Calcutta High Court (Appellete Side)
Debu Hait vs The State Of West Bengal on 17 September, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice SAHIDULLAH MUNSHI
And
The Hon'ble Justice SUBHASIS DASGUPTA
C.R.A. No. 9 of 2017
Debu Hait
... Appellant/Accused
(in Correctional Home)
-Versus
The State of West Bengal
... Respondent
Mr. Navanil De ... for the appellant (Amicus Curiae) Mr. N.P. Agarwala, Mr. Arindam Sen ... for the State Heard on : 07.08.2019 & 14.08.2019.
Judgment on : September 17, 2019 Sahidullah Munshi, J.: On the submission made by Mr. Amal Krishna Samanta, learned Advocate, initially entered appearance for the appellant, that his client since had taken no objection from him and since had taken back papers in connection with the appeal and having not received any further instructions in the matter, we 2 appointed Mr. Navnil Dey, Advocate practicing in this Court as an amicus curiae by our order dated 07.08.2019.
Mr. Dey, assisted the Court to his utmost sincerity and with due honesty. We appreciate the service rendered by the amicus curiae. Now going to the merits of the appeal we heard both the amicus curiae and Mr. Agarwal for the State.
This appeal by the convict challenging the judgment and order of conviction dated 19th December, 2016 and 20th December, 2016 passed by the learned Additional District and Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in Sessions Trial no. 06(1) of 2015 arising out of sessions case no. 19(10) of 2014 S.P.L. convicting the appellant under Section 3(b) of the POCSO Act punishable under Section 4 of the said Act. On the basis of a written complaint by one Tapati Das, mother of the victim, who is the youngest daughter of the complainant, Kumari Binita Das of 12 years of age complained to have been violated sexually by the accused, Debu Hait. Inspector-in- charge, Haldia Police Station registered the complaint under FIR No. 132 dated 08.10.2014 under Section 354 of the Indian Penal Code and on the basis whereof Haldia P.S. Case no. 132 of 2014 dated 08.10.2014 was started under Section 354 of the Indian Penal Code read with Section 8/12 of the Protection of Children from Sexual Offences Act, 2012.
The said P.S. case no. 132 gave rise to sessions trial no.6(1) of 2015 (Sessions Case no. 19(10) of 2014).
3
In a nutshell the complaint was that on 7.10.2014 at about 09.00 pm in the night the victim girl, complainant's daughter went to see Laxmi Puja held at the complainant's village itself and at that time accused allured the victim and took her to his shop and molested her. Accused also admitted to have committed rape on the complainant's daughter forcefully. Victim's maternal uncle (mejo Mama), heard a loud cry and he ran to the shop at once and saw the door of the shop locked from inside. After calling upon several times, accused opened the door halfway and on quarry about the shouting from inside, the accused denied simply and replied that there was nothing. But when the said Mejo Mama threatened the accused he took the victim from inside the shop. Victim's uncle took her home and came to know in detail about the alleged incident. In the complaint it was mentioned that the accused committed threat upon the victim to kill her if she revealed the fact of violating her by the accused to anyone.
It is this complaint on the basis of which the aforesaid Session's trial was started.
Charge under Section 376(2)(i) of Indian Penal Code and Section 4 of POCSO Act was framed on 08.01.2015 against the accused person. As many as 15 witnesses were produced by the prosecution to prove the case and all of them were examined. The accused pleaded not guilty.
The first witness for the prosecution is the victim girl, was aged 13 years on the date of examination and her examination was held in 4 camera. The witness PW1 deposed that "she sustained pain at her hand which she had disclosed to her parents and other village people." 164 Statement kept in sealed envelope was opened in her presence and on her consent and she identified her signatures on the said 164 statement which was marked as Exbt. 1/1 to 1/3. She deposed, whatever she stated before the learned Magistrate are all true. She further deposed that she did not suppress anything before the learned Magistrate recording her statement under Section 164 of the Cr.P.C. The witness was declared hostile. However, the said witness was thoroughly cross-examined by the prosecution. Some portions of the reply of the victim girl and the said cross-examination are as follows: "I divulge to the learned Magistrate that on the day of Laxmi Puja I was playing outside my residence". "I also disclosed to the learned Magistrate that when we proceeded through a lane starting from the front side of our residence we found a STD booth. Not a fact I divulge before the learned Magistrate that at that point of time when I was playing there the owner of the said booth called me."
"Not a fact I disclosed to the Learned Magistrate that "thereafter he closed the door taking me inside......" "Not a fact that I also divulge to the Learned Magistrate that at that point of time I shouted and requested him to release me but he did not pay any heed to my request." Not a fact the appellant disclosed to the Magistrate that "instead of releasing me he threatened me." I disclosed to the Magistrate that "He pushed me on the floor." "Not a fact I disclosed to the Magistrate that thereafter, he pushed his hand inside my pant 5 and started pressing my vagina". Not a fact "I disclosed to the learned Magistrate that "I felt pain." Not a fact I disclosed to the Magistrate that "he did not released me and when I raise shout he again scolded me....." Not a fact I divulge to the police at that point of time I was called by Debu uncle to his shop. Not a fact I divulge to the police that Debu uncle thereafter, closed the door from inside after taking me inside the shop." Not a fact I divulge to the police that thereafter Dubu uncle, pushed his finger inside my vagina. Not a fact I disclosed to the police that I raised alarm Debu uncle scolded me....." The merun coloured pant which was owned by me on that day handed over to the police and police prepared seizure list. The signature on the seizure list is identified and marked as Exbt. 2/1. "Not a fact today I am deposing before the learned Court about the said incidents have tutored by my mother as she has been influenced by the accused persons. Not a fact I am deposing before the learned Court about the said incidents have tutored by my mother as she has been influenced by the accused person. Not a fact that today I am deposing falsely being tutored by my mother denying the material fact and the case which I disclosed before the learned Magistrate and police in course of investigation." In answer to the questions put by the defence counsel in cross-examination of the victim she deposed "I used to play and I used to engage in different kinds sports. I also know cycling. I was produced by police while I was for recording my statement under Section 164 of Cr.P.C. I am not aware what is recorded by Learned Magistrate."6
PW2 Tapati Das is the mother of the victim in her examination- in-chief on 11 March, 2015 she deposed that "last year on the day of Laxmi Puja, my daughter was playing outside and she hid inside the shop by Debu. Debu then told her to come out, but she refused. He caught her hand and pushed her, as a result she sustained injuries".
"Police did not interrogate me." This witness was also declared hostile by the prosecution. However, in cross-examination by the prosecution this witness deposed "not a fact, I stated in my complaint that on 07.10.2014 at 09.00 pm when my daughter Binita Das, went to see Laxmi Idol, then Debu allured her and took her inside his shop and outraged her modesty and tried to rape her." Defence, for the reasons known to it declined to cross-examine PW2.
PW3 is Juma Das. This witness deposed on the basis she heard and was declared hostile. Whatever she deposed is hearsay evidence. Although, cross-examination by the prosecution nothing positive could be taken out.
PW4 Aparna Das in her deposition on 20th April 2015 said "last year on the day of Lakshmi Puja Binita was playing hide and sick in front of shop of Debu Hait. When Debu went to close his shop told Binita to come out as she hide inside his shop Binita did not care then Debu caught hold and pushed her, as a result she sustained injury. I was not present on that point of time. I came to know about the said incident later on. I was interrogated by police in connection with this case." This witness was also declared hostile and cross- 7 examined by the prosecution and she deposed "on 07.10.2014 at about 09.00 pm when Binita was playing in front of the STD Booth of Debu Hait then Debu called her inside his shop. Thereafter, closed the shop from inside and sexually assaulted her by pushing his hand inside her private parts." "Not a fact I have divulged to the IO that thereafter, Binita disclosed the fact to us." Cross-examination by defence was declined.
PW5 again a hostile witness, who is uncle (mejo Mama) of PW1 and husband of PW3. This PW5 deposed in examination-in-chief that "Jhuma Das is my wife. My sisters are Tapati Das and Aparna Das. Binita Das is my niece. On last year on the day of Laxmi puja, at 08.00 - 08.30 pm my niece was playing and they hid inside the shop of Debu. Debu told her to come out as she did not obey, he then dragged her and pushed her. As a result, she sustained injuries. Debu is present before learned Court today." This version by the PW5 does not at all corroborate the complaint case of PW2. This witness however, upon cross-examination by the prosecution deposed "Not a fact I disclosed to the IO when he knocked on the door, then Debu opened it slightly and told Binita was not inside the shop and after sometime Debu brought her out from the shop and we came to know from (sic) Binita, that Debu inside the room introduced his hand into her pant and pushed his finger into her private parts." 8
PW6 is one Rajen Das, whose cousin is the victim, Binita. This witness was also declared hostile. Noting notably has came out from him even in cross-examination by the prosecution.
PW7 is the scribe, Milan Kumar Barai examined on 22nd April, 2015 but deposed "the date is written as 08.10.2014, after crossed through pen 07.10.2014. It is not written in my FIR, whether it was prepared as per version of Tapati and she signed after it was read over and explained to her." The evidence of this witness falsifies the truthfulness of the contents of the complaint of PW2.
PW8 Ranita is also a hostile witness cross-examined by the prosecution but nothing could be brought out from her.
PW9 is one Ranjan Manna a local person is again declared hostile. And he deposed in his examination-in-chief "I was never interrogated by police. His evidence appears to be hearsay evidence.
PW 10 is the landlord of the accused also deposed "I was not interrogated by the police in this case." This witness is also declared hostile. However, in cross-examination by the prosecution what he deposed does not favour the prosecution.
PW11 is the doctor examining the accused who deposed "on that day I examined one Debu Hait, 32 years in connection Haldia P.S. case no. 132/14 dated 08.10.14 under Section 354 of IPC and Section 12 of POCSO Act. On the basis of requisition I opined that I found bruise over left cheek and around left eye. No marks of injury at 9 private parts." No cross-examination was held by the prosecution of this witness.
PW12 is the doctor examining the victim on the next day of the occurrence that is 08.10.2014 "On examination I found no injury at her thigh, abdomen and face. Hymen was found ruptured which was recent in origin and at post lateral aspect of both sides. Inner sides of labia minora both reddish. No foreign body detected around her private parts. Vaginal swab was taken and handed over to L.C. 1461 Santa Panda. The mother of victim girl was present at the time of her examination and she consented for examination of her daughter. She put her signature on it. The entire report is identified and marked as Exbt. 8. The lady constable who brought and identified the victim girl also signed in my presence in that report." In cross-examination by the prosecution this witness deposed "The hymen may be found ruptured on accidental fall. The reddish stain at labia minora may be caused due to irritation from dirt. It was noted in my report that there was no injury in vagina."
The evidence of this witness corroborates the statement of the victim. "I disclosed to the Magistrate that he pushed me on the floor"
and also the victim's statement that she used to play and being her engagement in different kinds of sports. This statement of the doctor also corroborates the statement of Tapati Das (PW2) who says "....he caught her hands and pushed her. As a result she sustained injury." 10
PW 13 is one SK Ajijul Rahaman, who has been declared hostile and his evidence is a hearsay evidence. We did not rely on this evidence at all as no material is available from this witness.
PW14 is L/C 1816 Pampa Das, Lady Constable who brought the victim girl to the learned Magistrate for recording her statement under Section I64 of the Code of Criminal Procedure. This witness only says about the bringing of the victim to the learned Magistrate and nothing comes out from her which could help to detect the truth.
PW15 is one Subir Kumar Sen, the Investigating Officer of this case. The Investigating Officer admitted in cross-examination "I did not send the wearing apparels of the victim girl to the FSL Department."
In the examination of the accused under Section 313 of the Code of Criminal Procedure nothing important transpired save and except that the accused stated he was innocent and he had no knowledge of the occurrence of the incident.
In this case prosecution cited as many as 15 witnesses to prove its case beyond reasonable doubt. In course of evidence, it was however, found that out of fifteen witnesses as many as nine witnesses have been declared hostile. Section 154 of the Indian Evidence Act deals with the principles of hostility of all witnesses. Section 154 of Indian Evidence Act is set out below: 11
"154:- Question by party to his own witness.--[(1) ] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]"
It says the Court may in its discretion permits the person who calls a witness to put any question to him which could be put in cross-examination by the adverse party. Sub Section (2) of Section 154 makes it clear that nothing in this Section shall disentitle the person so permitted to put such questions under Sub-Section (1), to rely on any part of evidence of such witness. If we go by the strict sense of the language of Section 154 it does not imply that since the witness was declared hostile no amount of evidence adduced by it could be held to it worthy of credits but circumstances might differ depending upon the value of the evidence led by the witnesses. While appreciating evidence of such hostile witnesses Court has to be very very careful and Court has also to take note on the prosecution putting his questions to such hostile witness on cross-examination.
Evidence of a hostile witness remains admissible and there is no legal bar to base conviction upon the testimony of such hostile witnesses provided it is corroborated by other reliable evidence. Therefore, we can rely on part of the evidence of a hostile witness, now we shall discuss even relying on such witnesses we can hold the 12 accused guilty by having committed offence or whether such evidence is sufficient to prove of holding the accused guilty and consequently to impose the order of conviction. We find from the evidence on record that prosecution after declaring the witness hostile cross-examined them.
The fact that witnesses were declared hostile by the prosecution does not result in automatic rejection of their evidence.
Where a hostile witness has supported the prosecution case in part, has not supported the prosecution case on certain minor points which have no bearing on the prosecution case, his testimony will have to be accepted in regard to that part of the evidence, which supports the prosecution case. Entire evidence of the hostile witnesses need not be discarded rather evidence of such hostile witness can be relied on by prosecution if any portion of evidence supports its case and on the basis of such evidence even an order of conviction can be passed.
We have heard the parties at length and taken note of the evidence on record. Mr. Navanil De, learned amicus curiae appearing for the appellant argued that most of the witnesses were declared hostile and the prosecution completely failed to establish the case beyond any reasonable doubt. He submitted that complainant even could not prove the complaint and the commission of offence appears to be not believable if the evidence of the complainant is taken up with the evidence of the other witnesses. Even statements of the 13 victim girl recorded under Section 164 Cr.P.C. supports the defence case and the prosecution proceeded completely on the basis of suspicion.
Mr. Agarwala, appearing for the State submitted that the girl is a minor girl. She was threatened by the appellant and that is the reason she did not disclose the incident before other persons. Mr. Agarwala, relying on the doctor's evidence submitted that sufficient indication is available from the medical report (Exbt.8) and the evidence of the doctor who examined the victim girl on the next day of occurrence. To support the conviction learned advocate for the State submitted that the accused/appellant is guilty of having committed the offence and the victim being minor (12 years of age) the sentence imposed upon the appellant is justified. Learned advocate for the State tried to impress upon the Court that the witnesses were gained over by the accused and they suppressed the actual fact. Some of the witnesses on the dock deposed against the prosecution and they were declared hostile, but upon consideration of totality of the circumstances the accused has been rightly punished and his guilt has been proved beyond any shadow of doubt.
Submission of Mr. Agarwala is more based on emotion and sentiment than on reality. Courts cannot be invited by the prosecution to inflict punishment upon an innocent without his guilt being proved beyond any reasonable doubt. The allegation sought to be raised that the witnesses were gained over can't be of no credit 14 inasmuch as there is no eye witness to the occurrence of the offence and it is only then the circumstantial evidence to be relied on. But there is no effort on the part of the prosecution to at least strive for bringing any independent local witness from the place of occurrence although the date of occurrence coincided with a festive day of Laxmi Puja and there were other shop owners near the shop of the accused. There was no endeavour for the prosecution to interrogate other local people and to bring any other independent witness. On the other hand we find the scribe himself on box deposed that the statement of complaint was never read over and explained to the complainant and with no uncertainty he asserted that the date he put on the written complaint was struck off. prosecution did not explain away the doubts rather we find except one hearsay evidence and the scribe all other witnesses were the relatives of PW2 /complainant who herself was declared hostile PW2, Tapati Das is the complainant and mother of the victim girl. According to PW2 the victim was 13 years of age on the date of occurrence. According to her on the day of Laxmi Puja her daughter was playing outside, when her daughter hid inside the shop of the accused; accused asked her to come out of the shop room and on her refusal he caught her hands and pushed her outside, resulting thereby the victim sustained injuries. She further stated that police never interrogated her. This witness, however, was declared hostile. On cross-examination by the prosecution she answered that one Milan Barui (PW-7) wrote the written complaint but it was never read 15 over and explained to the complainant. Even she deposed that it was not a fact that she signed on the said complaint. She also denied that in her complaint dated 07.10.2014 she at all made any allegation that her daughter Binita when went to see Laxmi Idol the accused allured her and took her inside his shop and outraged her modesty and thereafter, tried to rape her. PW2 also referred to one Barun, who was supposed to be at the place of incidence outside the shop room of the accused on that day in whose presence the victim girl came out from the shop room.
This Barun Das was examined as PW5. He was also declared hostile by the prosecution. This PW5 is the maternal uncle of the victim and brother of PW2. This PW5 also deposed that accused when asked the victim to go out of his shop at 8.00-8.30 pm and as she did not listen to him he pushed her from inside and sustained injuries. He identified the accused in Court. Versions of this PW5 and PW2 do not corroborate each other and do not prove the written complaint, where it was stated that victim aged 12 years was attempted to be raped forcefully by the accused and that the accused kept the victim locked inside the shop room and after PW5 scolded him he let her go out of the room.
PW3 is another witness, who is the wife of PW5. Evidence of such witness also does not support the prosecution case. PW3 was declared a hostile. PW4 is another witness who is the sister of PW2 and PW5. She was also declared hostile but a portion of her 16 deposition in the cross-examination favours the prosecution. PW6 who is also a cousin sister of the victim was declared hostile but denied that she had any occasion to divulge to the police that accused in his shop pushed his finger into the private parts of the victim. The most important evidence is the evidence of a scribe PW7 who admitted that originally on the complaint date was written 08.10.2014 but it was penned through and 07.10.2014 was written. He also deposed in cross-examination that it was not written in the complaint that it was prepared as per version of PW2 and that she signed after it was read over and explained to her.
PW8 is also a hostile witness and the cousin sister of the victim, could not throw any light attributing commission of any offence by the accused. PW9 another independent person but declared hostile and is a hearsay evidence, can't be relied on.
It is no more in dispute that the statement made by witness under Section 164 of the Code of Criminal Procedure can be used for purpose of corroboration and contradiction under Section 157 of the Evidence Act. It, however, cannot be treated as a substantive piece of evidence. Section 164 of the Code of Criminal Procedure applies for recording of confession and statement. When the witnesses do not support the prosecution's story in Court, the statements under this section cannot be used as substantive piece of evidence. The proper way is first to marshal the evidence against the accused excluding the confession altogether from consideration and to see thereafter, 17 whether conviction can safely be based on it. If it is capable of belief independently of the confession then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believable, it would be sufficient to sustain a conviction. In such an event the Court may call in aid the confession and use it to lend assurance to the other evidence and thus fortify itself in believing that without the aid of the confession he would not be prepared to accept.
When the statement of the victim is recorded by a Magistrate and when it shows that Magistrate satisfied himself that no pressure or force was used on the accused who made the statement. A Magistrate prohibited from recording a confession only he has satisfied himself by questioning a person making it that it is voluntary. When questions were not found so to elicit whether the confession was being made voluntarily, such confession was held not only inadmissible under this Section but it could not be used under the other provisions of the Indian Evidence Act. In the present case the statement of the victim has been recorded under Section 164 by the Magistrate following all the prescribed procedure and the report shows to have been neutrally prepared without being any influence from any source. Therefore, what has been stated before the learned Magistrate in course of recording the statement under Section 164 Cr.P.C. ordinarily no doubt could be raised unless something exceptional has occurred in the process of recording the statement of the victim. Since I have noticed that there is no infirmities in the 18 recording of the statement under Section 164 and there is no contradiction of such statement made in the evidences adduced by other witnesses. There can be no reason to disbelieve the statement recorded under Section 164 Cr.P.C.
Where the prosecution witness himself or herself does not support prosecution's version, his or her statement earlier recorded under Section 164 Cr.P.C. would not be available to the prosecution for corroboration and conviction of the accused cannot be recorded on the basis of statement recorded under Section 164 Cr.P.C. Where a witness turned hostile, his previous statement made before the Magistrate at the earliest opportunity under Section 164 Cr.P.C. must get some credence if it is being corroborated on material points by other evidence.
If the complainant and/or victim whose statement is recorded under Section 164 of the Code of Criminal Procedure turns hostile, he or she can be prosecuted for forgery but on the strength of such statement no conviction can be recorded. Therefore, in the similar circumstances as has happened in the present case we cannot support the conviction imposed by the learned trial Court.
Section 59 deals with proof of facts by oral evidence. It says all facts, except the contents of documents may be proved by oral evidence and Section 60 says oral evidence must be direct. This direct evidence must refer to a fact which could be seen and it must be the evidence of a witness who says he saw it or if it refers to a fact which 19 could be heard it must be the evidence of a witness who says he heard it. In the present case there is no direct evidence is available from the evidence adduced by the prosecution. The endeavour made by the prosecution is to prove through the circumstantial evidence. The circumstantial evidence in this case is not at all convincing. Almost all the witnesses except the Investigating Officer and the doctor deposed that victim was pushed by the accused on the floor and sustained injury to some extent. This part has been stated in the complaint and this part has been stated by the victim in her statement recorded under Section 164 Cr.P.C. From this angle also we do not find any justification to hold that prosecution has established from circumstantial evidence that the accused is guilty. Mr. De has relied on three decisions • Tahsildar Singh and Anr. -Vs. - State of UP reported in AIR 1959 SC 1012;
• Banchit Guli Majhi -Vs. - State of West Bengal passed in C.R.A. 189 of 1999 with C.R.A. No. 394 of 1999 dated 19th September, 2006 and • Dhanabal and anr. -Vs. - State of Tamil Nadu reported in AIR 1980 SC 628.
The last two decisions referred by Mr. De deals with the issue of evidentiary value of the statement recorded under Section 164 of the Code of Criminal Procedure. The decision says that the statement 20 recorded under Section 164 of Cr.P.C. is not a substantive evidence but only a corroborative evidence.
The said decision, according to Mr. De may be taken as an analogy to justify whether the learned Court below justifiably convicted the appellant. In the decision Mr. De pointed out that the victim girl PW4 denied her statement under Section 164 Cr.P.C. and was declared hostile by the prosecution. Even then conviction was given only for the reason that the statement was made by PW4 under Section 164 of the Code of Criminal Procedure. In the present case also although the complainant /mother stated before the police about the offence of attempt to rape of her daughter but in the evidence she was declared hostile, inasmuch as she contradicted her own statement in the FIR, so also the victim girl in her statement recorded under Section 164 Cr.P.C. and in particular on the box when her evidence was taken in camera she specifically denied that any attempt of rape was made to her by the accused/appellant and further that she asserted that the statement which was recorded under Section 164 Cr.P.C. before the learned Magistrate is also correct further making assertion that the commission of offence never took place. Mr. De, also pointed out that in the said decision in Banchit Guli Majhi (supra) the Hon'ble Supreme Court also took note of the fact that Magistrate who recorded 164 statement was not examined and PW4 whose statement was recorded under Section 164 and contradicted subsequently on dock was not confronted with by the prosecution. As a result, the statement so recorded under Section 164 cannot be 21 relied on at all. The case here is also on the similar footing but the learned trial Court convicted the appellant relying on the 164 statement and without visualizing that Magistrate was never examined nor the victim was confronted with her statement under Section 164 Cr.P.C. recorded by the Magistrate. Therefore, this decision supports the contention of the appellant is guilty and discards the contention of the prosecution that it has been able to prove the guilt of the appellant beyond all reasonable doubt. It is the settled law that once a witness (here is the victim girl) resile from her own statement recorded under Section 164 Cr.P.C. unless she is confronted with such statement by the prosecution, evidence become an unreliable evidence and definitely such statement cannot be foundation of conviction of the appellant.
The decision in Dhanabal (supra) is also on the same footing which discussed about the evidentiary value of the statements of a witness recorded under Section 164 of Cr.P.C. The Hon'ble Apex Court clearly laid down the mere fact that the police had reasons to establish that the witness might be gained over and that it was expedient to have their statement recorded by the Magistrate, would not make this statement of the witness thus, recorded tainted. If the witness sticks statement given by him or her to the Magistrate under Section 164 Cr.P.C. no problem could arise but where she has deferred from what she has stated earlier or if she has deposed or she has stated contrary to the complainant's statement recorded by the recording officer or if the witness resiles from the statement 22 given by him or her under Section 164 Cr.P.C., the witness can be cross-examined on the earlier statement but if he sticks to the statement made by him or her under Section 164 before a committal enquiry and resiles from it in the Sessions' Court, the procedure prescribed under Section 288 Cr.P.C. will have to be observed. The Hon'ble Apex Court held that it is for the Court to consider taking into account of the circumstances including the fact that the witness had resiled in coming to the conclusion as to whether the witness should be believed or not. The fact that such statement relied under Section 164 Cr.P.C. can be relied upon by the Court as a corroborating evidence as per Section 157 of the Evidence Act. Section 157 makes it clear that the statement recorded under Section 164 Cr.P.C. can be relied on for corroborating the statement made by the witness in the committal Court. Time and again the Hon'ble Apex Court has expressed its view that though statements made under Section 164 of the Cr.P.C. it is not a piece of evidence, it is corroborative of what has been stated earlier in the committal Court. Therefore, we cannot rely on the victim's 161 statement recorded by the police authorities and the stand taken by the prosecution and the conviction based thereon by the learned trial Court cannot be supported to impose punishment upon the accused/appellant.
The third decision cited by Mr. De, supports the case of the appellant to the effect that when the witnesses were not confronted with their earlier statement in course of investigation with that of the statement made before the Court on dock, their evidence cannot be 23 believed and on the basis of such evidence punishment cannot be inflicted. Section 155 of the Evidence Act indicates the manner in which contradiction is brought out. According to the Hon'ble Apex Court "if the statement before the police officer and the statement in the evidence before the Court are so inconsistent and ireconcilable with each other that both of them cannot exist, it may be stated that one contradicts the other".
Considering the totality of all these evidence including that of the scribe and local witnesses and compared it with that of the evidence of PW1 (victim) it appears that those are not sufficient to prove the prosecution case. The victim PW1 deposed that on the day of incidence she was playing near the Puja Pandel and while playing hide and sick she hid inside the shop room of the accused. The accused asked the victim to go out of the shop room but since she did not listen to it, accused pushed her as a result she sustained pain at her hand which was disclosed to her parents and other village people. In her 164 statement she stated before the learned Magistrate that the accused pushed her on the floor. This PW1 was declared hostile but she was never confronted with her statement recorded under Section 164 of Code of Criminal Procedure. Extensive cross-examination was held so made by the prosecution but the witness was found to be not indicating any support to the prosecution case. The most important thing to be noted from her evidence on cross by the defence is that she deposed that she used to play and used to be engage in different kinds of sports including cycling. This part of the evidence also 24 corroborates with the doctor's evidence. Doctor examining the victim is PW12 who deposed on the basis of the medical report that he found no injury on the victim's thigh, abdomen and face. He deposed that hymen was found ruptured which was recent in origin and post lateral aspect of both sides. Inner sides of labia minora both reddish; however, no foreign body was detected around her private parts. Medical report was tendered and marked as Exbt.8. In cross- examination the doctor deposed that hymen may be found ruptured on accidental fall which corroborates with the victim's own statement recorded under Section 164 of the Code of Criminal Procedure. The doctor further opined that the reddish stain at labia minora may be caused due to irritation from dirt. Corroborating again the statements of the victim falling on floor due to push by accused and further leads support of the defence case that the victim might have sustained some injury due to fall or due to cycling which the victim stated in her cross-examination. Therefore, the evidence of all these witnesses including the victim does not prove the guilt of the accused as complained of. The lacuna which has been found out from the evidence of PW15 is that the Investigating Officer never send the wearing apparels of the victim girl to the FSL Department.
According to the trial Court since almost all the witnesses cited by the prosecution turned hostile in order to prove the case. The depositions of such hostile witnesses are not at all to be reliable rather the non-hostile witnesses being the doctor and the Investigating Officer are to be relied much to impose punishment 25 upon the accused. According to the learned trial Court the statement recorded under Section 164 of the Code of Criminal Procedure has been fully supported by the doctor and the Investigation Officer. But on perusal of the evidence of the doctor it does not reveal that the said report fully supports the statements of the victim recorded under Section 164 of the Code nor the evidence adduced by the victim in camera before the Court. We have considered the 164 Statement and have weighed the value of the evidence of the victim on dock but we do not find anything to hold that the victim did not speak the truth or the medical report is such that it itself is sufficient proof of the commission of offence as alleged, or that the Investigation Officer has been able to establish the prosecution case and substantiated the guilt of the accused. In our view, the trial Court cannot be justified to hold that the accused is guilty of committing the offence under Section 3(B) of the P.O.C.S.O. Act with the punishment prescribed under Section 4 thereof and further that the said accused is guilty of the offence under Section 376(2)(i) of the Code of Criminal Procedure for which he was sentenced to undergo imprisonment for 10 years together with a fine of Rs.20,000/- (Rupees Twenty Thousand) only, in default to undergo simple imprisonment for further period of one year.
Adverting to the question as to how far this Court can rely on the evidence with cross-examination of the hostile witnesses, we like to point out that the witnesses cited by the prosecution did not help it to prove the case rather damaged the same. However, when a Court imposes punishment it has to rely on the evidence adduced by the 26 prosecution and prosecution when has successfully proved the guilt of the accused beyond all shadow of doubts then only the Court inflicts punishment upon the accused. In this case we have surprisingly noticed that the Court below while inflicting punishment was guided by sentiment and emotion. Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him as an unfavourable witness is one called by a party to prove the particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite tests. Section 154 of the Evidence Act deals with a question by party to his own witness in this case also after the witnesses are declared hostile they were cross-examined by the prosecution but nothing fruitful could be done through such cross-examination. According to the rule owing the evidence of hostile witness it is not necessary where testimony of such a hostile witness is to be discarded as a whole. Evidence of hostile witness can be relied on by the prosecution if in operation of evidence supports its case and on the basis of such evidence even order of conviction can be passed but in the present case although cross-examination has been held but nothing could be taken out from such hostile witnesses. On the basis of which the conviction can be passed.
We therefore, hold that the judgment and order of conviction cannot be sustained and we set aside the same.
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The appellant is set free. Let a copy of the order be communicated to the Superintendent of the Correctional Home where the Appellant is detained.
The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.
Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.
I agree.
(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)