going to school for admission, Manoj met her on the way and asked her to go
with him and on her refusal, he threatened to kill her and took her to Lucknow. It is
further mentioned in the statement that Manoj asked her that he has given Rs.
500,000/- to Surendra in lieu of her. Manoj used to drink her intoxicated medicine
and commit rape. When she was brought to the police station, on the way the
accused threatened her of dire consequences if she does not give statement favorable
to the accused.
15. In the statement the victim has also stated that SI Radhey Shyam has asked her
that as to when she went for medical examination, she should only state that she
does not want to get her medical examination done and wants to live with Manoj. In
the hospital when she enquired from the doctor as to what Daroga Ji has said, she
replied that you should only say that you do not want your medical examination done
and want to live with Manoj. Thereafter she was compelled to sign on a blank paper.
1 6 . In her second statement under Section 164 Cr.P.C. which was recorded on
13.12.2017, the victim has leveled serious allegations of rape, blackmailing her and
life threat against Manoj and his wife, the petitioners. In the second statement both
under Section 161 and 164 Cr.P.C., the victim has given a very clear and lucid picture
of the incident, i.e. as to how she has been enticed away and raped by petitioner
Manoj and what happened thereafter till the recording of her earlier statement under
Section 161 and 164 Cr.P.C.
1 7 . From perusal of the subsequent statement of the victim, it appears that in
addition to the petitioners, one Surendra is also involved in the present episode,
whose complicity should also be enquired into. The role of Radhey Shyam (Sub
Inspector) is also under cloud.
In respect of the statement of a witness or victim recorded under Section 164 Cr.P.C.
and its value, the Apex Court in Ram Kishan Singh v. Harmit Kaur,
MANU/SC/0169/1971 : AIR 1972 SC 468, held as under:
"A statement under Section 164 of the Code is not substantive evidence. It
can be used to corroborate the statement of a witness. It can be used to
contradict a witness..."
In Ram Prasad v. State of Maharashtra, 1996 Cri LJ 2889, Apex Court has held thus:
"Be that as it may, the question is whether the Court could treat it as an item
of evidence for any purpose. Section 157 of the Evidence Act permits proof
of any former statement made by a witness relating to the same fact before
"any authority legally competent to investigate the fact" but its use is limited
to corroboration of the testimony of such witness. Though a police officer is
legally competent to investigate, any statement made to him during such
investigation cannot be used to corroborate the testimony of a witness
because of the clear interdict contained in Section 162 of the Code. But a
statement made to a magistrate is not affected by the prohibition contained
in the said Section. A magistrate can record the statement of a person as
provided in Section 164 of the Code and such statement would either be
elevated to the status of Section 32 if the maker of the statement
subsequently dies or it would remain within the realm of what it was
originally. A statement recorded by a magistrate under Section 164 becomes
usable to corroborate the witness as provided in Section 157 of the Evidence
Act or to contradict him as provided in Section 155 thereof.
18. In Bhuboni Sahu v. King, MANU/PR/0014/1949 : AIR 1949 PC 257, the Privy
Council has held that a statement made under Section 164 of the Code of Criminal
procedure can never be used as substantive evidence of the fact stated, but it can be
used to support or challenge evidence given in Court by the person who made the
statement.
19. In Manik Gazi v. Emperor, MANU/WB/0104/1941 : AIR 1942 Cal 36, a Division
bench of Calcutta High Court had held that the statements under Section 164 of the
code can be used only to corroborate or contradict the statement made under Section
145 and 157 of the Indian Evidence Act.
20. In Brij Bhushan Singh v. Emperor, MANU/PR/0041/1945 : AIR 1946 PC 38 and
Mamand v. Emperor, MANU/PR/0044/1945 : AIR 1946 PC 45, the Privy Council has
observed that the statement under Section 164 of the Code cannot be used as
substantive evidence and which can only be used to contradict and corroborate the
statement of a witness given in the Court.
21. We have considered the purpose and relevance of the statement of the victim
recorded under Section 164 of the Code of Criminal Procedure. It has been stated by
the father of the victim that the first statement of the victim both under Section 161
and 164 Cr.P.C. were got recorded by the police under pressure and in collusion with
the accused, but the same appears only to lame excuse by the father of the victim
who moved an application alongwith an affidavit to the Superintendent of Police
Chandauli, who directed the Investigating Officer to get her statement again recorded
under Section 164 Cr.P.C., for which the Investigating Officer moved to the POCSO
Court and Additional Sessions Judge directed the Magistrate to record second
statement of the prosecutrix/victim under Section 164 Cr.P.C. and the learned
Magistrate following the mandate of the POCSO Court recorded the second statement
under Section 164 Cr.P.C. on 13.12.2017 without questioning or confronting the
victim/prosecutrix about earlier statement recorded under Section 164 Cr.P.C. on
19.7.2017 in which she did not level any allegation against the accused Manoj though
the said statement was made on oath by her before the competent Magistrate in view
of the provisions of Section 164(5) Cr.P.C.
2 2 . In the said circumstances the second statement of the victim recorded under
Section 164 Cr.P.C. can be an afterthought and also under influence of her father,
possibility of which cannot be ruled out and just to defeat the earlier statement
recorded under Section 164 Cr.P.C. of the victim, the Investigating Officer at the
behest of her father again got recorded her statement under Section 164 Cr.P.C.
leveling allegations against the accused and his wife.
23. The statement made by the victim/prosecutrix under Section 164 Cr.P.C. before
the Magistrate stands on high pedestal and sanctity during the course of investigation
as compared to her statement recorded under Section 161 Cr.P.C. by the
Investigating Officer.
2 4 . The statement made by the victim under Section 164 Cr.P.C. before the
Magistrate on oath at the first opportunity time after she was recovered can be taken
true unless it is shown that it was made by the victim under influence, duress or for
any other oblique motive or purpose.
25. In the present case neither the learned POSCO Judge, who ordered for recording
the second statement of the victim under Section 164 Cr.P.C. nor the learned
Magistrate, who recorded the second statement on 13.12.2017 has taken due care or
precaution which necessitated the recording of second statement under Section 164
Cr.P.C. of the victim and also not confronted the victim of her earlier statement under
Section 164 Cr.P.C.
2 6 . It is true that law does not bar recording the statement of the victim under
Section 164 Cr.P.C. twice, but at the same time the second statement should not be
recorded to negate or defeat the earlier statement of the victim whether it is in favour
or against the accused otherwise the sanctity of the statement under Section 164
Cr.P.C. will loose its value. Hence, the learned Magistrate while recording statement
of the victim under Section 164 Cr.P.C. should be very cautious and vigilant and
record the statement strictly in accordance with provision of Section 164 Cr.P.C.
explaining the victim about the pros and cons of his or her statement, as the case
may be, as the said is administered to the victim on oath in order to give its sanctity
during the course of investigation.
2 7 . However, as the arrest of the petitioners has been stayed by the Coordinate
17-09-2018
Bench of this Court vide order dated 2.8.2017 till submission of report under Section
173(2) Cr.P.C., considering the earlier statement of the victim under Section 164
Cr.P.C., it is provided that the investigating officer shall proceed with the
investigation and submit his report as directed by the Coordinate Bench of this Court
vide order dated 2.8.2017 on the basis of the material collected during investigation.
28. It goes without saying that the investigating officer shall be free to collect all
other materials during investigation, which he deems fit and proper in the
circumstances of the case.
2 9 . It is further provided that the investigating officer shall also investigate the
matter in respect of complicity of Surendra, whose name has been surfaced in the
subsequent statement of the victim.
30. With the aforesaid directions, this petition is disposed of. The Registrar General
is directed to send a copy of this order to all the District/Sessions Judges of the State
for necessary information and its compliance.
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