Jammu & Kashmir High Court - Srinagar Bench
Mst Sakeena vs Mahabaleshwar Gourya Naik 1992 ... on 11 December, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cr. Rev. No. 07 of 2013 CMP no. 267 of 2014 CMP no. 215 of 2013 Mst Sakeena Petitioners Mohammad Hussain Sheikh and another Respondents !Mr. M. A. Qayoom, Advocate ^Mr. S. T. Hussain, Senior Advocate Mr. Sajad Geelani, Dy. A.G. for respondent no.2 Honble Mr Justice Hasnain Massodi, Judge Date: 11/12/2015 : J U D G M E N T :
1. What is evidentiary value of statement of a witness recorded under Section 164-A Code of Criminal Procedure, who passes away before appearing in witness box, is the question raised in Criminal Revision Petition on hand.
2. Trial Court, while recording judgement of acquittal, did not take notice of statement of deceased recorded by Chief Judicial magistrate, Ganderbal, on 13th September 2012 under Section 164- A Cr.P.C., during investigation of the case. Statement of deceased (victim) was not even put to accused respondent herein, under Section 342 Cr.P.C. and he offered an opportunity to put forth his explanation. The Trial Court omitted to put the statement to the respondent, notwithstanding the fact that PWs Sakina and Imtiaz Ahmad, stated that such a statement was made by victim before and recorded by Chief Judicial Magistrate, Ganderbal. Controversy arises against following backdrop.
3. Mst. Sakina wife of Late Mohammad Shafi Famda resident of Garkul, Arhama, Ganderbal petitioner herein, on 11th September 2012, lodged a written report with Police Station Ganderbal, alleging that respondent accused no.1, sometime before the report was lodged (April 2012) visited her house at Garkul, Arhama, in her absence and committed rape on her minor daughter, leaving her pregnant. It was alleged that victim, at the time of occurrence, was confined to her home because of broken limb and respondent on promise of getting relief sanctioned in her favour, gained access to her and was able to accomplish his design. It was stated that victim did not disclose occurrence to complainant or anyone else, and occurrence came to light when victim complained ailment, was taken to local hospital for medical check-up and pregnancy detected. The report prompted Police Station Ganderbal to register case FIR no.169/2012. The Investigating Officer during investigation got statement of victim under Section 164-A Cr.P.C. recorded by Chief Judicial Magistrate, Ganderbal. Investigating Officer recorded statement of complainant, victim and other witnesses and concluded investigation as proved against respondent. Accordingly, charge sheet alleging commission of offence punishable under Section 376 Cr.P.C. was presented against respondent before Chief Judicial Magistrate, Ganderbal, on 15th October 2012. Statement of victim PW2, recorded under Section 164-A Cr.P.C. was appended to charge sheet. The case on 15th October 2012 itself was committed to Court of Sessions for trial.
4. Respondent was formally charged of offences punishable under Section 376 RPC. He denied charge and asked for regular trial. Prosecution was, therefore, asked to adduce evidence in support of charge. All witnesses except victim of alleged occurrence crossed witness box. Trial court was informed on 29th November 2012 that victim was no more. She was, accordingly, deleted from list of witnesses. Learned Sessions Judge on 29th December 2012 put incriminating material come across in prosecution evidence to respondent as required under Section 342 Cr.P.C. Respondent was given an opportunity to offer his explanation, if any, to material so put. Trial Judge, however, did not put statement of PW-2, recorded under Section 164-A Cr.P.C., to respondent nor was reference to such statement made by other prosecution witnesses put to him. Respondent did not lead any evidence in defence. Trial Court upon perusal of record and on hearing public prosecutor and counsel for accused, held prosecution to have failed to prove its case against respondent. Charge sheet was dismissed on 4th January 2013 and respondent acquitted of charge.
5. Trial Court judgement is questioned by complainant in Criminal Revision Petition on hand, inter alia, on the ground that it was not open to Trial Court to discard statement of deceased (victim) recorded under Section 164-A Cr.P.C. on 13th September 2012 by Chief Judicial Magistrate, Ganderbal. It is pleaded that as statement under section 164-A Cr.P.C. is mandatorily to be recorded, in discharge of Statutory obligation and that statement is recorded on oath, it is not to be brushed aside in case person making statement passes away before appearing in witness box. It is insisted that aforesaid statement was to be considered by Trial Court while passing impugned judgement. Petitioner places reliance on Section 33, Evidence Act, to reinforce her stand that statement in question was to be considered by Trial Court and not to be ignored because of her death before standing in witness box, during trial. Trial court judgement is also questioned on the ground that conclusions drawn go against evidence brought on record.
6. I have gone through petition, impugned judgement as also Trial Court record. I have heard learned counsel for parties at length.
7. Controversy raised in petition makes it necessary to extract Section 164-A Cr.P.C. and Section 33, Evidence Act. Section 164-A Cr.P.C. added by Criminal Laws (Amendment) Act, 2007, reads as under:
164-A Evidence of material witnesses to be recorded by Magistrate in certain cases (1) Any police officer, not below the rank of sub-inspector, making an investigation of any offence punishable with death or imprisonment for seven years or more, shall, in the course of such investigation, produce all persons whose statement appears to him to be material and essential for proper investigation of the case, to the nearest Judicial Magistrate, for recording their statements. (2) Subject to the provisions of sub-section (3), the Magistrate shall record the statements of such persons produced before him under sub-section (1) on oath and shall forward such statements so recorded to the Magistrate by whom the case is to be inquired into or tried. (3) The Magistrate shall, before recording any statement of a person under sub-section (2) satisfy himself that such person is making the statement voluntarily and not under any inducement, threat or promise.
(4) Copies of such statements shall be furnished to the police officer referred to in sub-section (1). Section 164-A Cr.P.C. as a bare look at the provision would reveal, casts duty on Investigating Officer, investigating an offences mentioned therein, to produce all persons, whose statement appear to him to be material and essential for investigation of the case, to nearest Magistrate for recording statements. Magistrate, after recording his satisfaction that statement is made voluntarily and not under inducement, threat or promise, is to record statement of such persons on oath and forward statements, so recorded, to the Magistrate by whom case is to be enquired into or tried and also provide copies of statements to Investigating Officer.
8. Section 164 Cr.P.C. confers powers on Judicial Magistrate to record any statement or confession made to him during course of investigation or at any time or at commencement of trial. Subsection (2) and (3) of Section 164 Cr.P.C. lay down procedure to be followed by Magistrate while recording such statement or confession. There being an express provision in the Code, leaving scope for recording statement of a witness or confession during investigation, ordinarily there was no need to add one more provision dealing with the same subject. Investigating Officer, if of opinion that statement of witness was to be recorded before Magistrate, could always press into service Section 164 Cr.P.C. and get statement so recorded.
9. However, it was felt necessary by lawmakers to classify offences on the basis of punishment prescribed and make it obligatory on part of Investigating Officer to produce all those persons whose statement appeared to him to be material and essential for proper investigation before nearest Judicial Magistrate for recording their statement. The provision was introduced with twin objects addressing menace of witnesses backtracking or shifting stand in witness box, as also to preserve statements made by such witnesses to be used in accordance with rules of evidence, in the event person, whose statement is recorded, is not available because of death, incapacity or any other reason during trial. It is a fact of common knowledge that most of criminal trials fail because of witnesses, turn hostile to prosecution case and do not stick to the stand, claimed by Investigating Officer, to have been taken during investigation. Witnesses may be forced to shift their stand, bribed or kept away by defence. It was, therefore, found necessary to get statements of witnesses, at least, in grave and heinous offences, mandatorily recorded during investigation, so that such statements are used during trial in the manner permissible under law. The fact that one of purposes sought to be achieved by adding Section 164-A Cr.P.C. to Chapter XIV of the Code, was to address the problem, finds support form Section 479-B also added to the Code by Criminal Laws (Amendment) Act 2007. It lays down summary procedure for trial of witnesses deposing contrary to statements recorded under Section 164-A CR.P.C. by Magistrate. Section 479-B reads:
479-B. Summary procedure for trial of witnesses deposing contrary to statements recorded under section 164-A by Magistrate (1) If, at the time of any judgment or final order disposing of any judicial proceeding, a Court of Sessions or Magistrate of the first class expresses an opinion to the effect that, any witness, whose statement recorded under sub-section (2) of section 164-A in respect of one offence or in respect of a different offence as referred to in sub-section (2) of section 221, appearing in such proceeding and subsequently retracted his statement in material particulars by stating inconsistent facts or had changed his version by narrating new facts which were destructive of the prosecution case and the Court of Sessions or a Magistrate of first class is satisfied that such retraction, contradiction or change of version is of such a nature that the witness is guilty of knowingly or wilfully giving false evidence or fabricating false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and notwithstanding anything contained in the provisions of this Code, sentence him to imprisonment for a term which shall not be less than three months but which may extend to two years and shall also be liable to fine.
Provided that the provisions of this section shall apply only where the giving or fabrication of false evidence relates to the conduct of the witness subsequent to the recording of his statement under sub-section (2) of section 164-A. (2) The provisions of sub-section (2), (3) and (4) of section 479-A shall apply for trial of an offence under this section as they apply to the summary trial of an offence referred to in sub-section (1) of that section.
10. Statement recorded under section 164-A Cr.P.C. is to be given same treatment and is of same evidentiary value as statement recorded under Section 164 Cr.P.C. The only difference between the two provisions is that while Section 164 Cr.P.C. is an enabling provision, Section 164-A Cr.P.C. is mandatory in character. Nature and value of statement recorded under the provisions remains same.
11. Had the victim in the instant case, survived and appeared in the witness box, not much was to be discussed about value of her statement, as it would always be used under Section 157, Evidence Act, to corroborate her statement in witness box. However, the victim has died before appearing in witness box. Her death, before her testimony was recorded, has triggered present discussion. Let us now make a brief survey of Evidence Act to find out whether statement in question is relevant under any of provisions of the Act and, therefore, capable of being proved during trial. Attention must first go to section 33, Evidence Act, as petitioner insists that Section 33, would be attracted in present case.
12. Section 33, Evidence Act Svt.1977, deals with relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated. Petitioners case is that Section 33, Evidence Act, is attracted in present case and learned Trial Judge, while completely discarding statement of victim recorded under Section 164-A Cr.P.C. has conveniently ignored clear mandate of Section 33, Evidence Act. To appreciate the case set up by petitioner, it would be appropriate to reproduce:
33. Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated Evidence given by a witness in a judicial proceeding, or before any persons authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the fats which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the question in issue were substantially the same in the first as in the second proceeding.
Explanation.A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
A look at Section 33, Evidence Act, would reveal that applicability of Section 33 would depend on nature and character of proceedings initiated on application filed by Investigating Officer before Magistrate or recording statement of witnesses under Section 164-A Cr.P.C. In other words to record agreement or disagreement with petitioners stand, it is to be examined whether statement recorded under Section 164-A Cr.P.C. is evidence given before any person, authorised by law to take it, and whether earlier proceedings, i.e. before Chief Judicial Magistrate, when statement under Section 164-A Cr.P.C. was recorded are to be taken as same proceedings between the same parties or their representatives in interest; whether adverse party in first proceedings had right and opportunity to cross-examine witness; whether the question in issue in the earlier proceedings were substantially the same in the first as in the earlier proceedings; and whether application laid by Investigating Officer under Section 164-A Cr.P.C. before Chief Judicial Magistrate, Ganderbal, is to initiate proceedings within meaning of Section 33, Evidence Act.
13. On giving closer look to requirements of Section 33, only conclusion to be arrived at is that Section 33, Evidence Act, cannot be pressed into service to declare statement recorded under Section 164-A Cr. P.C. as relevant for purpose of proving statement in subsequent proceedings, for the reason that proceedings initiated on application under Section 164-Cr.P.C. laid by Investigating Officer is not first judicial proceeding between same parties or their representatives in interest and respondent did not have right to cross-examine witness in first proceedings. Furthermore, question in issue in two proceedings cannot be taken to be substantially same. Application under Section 164-A Cr.P.C. is filed by Investigating Officer in compliance of mandate of the provision. The accused is nowhere on the scene when application under Section 164-A Cr.P.C. is laid, has no role in the proceedings nor is associated with proceedings. It is at his back that statement is recorded with the objectives highlighted elsewhere in this judgement. Section 33, Evidence Act, therefore, is not to have any application and case set up in this regard is not to succeed. This, however, does not clinch the matter.
14. This Court is duty bound to find out mode and manner in which statement of witness recorded under Section 164-A Cr.P.C, who passes away before crossing witness box, is to be used once a definite conclusion regarding use of such statement is drawn, it would be next seen whether learned Trial Judge has erred while ignoring statement of deceased recorded under Section 164-A Cr.P.C.
15. Section 6 deals with relevancy of facts forming part of same transaction. It provides that facts which though not in issue are connected with fact in issue as to form part of same transaction, are relevant whether they occurred at same time and place or at different times and places. In the present case, the fact in issue is whether respondent committed rape on deceased. It is to be seen whether statement of deceased recorded under Section 164-A Cr.P.C. is so connected with the fact in issue as to form part of same transaction. It would be advantageous to extract Illustration
(a) of Section 6, Evidence Act:
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or by the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
16. The only condition for application of Section 6 is proximity of fact to be treated relevant with the fact in issue. The fact to be treated relevant to the fact in issue, as part of the same transaction, should be contemporaneous. In other words, if rape is alleged to have been committed on victim and victim, immediately after rape, reports occurrence to witness the fact that the victim narrated occurrence to witness, would be a fact relevant to the fact in issue, i.e. whether accused had committed rape on victim. Evidence can be adduced to prove that victim narrated occurrence to witness. In the present case, occurrence is alleged to have taken place in April 2012. Statement of deceased was recorded on 13th September 2012 i.e. more than 5 = months after occurrence.
17. It is true that a statement to be relevant to prove fact in issue on principle of res gestae, must be contemporaneous so as to be taken as part of same transaction, yet a statement or fact is not to be excluded from relevancy only on the ground that there is a time gap between fact in issue and fact taken to be relevant for being connected with the fact in issue. The statement must be substantially and not literally contemporaneous with the fact in issue. The law does not insist on spontaneity. The principle that fact must be substantially contemporaneous with fact in issue, is intended to exclude concoction, fabrication and afterthought. The person, to whom statement is attributed, must not have enough time to make improvements or fabricate facts. If otherwise attending circumstances rule out any possibility of fabrication, the statement or declaration may be taken as relevant to the fact in issue under Section 6 of the Act, notwithstanding, time gap between the fact in issue and statement in question. In the present case we have not only to focus on statement of deceased but the fact that she at the time statement was recorded was carrying 06 months pregnancy. Had victim not conceived because of alleged occurrence and otherwise taken ill and thereafter informed doctor that she was ravished by respondent, time gap between occurrence and statement made would possibility exclude statement from purview of Section 6. But here is a case where deceased at the time she made statement was carrying 06 months pregnancy, that supported her statement in all essential details and ruled out all possibility of concoction. This apart, the victim before the occurrence was disclosed to the Chief Judicial Magistrate, narrated the occurrence to PW Sakina. The statement made, also a part of res gestae reinforces statement made before Chief Judicial Magistrate, Ganderbal, and excludes chances or concoction of afterthought.
18. Section 8, Evidence Act, deals with motive, preparation and previous or subsequent conduct. It provides that conduct of any party to a proceeding in reference to such proceeding or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In other words, conduct of a person would be relevant, if it is influenced by any fact in issue or relevant fact. Illustration (j) to Section 8 is close to the facts of present case and may help us find out whether statement of deceased under Section 164-A Cr.P.C. would depict conduct influenced by commission of rape on her, i.e. fact in issue, and may be reproduced:-
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant- as a dying declaration under section 32, clause (I), or as corroborative evidence under section 157. The statement of deceased in question may be relevant under Section 8 for the reason that it is a complaint within meaning of Illustration (j), Section 8.
19. Section 2 (d) Cr.PC defines complaint as follows:-
2 (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report.
Explanation. A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."
In terms of the definition of "complaint" a statement to fall within complaint must satisfy following conditions:-
i. it must be made to a Magistrate; ii. it must be made with a view to his taking action under the Code; iii. it must contain an allegation that some person, whether known or unknown, has committed an offence; and iv. it must not be the report of a police officer.
Whether the statement made to a Magistrate would amount to complaint is to depend on the intention and understanding of the person making the statement to the deceased. In present case the statement is presumed to have been made, to trigger action against the accused and set criminal justice machinery, into motion. To the deceased it was complaint made to a Magistrate, disclosing commission of an offence. The statement of the deceased, technicalities apart satisfies all the requirements necessary to make it a complaint within the meaning of illustration (j), Section 8 Evidence Act. It is to be kept in mind that statement was recorded by Chief Judicial Magistrate, Ganderbal, on oath and only after satisfying himself that it was not motivated, tutored, or tainted with deceit, fraud, coercion or undue in force. The reservation, if any, as regards the statement not being contemporaneous is to be met by the discussion made while declaring the statement to be relevant in terms of Section 6 Evidence Act as also the fact that enquiry made by Chief Judicial Magistrate before recording statement would rule out concoctions.
20. This takes us to Section 32, Evidence Act. Section 32 is one of provisions that deals with persons who cannot be called as witness. Section 32 deals with what is in common parlance known as dying declaration. Section 32 Subsection (1) is relevant to present controversy and deserves to be extracted:
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
21. The statement made under Section 32(1) must relate to cause of his death or circumstances of transaction which resulted in his death, in cases in which cause of his death comes in question. The statement in question was recorded on 13th September 2012. Victim died on 14th November 2012 at Lal Ded Hospital, Srinagar. The statement was not made by victim as to cause of her death or as to any of circumstances of transaction, which resulted in death. Furthermore, cause of death was not in question before Trial Court. The statement, therefore, cannot be taken as dying declaration within meaning of Section 32, Evidence Act.
22. Let us examine whether Section 157, Evidence Act, would be attracted in the facts and circumstances of present case. The provision reads as under:
157. Former statements of witness may be proved to corroborate later testimony as to same fact In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
Former statement of witness recorded under Section164 or 164-A Cr.P.C. may be proved to corroborate testimony of such witness relating to same fact. Such former statement, however, must have been made at or about time, fact took place or before any authority legally competent to investigate the fact. Statements under Section 164 or 164-A Cr. P.C. would fall within purview of Section 157, Evidence Act. The statement of witness recorded under Section 164/164-A Cr. P.C. can, therefore, be proved under Section 157, Evidence Act, to corroborate testimony of witness. However, difficulty in present case is that witness tragically passed away before she could stand in witness box and render her testimony. Statement recorded under Section 164-A Cr.P.C. cannot be proved to corroborate testimony of deceased. Had she not passed away, crossed witness box, her testimony recorded, her statement under Section 164-A Cr.P.C. undoubtedly could be used to corroborate her testimony.
23. The statement of deceased recorded by Chief Judicial Magistrate under Section 164-A Cr.P.C. and endorsement made by him to the effect that statement was recorded as per mandate of Section 164- A Cr.P.C., may be also relevant under Section 35 Evidence Act. Section 35 reads as under:-
"S. 35. Relevancy of entry in public record made in performance of duty --- An entry in any public or other official book, register or "[record, or an electronic record] stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or *[record, or an electronic record] is kept, is itself a relevant fact."
To make a document admissible under Section 35, the entry relied on must be one (i) recorded in any public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact; and (iii) it must be made by a public servant in discharge of his official duty.
It is important to note that unlike section 164 Section 164-A Cr. P.C., casts duty on the Magistrate to record statement of the witnesses produced by a Police Officer not below rank of Sub Inspector investigating an offence mentioned in Section before him for recording his statement. Section 164-A Cr. P.C. is not an enabling provision but mandatory in character. The statement recorded by a Magistrate (Chief Judicial Magistrate, Ganderbal, in the present case), therefore, is in-discharge of his official duty. It is not the statement under Section 161 Cr. P.C. or 164-A Cr. P.C., not recorded in discharge of a statutory duty. It is also part of the duty cast on the Magistrate, to furnish its copy to the concerned police officer, and forwarding the statement recorded to the Magistrate by whom the case is to be enquired into or tried. The Magistrate while recording statement in discharge of his duty under Section 164-A Cr. P.C. makes endorsement regarding his having satisfied himself that the statement was voluntary and not under any inducement, threat or promise and also make entries evidencing the fact of his having recorded the statement on oath. The statement would, therefore, attract Section 35 Evidence Act. Needless to state that the reservation as regards statement not being contemporaneous with the fact in issue, is not to have relevance under Section 35 Evidence Act.
24. Section 80 Evidence Act deals with presumption as to documents produced as record of evidence. It provides:-
"Whenever any document is produced before any Court, purporting to be a record of memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume."
In order to attract the presumption available under Section 80, the document (statement in the present case) must be a record of evidence given in a Judicial proceedings or before any officer authorized by law to take it and the statement must also be duly taken in the manner laid down by law, by competent officer. The Section deals with the relevancy or admissibility of the statement for proving in subsequent proceedings, the truth of the facts stating therein. The provision, therefore, dispenses with the necessity of its formal proof, by raising the presumption that statement was recorded in accordance with law and, therefore, to be genuine. In the present case, the statement under Section 164- A Cr.P.C. was made before an officer authorised by law to record such statement. It is duly signed by the Magistrate. It, therefore, may not be necessary to examine the Magistrate, to prove the statement as a presumption of genuineness is available under Section 80 Evidence Act. However, where the person whose statement is recorded by the Magistrate is not available and the statement therefore may not be pressed into service only as corroborative piece of evidence, it would be always safe for the trial Court to examine the Magistrate, allow him to be cross examined by the other side so as to be satisfied about the genuineness of the statement and the procedure followed by the Magistrate while recording such statement.
25. Learned Trial Judge has conveniently avoided to look into all above aspects of the case and found an escape route by ignoring statement of deceased recorded under Section 164-A Cr. P.C. Learned Trial Judge opined that as victim died before her statement was recorded and prosecution case rested on statement of victim, charge against respondent was not proved and respondent deserved to be acquitted and charge-sheet dismissed. Trial Judge did not put incriminatory material come across in statement of PW Mst Sakeena, mother of deceased, to respondent. PW Mst Sakeena stated before Trial Court that a few months after occurrence when her daughter (deceased) complained of pain in abdomen, she took her to local doctor and doctor on examining her daughter informed her that her daughter carried pregnancy of 06 months and that when she enquired from deceased, her daughter (deceased) told her that accused had committed rape on her and left her pregnant. PW Mst Sakeena added that statement of her daughter was recorded under Section 164 Cr.P.C. before Magistrate. Details of occurrence narrated by deceased to her mother were relevant in terms of Section 6, Evdience Act, to prove alleged occurrence and therefore, open to proof. PW Mst Sakeena had, therefore, by her testimony proved that deceased identified respondent as person, who had committed rape on her. Similarly, PW Mst Sakeena having deposed that statement of deceased under Section 164-A cr.P.C. was recorded before Magistrate and PW Imtiyaz Ahmad, Investigating Officer, having claimed to have got statement of deceased recorded under Section 164-A Cr.P.C., it was bounden duty of Trial Judge to put statements made in this regard to respondent and also to summon Chief Judicial Magistrate, Ganderbal (Shri Parvaiz Husain Kachroo), so that statement of deceased was proved, the witness was allowed to be cross-examined by respondent and thereafter statement of witness on its proof put to respondent.
26. Learned Trial Judge, unmindful of gravity of charge against respondent, appears to have dealt with matter in casual, slipshod and routine manner, and rushed to acquit respondent without dealing with aforementioned aspects of case. It is well settled law that Trial Judge is not to act as a mere spectator or neutral empire in criminal trial. Trial Judge is to get involved in the proceedings and ensure that all important evidence on either side is brought on record and dealt with in accordance with law. While Trial Judge is not required to willy-nilly convict accused, no matter what evidence is brought on record, traverse distance between suspicion to proof, only because offence alleged against accused is grave and serious, Trial Judge is also not expected to assume role of neutral empire, allow material evidence to be ignored and not brought on record by either-side and rush to acquit accused.
27. Trial Judge is provided important tools to discourage any effort by either side to keep away evidence from the trial. To illustrate, Section 165, Evidence Act, confers power on a Judge to put question or order production of any document or thing at any time of proceedings; to ask any question in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant. It reads:
165. Judges power to put questions or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-
examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. Similarly, section 147 to 153, Evidence Act, empower Court to decide question to be asked or disallow or to exclude any evidence.
28. Section 540, Code of Criminal Procedure, is yet another tool in the hands of Trial Judge. It confers power on a Court to summon any person as a witness or examine any person in attendance, though not summoned, at any stage of enquiry or trial or recall any person or person already examined. Section 540 Cr. P.C. provides:
540. Power to summon material witness, or examine person present Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. The tools as made available under Ss 147 to 153, 165 Evidence Act and Section 540 Cr.P.C. are meant to be used whenever circumstances so warrant. Trial Judges unfortunately are either not acquainted with tools of a Judge or conveniently ignore to use such tools to avoid hassle of writing orders necessitated by exercise of such powers. The case in hand is worst type of indifference and apathy on part of Trial Judge. The Trial Judge failed to appreciate that unmarried bedridden daughter of petitioner (a widow who sustains herself and her family by begging) with fractured limb confined to bed, was allegedly ravished by respondent and that unfortunate victim breathed her last in Lal Ded Hospital, carrying pregnancy of eight months, may be due to problems connected with pregnancy. Petitioner and her deceased daughter deserved a fair trial that would include an effort within limits permissible under law to bring on record all material evidence essential for just decision of the case. This duty has been observed in breach. In the circumstances, Trial Judge, during trial and while rendering judgement impugned in petition, has not adhered to procedure laid down under law. Trial Judge has not only failed to appreciate evidence in support of charge brought on record like testimony of PWs Mst Sakeena and Imtiyaz Ahmad, Investigating Officer, but failed to put such evidence to respondent and also failed to take steps to secure presence of witnesses, to prove documents placed on record in support of charge. The only reason that has prompted learned Trial Court to dismiss the charge sheet and acquit the respondent is death of victim before appearing in witness box. It is well settled that death of victim should not be taken as a reason to throw out prosecution case without appreciating other evidence on record. Supreme Court in State of Karnatka vs. Mahabaleshwar Gourya Naik 1992 (Supp.3) SCC 179 has held that death of victim by itself cannot be a ground to acquit accused. The Court observed:
12. The reason for recording an acquittal of the offence under Section 376 IPC by both the Courts below is the non-availability of the victim for examination. As we have already pointed out, the victim is stated to have committed suicide on 15.11.77 i.e. nearly one and a half months after the occurrence. Whatever might be the reason for her death, the question would be whether the case of the prosecution should be thrown overboard because of the non-availability of the victim for examination on account of her death or whether the Court can record a conviction for any offence that is made out on the available evidence, let in by the prosecution.
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15. As stated supra, merely because a victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned.
29. For reasons discussed, Criminal Revision Petition on hand is allowed. Trial Court judgement and acquittal of respondent of charge of commission of offence punishable under Section 376 RPC, are set-aside. The matter is remanded to Trial Court for a fresh trial. Learned Trial Judge shall summon Shri Parvaiz Hussain Kachroo (the then Chief Judicial Magistrate, Ganderbal), who is shown to have recorded statement of deceased PW2, as a witness and record his statement in accordance with law. Learned Trial Judge shall thereafter put all incriminatory material come across in prosecution evidence including statement of Shri Parvaiz Hussain Kachroo (the then Chief Judicial Magistrate, Ganderbal), if required to respondent, enabling him to offer explanation, if any, to material so put and to adduce evidence, if any, in defence. Learned Trial Judge shall conclude trial and render judgement having regard to the evidence brought on record.
30. The bail bonds of respondent are cancelled.
31. Let respondent immediately surrender before the Trial Court and in any case on or before the matter is directed to come up before Trial Court. In case respondent fails or avoid to surrender, learned Trial Judge shall issue process to secure his presence and once respondent surrenders or is brought before the Trial Court in execution of the process issued, Trial Court shall pass order under Section 344 Cr.P.C. as regards remand and custody.
32. SHO P/S Ganderbal shall embark on further investigation in terms of Section 173 (8) Cr.P.C. to find out whether death of victim in Lal Ded Hospital on 14th November 2012, was a direct result of alleged occurrence and whether respondent was to be held to have triggered death or otherwise responsible for such death and offence prima facie made out against respondent, added to offence already alleged through a supplementary charge sheet. Needless to state that should further investigation lead to a supplementary charge sheet alleging commission of offence, that brings in question cause of victims death her statement u/s 164-A Cr.P.C. would become relevant under Section 32, Evidence Act, as well.
33. Trial Court record be sent down forthwith through special messenger, so that matter is listed before Trial Court on 31st December 2015. Learned Trial Judge shall conclude trial as far as possible by or before 15th March 2016.
34. Before parting with the judgment, it is necessary to point to failure of the investigating officer to employ modern and scientific techniques, now available, to dig out and unravel true facts and ensure that the effort made while investigating the matter and thereafter prosecuting it before the trial Court does not go waste. The object of criminal justice system is to punish a person guilty of an offence so that sentence awarded on his conviction by Trial Court works as a deterrent against other potential offenders and also to reform the person convicted so that he is reclaimed by the society. It is, therefore, necessary that investigating officer, acting as first Judge of the case, undertakes impartial, dispassionate but serious exercise, employing all the techniques available under law, to lay bare true facts before the Trial Court and also indicate with sufficient clarity the evidence by which he proposes to prove the results of investigation.
35. In the present case, the victim complained that she was allegedly ravished by the respondent and left pregnant. She was carrying pregnancy at the time occurrence surfaced and was reported to Police Station, Ganderbal, leading to registration of case FIR no.169/2012 under Section 376 RPC. She tragically passed away about two months after the case was registered. The investigating officer could have with least difficulty, with the assistance of the doctor, who treated the victim at local hospital or attended her at Lal Ded Hospital, obtained sample/tissue from the foetus for DNA profiling/matching with the sample taken from the respondent. Such a course would have helped the Investigating Officer to produce more convincing evidence before the trial Court regarding the result of investigation and also the trial Court to arrive at just conclusion. The investigating officer has very conveniently ignored this aspect of the case, possibly because the investigating officer, had either no idea about the technique available or did not have will to use the technique and instead proceeded with the investigation in a lifeless and routine manner. What is true about the present case is equally true about the more than 90% of the criminal cases that end in acquittal of the accused because of faulty investigation or casual and half-hearted prosecution.
36. Failure to use and integrate modern techniques with the investigation, results in wastage of precious time resources, at all levels - be it investigation or trial and proceedings emanating therefrom. The failure also compounds agony of an innocent person dragged to the Trial Court on false charges and at times made to face incarceration, finally acquitted by Trial Court or the Appellate Court as the case may be.
37. The Director General of Police, against above backdrop, is directed to move a proposal for creation of at least 200 posts of Investigating Sub Inspectors in the grade otherwise available to the cadre, with Bachelors Degree in Science (Biology and Chemistry) and Three years Degree in Law as eligibility qualification. Let proposal in this regard be moved within two weeks from the date copy of this judgement is received by him. Once the proposal is so moved, let it be considered without allowing it to fall a prey to procedural wrangles and approved within two weeks thereafter. On creation/sanction of the posts let the recruitment process be initiated and completed within four weeks. The selectees on their appointments as Investigating Sub Inspectors, shall be posted at least one in each of the Police Stations of the State and two or more in the police stations of Srinagar and Jammu cities and police station of major towns/district headquarters of the State. Needless to state that on their selection/ appointment, steps shall be taken to organize comprehensive training program in Forensic Tools to be used in investigation, in addition to the routine training. Let Director General of Police report compliance by 15th February 2016.
38. The Registry shall maintain index to enable the Court monitor implementation of the directions given. Let index be put up on 15th February, 2016.
39. Disposed of.
(Hasnain Massodi) Judge Srinagar December 11, 2015 Ajaz Ahmad