Amend laws to give statement made before magistrate status of examination-in-chief: Bombay High Court urges Centre, State in rape case

Can a court take into account evidence which is not admissible as per existing provisions of law and convict a wrongdoer just for the purpose of sending a message to society?.The Bombay High Court was faced with this question while dealing with a case in which a father was convicted for raping his minor daughter..Answering its own question, the Bench of Justices Prasanna B Varale and SM Modak observed,"Though we agree that such instances are on rise unfortunately we cannot take such a view by bypassing the provisions of law. Still we have to wait for the amendment in the law. At the most we can express and direct that the concerned authority may initiate the process for carrying out amendment in the law.".The Court thus urged the legislative authorities to incorporate an amendment under the relevant laws to give the statements made to a magistrate under Section 164 of the Code of Criminal Procedure (CrPC) the status of examination-in-chief..Before the Court was a plea challenging the order of a Special Court convicting the appellant for offences under Section 376 (rape) of the Indian Penal Code, 1860 and Section 4 (penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 67B (publishing material depicting children in sexually explicit act) of the Information Technology (IT) Act, 2000..The High Court eventually set aside the conviction for the offence of rape on the ground that the minor victim had resiled from her case, and that as per law, her statement under Section 164 CrPC was not enough to substantiate the conviction. The Court, however, upheld the conviction under the IT Act..The victim had recorded a statement before the Judicial Magistrate under Section 164 of CrPC but had then resiled from her stand. Despite this, the trial court had convicted the appellant for rape..The Court expressed that the it was important for the legislature to consider the practical realities which the victim had to face and the never ending trauma that the victim may have to face."At the same time we have recognized the accepted principles of appreciation of evidence and in the zeal of protecting the interest of the victim, we cannot give go-bye to these accepted principles. In order to avoid similar situation in future we feel that appropriate authorities will speed up the process of making amendment as mentioned above," the order said..The factual matrix as per the prosecution was that the appellant took his minor daughter to a bungalow where he was a watchman and sexually assaulted her. She was also threatened of dire consequences if she narrated the incident to anyone..In May 2014, the victim narrated her ordeal to her sister, who informed her mother. Eventually, the victim lodged a police complaint..The investigating officer arranged for the recording of the victim's statement under Section 164 of the Code of Criminal Procedure and the prosecutor also examined the Judicial Magistrate Janabai Gaikwad..The contentions by the appellants were that the victim had resiled while giving evidence to the Court. The trial court's approach in believing the statement of the victim recorded under section 164 of CrPC was wrong and no link was established between the conclusion drawn by the Forensic Science Expert (on the basis of examining mobile hand-sets) on one hand and oral testimony of the relevant witnesses on the other hand..The Additional Public Prosecutor relied upon certain judgments to buttress her submissions that few facts stated by the victim on one hand and corroborative material on the other hand leads to drawing of conclusion about guilt of the appellant/accused..The Court noted that in cases similar to the present case, the evidence about the actual incident depended on the testimony of the victim as “such incidents always take place in secrecy”..It reasoned that if the evidence of principal fact is not there, it was not possible to use the evidence adduced of subsequent fact for corroboration.“If there is evidence about witnessing the incident through other witness then the Court may think of considering the evidence of Investigating Officer. Unfortunately on the point of incident, there is no other witness other than the victim. Even on the point of narration of the incident by the victim to any person, there is no witness examined”, the Court recorded..The Court held that the reasoning of the trial court in relying upon the statement under Section 164 as substantive evidence itself was not permissible and hence that observation deserved to be set aside.“It is difficult to opine what compelled the victim not to state those facts which she has stated before the police. Certainly this is not a case of filing the FIR by tutoring because there are no such materials. So the situation warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to provisions of law,” the order stated..The Court also observed that while earlier certain relations were considered as sacrosanct, “with passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship”..The judgment concluded with a direction to the Registry to send a copy of the verdict to the Central and State law ministries "for consideration and appropriate action about the views expressed above.".[Read Order]