Crl.A. 20/2003 BEFORE THE HON BLE MR. JUSTICE P K MUSAHARY JUDGMENT AND ORDER (CAV) Heard Mr. R.Islam, learned counsel for the appellant. Also hear d Mr. B.B. Gogoi, learned Addl. P.P. Assam. 2. The appellant Md. Jainal Haque having been convicted u/s. 458/50 6 IPC and sentenced to undergo RI for 3 years and fine of Rs. 1,000/- u/s. 458 IPC and RI for one year u/s. 506 IPC vide judgment and order dated 13.12.2002 pa ssed by the learned Ad-hoc Addl. Sessions Judge, Darrang, Mangaldoi in Sessions case No. 40(DMFT)/2002 has preferred this appeal u/s. 374 of the Cr.P.C. 3. The facts of the prosecution in brief are that on 8.4.2002 at 1- 30 A.M. the accused Md. Jainal Haque , driver of one Sri Dipam Kalita of Dipila entered into the house of Smti. Subhadra Devi and turned out two of her guests b y threatening them with dire consequences and then committed rape on her daught er Miss. Manjula (the real name withheld), aged about 15 years old. The mother o f the victim Subhadra Devi lodged the FIR on 9.4.2002 before the in-charge Pat horighat O.P. and the same was forwarded to Sipajhar P.S. which was registered a s Sipajhar P.S. Case No. 43/2002 u/s. 458/376/506 IPC against the present accuse d appellant. During investigation the victim girl was medically examined by the Doctor at Mangaldoi Civil Hospital. She was also produced before the learned SD JM (S) Mangaldoi for recording her statement u/s. 164 Cr.P.C.. After completion of investigation and collection of the medical report, the Investigating Office r submitted charge-sheet and the offence u/s. 376 IPC being exclusively triable by the Court of Sessions, the learned Court below committed the case to the Cour t of Sessions, Darrang, Mangaldoi. The learned trial court framed charge under t he aforesaid sections which was read over and explained to the accused who plead ed not guilty and claimed to stand the trial. 4. The prosecution examined as many as 9 witnesses including the vi ctim girl. The defence examined no witness. After the trial the learned Sessions Judge found the charge u/s. 458/506 IPC proved and accordingly convicted and s entenced the accused appellant u/s. 458/506 IPC. 5. Mr. R. Islam, learned counsel for the appellant submits that th e informant filed Ejahar at the instance of and forced by the VDP against the accused and during trial the informant as well as the victim girl refused to sup port the prosecution case as the informant and the victim girl gave no evidence against the accused appellant and as such no conviction and sentence could be r ecorded against him. According to Mr. Islam, the learned trial court misdirected itself in passing the conviction and sentence based on the statement of the vic tim girl recorded u/s. 164 Cr.P.C. , which is not sustainable under the law. He refers to decision rendered by the Apex Court in Utpal Das and another Vs. State of West Bengal, reported in (2010) 6 SCC 493. 6. Regarding filing and receipt of FIR, the in-charge of the Patho righat O.P. Sri Jogesh Hazarika was examined as PW-7 who deposed that on 9.4.200 2 Smti. Subhadra Devi wife of Kiriti Sarma Baruah came to the out post and repo rted orally that her daughter Manju was misbehaved by Jainal Haque, driver of Di pam Kalita of Dipila Chowk and the said Jainul Haque turned out her two guests from her house by threatening. He recorded G.D. entry dated 9.4.2002 and visit ed the place of occurrence. At the place of occurrence he interrogated some witn esses and seized one underwear and one white coloured under garment belonging t o Manju through Subhadra Devi. On the next day Manju was sent to hospital for medical examination and in the meantime Manju’s mother Subhadra filed the writte n Ejahar which was sent to Sipajhar P.S. for registering a case. The victim girl Manju was medically examined and her statement was also recorded by a judicial Magistrate. He arrested and produced the accused before the court. In cross-exam ination he stated that he does not know who scribed the Ejahar. He did not enqui re about the same from Subhadra Devi. She told him that in the night of occurren ce the accused misbehaved the victim girl. He denied the suggestion that he sent one home guard personnel to obtain the signature of Subhadra Devi on the Ext. 2, FIR. He categorically stated that since the ejahar was filed by the informa nt herself, he did not feel it necessary to enquire from her who wrote the same. He also did not feel it necessary to read over the same to her. The evidence of PW-7 makes it clear that in the very night of the occurrence at about 3 a.m. Su bhadra Devi came to the Police Out Post and reported about the incident verbally . No suggestion was put to PW-7 that informant Subhadra Devi in fact did not com e to the Police Out Post to report about the incident. The evidence of PW-7 also makes it clear that in the following day at about 9 a.m. Subhadra Devi again ca me to Police Out post and submitted a written Ejahar which was forwarded to Sip ajhar P.S. for registering a case. The defence put no suggestion to the effect that the written Ejahar was filed by Subhadra Devi on being forced by somebody and she was not willing to file such Ejahar against the accused appellant. It w as not suggested by the defence that in the first oral reporting no allegation w as made against the accused Jainal Haque or to the effect that the incident narr ated in oral reporting and written Ejahar are differing from each other. On the face of the aforesaid evidence on record it is not established that the FIR, Ext . 2 was lodged falsely against the accused appellant at the instance of other pe rsons. It is also not established that different stories were projected in the o ral reporting and the written Ejahar. 7. It is to be examined from the evidence on record as to whether t he accused appellant came to the house of the informant on the date of occurrenc e. In the night of the occurrence two guests were sleeping in a room in the hous e of informant Subhadra Devi. They came for preparation of horoscope as her husb and prepares the same. Sri Banamali Boro PW-2 is one of the guests. He deposed t hat when they were sleeping, there was a hue and cry and they left the house of the informant. They came back to the house of the informant in the early mornin g. They were interrogated by Police. He further deposed that police seized weari ng apparels of informant’s daughter. This witness was declared hostile. The prosecution cross-examined him. In cross-examination he stated that it is not a fact that as told by his elder sister (informant) he told the police that the man who had driven them out was the driver Jainal Haque. He stated that the a ccused Jainal Haque assaulted the informant and then outraged the modesty of the informant’s daughter. This evidence makes it clear that the accused Jainal Haqu e was the person who entered the house of the informant and drove out the PW-2 a long with the other guest from her house and committed the alleged offence. On t he next date i.e. 9.4.2002 the victim girl was produced before the learned SDJM (S) Mangaldoi and her statement was recorded u/s. 164 Cr.P.C. vide Ext. 5. She clearly stated therein that on the previous night at 1-30 a.m. Jainal Haque ente red into their house through the kitchen door. Both herself and her mother were sleeping on the same bed in a room. She clearly stated that Jainal lifted her from the bed and took her out side the house and committed the alleged offence. The evidentiary value of statement u/s. 164 Cr.P.C. would be discussed later on. For the purpose of establishing the fact that the accused appellant came to the house of the informant in the night of incident, the said statement is enough w hich is corroborated by the evidence of PW-2. I shall discuss the other evidence on the later stage as to whether the accused appellant could be held guilty of committing the alleged offence. 8. The medical officer Dr. A. Deka, who was working as M & HO, Mang aldoi Civil Hospital, was examined as PW-1. He stated that the victim girl was s ent for medical examination on 9.4.2002 (i.e. on the next date of occurrence). H e accordingly examined her and submitted a report. The said medical report was proved and marked as Ext. 3. The relevant portion of the said report is quoted h ereunder: 1. Height- 150 cm, 2. Wt. 35 Kg, 3. Teeth- 13/13, 4. Secondary Sex character- w ell developed, 5. Marks of violence present over the body, 5(i) Bruise in the ri ght cheek (size-2 ‰ inches x 2 inches), 5(ii) Bruise present in middle of both t he legs, 5(iii) Bite marks present in middle of Right Arm, 6. No marks of violen ce in the private parts, 7. p/v examination- Hymen- absent, os-cavitis 2 fingers , Uterus- Normal size, 8. Slide taken for (spermatozoa)- No spermatozoa seen (La b. No. 489/02), 9. X-Ray- ....... In the remark it is recorded (1) No commen t could be given regarding rape. (2) The age of the victim girl is approximately 17 to 19 (seventeen to nineteen) years, (3) Marks of violence present over the body. 9. This medical report is to be read with and verified from the sta tement of victim girl recorded u/s. 164 Cr.P.C., which was marked as Ext. 5. For better appreciation it is felt necessary to render it to English like this:- On oath. My name is Miss Bhanita Devi daughter of Kiriti Sarma Baruah. The in formant is my mother. I am presently 15 years old. In the previous night at 1-30 a.m. Jainal Haque entered our house through kitchen door. Myself and my mother were sleeping in a room on a bed. Jainal lifted and brought me out side the ho use. As I cried for help Jainal gagged my mouth by removing his shirt. As my mot her was also crying for help, accused Jainal caught my neck and dealt blows on h er. There is no house around our house. Accused Jainal lifted me outside the cou rtyard and took me beneath the big trees. He laid me on the ground, removed my c lothes and forcefully committed misdeed (sexual intercourse). I resisted him whe n he was removing my clothes. On my resistance he dealt slab and blows on me, as saulted by split fire wood and chain. Both my cheek got swollen due to such sla bs and blows. There was bleeding from my nose and mouth. Due to beating both my legs also got swollen . My mother was also gagged by Jainal when she was crying for help. My mother got injury on both the legs due to such assault. She could n ot walk . Somehow she escaped and reported the police. My father is working at a place at a distance of 6 kilometres from Changsari. There was no other male me mber in the night of the occurrence. My father was busy in his work place. Mysel f and my mother was present at home. Before being raped, Jainal locked my mothe r inside the house. Today the police got me examined by Doctor 10. The SDJM (S), Mangaldoi who recorded the aforesaid statements o f the victim girl, was examined as PW-9 and proved the statement marked as Ext. 5. He also proved the signature of the victim girl which was marked as Ext. 5(1 ) and 5(2). He denied the suggestion of the defence that the prosecutrix made th e statement as tutored by the police. He affirmed that the victim voluntarily ma de her statement which he recorded. It may be noted that the examination by Doc tor and recording of statement of the victim were done on the following day of t he occurrence when everything was fresh in her mind. If one reads her statement with the medical report it will be clear that the injuries she received, as rec orded by the Doctor fit in the assault committed on her. She categorically state d that it was the accused Jainal Haque who entered the house, lifted her out aft er assaulting both the informant and the victim. The medical report does not co nfirm that she was raped and as such the learned trial court rightly discharged the accused appellant of the charge of section 376 IPC. I have no different view to take and I agree with the learned trial court with the aforesaid finding and conclusion. At the same time I feel it necessary to examine the matter connecte d with other charges under Sections 458/506 IPC. 11. It is surprising that both the informant and the victim, at the time of recording their evidence during trial made no statement to the fact that the accused Jainal Haque trespassed into their house and committed alleged off ence. It has given rise to a legal question that the charges u/s. 458/506 IPC ha ve not been proved and he should be acquitted. The defence has to say that state ment u/s. 164 Cr.P.C. can never be used as substantive evidence on the truth or falsehood of the facts. It can be used only for contradictions or corroboration of the witnesses who made it. Let me have a look at the evidence of both the PW- 4 and 5. The victim was examined as PW-4. She stated that she knows the accused who lives at a distance of 3 kilometres away from her house. There is a bridge over the Nanoi river. The village defence party gathers at the said bridge f or patrolling. In the night of incident at 1-30 a.m. a group of more or less 20 persons came to their house. There were two guests in informant’s house. They w ere sleeping in their house. They were beaten up and driven out by the VDP pers ons. They also brought her out along with her mother. Her mother lodged the FIR and the police came for investigation and interrogation. The police seized her under wear and garments. In cross-examination she confirmed that her mother lodg ed the FIR with Pathorighat police outpost situated on the north of their house. She has not made any mention about the visit of the accused person to her house . She mentioned only about the visit of the village defence party. Interestingly the prosecution did not request the trial court to declare the PW-4 as a hostil e witness so as to take the advantage of cross-examining her and get the fact c larified from her. As this vital witness was not declared hostile, the prosecuti on could not confront or contradict her with her statement recorded u/s. 164 Cr. P.C. Had the victim, PW-4 been declared hostile, the prosecution would have got the chance to cross-examine and get an explanation as to how she received the i njuries found on her body after medical examination or who caused the said injur ies on her person. It is noteworthy that she has not stated in her deposition th at the Ejahar was lodged by her mother on being forced or at the instance of th e VDP people or other person, nor has it been stated by her that she made the s tatement u/s 164 Cr.P.C. out of fear or at the instance of the VDP persons or ot her elements. It was argued that if the said FIR was filed by her mother, and the statement u/s. 164 Cr.P.C. were made by the victim, she would have deposed so before the learned trial court. At the same time the victim never said that the accused is not known to her or he did not come to her house on the particul ar night of the incident. It may also be noted that the accused did not assault her and her mother in that night. 12. As per discussion made earlier, particularly on the basis of the evidence of Banamali Boro, PW-2, accused Jainal Haque came to the house of the informant in the said night. The village defence party also came to the house of the informant after hearing the hullah and if the evidence of PW-4 and 5 is to be believed that the village defence party asked them to file Ejahar against the accused Jainal Haque, it stands proved that it is the accused Jainal Haque who visited or trespassed in the informant’s house and committed the alleged offence . If it is so the argument of the defence that since the informant and the victi m stated nothing against the accused Jainal Haque, it would loose its weight a nd the court has to give weightage to other evidence available on record. The o ther evidence in this case would mean the evidence of PW-2, PW-1 (Medical Office r) and his report Ext. 3 and also the evidence of PW-7 Jogesh Hazarika who recei ved the written Ejahar at the outpost. The statement u/s. 164 Cr.P.C., although it is not to be treated as substantive evidence, it can be acted upon if there are other circumstances on record which lend support to the truth of the evidenc e of such witnesses. There is no bar, in fact, it is open to the court to accept the evidence of an witness whose statement was recorded u/s. 164 Cr.P.C. but th e salient rules of caution must always be borne in mind for such witnesses feel tied to their previous statement given on oath and have but a theoretical freed om to depart from the earlier version. The said rule of caution has been laid down in Ram Charan and others Vs. State of U.P. reported in AIR 1968 SC 1270, which was followed in Baluk Ram & another-vs- State of U.P(AIR 1974 SC 2165), wh erein it is held that when a statement of an witness is previously recorded u/s. 164 Cr.P.C., it leads to an inference that there was a time when the police tho ught the witnesses may change but if the witnesses sticks to meet the statement made by him throughout the mere fact that his statement was previously recorded u/s. 164 Cr.P.C. will not be sufficient to discard it. However, the court ought to receive it with caution and if there are other circumstance on record which l ends support to the truth of the evidence of such witnesses, it can be acted upo n. In my considered view, in the present case, there are enough ’other circumsta nce’ on record, like the visit of the people from the village defence party, who as per the version of the informant and the prosecutrix advised them to file Ej ahar against the accused Jainal Haque, the evidence of PW-2 Banamali Boro who t estified the presence of the accused and denied the suggestion that he stated b efore the Police that he made allegation only after having come to know about th e incident from the informant PW-5, medical evidence confirming that the victim girl sustained injuries on her person lending strong support to the prosecution case against the accused appellant. 13. On consideration of the entire facts and circumstances of this c ase and on appreciation of the evidence on record, both oral and documentary I h old that the prosecution has been able to prove the charge u/s. 458/506 IPC agai nst the accused appellant and accordingly I uphold the impugned conviction and s entence as awarded by the learned trial court in Sessions Case No. 40(DMFT)/ 200 2. 14. The appeal stands dismissed. Bail bond stands cancelled. The con vict appellant shall surrender before the learned Ad hoc Addl. Sessions Judge, D arrang, Mangaldoi forthwith to serve the sentence, failing which, appropriate st eps be taken in accordance with law. 15. Return the LCR.