The evidentiary value of a victim's statement recorded under section 164 of Cr.P.C. and the need for legislative amendments to give it status as examination-in-chief in all eventualities.

JUDGMENT

S.M. Modak, J. - Due to globalization, boundaries of nations have disappeared. During olden days, certain relations were considered as sacrosanct. That is to say relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.

2. One of such instance took place when the present appellant sexually abused his own daughter/victim. Though there are two views that is to say whether the victim was a real daughter or a step daughter. But the fact remains that she is victim (though her name was referred by the trial court, this court has restrained themselves from referring the victim by her name.)

3. The Special Judge under the The Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Additional Sessions Judge, Nashik had come across the case wherein there was grievance of such sexual abuse by the father/the present appellant. After the trial ( that is after examining all the witnesses) Trial Court convicted the appellant for the offence of section 376 (2) (i), 506 of IPC and under section 4 of POCSO. By taking re-course to the provision of section 42 of the said Act, separate sentence was not imposed for the offence under section 4 of the said Act. As the appellant had obtained nude photographs of the victim on his mobile handset on various dates, the trial Court convicted him for the offence punishable under section 67-B of The Information Technology Act, 2000. The trial Court acquitted him for the offence punishable under section 323 of IPC. The correctness of the said judgment is challenged on behalf of the appellant.

4. We have heard Mr. Wagal, the learned Counsel for the appellant and Mrs. Deshmukh, the learned Addl. P.P. for the Respondent. Both of them have assisted us in going through the record.

5. Prosecution has in all examined 8 witnesses. Defence of appellant is that of denial. As the victim has not deposed the actual incident which took place, the appellant thought it comfortable and he had chosen to take only defense of denial.

6. On the point of actual incident, victim PW-1 was the sole witness. It is but natural. Such incidents always take place in secrecy. Prosecution has not attempted to examine any witness on the point of post incident narration to near and dear ones by the victim. Prosecution thought it fit not to do that futile exercise. No one could have supported. Because during perusal of record we find one affidavit dated 16/9/2011 (Exhibit 13 of the trial Court record) sworn by Smt. Bhuri Imran Gauri, mother of the victim. This was filed at the stage of hearing of bail application of the accused. Trial Court has taken note of the said affidavit and was pleased not to consider it while rejecting bail request on 24/9/2014.

7. On this background, prosecution does its best to prove the offence by adducing legal evidence. The investigating agency was conscious of their responsibilities. Investigating Officer Smt. Naik, PW-7 arranged for recording statement of the victim under section 164 of the Code of Criminal Procedure. During trial also, learned APP in-charge has taken pains in examining the learned Magistrate Smt. Gaikwad, PW-2 who recorded the statement.

8. She has deposed to the fullest extent on the point of compliance of procedure and also about what victim deposed before her. Learned Additional Sessions Judge accepted her evidence on t he point of examination of the victim. Prosecution examined medical officer Dr. Nareshkumar Bagul, PW-6 and lady police constable Smt C haure, PW-4 (who took victim to medical officer).

9. Prosecution has taken care in examining the mobile vendor of Intex Company mobile Shri Beg Rustam, PW-3. He sold it to accused on 10/5/2013. He also referred to sale invoice. His evi