A statement made under Section 164 CrPC is solely not a substantial evidence as such statement can be used for both contradiction and corroboration. statement or evidence given in the court in course of the trial in the presence of the accused and his counsel is substantial evidence. Such evidence can be corroborated by the prosecution relying upon the statement recorded under Section 164 of the Code to the evidence of the prosecutrix deposed in the court. The statement recorded under Section 164 of the Code can only supplement the evidence given in the court. A single bench comprising of Justice S.K. Mishra adjudicating the matter of Dilip Kumar Swain v. The State of Orissa. (CRLA No.373 of 2012) dealt with an issue of whether to
In the present case, the Appellant challenged the conviction u/s 376(2) (g) of IPC along with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo imprisonment for life passed by Additional Sessions Judge, Bhubaneswar dated 19.01.2012.
The informant was a parentless girl of Scheduled Caste and was working as a labourer in a stone quarry of Kantia and was staying with some of her villagers, at a nearer hamlet Budhabapada, in a rented house of one Bhaga Behera. In the night of 06.09.2003, when she was sleeping in her house, at about 1.00 A.M. both the accused persons Dilu and Manua entered inside the house and in order to satisfy their physical lust, forcibly ravished the victim one after another and left the place posing threat with dire consequence in case she will divulge the fact to anyone. The victim sustained injuries on sensitive parts of her body due to the forced act of the accused persons. She complained about the incident to her employer and then lodged an FIR. The police investigated the case and a charge sheet was submitted.
The Accused completely denied the allegations and stated that they were falsely implicated.
It was established by the prosecution that the case was proved beyond reasonable doubt against the sole appellant and convicted him under Section 376(2)(g) of the Penal Code read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for one year. However, she acquitted the co-accused Manua holding that there is no evidence against him.
The Appellant submits that the approach adopted by the lower court is not appropriate as the court relied upon the previous statement like the statement recorded under Section 164 of the Code which is not substantial evidence and comes to the conclusion that the appellant has committed the offence of gang rape. It was further submitted that the court should have acquitted the sole appellant along with co-accused of the offence under Section 376(2)(g) of the Penal Code read with Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and should have taken cognizance of offence of perjury committed by the prosecutrix.
The court after careful examination of evidence found that “ She was cross-examined by the prosecution after obtaining permission from the court under Section 154 of the Evidence Act. She stated that her statement was recorded by the Magistrate under Section 164 of the Code on 12.09.2003 but she does not remember what she stated before the Magistrate. Thereafter, she denied all the leading questions put by the prosecution and stated that she has been raped by two persons in the night of the occurrence. She has stated in her Section 164 statement that she could identify one of them i.e. Dillu but could not identify the other person. The lower court has not taken this statement as a substantial evidence or direct evidence, but has taken it as a circumstance. Together with such circumstance and statement and medical report without examination of the doctor the lower court has come to a conclusion that prosecution has proved its case under Section 376(2)(g) of the IPC and Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act beyond reasonable doubt. The approach adopted by the lower court is clearly not tenable. It is no more res integra that statement recorded under Section 164 of the Code is only a previous statement. It is not a substantial piece of evidence. Such a previous statement can be used both for contradiction and corroboration. However, statement or evidence given in the court in course of trial in the presence of the accused and his counsel is substantial evidence. Such evidence can be corroborated by the prosecution relying upon the statement recorded under Section 164 of the Code to the evidence of the prosecutrix deposed in the court. The statement recorded under Section 164 of the Code can supplement the evidence given in the court but it cannot supplement it.
Hence the court opined that there is no substantial evidence in this case and only on the basis of the retracted statement made under Section 164 of the Code, the lower court should not have convicted the appellant.
