MST SAKEENA Vs. MOHAMMAD HUSSAIN SHEIKH AND ANOTHER

JUDGEMENT

(1.) What is evidentiary value of statement of a witness recorded under Section 164-A Code of Criminal Procedure, who passes away before appearing in witness box, is the question raised in Criminal Revision Petition on hand. Trial Court, while recording judgment of acquittal, did not take notice of statement of deceased recorded by Chief Judicial magistrate, Ganderbal, on 13th September 2012 under Section 164-A Cr.P.C., during investigation of the case. Statement of deceased (victim) was not even put to accused-respondent herein, under Section 342 Cr.P.C. and he offered an opportunity to put forth his explanation. The Trial Court omitted to put the statement to the respondent, notwithstanding the fact that P.Ws. Sakina and Imtiaz Ahmad, stated that such a statement was made by victim before and recorded by Chief Judicial Magistrate, Ganderbal. Controversy arises against following backdrop.

(2.) Mst. Sakina wife of Late Mohammad Shafi Famda resident of Garkul, Arhama, Ganderbal-petitioner herein, on 11th September 2012, lodged a written report with Police Station Ganderbal, alleging that respondent-accused No. 1, sometime before the report was lodged (April 2012) visited her house at Garkul, Arhama, in her absence and committed rape on her minor daughter, leaving her pregnant. It was alleged that victim, at the time of occurrence, was confined to her home because of broken limb and respondent on promise of getting relief sanctioned in her favour, gained access to her and was able to accomplish his design. It was stated that victim did not disclose occurrence to complainant or anyone else, and occurrence came to light when victim complained ailment, was taken to local hospital for medical check-up and pregnancy detected. The report prompted Police Station Ganderbal to register case FIR No. 169/2012. The Investigating Officer during investigation got statement of victim under Section 164-A Cr.P.C., recorded by Chief Judicial Magistrate, Ganderbal. Investigating Officer recorded statement of complainant, victim and other witnesses and concluded investigation as proved against respondent. Accordingly, charge sheet alleging commission of offence punishable under Section 376 Cr.P.C. was presented against respondent before Chief Judicial Magistrate, Ganderbal, on 15th October 2012. Statement of victim-P.W. 2, recorded under Section 164-A Cr.P.C. was appended to charge sheet. The case on 15th October 2012 itself was committed to Court of Sessions for trial.

(3.) Respondent was formally charged of offences punishable under Section 376 RPC. He denied charge and asked for regular trial. Prosecution was, therefore, asked to adduce evidence in support of charge. All witnesses except victim of alleged occurrence crossed witness box. Trial court was informed on 29th November 2012 that victim was no more. She was, accordingly, deleted from list of witnesses. Learned Sessions Judge on 29th December 2012 put incriminating material come across in prosecution evidence to respondent as required under Section 342 Cr.P.C. Respondent was given an opportunity to offer his explanation, if any, to material so put. Trial Judge, however, did not put statement of P.W.-2, recorded under Section 164-A Cr.P.C., to respondent nor was reference to such statement made by other prosecution witnesses put to him. Respondent did not lead any evidence in defence. Trial Court upon perusal of record and on hearing public prosecutor and counsel for accused, held prosecution to have failed to prove its case against respondent. Charge sheet was dismissed on 4th January 2013 and respondent acquitted of charge.