R. Palanisamy vs State

P. Devadass, J.

APPELLANT:

This appeal, by the father of the complainant, is challenging the conviction and sentences passed against him u/s 376(1) and 506(ii) IPC by the

learned Additional Sessions Judge, Mahalir Neethimandram, Coimbatore, on 28.1.2013, in the Sessions Case, in S.C. No. 199 of 2010.

CONVICTION AND SENTENCE:

The Additional Sessions Judge convicted and sentenced the appellant to life with a fine of Rs. 5,000/-, in default, 6 months Rigorous Imprisonment

u/s 376(1) IPC and also convicted and sentenced him to 7 years Rigorous Imprisonment with a fine of Rs. 3,000/-, in default, 3 months Rigorous

Imprisonment u/s 506(ii) IPC. However, directed both the sentences to run concurrently.

PROSECUTION CASE:

The prosecution case, in brief, may be recounted as under:

(1) P.W. 1 is the daughter of P.W. 2 and the appellant. On 1.9.2006, they have brought P.W. 1, an unwed pregnant girl of 16 years old, to

Thayarammal Poly Clinic, Coimbatore. On examination, P.W. 6 Dr. Geetha, found a foetus of 24 weeks in her womb. With the consent of her

parents, on 2.9.2006, P.W. 6 aborted it.

(2) On 31.7.2009, at B-7 Ramanathapuram Police Station, Coimbatore, P.W. 1 gave complaint to P.W. 13, Saraswathi, Woman S.I. that during

March, 2006, her father raped her, she became pregnant, the child was forcibly aborted and subsequently on 30.7.2009 also he raped her and

criminally intimidated her and her mother. P.W. 13 registered a case in Crime No. 990 of 2009 u/s 376(1) and 506(i) IPC (See Ex. P.5 F.I.R.).

(3) P.W. 7, Ganesh, Inspector received a copy of the FIR. Commenced his investigation. Visited P.W. 1''s house. In the presence of P.W. 9

Dinesh Kumar and another, prepared Ex. P.7, observation mahazar. Drew Ex. P.6, rough sketch. P.W. 8, Vanithamani, Headmistress,

Corporation High School, Varadarajapuram, issued Ex. P.11, certificate to the effect that P.W. 1 was born on 2.5.1990.

(4) On 6.8.2009, at the Govt. Hospital, Coimbatore, when P.W. 4, Dr. Savithri examined P.W. 1, she told her that in March, 2006, in their

house, her father raped her, on 2.9.2006, in Thayarammal Poly Clinic, abortion was done, thereafter, on 30.7.2009 also, he raped her. P.W. 4

recorded her this statement in Ex. P.2 Accident Register and also noted multiple scars of about 1 x 1 cm over her lower limbs and linear scar of

about 15 cm over the supra pubic area.

(5) On 6.10.2009, P.W. 12, Parameswari, Judicial Magistrate No. III, Coimbatore recorded the statement of P.W. 1 u/s 164 Cr.P.C.(Ex. P14).

(6) P.W. 7 examined the witnesses and recorded their statement. Arrested the accused. Dr. Sudalaimuthu examined him and determined that he is

about 50 years old. [Ex. P.9, age certificate]. On medical examination, the accused was found to have potentiality (Ex. P.13 certificate). He was

remanded to judicial custody. Concluding his investigation, P.W. 7 filed the final report against him for offences u/s 376(1) and 506(ii) IPC.

PROSECUTION EVIDENCE:

To substantiate the twin charges framed u/s 376(1) and 506(ii) IPC, prosecution examined P.Ws. 1 to 13 and marked Exs. P.1 to P.14.

EXAMINATION U/S. 313 Cr.P.C.:

On the prosecution evidence, the trial court examined the accused u/s 313 Cr.P.C. He denied his complicity in this case. He did not examine

any witness nor produce any document.

TRIAL COURT''S FINDINGS:

In the trial court, P.Ws. 1 to 3 have completely turned hostile. However, the trial court referring to the statement of P.W. 1 to the Doctor P.W.

4, P.W. 1''s statement u/s 164 Cr.P.C. to P.W. 12 Judicial Magistrate, certain answers given by the accused when he was examined u/s 313

Cr.P.C., the demeanour of P.W. 1 and of the accused, held that the prosecution has established its case beyond all reasonable doubts and

convicted and sentenced the accused as stated in para 2, supra.

TRIAL COURT''S DECISION: questioned

Mr. C.S. Dhanasekaran, learned counsel for the appellant contended that P.Ws. 1 to 3 deposed that there was affair between P.W. 1 and one

Raja and he was responsible for her pregnancy. This has completely shattered the case put up by the prosecution. The evidence of prosecution

witnesses, whether spoken in favour of prosecution or defence, must be taken as such and appreciated accordingly. However, the trial court

completely brushed aside such evidence of P.Ws. 1 to 3.

The learned counsel for the appellant further contended that P.W. 1 having completely turned hostile and there being no incriminating evidence

as against the accused, the trial court cannot resort to P.W. 1''s statement recorded in the Accident Register by P.W. 4 or P.W. 1''s statement

recorded by P.W. 12, the Judicial Magistrate u/s 164 Cr.P.C. Further, such statements are not substantive evidence. On the basis of such

statements, the accused cannot be convicted. The learned counsel also contended that during his examination u/s 313 Cr.P.C., the accused did not

give any incriminating answer. The learned counsel also submitted that the instant case is a clear case of adverse finding rendered without any legal

evidence, conviction without evidence was recorded and the accused was sentenced and thus, what was awarded by the trial court is absolutely an

illegal sentence.

PROSECUTION POINT OF VIEW:

Mr. V.M.R. Rajendran, the learned Additional Public Prosecutor, submitted that the trial court has rendered its findings relying on the evidence

of P.Ws. 4 and 12 and convicted and sentenced the accused.

CONSIDERATION:

We have anxiously considered the submissions made at the Bar. Carefully perused the entire materials on record and also the impugned

judgment of the trial court.

The Accusations:

P.W. 1, the daughter of the accused, accused her father having raped her. Her accusation is that during March, 2006, in their house, the

accused raped her, made her pregnant, P.W. 6 aborted the foetus, thereafter and also on 30.7.2009, he had raped her.

Very serious allegations are made against the accused. Thus, we are very serious of proving them.

Rape:

A major charge as against the accused has been framed u/s 376(1) I.P.C., that is to say, raping of a minor girl. Even it is punishable with life

sentence. The sexual offence of ''Rape'' has been defined in Section 375 I.P.C., As per that, if the sexual intercourse with a woman is against her

will (clause 1) or without her consent (clause 2), or her consent has been obtained forcibly (clause 3), or her consent has been obtained deceitfully

(clause 4), or her consent has been obtained after administering stupefying or unwholesome substance or she is a person of unsound mind (clause

5), then it is ''rape''. However, if the sexual intercourse was even with her consent, if the girl is below 16 years, it is also ''rape'' (clause 6). In such

circumstances, the victim girl''s consent is immaterial. But, a consensual sex by a man with a girl of above 16 years unaccompanied by any of the

vices mentioned in clause 1 to 5 will fell out of the offence of rape as defined in Section 375 I.P.C. Thus, for the offence of ''rape'', determination

of the age of the victim girl at the time of incident is very impotent.

AGE OF THE VICTIM/PROSECUTRIX:

In this case, as per the evidence of P.W. 8, Vanithamani, School Headmistress and Ex. P.11, certificate, P.W. 1 was born on 2.5.1990. Thus,

during March, 2006, she was below 16 years and on 30.7.2009, she was 19 years old. Her such age has not been disputed and that it is not an

issue at all.

Thus, with reference to the first incident, namely, during March, 2006, the offence fall under clause 6 of Section 375 I.P.C. So, the victim''s

consent is immaterial. With reference to the second incident on 30.7.2009, the offence fall under clause 1 or Clause 2 of Section 375 I.P.C., as the

case may be. The consideration of consent of the victim girl becomes an important factor, since it has to be seen whether the consent was obtained

by force, or by deceit etc. In this case, it is alleged that the victim girl''s consent was obtained under criminal intimidation. It is a matter of evidence

and proof.

Basis of Conviction:

The learned Additional Sessions Judge convicted and sentenced the appellant on the following basis:

(1) Statement of P.W. 1 to P.W. 4 Dr. Savithri recorded in Ex. P.2, Accident Register.

(2) Ex. P14 statement of P.W. 1 given to P.W. 12, Judicial Magistrate u/s 164 Cr.P.C.

(3) Certain answers of the accused when he was examined u/s 313 Cr.P.C.

(4) Demeanour of P.W. 1 when she was in the witness-box before the trial court.

(5) Demeanour of the accused when he was in the dock.

We shall proceed to appreciate them one by one in the light of the evidence adduced before the trial court and the law relating to those

aspects.

EVIDENCE OF P.Ws. 1 to 3:

To substantiate the two charges, namely, under Sections 376(1) and 506(ii) I.P.C., prosecution examined P.Ws. 1 to 3, who are the victim,

her mother and her brother respectively. Apart from the medical evidence of P.Ws. 4 and 6 with reference to abortion done to P.W. 1, this case is

mainly based on the oral testimony of P.Ws. 1 to 3.

Before the trial court, P.W. 1, the prosecutrix, turned hostile. She had disowned the complaint, based upon which Ex. P.5, F.I.R., in this case

has been registered. She had owned only her signature (Ex. P.1) in the complaint. P.W. 2, her mother, did not support the prosecution version of

the case. So also P.W. 3, the girl''s brother. All the three star witnesses of the case completely turned hostile. Even with the leave of the Court,

when the Prosecutor cross-examined P.Ws. 1 to 3 - their own witnesses (See S. 154 Evidence Act), they reiterated what they have stated in their

chief examination. They did not speak in support of the charges. They did not substantiate the accusations made against the accused. There is no

positive evidence in their evidence in proof of the prosecution case.

It is appropriate here to note down the guidelines laid down by the Hon''ble Apex Court to deal with witnesses, who have turned hostile in the

court.

In Bhajju @ Karan Singh Vs. State of M.P., , the Hon''ble Supreme Court held as under:

It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the

prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and

there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence....

Also see Kunju Muhammed @ Khumani and Another Vs. State of Kerala, .

In Ramesh Harijan Vs. State of U.P., , the Hon''ble Supreme Court held as under:

It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to

treat him as hostile and cross-examine him.

...The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent

that their version is found to be dependable on a careful scrutiny thereof.

[Vide Bhagwan Singh Vs. The State of Haryana, Shri Rabindra Kumar Dey Vs. State of Orissa, Syad Akbar Vs. State of Karnataka, and Khujji

alias Surendra Tiwari Vs. State of Madhya Pradesh,

Recently, in Haradhan Das Vs. State of West Bengal, the Hon''ble Apex Court observed as under:

It is a settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible nor is it of

no value in its entirety. The statement, particularly the examination-in-chief, insofar as it supports the case of the prosecution is admissible and can

be relied upon by the Court....

Thus, it is seen that the witnesses cited and examined by the prosecution, when did not support the prosecution and who has been declared as

hostile witness and with the leave of the Court, can be cross-examined by the prosecution and still if he reiterates what he had stated in his chief-

examination, namely, not spoken in favour of the prosecution case, he has completely turned hostile. In such circumstances, since nothing

incriminating is available in his evidence in favour of the prosecution, any part of his such evidence cannot/could not be used to record an adverse

finding as against the accused or cannot be used to link with any other incriminating evidence available in favour of the prosecution.

As regards the evidence of P.Ws. 1 to 3 tendered before the trial court in this case, such is the position before us. Their such evidence is in no

way useful to the prosecution to prove its case, to record a finding of guilty, to render an adverse finding as against the accused.

P.W. 1''s statement before P.W. 4:

In this case, the F.I.R. was registered by P.W. 13, Saraswathi, Woman S.I. (Ex. P.5) on 31.7.2009. P.W. 7 Inspector Ganesh, conducted the

investigation. In the course of his investigation, on 6.8.2009, the prosecutrix (P.W. 1) has been produced before P.W. 4 Dr. Savithri. She had

examined P.W. 1. P.W. 4 had recorded her statement in Ex. P.2 Accident Register to the effect that during March, 2006, on a day, at about 8

p.m., in their house, she was raped by the accused. She became pregnant. On 2.9.2006, in P.W. 6''s clinic, abortion was done to her and again on

30.7.2009 afternoon, in their house, the accused had raped her. However, as seen already, in her evidence before the trial court, P.W. 1 had

completely turned hostile. She did not support the prosecution version of the case. She did not subscribe to the statement recorded in Ex. P.2. It is

also pertinent here to note that the prosecution, even after obtaining the leave of the court, when cross-examined P.W. 1, did not put to her the

statement recorded in Ex. P.2.

In such circumstances, the trial court relying upon such statement in Ex. P.2 as recorded by P.W. 4 is uncalled for. It is against law. When

P.W. 1 who is alleged to have made such scathing statement against the accused before P.W. 4, herself turned hostile, in other words, not

supported her alleged statement to P.W. 4, such evidence of P.W. 4 or her such alleged statement to P.W. 4 cannot be used as an in-culpatory

piece of evidence against the accused. The trial court is completely wrong in making use of such alleged statement of P.W. 1 to P.W. 4 also to

convict the accused.

Statement of P.W. 1 recorded u/s. 164 Cr.P.C.:

During investigation, on 6.10.2009, the Investigating Officer produced P.W. 1 before Parameswari, learned Judicial Magistrate No. III,

Coimbatore to record her statement u/s 164 Cr.P.C. The learned Magistrate recorded her statement. It is verbatim the allegations in the complaint.

In the trial court, the learned Magistrate has been examined as P.W. 12 and the statement recorded by her has been marked as Ex. P.14.

The learned Additional Sessions Judge compared the allegations in the complaint (which was disowned by the prosecutrix herself) with her Ex.

P.14 statement recorded u/s 164 Cr.P.C. and in his judgment remarked that ""there is no reason to disbelieve such recording of statement by the

learned Judicial Magistrate u/s 164 Cr.P.C., which has been recorded in a manner known to law without any discrepancy"" and ultimately, relied on

such statement of P.W. 1 to P.W. 12 also to convict the accused.

At the risk of repetition, it is pertinent here to mention that before the trial court, P.W. 1 had disowned the complaint, not supported the

prosecution case and she completely turned hostile.

It is relevant here to note the aspects relating to the recording of statement of witnesses contained in Section 164 Cr.P.C., they runs as under:

Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in

the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time

being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided further xxx

(2) xxx

(3) xxx

(4) xxx

(5) Any statement other than a confession made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of

evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath

to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into

or tried.

The objective behind recording of statement of a witness u/s 164 Cr.P.C. is that it is for an assurance that the investigation is going on in right

direction, it is going against a right person and, a belief that it will instill a sense of feeling in the mind of the deponent that later he should not resile

from it. A feeling that he has been tied down to his such earlier statement.

In practice, resort being made to Section 164 Cr.P.C. by the Investigating Officers mainly when the case is in the investigation stage. Section

164 Cr.P.C. enables recording of statement of witnesses by the Magistrate and confession from the accused. The statement of witness has to be

recorded like a statement recorded from a witness in the court. Before recording the statement, oath has to be administered to the witness. But,

such recording of statement is not like recording of confession from the accused. Only before and after recording a confession, various

precautionary measures including giving of reflection time to the accused has been prescribed. This rigorous exercise need not be followed for

recording the statement of a witness u/s 164 Cr.P.C.

However, in many cases, as in the present case, we have seen that even while recording the statement of a witness u/s 164 Cr.P.C., the

learned Magistrates are following the procedure that they have to follow before recording a confession from the accused, although such recording

of the statement will not make the statement invalid or unreliable, but, it is a needless exercise, not even prescribed in Section 164 Cr.P.C.

A statement given by a witness u/s. 164 Cr.P.C., is like a ''previous statement'' given during investigation u/s. 161 Cr.P.C. It is not ''substantive

evidence'' adduced before the Trial Judge, because it was not recorded in the presence of the accused. Because it was recorded - ''res inter alia

acta - recorded behind the back of the accused. Because it was recorded from a witness during investigation. Besides giving it to a police officer, it

was also given to a Magistrate.

With regard to the value to be given to a statement recorded u/s 164 Cr.P.C., in Ram Kishan Singh Vs. Harmit Kaur and Another, , the

Hon''ble Apex Court held as under:

A statement u/s 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It

can be used to contradict a witness....

u/s 161 Cr.P.C., during investigation, the Investigating Officer can orally examine any person acquainted with the facts of the case. When he

reduces the true account of it, then it becomes a statement u/s 161 Cr.P.C. and gist of it must find a place in his Case Diary (C.D.) (See Section

172 Cr.P.C.). This is the ''previous statement'' recorded by the Investigating Officer during investigation stage. It cannot be used as ''substantive

evidence'' as against the accused. There is total embargo in Section 162 Cr.P.C. for such usage with an exception in Section 162(2) Cr.P.C., that

is, when the author of the statement dies it becomes his dying declaration u/s 32(1) of the Evidence Act. The section 161 statement can be used by

the accused to contradict and impeach the credibility of the witness by the accused. It can be used by the accused in his favour. It cannot be used

by the prosecution as against him. [See Sections 145, 155, 157 Evidence Act].

Although the statement of a witness recorded u/s 164 Cr.P.C. during investigation is also a previous statement like a statement recorded u/s

161 Cr.P.C., but, it has some higher value than the statement recorded u/s 161 Cr.P.C. by the police since it was recorded by a Magistrate.

With regard to the statement of a witness recorded by a Magistrate u/s. 164 Cr.P.C., in Ramprasad Vs. State of Maharashtra, , the Hon''ble

Apex Court observed as under:

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 a witness. Though a police officer is legally competent to investigate, any statement

made to him during such an 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 a 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

u/s 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.

In Guruvindapalli Anna Rao and Others Vs. State of Andhra Pradesh, ], a Division Bench of the Andhra Pradesh High Court held that since

the previous statement of a witness u/s 164 Cr.P.C., has been recorded by a Magistrate, it is a public document, the Magistrate need not be

summoned and examined as a witness.

The Division Bench observed as under:

We would like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had

summoned the I Additional Munsif Magistrate, Tenali (PW. 10) to prove the statement of P.W. 1 recorded by him u/s 164 Cr.P.C. This Court has

already ruled if any Magistrate records the statement of a witness u/s 164 Cr.P.C., it is not necessary for the Sessions Judges to summon that

Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his official

functions as such, records the statement of any witness u/s 164 Cr.P.C., such statement is a ''public document'' and it does not require any formal

proof. Moreover, it is seen that the learned II Additional Sessions Judge, Guntur, while recording the evidence of the I Additional Munsif

Magistrate, Tenali (PW. 10), has exhibited the statement of P.W. 1 recorded by the Magistrate as Ex. P.10. As a matter of fact, such statement

cannot be treated as a substantive piece of evidence. Such statement can be made use of by the prosecution for the purpose of corroboration, or

by the defence for contradiction, u/s 145 of the Evidence Act. Therefore, the II Additional Sessions Judge, Guntur, is directed to note the

provisions contained in Section 145 of the Evidence Act. Even if a statement is recorded by a Magistrate, it is not a substantive piece of evidence,

but it is only a previous statement.

We agree with the above view of the Division Bench of the Andhra Pradesh High Court. But, in many cases, we have seen that the learned

Sessions Judges are simply summoning the learned Magistrates, who have recorded the statement of witnesses u/s 164 Cr.P.C., resulting in loss of

their valuable services to the litigant public and others. Further, such exercise is also being done by the learned Sessions Judges even when a

witness, who gave those statement turned hostile in the trial court, as it was done in the case before us.

Further, through the learned Magistrates, the learned Sessions Judges are marking the very statement of witnesses recorded u/s 164 Cr.P.C.,

even when the witness either turned hostile or has been dispensed with by the prosecution or not examined in the trial court due to various reasons.

When it was so marked the entire statement u/s. 164 Cr.P.C., which has not been recorded before the learned Sessions judge, but recorded

before the Magistrate, at a time when the accused was not in the picture, goes into the deposition of the witness, becomes part of the record of

evidence, as it was done in the case before us. Then there is the danger of the trial court using them as substantive evidence, as it was done in the

case before us.

This practice/procedure does not have the sanction of law. It has to be avoided by the learned Sessions Judges. It will be for the benefit of the

prosecution, the accused and also prevent loss of precious court hours. A copy of those public records, namely, statement u/s. 164 Cr.P.C., can

be supplied/obtained by the prosecution as well as by the accused like the statement of witnesses recorded u/s 161 Cr.P.C. During the trial of the

case before the learned Sessions Judge, like the statement of a witness u/s 161 Cr.P.C., these statements recorded u/s 164 Cr.P.C. can be

referred to within the parameters of law.

In Ram Lakhan Sheo Charan and Others (in Jail) Vs. State of U.P., when the witness, whose statement has been recorded by the learned

Magistrate u/s 164 Cr.P.C., during the Sessions'' trial, turned hostile, did not support his statement to the Magistrate, a Division Bench of the

Allahabad High Court observed as under:

The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old Code of

Criminal Procedure with little changes are the same. As early as in Manik Gazi Vs. Emperor, a Division Bench of the Calcutta High Court had held

that the statements u/s 164 of the Code can be used only to corroborate or contradict the statements made Under Sections 145 and 157 of the

Indian Evidence Act. In AIR 1946 38 (Privy Council) and in AIR 1946 45 (Privy Council) the Privy Council had observed that the statement u/s

164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness

given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in AIR 1949 257 (Privy Council) and

in Bhagi and Another Vs. The Crown, . It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner''s court that statement

u/s 164 of Code cannot be used as a substantive piece of evidence. In State Vs. Hotey Khan and Others, . A division Bench of this Court had

also observed that statements u/s 164 of the Code cannot be used as a substantive evidence.

The above catena of cases go to show that where the witnesses do not support the prosecution story in the Court, then their statements u/s

164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as

substantive piece of evidence.

Again in Phool Chand Vs. State of U.P., , when similar situation as in Ram Lakhan Sheo Charan (supra) arose, a Division Bench of the

Allahabad High Court held as under:

Learned Additional Public Prosecutor Sri Amarjeet Singh has tried to emphasise that Karan (P.W. 1) and his wife Smt. Makkhan (P.W. 2)

were produced before the Magistrate for recording their statements u/s 164 Cr.P.C. in which they fully supported the facts/circumstances leading

to the commission of multiple murders in this case. The learned counsel has contended that these statements should be given due weight and should

be considered for proving the offences with which the appellants were charged. On thoughtful consideration on this legal aspect of the matter, we

find that the aforesaid submission has no substance in it. The statement of a witness u/s 164 Cr. P. C. is one where the accused have hardly any

occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial Court and then a

witness should be produced by the prosecution for his cross examination. In this context the learned Senior Advocate appearing for the appellants

has cited the case law of AIR 1946 38 (Privy Council) and Ram Kishan Singh Vs. Harmit Kaur and Another, .

In these cases the Privy Council and the Hon''ble Supreme Court have categorically held that the statements recorded u/s 164 Cr. P. C. are not

substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the

witnesses (P.W. 1 and P.W. 2) have themselves did not support their version, their statements earlier recorded u/s 164 Cr.P.C. could not be

available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, but that too has

not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness

recorded u/s 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis.

In T. Diwakara, Bethur Anjani, Chilichodu Parasappa and Bethur Shivanna Bheemappa Vs. State of Karnataka, , during investigation, P.W.

10 gave statement before a Magistrate u/s 164 Cr.P.C., but, later during the Sessions trial, he turned hostile. In such circumstances, the Karnataka

High Court held as under:

1...The statement of PW 10 was recorded before the Magistrate. After the lodging of the complaint, PW 10 has turned hostile. But the trial court

convicted the accused on the strength of statement of PW 10 recorded u/s 164 of Criminal Procedure Code. The trial court grossly erred in

placing reliance on the statement recorded u/s 164 of Criminal Procedure Code as substantive evidence. While convicting the accused the

statement recorded u/s 164 of Criminal Procedure Code does not have any better legal status than the one recorded u/s 161(3) of Criminal

Procedure Code. At the most, if the deponent whose statement is recorded u/s 164 of Criminal Procedure Code turns hostile, he/she could be

prosecuted for perjury but on the strength of such statement no conviction can be placed.

When a witness gave statement to the Magistrate u/s 164 Cr.P.C., later during the trial before the learned Sessions Judge disowned it, gave

different version, either the statement given by him before the learned Magistrate may be true or his deposition before the learned Sessions Judge

may be true, but both may not be true.

In this connection, long ago, In Re: Madiga Narasigadu and Others, this Court observed as under:

It is no doubt true that either the statement made before the Taluk Magistrate u/s 164, Criminal P.C., or the evidence given in P.R.C. No. 1 of

1946 on the file of the Stationary Sub-Magistrate, Dharmavaram, is false and false to the knowledge of the petitioners. If according to the case of

the respondent the statements made u/s 164, Criminal P.C., were true the evidence given before the Sub-Magistrate in P.R.C. No. 1 of 1946 was

false. But the petitioners say that they were forced to make false statements u/s 164, Criminal P.C., and that later on they spoke the truth before

the Magistrate. In similar circumstances, the observations made by Beaumont, CJ., in Emperor Vs. Ningapa Ramappa Kurbar, ) are very

instructive and may be cited in extenso. The learned Judge says:

No doubt, a man making a statement on oath before a Magistrate u/s 164, Criminal P.C., should speak the truth but if he does not, the least he can

do is to tell the truth when subsequently he goes in the witness box. To prosecute a man who has resiled from a false statement, made u/s 164 is to

encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false

statement u/s 164 than that he should be induced to believe that it is to his interest, however false the statement may have been to adhere to it, and

thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent person is too great to be risked.

With great respect I agree with his observations. Applying those observations I must say that the prosecution of the petitioners would not be in the

interests of justice. Further these petitioners are illiterate Madigas and it is impossible to rule out the possibility that they were forced to make the

statements which they did u/s 164, Criminal P.C., and later on they spoke the truth before the Court.

Thus, from the survey of the decisions relating to Section 164 Cr.P.C., as to its nature, scope, evidentiary value, consequences of the author of

the statement resiling from his such statement before the learned Sessions Judge, his statement u/s 164 Cr.P.C., which is not a substantive piece of

evidence loses its value. It cannot be used to record a finding of guilty. When the position of law is such that, in the case before us, inspite of the

fact that the prosecutrix (P.W. 1) has turned hostile, disowned her statement, the learned Additional Sessions Judge relied on it since it was

recorded by a Judicial Officer. The trial court has completely went wrong.

Certain Answers of the accused u/s. 313 Cr.P.C. Examination:

After the completion of the examination of the prosecution evidence, u/s 313(1)(b) Cr.P.C., the trial court questioned the accused on the

evidence, framing as many as 16 questions. The accused denied the allegations levelled against him. He also stamped the complaint as false.

Under Question No. 13, the accused was questioned that, (***) [P.W. 12 Parameswari, Judicial Magistrate No. 3, Coimbatore, stated in her

evidence that on 6.10.2009, when P.W. 1 was produced before her, she has recorded her statement u/s. 164 Cr.P.C., running to 10 pages, which

has been marked as Ex. P.14 and forwarded it to the concerned Magistrate, what you say about that?]

The accused answered that (***) [I do not know. Then, I was in jail]. The trial court considered it as an incriminating answer implicating the

accused with the accusations contained in Ex. P.14 statement recorded from P.W. 1 by P.W. 12.

Further, under question No. 5, the accused was questioned that, (***) [In her evidence, P.W. 6 Dr. Geetha of Thayarammal clinic had stated

that on 1.9.2006 when she was in duty, a 16 years old girl, namely, P.W. 1 was brought to her for stomach pain and when she was examined, she

found a foetus of 24 weeks and this was informed to her parents and they have permitted to abort it, what you say for this?]

(***) [Answer: I did not say that abortion shall be done to her. It was told by my wife. On that day, I was also in the hospital.]

Under question No. 6, the accused was questioned as under:

(***) [P.W. 6 Dr. Geetha in her further evidence has stated that based on the written consent of her parents, on the next day, at about 8 a.m.,

surgically a male child was taken out from P.W. 1''s stomach, the child died and after treatment, on 9.9.2006, she was discharged from the

hospital and Ex. P.4 is the treatment record, what you say about that?]

(***) [Answer: True]

The trial court relied on the said answers of the accused. In its judgment, the trial court observed that ""his answer to question No. 6 shows his

guilty mind"". The trial court relied on all his above answers also to convict the accused.

It is now pertinent here to note Section 313 Cr.P.C., which runs as under:

Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances

appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his

examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

''Here before condemn''. It is the simplest meaning of the principle ''Audi Alteram Partem'', a component of Principles of Natural Justice. This

is what the idea behind examination of the accused u/s 313 Cr.P.C. u/s 313 Cr.P.C., opportunity is given to the accused to give his explanation,

his view as to the incriminating details, aspects, circumstances appearing against him in the prosecution evidence, before it being used against him.

It is giving him a chance to explain away, present his view point thereon, so that it could be considered by the trial court along with in-culpatory

information in the prosecution evidence and arrive at a correct finding. Thus, through Section 313 Cr.P.C., the Administrative Law concept of

Principles of Natural Justice has been imported to the Administration of Criminal Justice.

Section 313 Cr.P.C., contemplates 2 types of examination of the accused. Actually, it is a dialogue between the accused and the court. u/s

313(1)(a), at any stage of the case, the trial court ''may'' examine the accused when it deem it necessary. So, it is discretionary. It is not mandatory.

However, u/s 313(1)(b), after the closure of the prosecution evidence, the trial court ''shall'' examine the accused. Thus, it is mandatory. It is

compulsory.

But such examination must be with reference to incriminating, in-culpatory statement, details and circumstances in the prosecution evidence

available as against the accused. So, when no incriminating details or circumstance, information implicating the accused is available in the

prosecution evidence, there is no occasion for the court to examine the accused u/s 313(1)(b) Cr.P.C. Factual aspects of the case unaccompanied

by any incriminating aspects or uncontroverted matters need not be put to the accused u/s 313(1)(b) Cr.P.C.

But, in many judgments of the learned Sessions Judges, as in the presence case, we have come across entire evidence in combined, complex

forms not containing any incriminating information being put to the accused u/s 313(1)(b) Cr.P.C., completely ignoring the ambit, purport and

scope of examination of the accused u/s 313 Cr.P.C.

As regards examination of the accused u/s 313 Cr.P.C., in Munna Kumar Upadhyaya @ Munna Upadhyaya Vs. The State of Andhra

Pradesh Through Public Prosecutor, Hyderabad, Andhra Pradesh, , the Hon''ble Apex Court observed as under:

It is a settled law that the statement u/s 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his

conduct and secondly to use denials of established facts as incriminating evidence against him. In this regard, we may refer to some recent

judgments of this Court. This Court in Asraf Ali Vs. State of Assam, has observed as follows: (SCC p.334, paras 21-22)

Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to

explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material

circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so

amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is

important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned

about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material

in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or

prejudice. This Court also expressed a similar view in S. Harnam Singh Vs. The State (Delhi Admn.), ] while dealing with Section 342 of the

Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial

court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused u/s 313 is not a purposeless

exercise.

Again, in its recent judgment in Mannu Sao Vs. State of Bihar, a Bench of this Court to which one of us, Swatanter Kumar, J., was a member,

has reiterated the above stated view as under: (SCC pp. 316-17, paras 12-14)

Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding

factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.

As already noticed, the object of recording the statement of the accused u/s 313 of the Code is to put all incriminating evidence against the

accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution.

At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the

crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory

obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain

his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and

reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other

party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential

orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and

to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is

recorded, the next question that has to be considered by the court is as to what extent and consequences such statement can be used during the

enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of

criminal jurisprudence.

The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be

taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that

the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other

enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the

provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in

consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered

in isolation but in conjunction with evidence adduced by the prosecution.

In connection with examination of the accused u/s 313 Cr.P.C., in V.K. Sasikala Vs. State rep. by Superintendent of Police, ], the Hon''ble

Apex Court observed as under:

23.1. The examination of an accused u/s 313 CrPC not only provides the accused an opportunity to explain the incriminating circumstances

appearing against him in the prosecution evidence but such examination also permits him to put forward his own version, if he so chooses, with

regard to his involvement or otherwise in the crime alleged against him. Viewed from the latter point of view, the examination of an accused u/s 313

CrPC does have a fair nexus with the defence that he may choose to bring, if the need arises. Any failure on the part of the accused to put forward

his version of the case in his examination u/s 313 CrPC may have the effect of curtailing his rights in the event the accused chooses to take up a

specific defence and examine the defence witnesses. Besides, the answers given by the accused in his examination, if incorrect or incomplete, may

also jeopardise him as such incorrect or incomplete answers may have the effect of strengthening the prosecution case against the accused.

As regards usage of statement of an accused recorded when he was examined u/s 313 Cr.P.C., in Brajendrasingh Vs. State of Madhya

Pradesh, ], the Hon''ble Supreme Court held that it can be used as evidence insofar as it supports the prosecution case/when it is in line with the

prosecution case.

We have carefully perused the entire oral and documentary evidence let in by the prosecution in this case. Only legally permissible evidence

shall go to the record of evidence. The evidence which cannot be admitted shall not form part of the record of evidence. For instance, hearsay

evidence shall not go into the record of evidence. So also the evidence of witness, which is against the prosecution version of the case, disowned

statement of a witness recorded u/s 164 Cr.P.C., shall not become record of evidence. Only those portion of admissible evidence containing

incriminating information as against the accused alone has to be put to the accused u/s 313(1)(b) Cr.P.C., the point of view of the accused as to

that has to be elicited and considered in its proper perspective as a whole and not otherwise.

However, in the case before us, no incriminating information has been put to accused u/s 313 Cr.P.C. Further, for question No. 13, the

accused did not give any incriminating information. Ex. P.14 statement has been disowned by P.W. 1. When she herself turned hostile, it ought not

to have been put to the accused. Under question No. 13, the accused had stated that when he was inside the jail, the statement u/s 164 Cr.P.C.

was recorded by the Magistrate, therefore, he had no occasion to know about it. It is the correct answer. It is not an incriminating answer. It

cannot be used as against the accused. But, in this case, the trial court, on the basis of this answer, turned the table against him and used this also a

basis to convict him. What the trial court did was wrong.

With reference to the answers of the accused to question Nos. 5 and 6, the trial court held that they show the guilty mind of the accused. But,

even a superficial reading of his answers would show that they are mere statement of facts. They do not furnish any incriminating information as

against the accused. However, the trial court used those answers also to convict him.

Demeanour of P.W. 1:

In its judgment, the trial court remarked that ""P.W. 1, while giving evidence stood in the witness-box in an abnormal position and she could not

see the court daringly and often looked at the accused"". Such is the frame of mind of the trial court towards the accused during the trial of the case

itself.

Seeing the demeanour of a witness in the witness box is everyday event in the trial court. But, while commenting upon the evidence of the

witness in the backdrop of the demeanour with which he had tendered evidence, the trial court must record in the deposition itself what was the

nature of his demeanour, under what context and circumstances and with reference to the type of question posed to him, such demeanour has been

exhibited by him has to be recorded. So that, the appellate court while appreciating his evidence could note about it as it had no opportunity like

the trial court to note the demeanour of witness. In the absence of it, if such a comment is made while appreciating the evidence of a witness, it is

nothing but an exercise in air. This will not be judicial way of appreciating the quality of the evidence of a witness. Exactly, this is what happened in

this case. The trial court was wrong in its such approach.

Demeanour of the Accused:

In its findings, the trial court stated that ""during trial, the accused stared at the witness and he was seen with red eye"". So, during the trial of the

case, such was its frame of mind towards the accused. It is seen from its judgment that this also weighed in the mind of the trial court in convicting

the accused.

In the administration of criminal justice, we are following the Common Law Legal system as opposed to the Continental Legal System

prevailing in France and in Scandinavian countries. Our criminal jurisprudence is modelled on the Anglo-Saxonic Criminal Jurisprudence.

An accused is presumed to be innocent throughout till the guilt alleged as against him is proved. ''One''s presumption of innocence itself is his

basic Human Right'' [See Kailash Gour and Others Vs. State of Assam, , Kavitha Vs. The State by, The Inspector of Police, Perumanallur Police

Station, Coimbatore District ].

As a necessary corollary, it is the duty of the prosecution to prove the guilt alleged as against the accused beyond all reasonable doubts [per

Lord Justice Goddard in Woolmeington Vs. Direction of Public Prosecutions, [1935 AC 462]. Even now, except with little statutory tinkering

[See: Section 113-A and 113-B of Indian Evidence Act, 1872 ], this is the position of criminal law in India.

Under our system of administration of Criminal Justice, an accused is entitled to keep mum to the accusations made against him, even refuse to

plead as against the charges framed against him. He can simply tie his hands and stand in the dock. It is for the prosecution to produce witnesses

and establish the charges against him beyond all reasonable doubts.

The court cannot frame up its mind, come to a conclusion, whether the accused is guilty or not, on seeing his face. The court cannot be fooled

by his pretensions in the Court. Nor a court be carried away by the appearance, characteristic features of the accused. In the court, a robberer

may pose himself a pious man and a pious man may appear to be a robberer. The accused may take any number of roles and enact dramas. But a

court of law cannot be carried away by that. There cannot be a judgment of the Court based on the face/value of the accused. The judgment of the

Court must be based on the value of evidence and not on suspicion or surmises, however, strong it may be.

In this connection, it is apposite to notice the following observations of the Hon''ble Supreme Court made in Ashish Batham Vs. State of

Madhya Pradesh, .

Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of

the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the

question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in

which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof

required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts

dealing with criminal cases at least should constantly remember that there is a long mental distance between ''may be true'' and ''must be true'' and

this basic and golden rule only helps to maintain the vital distinction between ''conjectures'' and ''sure conclusions'' to be arrived at on the

touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality

and credibility of the evidence brought on record.

The above guiding note was also reiterated by the Hon''ble Supreme Court in Rathinam @ Rathinan Vs. State of Tamilnadu and Another, .

Thus, the trial court was wrong in resting its findings on the red eye of the accused during the trial of the case.

Proper Appreciation of evidence:

To substantiate the charges, the prosecution produces witness/s. Some times, the witnesses supports the prosecution. Some times they turn

against the prosecution. They may lie as regards the prosecution version of the case or they may tell the real version of the case, which may be in

tune with the defence version. They may depose in favour of the prosecution or accused. But, whatever they have deposed in the court is the

substantive evidence. That will be the basis for the court to appreciate the prosecution case and also defence version. Thus, when the prosecution

witness spoke in favour of the prosecution or defence, their evidence as such has to be taken and it has to be appreciated accordingly. By

evidence, prosecution has to prove its case. But, without any independent evidence, even from the evidence of prosecution, accused may

probabilise his version or improbabilise the prosecution version.

It is relevant here to note that in State of U.P. Vs. Ramesh Prasad Misra and another, the Hon''ble Apex Court held that evidence of a hostile

witness would not be totally rejected if spoken in favour of the prosecution or accused. But, it requires to be subjected to close scrutiny and that

portion of evidence which is consistent with the case of the prosecution or defence can be relied upon.

In Ramesh Harijan (supra), the Hon''ble Apex Court referred to various decisions on the point and observed as under:

In State of U.P. Vs. Ramesh Prasad Misra and another, this Court held that evidence of a hostile witness would not be totally rejected if

spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is

consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde

Vs. State of Maharashtra, ] Gagan Kanojia and Another Vs. State of Punjab, ; Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P.,

Sarvesh Narain Shukla Vs. Daroga Singh and Others, and Subbu Singh Vs. State by Public Prosecutor,

Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof

which are admissible in law, can be used by the prosecution or the defence.

[See also C. Muniappan and Others Vs. State of Tamil Nadu, and Himanshu @ Chintu Vs. State of NCT of Delhi,

In the case before us, the prosecution version is that the accused has raped P.W. 1. A charge u/s 376(1) I.P.C. has been framed against him.

To substantiate it, prosecution examined P.Ws. 1 to 3.

Throughout, the defence version is that P.W. 1 while studying +2 course had love affair with one Raja, this was not to the liking of her father,

he scolded her, yet, she continued her affair with Raja, had sexual contact with him and became pregnant.

In the trial court, in her evidence, P.W. 1 had stated about her affair with Raja, this was not liked by her father and she became pregnant

because of Raja. This is what the evidence of her mother P.W. 2 also and also her brother P.W. 3. However, the trial court completely kept aside

their such evidence and gone with a frame of mind, in tune with the prosecution version of the case and having found nil incriminating evidence in

the evidence of the witnesses in support of the prosecution case, went about making out a case for the prosecution based on inadmissible evidence

and on that basis recorded conviction as against the accused mainly based on suspicion, surmises and concoctions. This is not the way of

doing/trying a criminal case, appreciating the evidence of witnesses only in favour of the prosecution when the witnesses themselves were not in

favour of the prosecution version of the case, but in favour of the defence version.

Thus, none of the basis chosen by the trial court to convict the accused has the sanction of law. We have no hesitation to accept the arguments

of Mr. C.S. Dhanasekaran, the learned counsel for the appellant that this case is a classic case of findings recorded not based on any legal

evidence and the findings are made without any acceptable evidence.

Thus, we hold that the prosecution has not established the charges framed against the accused beyond all reasonable doubts. Consequently,

the conviction and sentences passed against him must go. In the result, this Criminal Appeal is allowed. The conviction and sentences imposed

upon the appellant by the learned Additional Sessions Judge, Mahalir Neethimandram, Coimbatore in S.C. No. 199 of 2010 are set aside. The

appellant is acquitted from all the charges. The Superintendent, Central Prison, Coimbatore shall release him forthwith, if his further custody is no

longer required in connection with any other case/proceedings. Fine amount, if paid already, shall be refunded.

***