Ramashish Yadav vs The State of Bihar and Another

R.S. Garg, J.—Heard learned Counsel for the parties.

Placing strong reliance upon a judgment of the Supreme Court in the matter of Jogendra Nahak and Others Vs. State of Orissa and Others, learned Counsel for the applicant submits that the statements recorded u/s 164 Code of Criminal Procedure, if are of the witnesses, who are not sponsored by the prosecution agency, cannot be taken into consideration and as in the present case such statements were taken into consideration, the Court below was unjustified in proceeding further in the matter. On the other hand learned Counsel for the private Respondent so also the State submitted that even if the statements recorded u/s 164 Code of Criminal Procedure are excluded from consideration, the availability of the other material on the record would clearly show that the prosecution has come out with a truthful case and the accused cannot be discharged.

From the order passed by the learned Court below it appears that while passing the impugned order dated 4.8.2001 it had taken into consideration not only the case diary statements but also the statements recorded u/s 164 Code of Criminal Procedure When a Court takes into consideration irrelevant material along with relevant materiel and it is not possible to sift the opinion of the Court into water tight compartments nor it is possible for a higher Court to record a positive finding that what persuaded the trial Court the irrelevant material or the relevant material then the higher Court should not introduce its opinion but should require the learned Court below to reconsider the matter after ignoring the irrelevant material.

In the matter of Jogendra Nahak (supra) the question before the Supreme Court was that whether the High Court was justified in ignoring the statements recorded u/s 164 Code of Criminal Procedure of the witnesses who were not sponsored by the prosecution. After considering the effect and impact of Section 164 Code of Criminal Procedure the Supreme Court observed that the High Court was justified in disallowing the statements of the four Appellants to remain on the record in the said case. The Supreme Court further observed that of course the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it.

In the present case the statements of the prosecutrix were recorded u/s 164 Code of Criminal Procedure but undisputedly she was not sponsored by the prosecution agency as such her 164 statements are required to be ignored.

In view of the discussions aforesaid I am of the opinion that the order passed by the learned trial Court deserves to be set aside. It is accordingly set aside. The matter is remitted to the trial Court with the direction to hear the parties and decide the matter afresh after ignoring the statements recorded u/s 164 Code of Criminal Procedure.

The petition to the extent indicated above allowed.