The trauma of a victim does not end with the incident and real-life issues may compel a victim to forgo all the trauma which she had undergone: Bombay High Court
The trauma of a victim does not end with the incident and real-life issues may compel a victim to “forgo all the trauma which she had undergone and to take U turn,” at the time of trial. This was held in Imran Shabbir Gauri vs The State of Maharashtra [CRIMINAL APPEAL NO. 831 OF 2015] in the High Court of New Delhi by division bench consisting of Honourable Justice Prasanna B. Varale &amp; S.M. MODAK.  The facts consist the man took the young girl to the bungalow where he was working, sexually assaulted her, and threatened her of dire consequences if she spoke about the incident to anyone. This was allegedly done several times. He also took victims nude images and threatened to publish them on social media. The case came to light when the girl narrated the incidents to her sister, who in turn informed the mother. The counsel for the appellant argued that the victim had not supported her case before the trial court, and the court had had wrongly convicted his client by relying on the victim’s statement u/s 164 of the CrPc. The Bench opined that the trial court could not have relied on the victims 164 statement to convict the accused, calling it “corroborative evidence,” in the absence of her testimony. We fail to understand what the trial court meant to say, corroboration of which fact? If the evidence of the principal fact is not there, the evidence adduced of the subsequent fact how it can be used for corroboration.” The court observed that the victim was the “sole witness” of the incident and this didn’t seem like a case where she was initially tutored to make allegations against the father. “It is difficult to opine what compelled the victim not to state those facts which she has stated before the police.” Lastly, the Bench said in the zeal of protecting the interest of the victim, it cannot give go-bye to accepted principles.
 on 03 04 2021 on 12 04 Cri.Appeal 831.2015 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 831 OF 2015Imran Shabbir GauriAge: 39 years r o. Flat No.14 Deoashish Building Near Poornima Bus Stop Vaidya Nagar Dwarka Nashik at present in NashikCentral Prison Nashik. ...Appellant VersusThe State of MaharashtraThrough the Bhadrakali Police StationNashik ...Respondent Mr. Aniket Vagal for the AppellantDue to globalization boundaries of nations have disappeared.During olden days certain relations were considered as sacrosanct.That is to say relationship in between brother and sister relationship inbetween mother and son relationship in between father and daughterand so on were considered as sacrosanct. However due to passage oftime these relationships have no more remained sacrosanct and thereare various instances of overstepping the sacrosanct relationship by thenear relationship. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 22. One of such instance took place when the present appellantsexually abused his own daughter victim. Though there are twoviews that is to say whether the victim was a real daughter or a stepdaughter. But the fact remains that she is victim3. The Special Judge under the The Protection of Children fromSexual OffencesAct 2012 and the Additional Sessions Judge Nashik had come across the case wherein there was grievance of suchsexual abuse by the father the present appellant. After the trialTrial Court convicted the appellantfor the offence of section 376(i) 506 of IPC and under section 4 ofPOCSO. By taking re course to the provision of section 42 of the saidAct separate sentence was not imposed for the offence under section 4of the said Act. As the appellant had obtained nude photographs of thevictim on his mobile handset on various dates the trial Court convictedhim for the offence punishable under section 67 B of The InformationTechnology Act 2000. The trial Court acquitted him for the offencepunishable under section 323 of IPC. The correctness of the saidjudgment is challenged on behalf of the appellant. 4. We have heard Mr. Wagal the learned Counsel for theappellant and Mrs. Deshmukh the learned Addl. P.P. for theRespondent. Both of them have assisted us in going through the record.5. Prosecution has in all examined 8 witnesses. Defence ofappellant is that of denial. As the victim has not deposed the actual on 03 04 2021 on 12 04 Cri.Appeal 831.2015 3incident which took place the appellant thought it comfortable and hehad chosen to take only defense of denial.6.. O n the point of actual incident victim PW 1 was the solewitness. It is but natural. Such incidents always take place in secrecy.Prosecution has not attempted to examine any witness on the point ofpost incident narration to near and dear ones by the victim. Prosecutionthought it fit not to do that futile exercise. No one could havesupported. Because during perusal of record we find one affidavit dated1 6 9 2011 sworn by S mt. Bhuri Imran Gauri mother of the victim. This was filed at the stage ofhearing of bail application of the accused. Trial Court has taken note ofthe said affidavit and was pleased not to consider it while rejecting bailrequest on 24 9 2014.7. On this background prosecution does its best to prove theoffence by adducing legal evidence. The investigating agency wasconscious of their responsibilities. Investigating Officer S mt. Naik PW 7arranged for recording statement of the victim under section 164 of theCode of Criminal Procedure. During trial also learned APP in chargehas taken pains in examining the learned Magistrate Smt. Gaikwad PW 2 who recorded the statement.8. She has deposed to the fullest extent on the point of complianceof procedure and also about what victim deposed before her. LearnedAdditional Sessions Judge accepted her evidence o n t he point of examination of the victim. Prosecution examined medical officer D r. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 4Nareshkumar Bagul PW 6 and lady police constable S mt C haure PW 4 was examined on the point of overall investigationcarried out.12. Several contentions are raised on behalf of the appellant. Itincludes the act of resiling by the victim while giving evidence beforethe Court. It includes wrong approach of the trial Court in believing thestatement of the victim recorded under section 164 of Cr.P.C. It includesnot establishing the link in between the conclusion drawn by theForensic Science Expert2.Whether learned Additional Sessions Judge was right inaccepting the evidence of learned Magistrate3.Whether learned Sessions Judge was right in concluding aboutguilt of the accused for the offence punishable under section376(i) 506 of IPC on the basis of other corroborativeevidence 4.Whether learned Additional Sessions Judge was right inconvicting the appellant for the offence under section 67 B ofIT Act particularly when victim has not supported 14. The present case is based on direct and corroborative evidence.Unfortunately the victim had chosen not to speak about the incidentbefore the Court. So the crucial question is whether we can concludeabout guilt of the accused on the basis of all sorts of corroborative on 03 04 2021 on 12 04 Cri.Appeal 831.2015 6evidence. While arriving at the guilt of the accused trial Court referredto following circumstances in its judgment.a)Though the victim has not supported the case of prosecution the trial Court has considered the evidence of lady PoliceConstable PW 4 Naman Bhila Chaure and evidence ofMedical Officer PW 6 Dr. Nareshkumar Bagul and inferredthat why the victim was referred for medical examination(even though she was not sexually abused) b)The trial Court further observed that the accused has notgiven any explanation. Though the victim has resiled trialCourt has referred to the evidence of Judicial Magistrate PW 2 Janabai Gaikwadand further referred to thedates incidents narrated by the victim in such statement. c)The trial Court was fully aware of the legal provisionspertaining to evidentiary value of Section 164 of Cr. P. C. stillwhile arriving at the final conclusion referred to avernmentsin such statement.d)From the 4 mobile handsets seized from the person ofaccused the Forensic Expert has opined about pornographicimages found in them and the trial Court has relied upon thesame even though there is no substantive evidence.e)Trial Court on the basis of finding that hymen was torn thetrial Court arrived at an opinion that it is but natural for a on 03 04 2021 on 12 04 Cri.Appeal 831.2015 7Medical Officer to give an opinion about the absence ofrecent sexual intercourse. f)Trial Court considered the time gap in between the dates ofincidents and date of examination bythe Doctor on 27 5 2014.EVIDENTIARY VALUE OF STATEMENT UNDER SECTION 164 OF CR.P.C.15.When we have read the judgment we find that the trial Courtwas fully conscious of legal provision about the evidentiary value of thestatement under section 164 of Cr.P.C. At more than one place trial Courtobserved “such statement can be used for corroboration or forcontradiction". Use for the purpose of contradiction can be by both thesides that is to say the party who has called witness and the party against whom the witness entered intowitness boxto sub sectionof Section 164 of Code of CriminalProcedure cross examination is not contempalted. Amendment carriedout in the year 2013 by incorporating subsection(a) mandates thejudicial Magistrate to record the statement of a witness under certainprescribed offences. Whereas sub section(b) gives status to suchstatement in lieu of examination in chief as specified under section 137 ofthe Indian Evidence Act. However such upgradation is not madeuniversal. It is only when the maker is disable either mentally orphysically. This is not a case before us.18.Whereas section 26 of the Protection of Children from SexualOffences Act 2012 says about audio video graphic exercise of recordingthe statement. There are also safeguards under section 24 and 25 of thesaid Act. Still we have got no provision wherein the statement undersection 164 of Cr.P.C. has been given status of examination in chief. One on 03 04 2021 on 12 04 Cri.Appeal 831.2015 9does not know how much time it will take for legislatures to bring anamendment in the Act. We say so because Hon’ble Supreme Court in thecase of State of Karnataka by Nonavinakere Police vs. Shivanna @ TarkariShivanna1 has expressed a wish for giving status to statement as anexamination in chief."5. What we wished to emphasize is that therecording of evidence of the victim and other witnessesmultiple times ought to be put to an end which is theprimary reason for delay of the trial. We are of the viewthat if the evidence is recorded for the first time itselfbefore the Judicial Magistrate under section 164 Cr.P.C.and the same be kept in sealed cover to be producedand treated as deposition of the witnesses and henceadmissible at the stage of trial with liberty to thedefence to cross examine them with further liberty tothe accused to lead his defence witness and otherevidence with a right to cross examination by theprosecution it can surely cut short and curtail theprotracted trial if it is introduced at least for trial ofrape cases which is bound to reduce the duration oftrial and thus offer a speedy remedy by way of a fasttrack procedure to the Fast Track Court to resort to."19.Still as per our knowledge no such amendment has come intoeffect. Learned Advocate Vagal for the Appellant relied upon certainjudgments on the point of evidentiary value of such statement:1.Ram Kishan Singh vs. Harmit Kaur and another22.T. Diwakara & Ors. vs. State of Karnataka3 3.R. Palaniamy vs. State by Inspector of Police418 Supreme Court Cases 9132 AIR 1972 Supreme Court 46832006 Cri. L. J. 48134 Criminal Appeal No.1513 on 03 04 2021 on 12 04 Cri.Appeal 831.2015 104.Pankaj vs. State of Himachal Pradesh520.We have perused those situations. On reading them it is clearthat the Court has taken a consistent view “that section 164 Statementcan be used only for the purpose of corroboration or contradiction and itcannot be treated as substantive evidence" Some of the judgmentsreferred above involves commission of offence under section 376 of IPC.Law on the point of “sole testimony of prosecutrix is sufficient withoutcorroboration” is well settled. So the Court can rely upon the soletestimony of prosecutrix even without looking for corroboration. 21.It is one thing to say that "sole testimony withoutcorroboration is sufficient" and other thing to say that "section 164Statement is not substantive evidence and it can be used for contradictionor corroboration” . We have to understand that the Court gives a verdicton the basis of evidence before the Court. Whatever material is collectedduring investigation can be converted into an evidence only when certain witnessdeposes before the Court. This can be same logic when the maker givesstatement before the Magistrate that is the exercise involving the makerand the Magistrate only. Persons against whom such statement is going tobe used has no locus standi at that time. Even in case of T. Diwakara(cited supra) the High Court at Karnataka has opined about institution ofprosecution for forgery if the maker refuses to abide to section 164Statement. 22.High Court at Madras in case of R. Palanisamy of IPC. While convicting the appellant the trialCourt has taken into consideration the statement by the victim to theDoctor Statement made by the victim under section 164 of Cr. P.C. certain answers given by the accused and demeanor of the victim. Afterscrutinizing the evidence and necessary provisions of law conviction wasset aside.FACTS OF THE CASE23.So we have to analyze the evidence adduced by theprosecution in totality and to ascertain whether conclusion of the TrialJudge can be said to be legal and proper. Even though morally and legallywe can not think of a situation wherein father has raped his minordaughter but it is correct that Court is bound by rules of law. Even thoughsuch instances involving such relationship are on rise can Court take intoaccount the evidence which is not admissibleand convict the wrong doer just for thepurpose of sending a message in the society Though we agree that suchinstances are on rise unfortunately we can not take such a view bybypassing the provisions of law. Still we have to wait for the amendmentin the law. At the most we can express and direct that the concernedauthority may initiate the process for carrying out amendment in the law. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 12EVIDENCE OF JMFC24.Trial Court considered the fact of "making preliminary enquiryby PW 2 Janabai Gaikwad with the victim" and got herself satisfied by thevoluntariness. Trial Court was conscious about the purpose of recordingstatement under section 164 of Cr.P.C. There cannot be any dispute aboutit. "Witness should not change the stand by denying the statement" is oneof the purpose and second purpose is to tie over immunity from theprosecution by the witness. Trial Court was conscious of the limited use ofsuch statement. One of that is corroborative use. Trial Court observed "iflegal position is considered definitely it will corroborate circumstancesthat pornographic images are found in the mobile phone of the accusedwhich are recovered from his person"there exist a fact. Inother words there is one principal fact which is in existence and forsupporting that fact another evidence is adduced. So evidence given byway of corroboration cannot be said to be the substantive evidence. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 13 CORROBORATION26.So when the trial Court opined that section 164 statement canbe utilized by way of corroboration we fail to understand what the trialCourt mean to say corroboration of which fact If the evidence ofprincipal fact is not there the evidence adduced of subsequent fact how itcan be used for corroboration. Trial Court has failed to consider thisdifference and infact has considered section 164 statement as asubstantive evidence itself. This is not permissible. We are inclined to setaside that observation.EVIDENCE ABOUT SEIZURE OF MOBILE PHONES27.On the point of seizure we have got the evidence of panchwitness PW 5 Jifran Shabbir Guari and the Investigating Officer PW 7 Mrudula Manoj Nayik. Panch witness Jifran Shabbir Guari is the brotherof the accused. It is but natural for him not to depose against his ownbrother. The prosecution could have examined another panch witnessTanveer Sayyed who has witnessed the seizure as per form at Exhibit 43.On certain aspects the trial Court has believed the Investigating Officer. Itis true that even if the witness has not supported the prosecution case theevidence of Investigating Officer can be believed upon. The logic is whythe Investigating Officer will tell lie. However this proposition cannot besaid to be correct proposition every time. When the Investigating Officerhas witnessed the seizure from the person of the accused what hedeposes before the Court is about the facts which he had seen personally.So the trial Court was right in believing the Investigating Officer. Sofar as on 03 04 2021 on 12 04 Cri.Appeal 831.2015 14seizure of 4 mobiles one sim card and one pendrive is concerned now wehave to see to what extent this will be useful to the prosecution. EVIDENCE OF VENDOR28.Out of these 4 mobiles the accused purchased Intex Acquamobile from PW 3 Beg Rayis Rustam. Invoice is at Exhibit 29 and it isproved through him. The trial Court refused to accept itThe identity of the victim shown in the DVDis not proved in the CourtSaid evidence cannot be said to be substantive evidence.36.Trial Court has accepted it against principles of appreciation ofevidence. Even when any article just like weapon clothes are sent to CA the Court uses the CA report but at the same time prosecution used toadduce evidence by way of producing those articles. No doubt question of on 03 04 2021 on 12 04 Cri.Appeal 831.2015 18identification of the articles is not in question. This example is given onlyfor the purpose of understanding under what circumstances the evidenceof CA report or FSL report is to be accepted in evidence.37.So we are not inclined to accept the report of FSL atleast forthe purpose of inferring that it is the accused only who has taken thoseimages or done recording. At the most it can only be said that in thearticles referred in FSL report some pornographic images were found.Except denial accused has not explained as to how they were found it it.SPOT PANCHANAMA38.It is true that the defence has admitted the spot panchanama.It is at Exhibit 21. It is not described as spot panchanama but it isdescribed as Crime Details Form. The contents are more or less just likethe spot panchanama. Spot is situated in the Laxmi Bunglow which issituated near Dwarka Circle Nashik. Trial Court has rightly drawn aninference on the basis of admitted spot panchanama. Police havecollected the sample of dried yellow liquid. It would be material toconsider the report of CA which is at Exhibit Nos.32 33 and 34. Exhibit32 is the report of analysis of blood pubic hair and nail clips of theaccused. No semen was found. However blood group from the sampleblood was found to be of "A" group whereas Exhibit 33 belongs to pubichair nail clips vaginal swabs and other articles. Blood group of the victimwas found to be of "A" group on the basis of analysis of nail clippings vulval swabs and vaginal swabs. No semen was detected. Whereas Exhibit34 is the report of analysis of scrapping of yellow liquid. It was driedsemen and of group "A". on 03 04 2021 on 12 04 Cri.Appeal 831.2015 1939.Trial Court in paragraph No.27 has referred to these CAreports and analysis. Furthermore trial Court has co related blood group"A" from the dried semen with the place where this yellow liquid wasfound that is to say in the Laxmi Bunglowof IPC accused was alsoconvicted under section 506 of IPC and was acquitted under section 323of IPC. We can find reasoning in paragraph No.15 and 51 of the impugnedjudgment. We fail to understand the logic for applying one yard stick forthe offence under section 323 and different yard stick for the offenceunder section 506 of the IPC. While acquitting the accused for the offenceunder section 323 of IPC the trial Court observed "she has left loyaltytowards the prosecution and therefore there is no evidence regarding theassault on victim girl by the accused". Admittedly she was examined after7 8 days and therefore there would not be any evidence about the assault.43.However while convicting the accused for the offence undersection 506 of IPC trial Court had chosen to take help of recitals insection 164 Statement of Cr.P.C. There is reference of threatening by theaccused( Paragraph 51). As said above and even by the trial Court section164 statement is not a substantive evidence still the trial Court cannotresist herself from using recitals in the statement and considered it assubstantive evidence. We disagree with the approach of the trial Courtand conclusion drawn on that basis.OFFENCE UNDER THE INFORMATION AND TECHNOLOGY ACT44.On the basis of nude photographs of the victim girl andpornographic images found in the mobile phone trial Court has convictedthe appellant accused for the offence punishable under section 67 B ofthe Information Technology Act. We agree to this finding to certain extent.We have already discussed the evidence on the point of seizure of the on 03 04 2021 on 12 04 Cri.Appeal 831.2015 22mobile phones during personal search of the accused and analysis done ofthese mobiles by the Forensic Laboratory. We have already referred topornographic images of victim and certain jpeg. image files of the girlvictim found in the memory card. We are not inclined to connect theseimages to the victim for want of identification. Whatever the Expert hasmentioned is on the basis of information given to them by the police.However we are inclined to accept the analysis to certain extent that is tosay pornographic images were found in it. 45.Section 67 B of the Information & Technology Act defines andlays down punishment for sexually explicit act depicting children inelectronic form. It is true that there is no evidence that these images wereuploaded anywhere. There is no evidence that it is transmitted to anyother person in any manner. However depicting the children in obscene orindecent or sexually explicit manner in electronic form is punishableunder section 67 Bof the Information Technology Act. We feel that theact of the accused certainly falls within clauseto sub section 5A to Section 164 ofCr.P.C.). Though Hon ble Supreme Court in case of Shivanna @ TarkariShivannahas expressed desire to consider the statement asexamination in chief amendment to that effect is not brought to ournotice. So with all pains we have no alternative but to set aside convictionof the appellant for the offence punishable under section 376(2)(i) of IPCand under section 506 of IPC. We are maintaining conviction undersection 67 B of the Information & Technology Act.48.We take this opportunity to opine that the concernedauthorities of the State Government or Central Government will takesome initiative in incorporating certain amendments under relevant lawsso as to give status to section 164 statement as that of examination in chief in all eventualities. We hope that legislatures will also consider thepractical realities of the life which the victim has to face. The traumawhich victim has to undergo after the incident does not stop there andwhen it comes to facing the real life issues there may be occasion for thevictim to forego all the trauma which she had undergone and to take U on 03 04 2021 on 12 04 Cri.Appeal 831.2015 24turn. We feel that similar thing has happened in this case. At the sametime we have recognized the accepted principles of appreciation ofevidence and in the zeal of protecting the interest of the victim we cannotgive go bye to these accepted principles. In order to avoid similar situationin future we feel that appropriate authorities will speed up the process ofmaking amendment as mentioned above. Hence the following order ispassed:ORDERa)Appeal is partly allowed.b)The judgment dated 15 7 2015 passed by Special Judge &Additional Sessions Judge 3 Nashik in Sessions CaseNo.207 2014 thereby convicting the appellant for the offencepunishable under section 376and 506 of IPC is setaside.c)Conviction under section 67 B of the Information &Technology Act is maintained.d)The accused be set at liberty if he has already undergone thesentence for the offence punishable under section 67 B of theInformation & Technology Act and if not required in anyother case.e)Registrar Judicial I is directed to send a copy of this judgmentto the Secretary of Law and Justice Department Governmentof Maharashtra and the Central Government forconsideration and appropriate action about the viewsexpressed above. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 25 f) Rest of the order is maintained. (PRASANNA B. VARALE J.) 