Imran Gauri Vs The State Of Maharashtra: Section 164 Of CrPC Needs To Be Amended By The State & The Central Government

CRUX:
Imran Gauri v. State of Maharashtra (31st March, 2021)- The issue that the present case deals with is whether or not the provisions of Sec. 164 of the Criminal Procedure Code should be amended.

DATE OF JUDGMENT:
31st March, 2021.

JUDGES:
Prasanna B Varale, Shriram M Modak.

PARTIES:

• Imran Gauri (Appellant)
• State of Maharashtra (Respondent)

SUMMARY:

The following case deals with the issue of whether or not the provisions of Sec. 164 of the Criminal Procedure Code should be amended.

OVERVIEW

1. The appellant in the present case was accused of sexually assaulting his own daughter.
2. The trial court convicted the appellant under the provisions of Sec. 376 (2) (i), 506 of the Indian Penal Code and under Sec. 4 of POCSO Act.
3. As the appellant had obtained nude photographs of the victim on his mobile handset on various dates, the trial Court convicted him for the offence punishable under Sec. 67-B of the Information Technology Act, 2000.
4. The trial Court acquitted him for the offence punishable under section 323 of IPC.
5. The appellant approached the High Court seeking correctness of the aforementioned judgment of the trial court.

ISSUES

The following issues were analyzed by the court:

• Whether or not the provisions of Sec. 164 of the Criminal Procedure Code should be amended.
• What is the evidentiary value of a statement of victim recorded by learned Magistrate under section 164 of Criminal Procedure Code particularly when victim has not supported the prosecution?

IMPORTANT PROVISIONS

• 376 (2)(i) of the Indian Penal Code: Punishment for sexual assault.
• Sec. 506 of the Indian Penal Code: Punishment for criminal intimidation.
• Sec. 4 of POCSO Act: Punishment for penetrative sexual assault.
• Sec. 67-B of the Information Technology Act, 2000: Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.
• Sec. 164 of Criminal Procedure Code: Recording of confessions and statements.

ANALYSIS OF THE JUDGMENT

1. The counsel of the appellant raised several contentions, including the act of resiling by the victim while giving evidence before the Court. It included wrong approach of the trial Court in believing the statement of the victim recorded under Sec. 164 of Criminal Procedure Code.
2. The counsel for the appellant included not establishing the link in 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.
3. The counsel for the respondent refuted these contentions by relying upon certain judgments to buttress the submission that few of the 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.
4. The victim, however, had chosen to not speak before the court to describe the incident. Therefore, the court sought out to ask the question of whether it can conclude about guilt of the accused on the basis of all sorts of corroborative evidence.
5. The court held that the trial court was fully conscious of the evidentiary value of Sec. 164 of the CrPC. It held that the trial Court observed that such statement can be used for corroboration or for contradiction.
6. The court held that the use for the purpose of contradiction can be by both the sides that is to say the party who has called witness (only after taking leave of the Court) and the party against whom the witness entered into witness box (for which leave was not required).
7. On the basis of this evidence, the Trial Court concluded that the accused is involved in obtaining pornographic images of victim girl and it supports the case of prosecution (paragraph 30). Furthermore trial Court held that the accused has obtained pornographic clips and recorded video shooting of victim girl. The Trial Court held that "offence under section 67-B of the Information and Technology Act is proved.
8. The High Court held that electronic evidence also needs to be proved just like any other evidence. Forensic Science Laboratory expert who has viewed the image files and video clips in the laboratory can certainly give information of that. It cannot be considered so far as involvement of the accused for offence under the POCSO Act and the Indian Penal Code.
9. Therefore, based on the above observations, the court upheld the conviction of the appellant for offences under the provisions of Sec. 67-B of the Information Technology Act but acquitted the appellant for offences under the provisions of Sec. 164 of the CrPC.

CONCLUSION

The issue that the present case deals with is whether or not the provisions of Sec. 164 of the Criminal Procedure Code should be amended. The court, in the present case, held in the positive and held that legislatures will also consider the practical realities of the life which the victim has to face.

The court, in its view, sought to refer the judgment given by the Supreme Court in the case of State of Karnataka by Nonavinakere Police vs. Shivanna @ Tarkari Shivanna ((2014) 8 Supreme Court Cases 913), which held that if the evidence is recorded for the first time itself before the Judicial Magistrate under section 164 CrPC and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defense to cross examine them with further liberty to the accused to lead his defense witness and other evidence with a right to cross examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast track procedure to the Fast Track Court to resort to.

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