RAM PYARI Vs. UT OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This is a petition by the petitioner seeking a direction to the SHO P/S Nagrota to get the statement of the petitioner (prosecutrix) re-recorded under Sec. 164-A CrPC before the concerned Judicial Magistrate.

(2.) In the petition, the petitioner has averred that, on the basis of a complaint lodged by her, two persons, namely Digdev Singh and Kirpal Singh were booked in FIR No. 105/2018 under Sec. 376 RPC on 10/5/2018. The petitioner submits that, due to the intervention of respectable citizens of the locality, the civil dispute between the parties was settled amicably. The petitioner claims that, she being an illiterate lady, was not read over and explained the contents of the impugned FIR by its scribe and, therefore, true facts could not be projected in the FIR. It is submitted that Digdev Singh and another, the accused in the impugned FIR also approached this Court through the medium of CRMC No. 279/2018 in which this Court has stayed the investigation except recording of statement of the prosecutrix. The petitioner further states that, at the relevant time when the statement of the petitioner under Sec. 164-A CrPC was recorded, she was in shock and, therefore, could not narrate the true facts. In these circumstances and relying upon the judgment of this Court passed in CRM(M) No. 188/2020, learned counsel for the petitioners prays for a direction to the SHO P/S concerned to get the statement of the petitioner re-recorded under Sec. 164-A CrPC.

(3.) Whether or not the statement of a witness under Sec. 164 CrPC can be re-recorded by the Judicial Magistrate is no longer res integra. Ordinarily, there is no bar for re-recording such statement, but such course is not to be adopted in the ordinary course of things. A decision to re-record the statement of a witness under Sec. 164 CrPC has to be taken by the Investigating Officer after formulating an opinion that re-recording of further statement of a witness is necessary in furtherance of investigation of the case. The Investigating Officer, while formulating his opinion in this regard, has to take into consideration the evidence and material collected by him during the investigation and not to get influenced by the end result of the investigation.