Court No. - 83
Case :- CRIMINAL REVISION No. - 3049 of 2019 Revisionist :- Intazar And Anr.
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Ajay Tripathi,Akash Tyagi,Gauri Dubey,Gautam Dubey Counsel for Opposite Party :- G.A.,Atul Kumar,Shiv Prasad
Hon'ble Rajeev Misra,J.
1. Heard Mr. Gautam Dubey, learned counsel for revisionists, learned A.G.A. for State and Mr. Atul Kumar, learned counsel for first informant/opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging judgement and order dated 15.5.2019 passed by Additional Sessions Judge/F.T.C. Court No.3, Muzaffarnagar in Sessions Trial No. 62 of 2019 (State Vs. Kallu) under sections 364, 376 IPC, Police Station- Mansoorpur, District Muzaffarnagar, arising out of Case Crime No. 0397 of 2018 under Sections 366, 506 I.P.C., Police Station- Mansoorpur, District Muzaffarnagar whereby application dated 4.4.2019 under section 319 Cr.P.C. (paper no.12A) filed by prosecution has been allowed. Consequently, revisionists have been summoned by court below to face trial in above mentioned Sessions Trial.
4. Record shows that in respect of an incident which is alleged to have occurred on 17.9.2018, a delayed F.I.R. dated 18.9.2018 was lodged by first informant/opposite party-2 Haseena and was registered as Case Crime No. 0397 of 2018, under sections 366 and 506 IPC, Police Station- Mansoorpur, District-Muzaffarnagar. In the aforesaid F.I.R, three persons namely, Intazar, Kallu and Azad have been nominated as named accused whereas one unknown person was also nominated as an accused.
5. In brief, as per prosecution story as unfolded in F.I.R., it is alleged that named accused Intazar is resident of same village as that of first informant/opposite party-2. Aforesaid accused was having evil eyes upon Sahira daughter of first informant. On the fateful day, i.e., 17.09.2018 at around 7:00 am Sahira went out of home to throw garbage. As she reached near Eid-Gaah, accused Intazar, Kallu and Azad along with one unknown person, who had covered his face, were sitting inside the four wheeler vehicle that was parked there and they forcibly caught hold of the daughter of first informant and thereafter pushed her inside the vehicle, and went away. The F.I.R. further states that daughter of first informant was kidnapped by aforesaid accused on the basis of illegal weapons held by them.. Various other allegations were also made.
6. After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr.P.C., Prosecutrix was recovered on 16.09.2018. Thereafter, statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr.P.C. Subsequently, Investigating Officer recorded statements of first informant and other witnesses. Prosecutrix was medically examined on 22.10.2018. Ultimately, statement of prosecutrix was recorded under Section 164 Cr.P.C. on 23.10.2018. Prosecutrix in her statement under Section 164 Cr.P.C. implicated Kallu and Intazar for an offence under Section 376 I.P.C. She also mentioned the name of Azad regarding her kidnapping. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only one of the named accused, namely, Kallu is established in the crime in question. Accordingly, Investigating Officer submitted charge-sheeted dated 21.12.2018, whereby only one of the named accused, namely, Kallu was charge- sheeted under Sections 364 and 376 I.P.C. whereas other two named accused, i.e., Azad and Intazar were exculpated as their complicity in the crime in question was not found to be established during course of investigation. In the opinion of Investigating Officer, aforesaid two named accused were falsely implicated.
7. After submission of charge-sheet dated 21.12.2018, cognizance was taken upon same by court concerned. However, as offence complained of is triable by Court of Sessions, case was accordingly committed to Court of Sessions by concerned Magistrate. Resultantly, Sessions Trial No.62 of 2019, (State Vs. Kallu) under Sections- 376, 364 I.P.C., Police Station- Mansoorpur, District- Muzaffar Nagar came to be registered.
8. Trial commenced. Charges were framed against charge-sheeted accused, namely, Kallu, who denied the same and demanded trial. Consequently, burden fell upon prosecution to establish the charges so framed by leading evidence.
9. Prosecution in discharge of aforesaid burden adduced the prosecutrix, Sahira as P.W.1. Her statement-in-chief commenced on 2.4.2019 and ultimately, her examination-in-chief concluded on 4.4.2019. Victim in her deposition has not only implicated charge sheeted accused, Kallu but also, implicated named but not charge sheeted accused Intazar and Azad also in the crime in question.
10. In view of above, prosecution filed an application dated 4.4.2019 (paper no.12A) under Section 319 Cr.P.C. praying therein that since complicity of Intezar and Azad is also established in the crime in question as per deposition of the victim, i.e., P.W.1 Shahira, therefore, they be also summoned to face trial in above mentioned case. Court below by means of order dated 14.5.2019 allowed aforesaid application. Consequently, prospective accused Intezar and Azad have been summoned by court below to face trial in afore-mentioned Sessions Trial.
11. Feeling aggrieved by above, revisionists Intezar and Azad have approached this Court by means of present criminal revision.
12. Present criminal revision came up for admission on 6.8.2019 and this Court passed following order:-
“Sri Atul Kumar has filed his Vakalatnama on behalf of opposite party no.2. The same may be taken on record.
Earlier by means of an application under section 482 Cr.P.C. being Criminal Misc. Application No.24642 of 2019, applicant no.2 had sought quashing of the order dated 15.5.2019. That application had resulted in an order dated 28.6.2019.
Whether the applicant no.2 in this application can once again file the instant Revision, is to be seen.
Place this case on 9.8.2019 as fresh.
When the case is listed next, the name of Sri Atul Kumar shall also be shown as counsel for the opposite parties.”
13. Subsequently, this Court vide order dated 13.8.2019 entertained present criminal revision. For ready reference, same is reproduced herein under:
“Sri Ajay Tripathi, learned counsel for the revisionists, Sri Atul Kumar, learned counsel for the Opposite Party no.2 and Sri G. P. Singh, learned A.G.A. for the State are present.
This Revision has been filed seeking quashing of the order dated 15.05.2019 whereby Application 12-ka under Section 319 Cr.P.C. has been allowed moved by the Opposite Party no. 2/mother of the victim by which the accused applicants have been summoned to face trial under Sections 364 and 376 I.P.C., pending before the court of Fast Track Court, No. 3rd, Muzaffar Nagar.
It is argued by the learned counsel for the revisionists that the revisionists have been falsely implicated by the Opposite Party no. 2, who is mother of the victim, because earlier after investigation the police exonerated them. There are number of contradictions in the statement of the victim recorded under Section 164 Cr.P.C. as well as statement given before the trial court as PW-1. It is further argued by the learned counsel for the revisionists that the name of Azad is not appearing in any of the statement given by the victim under Section 161 Cr.P.C. and 164 Cr.P.C. nor in the statement given before the trial court as PW-1 and yet the said accused revisionists have been summoned under Section 319 Cr.P.C. to face trial under Section 376 & 364 of IPC.
On the other hand, learned counsel for the Opposite Party no. 2 has pointed out that earlier an application under Section 482 Cr.P.C. no. 24642 of 2019 was preferred by Azad in which quashing of the proceedings was refused, therefore, the second application under 482 Cr.P.C. would not lie for the same prayer, to which the learned counsel for the revisionists has relied upon Anil Khadkiwala Vs. State (Government of NCT and Delihi) and another 2019 SCC (Online) SC 941 and has argued that the second application 482 Cr.P.C. would lie in peculiar facts and circumstances of the case and it is also argued that other co-accused Intzaar had also preferred application under Section 482 Cr.P.C. No. 27352 of 2019 which was dismissed as withdrawn by Coordinate Bench of this Court on 16.07.2019, copy of both the orders have been provided and the same are taken on record. Matter requires consideration.
Counter-Affidavit may be filed within three weeks by the learned counsel for the Opposite Party no. 2 as well as learned A.G.A.
List this case on 09.09.2019.
Till then no coercive action shall be taken against the accused- revisionists in the aforesaid case.”
14. Pursuant to above order dated 13.8.2019, first informant, opposite party-2 has put in appearance and has filed counter affidavit. Learned A.G.A. has also filed counter affidavit on behalf of opposite party-1. However, record does not show that any rejoinder affidavit has been filed by revisionist to aforesaid counter affidavits.
15. Pleadings have been exchanged between parties. With the consent of learned counsel for parties, present criminal revision is being decided finally at the admission stage itself.
16. Learned counsel for revisionists contends that impugned order dated 15.05.2019 passed by court below is manifestly illegal and without jurisdiction. Revisionists were named accused in F.I.R. dated 18.09.2018. However, during investigation of concerned case crime number, complicity of revisionists were not found to be established by Investigating Officer in the crime in question. Consequently, revisionists were exculpated in the charge-sheet dated 21.12.2018 submitted in concerned case crime number. In continuation of his challenge to the impugned order dated 15.05.2019, learned counsel for revisionists further contends that court below should have deferred disposal of application under Section 319 Cr.P.C. filed by prosecution till the statement of Investigating Officer, who had investigated above-mentioned case crime number, was not recorded. According to learned counsel for revisionists, testimony of Investigating Officer would be relevant as he alone could point out the facts and circumstances on account of which, revisionists were exculpated in the charge-sheet dated 21.12.2018. It is thus urged that in the absence of testimony of Investigating Officer, material on the basis of which, revisionists were exculpated in concerned case crime number could not be placed before court below. As such serious prejudice has been caused to revisionist, who have now been summoned to face trial in afore-mentioned Sessions Trial simply on the basis of testimony of P.W.1- Shahira i.e. the prosecutrix. In the absence of testimony of Investigating Officer, the credibility of testimony of P.W.1- Shahira could not be examined. Learned counsel for revisionists also contends that no protest petition was filed by first informant/opposite party-2 to the charge sheet dated 21.12.2018. Furthermore, no explanation has been offered in the application under section 319 Cr.P.C. filed by prosecution regarding aforesaid. Mr. Gautam Dubey, learned counsel for revisionists further submits that during course of investigation, Investigating Officer came to the conclusion that revisionists Intzar has been falsely implicated as according to the C.D.R. of his Mobile Phone, location of same was found to be in the State of Karnatka at the time of occurrence. It is thus contended by learned counsel for revisionists that application under section 319 Cr.P.C. has been filed on account of an ulterior motive only to harass the revisionists. It is also contended by learned counsel for revisionists that testimony of P.W.1- Shahira does not make out a cast iron case for summoning of revisionists. According to learned counsel for revisionists, no finding has been recorded by court below as to how testimony of P.W.1- Shahira satisfies the tests laid down by Constitution Bench in Hardeep Singh Vs. State of Punjab and Others, ( 2014) 3 SCC 92, which must stand satisfied before a prospective accused is summoned under Section 319 Cr.P.C. Learned counsel for revisionists has placed the statement of prosecutrix dated 18.09.2018 recorded by Investigating Officer under Section 161 Cr.P.C., the statement of prosecutrix recorded under Section 164 Cr.P.C. as well as her deposition before court below. On the basis of above, it is urged by learned counsel for revisionist that prosecutrix has not been consistent in her statement. She appears to have been tutored as statements under Sections 161/164 Cr.P.C. were given in the manner as directed by her parents. On the basis of above, the credibility and reliability of P.W.-1 i.e. prosecutrix has been sought to be canvassed. It is thus sought to be urged that court below has failed to exercise it's jurisdiction “diligently”. Court below has summoned revisionists in a “casual and cavalier manner” even when there is no “strong and cogent evidence” against revisionists. On the aforesaid premise, it is vehemently urged by learned counsel for revisionists that impugned order passed by court below cannot be sustained and therefore liable to be quashed by this Court.
17. Per contra, learned A.G.A. has opposed this criminal revision. Learned A.G.A. contends that statement-in-chief of P.W.1- Shahira is alone relevant for deciding the application under Section 319 Cr.P.C. filed by prosecution as she is a prosecution witness of fact. In support of aforesaid submission, learned A.G.A. has referred to the judgement rendered by Constitution Bench in Hardeep Singh (Supra). Learned A.G.A. then submits that aforesaid witness has also been cross-examined. As such her testimony falls within the realm of legal evidence. Consequently, no illegality has been committed by court below in placing reliance upon same for deciding the application under Section 319 Cr.P.C. filed by prosecution. Police report submitted by Investigating Officer is not conclusive proof of innocence of revisionists. No irregularity or illegality has been committed by court below, in passing impugned order dated 15.05.2019. Even though revisionists have been exculpated by Investigating Officer, same cannot be taken as a ground to urge that revisionists cannot be subsequently summoned to face trial. Revisionists will have adequate opportunity to prove their innocence before court below by adducing defence evidence including Investigating Officer as a defence witness. No attempt has been made to draw a parallel between statements of P.W.1 as recorded under Sections 161/164 Cr.P.C. and her deposition given before court below. Moreover, no ground has been raised in the grounds of revision that nothing new has been stated by P.W.1- Shahira in her deposition before court below than what was stated by her in her statement before Investigating Officer and therefore, nothing new has come on record as per deposition of prosecutrix on the basis of which, revisionists could be summoned. According to learned A.G.A. aforesaid plea raised by learned counsel for revisionists that there are inherent contradictions in the statement of prosecutrix given before court below as per her statement recorded under Section 161 Cr.P.C. and statement under Section 164 Cr.P.C., as such there is neither strong nor cogent evidence against revisionists on record of Sessions Trial, is by itself insufficient for quashing the impugned order. Learned A.G.A. further contends that statement of a witness recorded under Section 161 Cr.P.C. can be used only to contradict the witness with his previous statement by virtue of Section 145 of Evidence Act. It is then contended that statement recorded under Section 164 Cr.P.C. is not substantive piece of evidence but can be used for corroboration. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra) , wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. has to be exercised. On the aforesaid premise, it is thus urged by learned A.G.A. that no indulgence be granted by this Court in favour of revisionists.
18. Having heard learned counsel for revisionists, learned A.G.A. for State and upon perusal of record, this Court finds that the issue that arises for determination in present criminal revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider whether the order impugned is within the parameters or not.
19. Parameters regarding exercise of jurisdiction by Courts under section 319 Cr.P.C. has been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCC 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xiv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online SC 390
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337
(xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632
(xix) Criminal Appeal No. 990 of 2021 (Umesh Chandra Srivastava Vs. The State of U.P. and another) decided on 13.09.2021.
20. With the aid of above, Court now proceeds to examine the correctness of impugned order dated 15.05.2019 passed by Additional Sessions Judge/F.T.C. Court No.3, Muzaffarnagar in Sessions Trial No. 62 of 2019 (State Vs. Mohsin @ Kallu) under sections 364, 376 IPC, Police Station- Mansoorpur, District Muzaffarnagar, whereby revisionists have been summoned under Section 319 Cr.P.C. to face trial in above-mentioned sessions trial.
21. Before proceeding to do so, it must be noticed that following issues stand concluded as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
22. The ambit and scope of powers under Section 319 Cr.P.C. now stands crystalized by Supreme Court in paragraph- 34 of the judgement in Manjeet Singh ( supra).
23. The summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a “casual and cavalier manner”. Power under Section 319 Cr.P.C. is “an extraordinary discretionary power which should be exercised sparingly”. Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani ( supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
24. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh ( supra) wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of prosecution witness of fact. The only requirement is that such statement discloses more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani ( supra) Court held that a non charge sheeted accused can be summoned only on the basis of “strong and cogent evidence”.
25. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh ( Supra).
26. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of P.W.1, Sahira, the prosecutrix, revisionists could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction “diligently” or as termed by Apex Court in a “casual and cavalier manner.”
27. P.W.1, Sahira, is daughter of first informant. She is also the prosecutrix. P.W.-1 is also an eye-witness of the occurrence. Statement-in- chief as well as examination-in-chief of this witness has been recorded. While considering an application under Section 319 Cr.P.C., Court can rely upon the statement-in-chief of a witness, vide paragraph- 92 of the Constitution Bench judgement in Hardeep Singh ( supra). Therefore, no illegality has been committed by court below in relying upon statement-in-chief as well as examination-in-chief of this witness.
28. Statement-in-chief/examination-in-chief of P.W.1, Sahir i.e. the prosecutrix is on record as Annexures-10/11 to the affidavit filed in support of present criminal revision.
29. It is an undisputed position that P.W.-1, Sahira is daughter of first informant. She is also the prosecutrix. She is thus the victim of the crime in respect of which F.I.R. 18.09.2018 was lodged by first informant/opposite party-2 Hasina i.e. mother of prsecutrix. Consequently, it is this witness, who has suffered the wrath of criminality committed by accused. P.W.-1, Sahira in her deposition before court below has categorically stated about the manner of occurrence i.e. how she was kidnapped by named accused. She has thereafter, detailed acts of accused whereby her modesty was dislodged. Perusal of deposition of P.W.-1, Sahira made before court below, goes to show that P.W.1 has categorically stated about the physical and mental cruelty committed upon her by named accused for fulfilment of their objective to kidnap her and thereafter to satisfy their lust. This witness has also specifically stated about the time, place and manner of occurrence which occurred right from her kidnapping till she was recovered. As per deposition of this witness, complicity of all the named accused in the crime in question is fully established. This witness has also been cross-examined by charge- sheeted accused. However, defence failed to cull out any such statement from this witness on the basis of which her testimony could be discarded at this stage. Testimony of P.W.1 thus clearly satisfies the tests laid down in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh (supra) , wherein Court has noticed Section 319 Cr.P.C. and has laid emphasis on the term “for which such person could be tried together with the accused”. From perusal of deposition of P.W.-1, it is established that revisionists can also be tried alongwith charge sheeted accused for the alleged criminality committed by them. Her testimony also satisfies the second test laid down in aforesaid paragraph which is to the following effect: The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. Revisionists have been clearly implicated by P.W.1 in the crime in question. Consequently, complicity of revisionists in the crime in question is fully established. Upon consideration of testimony of P.W.1, it can be easily said that testimony of this witness does fall in the category of “strong and cogent evidence”, as such revisionists could be summoned on the basis of same to face trial.
30. In view of above, submission urged by Mr. Gautam Debey, learned counsel for revisionists that court below has pre-empted the disposal of application under Section 319 Cr.P.C., inasmuch as, Investigating Officer has not yet been examined as he was the best person to disclose the circumstances on the basis of which revisionist was exculpated in the charge-sheet, though appears fanciful at the first flush but is misconceived in view of law laid down by Constitution Bench in Hardeep Singh ( supra).
31. The second submission urged by learned counsel for revisionists that nothing new has been stated by P.W.1 in her deposition before Court below than what was stated by her before Investigating Officer in her statement under section 161 Cr.P.C., the Court finds that no pleading regarding above has been raised in the affidavit filed in support of present revision. For the conclusion drawn regarding nature of evidence of P.W.1 herein above, submissions urged by learned counsel for revisionists is by itself insufficient to dislodge the credibility and reliability of P.W.1 at this stage, inasmuch as complicity of revisionists in the crime in question stands established as per deposition of P.W.-Sahira.
32. Learned counsel for revisionists had laid much emphasis on the statement of P.W.-1, Sahira as recorded by Investigating Officer under Section 161 Cr.P.C. and also her statement recorded under Section 164 Cr.P.C. On the basis of above, it is sought to be urged that deposition of P.W.-1 Sahira before made court below is not worthy of acceptance. On the aforesaid premise, it is vehemently urged by learned counsel for revisionists that no cast iron case for summoning of revisionists is made out. Consequently, court below has acted in excess of jurisdiction in summoning the revisionists in afore-mentioned Sessions Trial. Argument so raised is wholly misconceived. Firstly, statement of a witness recorded under Section 161 Cr.P.C. by Investigating Officer cannot be the basis for acquitting or convicting an accused, as per Section 145 of Evidence Act. Statement of witness recorded under Section 161 Cr.P.C. can be used only to contradict the witness with his own previous statement. Statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence. A Division Bench of this Court in Misc. Bench No. 3402 of 2016 (Nisharuddin Vs, State of U.P. and Others) decided on 19.05.2021, has dealt with the evidentiary value of statement recorded under Section 164 Cr.P.C. Court formulated the points of determination regarding above in paragraph-20 of the judgement. There after court referred to various judgements in paragraphs-22, 23, 24, 25 and 26 of the report. Ultimately, Court delineated its views in paragraphs 27 and 28. Accordingly, paragraphs, 20 and 22 to 28 of aforesaid judgement are being reproduced herein under:-
“ 20. In the above noted context, we are required to consider as to what is the evidentiary value of a statement of a witness recorded under Section 164 Cr.P.C.? Whether such a statement can be taken at its own face value and can formulate the only basis of filing chargesheet against the accused? Whether the trial court, only on the basis of statement recorded under Section 164 Cr.P.C., record conviction and sentence?
22. The Hon'ble Supreme Court of India in Ram Kishan Singh v Harmit Kaur [AIR 1972 SC 468] , has held the following :-
8. A statement under Section 164 of the CrPC is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness..............." (Emphasised by us)
23. In Ram Prasad v State of Maharshtra [1999 Cri. L.J. 2889], Hon'ble Supreme Court of India has held as under :-
15. Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such witness . Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."
(Emphasised by us)
24. In Ram Lakhan Sheo Charan and Others vs State of UP [1991 CRI. L.J. 2790] , the following has been held by Hon'ble Allahabad High Court :-
"12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old code of Criminal Procedure with little change are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36: (1942) 43 Cri LJ 277, a Division bench of the Calcutta High Court had held that the statements under section 164 of the Code can be used only to corroborate or contradict the statement made under section 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v Emperor, AIR 1946 PC 38 and in Mamand v Emperor AIR 1946 PC 45: (1946) 47 Cri LJ 344, the Privy Council had observed that the statement under section 164 of the Code cannot be used as substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observation as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v King, AIR 1949 PC 257: (1949) Cri LJ 872, and in Bhagi v Crown, 1950 Cri LJ 1004: [AIR (37) 1950 HP 35]. It was also held by a single bench of the Himachal Pradesh Judicial Commissioner's court that statement under section 164 of the code cannot be used as a substantive piece of evidence. In State v Hotey Khan, 1960 ALJ 642: (1960 Cri LJ 1167). A division bench of this court had also observed that statements under section 164 of the Code cannot be used as substantive evidence.
13. The above catena of cases go to show that where the witness do not support the prosecution story in the court, then their statements under section 164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as substantive piece of evidence" (Emphasised by us)
25. In case Phool Chand v State of UP [2004 Cri LJ 1904] , Hon'ble Allahabad High Court has held as under:-
"18. Learned Additional Public Prosecutor Sri Amarjeet Singh had tried to emphasise that Karan (PW.1) and his wife Smt. Makkhan (PW.2) were produced before the Magistrate for recording their statements under section 164 Cr.P.C. in which they fully supported the facts/ circumstances leading to the commission of multiple murders in this case. The Learned Counsel has contended that these statements should be given due weight and should be considered for proving the offence with which the appellants were charged. On thoughtful consideration on this legal aspect of the matter, we find that the aforesaid submission has no substance in it. The statement of a witness under section 164 Cr.
P.C. is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial court and then a witness should be produced by the prosecution for his cross examination . In this context, the Learned Senior Advocate appearing for the appellants has cited the case law of Brij Bhushan Singh v Emperor, AIR 1946 PC 38 (1946 (47) Cri LJ 336) and Ram Kishan Singh v Harmeet kaur, 1972 Cri LJ 267 : (AIR 1972 SC 468)."
In this case the Privy Council and the Hon'ble Supreme Court have categorically held that the statements recorded under section 164 Cr.P.C are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the witness (P.W.1 and P.W.2) have themselves did not support their version, their statements earlier recorded under section 164 Cr.P.C could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, but that too has not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statements of a witness recorded under section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis." ( Emphasised by us)
26. In Bhuboni Sahu v King, AIR 1949 PC 257:(1949) Cri LJ 872, the following has been held:-
"5. A statement made under section 164 of the Code of Criminal procedure can never be used as substantive evidence of the fact stated, but it can be used to support or challenge evidence given in Court by the person who made the statement. The statement made by the approver under section 164 plainly does not amount to the corroboration in material particulars which the courts require in relation to the evidence of an accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. But in considering whether the evidence of the approver given before the committing Magistrate was to be preferred to that which he gave in the session court, the court was entitled to have regard to the fact that very soon after the occurrence he had made a statement in the same sense as the evidence which he gave before the committing Magistrate."
( Emphasised by us )
27. On perusal and consideration of the law above extracted, it becomes evident that statement of a witness recorded under Section 164 Cr.P.C. is not substantive evidence. It can be used to corroborate the statement of the witness. It can be used to contradict the witness. Such statement would either be elevated to the status of evidence under Section 32 of the Evidence Act if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. Therefore, in case after recording of statement under Section 164 Cr.P.C., the witness dies before his or her statement can be taken as a prosecution witness in the course of trial, Section 32 of the Indian Evidence Act would be attracted.
28. It has been clarified in the above referred judgments that where a witness does not support the prosecution story in the court, then only the statement recorded under Section 164 Cr.P.C. cannot be used as substantive piece of evidence to record conviction of the accused. The basis of laying down this law is that the statement of a witness is recorded in the absence of the accused. At the time of giving statement by the witness, the accused has not had the occasion to cross examine the witness. Thus, so as to convert a statement under Section 164 Cr.P.C. into substantive piece of evidence, it should be duly tendered before the trial court and then the witness should be produced by the prosecution for cross examination.”
33. In view of above, the thrust of arguments urged by learned counsel for revisionists that the prosecution story is doubtful as per statement of prosecutrix recorded under Section 164 Cr.P.C. is not cogent enough to dislodge the prima-face satisfaction recorded by court below that as per deposition of P.W.-1, complicity of revisionists stands established in the crime in question and they are, therefore, liable to be tried alongwith charge-sheeted accused.
34. Supreme Court in judgements referred to in paragraph 19 of this judgement has analysed the deposition of witnesses therein, thereafter evaluated the same to satisfy itself as to whether the depositions of witnesses fulfil the twin-tests laid down by Constitution Bench in paragraph 106 of the judgement in Hardeep Singh (Supra) and further the evidence which has emerged during course of trial falls within the realm of “strong and cogent evidence.” or not for summoning prospective accused.. The same procedure has been applied in present case. Court has not come across any such material to conclude that Court below has not exercised its jurisdiction “diligently” and revisionists have been summoned by Court below in a “casual and caviliar manner”. Deposition of P.W.1 falls in the realm of “strong and cogent evidence” which also satisfes the twin-tests laid down by Constitution Bench in Hardeep Singh (Supra). Complicity of revisionists in the crime in question is clearly established as per deposition of P.W.-1, Sahira and therefore, revisionists have been rightly summoned by court below by means of impugned order dated 15.05.2019 to face trial in concerned Sessions Trial.
35. For the facts and reasons noted above, the inescapable conclusion is that no good ground for interference by this Court has been made out.
36. Revision lacks merit. Same is, therefore, liable to be dismissed.
37. It is, accordingly, dismissed.
38. Costs made easy.
Order Date :- 17.9.2021 Arshad