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IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Vajid Ali - Applicant
Versus
State of U.P., Thru. Prin. Secy. Home. Lko and Another - Opposite Parties
Application U/s 482 No. 5541 of 2021
Decided On : 21-12-2021
POCSO Act - Quashing of Order - Sections 363, 366, 376D IPC, 3/4 POCSO Act - Section 164 Cr.P.C. - Section 172 (2) and Section 294 of the Cr.P.C. - Evidentiary value of statement under Section 164 Cr.P.C.
Fact of the Case:
The petitioner sought to quash the order rejecting the application for cross-examining the victim (PW-4) in a case involving sections 363, 366, 376D IPC, and 3/4 POCSO Act. The victim's statement under Section 164 Cr.P.C. was lost, and the petitioner's request for cross-examination was rejected.
Finding of the Court:
The court found that the statement under Section 164 Cr.P.C. has limited evidentiary value and is used as an aid during trial. The court also noted that the trial court had given a last opportunity for cross-examination, which was not availed of by the accused.
Issues: The issues involved the evidentiary value of the victim's statement under Section 164 Cr.P.C., the admissibility of a photocopy as secondary evidence, and the rejection of the petitioner's application for cross-examination.
Ratio Decidendi: The statement under Section 164 Cr.P.C. has limited evidentiary value and is used as an aid during trial. The trial court's decision to reject the application for cross-examination was reasonable, considering the opportunities given to the accused.
Final Decision: The petition to quash the order was rejected by the court.
JUDGMENT :
1. Heard learned counsel for the petitioners and learned AGA for the State.
2. This petition has been filed with the following main prayer:-
To stay the further proceeding in Session Trial No. 46/2015, "State Vs. Vajid & Ors." pending before Learned Special Judge (POCSO Act)-12, Sultanpur, in Case Crime No. 5/2015, under sections 363, 366, 376D IPC read with 3/4 POCSO Act, PS Sangrampur, District Amethi, during the pendency of this Petition before this Hon'ble Court in the interest of justice."
3. The petitioner is assailing the order dated 08.04.2021 passed in Sessions Trial No. 46 of 2015 in Case Crime No. 5 of 2015, by which the petitioners application for providing opportunity to cross-examine PW-4 (the victim) has been rejected by an unreasoned order.
4. It has been submitted that the father of opposite party no.2 lodged FIR on 08.01.2015, under Sections 363, 366 IPC, Police Station Sangrampur, District Amethi, against one Asif who alongwith the petitioner, (who was not named in the FIR) having enticed the respondent no.2 had taken her away. After investigation the Investigating Officer submitted a charge sheet against the petitioner and co-accused, Asif, under Sections 363, 366, 376 IPC read with Section 3/4 of the POCSO Act and cognizance was taken. Thereafter, the trial proceeded against the petitioner and co-accused. During trial on 15.11.2021, the statement of the PW-04, (respondent no.2) the victim was recorded. It was recorded that PW-04 had affirmed her own statement given under Section 164 of the Cr.P.C., but the statement under Section 164 Cr.P.C. in its original was lost. The order dated 02.12.2021 by the learned trial court has recorded that for the loss of the statement of under Section 164 Cr.P.C., and the negligence of the employee concerned, learned District Judge be informed. No action was taken however, against such irresponsible employee.
5. It has been argued that In the examination-in-chief of the respondent no.2, the respondent no.2 had placed reliance upon her statement under Section 164 Cr.P.C. Therefore, the petitioner through his counsel moved an application on 08.01.2021 and sought time for cross-examination as in the absence of statement of PW-4 under Section 164 Cr.P.C., no cross examination was possible. Learned trial court has rejected such application by an unreasoned order. The order dated 08.12.2021 is ex-parte and against the provision of Section 172 (2) and Section 294 of the Cr.P.C.
6. It has been argued that the statement of the respondent no.2 under Section 164 Cr.P.C. cannot be read as evidence because only a photo copy of the same is available.
7. Under Section 172 (2) any criminal court may send for police diary of a case under enquiry or trial in such court, and may use such diary, not as evidence in the case, but to aid it in such enquiry or trial.
8. It has been stated by the learned AGA for the State Ms. Shikha Sinha that under Section 161 Cr.P.C. the Investigating Officer records the statement of the witnesses including the victim. Under Section 164 of the Cr.P.C., the Magistrate having jurisdiction in the case records any confession or statement made to him in the course of an investigation or at any time afterwards, before commencement of the enquiry or trial. The Magistrate explains to the person making the statement that he is not bound to make a confession, but if he does so, it may be used as evidence against him. However, Sub-Sections (2), (3) and (4) of Section 164 of the C
The evidentiary value of a statement under Section 164 Cr.P.C. is limited and is used as an aid during trial.
Statements recorded under Section 164 of the Cr.P.C. are not substantive evidence and can only be used for contradiction or corroboration during cross-examination.
The admissibility of statements recorded under Section 164 of the Cr.P.C. as evidence and the conduct of the petitioner's counsel were central legal points established in the judgment.
The use of statements recorded under Section 164 Cr.P.C. as evidence is limited to corroboration or contradiction, and in the absence of substantial evidence, such statements cannot sustain a convict....
The main legal principle established in the judgment is the importance of confronting witnesses with their previous statements to ensure a fair trial, as mandated by Section 145 of the Evidence Act a....
The statement of a deceased victim recorded under Section 164 CrPC is not substantive evidence and cannot solely support a conviction; the prosecution must prove the victim's age and provide corrobor....
The judgment establishes that convictions under POCSO require substantive evidence, and reliance on inadmissible statements can lead to acquittal.
Section 157 of Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for purpose of corroborating statements made by witnesses in committal court or even to ....
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