Point of Law : Statement of a witness recorded under Section 164 Cr.P.C is a previous statement and can only be confronted in accordance with Section 145 of the Evidence Act and relevant portion should be made part of the deposition.

JUDGMENT :

1. The appellant is questioning the judgment of the trial Court in SC No.127 of 2017 dated 23.02.2021 finding the appellant guilty for the offences under Section 376(2)(n) of IPC and sentenced to under go Rigorous Imprisonment for a period of ten years and also sentenced to undergo 2 years simple imprisonment for the offence under Section 366 of IPC.

2. The facts of the case are that P.W.1, who is the father of the victim, P.W.2, aged about 17 years, filed a complaint Ex.P1 dated 19.09.2016 stating that P.W.2 was missing. The said complaint is Ex.P1 registered as First Information Report Ex.P12. In Ex.P1, it is stated by P.W.1 that P.W.2 was missing from the evening of 17.09.2016 and suspected that the appellant might have taken his daughter. Two days after the complaint, the police called PW.1 to the police station as P.W.1 and appellant went to the police station. The Police recorded the statement of P.W.2 and altered section of law to Section 376 IPC, Section 3 r/w 4 of Protection of Children from Sexual Offences Act, 2012 (for brevity ‘the Act of 2012’).

3. The Police, Husnabad Police Station, charge sheeted the appellant for the said provisions and charges were framed for the offences under Section 366, 376(2)(j) IPC, Section 4 of the Act of 2012. After conclusion of trial, the appellant was convicted as stated supra.

4. When the victim P.W.2 was examined in the court, she stated that she loved the appellant. Both of them decided to marry and went to Peddamma Temple on 17.09.2016, where the appellant tied Thali (Thread tied to the bride as per custom). Thereafter, they went to Hyderabad and stated for three days, during which time, the appellant had intercourse with P.W.2.

5. The Police got the statement of P.W.2 recorded under Section 164 Cr.P.C before the Magistrate, which is marked as Ex.P2. She stated on oath as follows, as per translation made available.

“Q.No.4 What happened? Said?

Ans : I liked one boy. His name is Kumar and I went with him to Samudrala village and both got married at Peddamma temple. On that day, my parents put kidnap case. But no one kidnapped me. With my willing I went to Hyderabad along with Kumar. We stayed there for (4) days. We came to here as after knowing my parents filed a case in this regard. But no one kidnapped me.”

6. The practice adopted by the trial Court in marking Section 164 Cr.P.C statement is incorrect. Statement of a witness recorded under Section 164 Cr.P.C is a previous statement and can only be confronted in accordance with Section 145 of the Evidence Act and relevant portion should be made part of the deposition. It appears that for the reason of witness accepting his statement under Section 164 of Cr.P.C, it was marked, which procedure is incorrect. For the purpose of adjudicating the appeal, the statement of Ex.P12 is extracted above.

7. The learned counsel for the appellant submits that at the earliest point of time before the Magistrate, P.W.2 did not state that the appellant had intercourse and specifically stated that no one kidnapped her. In the said circumstance, the question of rape does not arise. Further, when she has voluntarily gone along with the appellant, it cannot be said that Section 366 is attracted. In the said circumstances, the appellant has to be acquitted of the charges. In support of his contention, he relied on the judgment of Madras High Court in the case of Sabari @ Sabarinathan @ Sabarivasan v. Inspector of Police, 2019(3) RCR (Criminal) 452: 2019(3) MLJ (Criminal) 110 and drew the attention of this Court to para 28, which reads as follows:

“28. Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be intro