Statewide guidelines issued to ensure accused receive Section 164 statements and investigators review them before filing chargesheets in criminal cases

The appellant, a Home Guard allegedly deputed for law-and-order duty in Kolar, became acquainted with the victim and developed a relationship with her.

The prosecution alleged that on 8 May 2019 he called the victim to Court Circle, took her to Bengaluru and thereafter to Thoranagal, Bellary District, where he had sexual intercourse with her at the house of Ramaswamy, despite knowing that she was a minor.

The victim’s mother lodged a missing-person complaint on 11 May 2019, initially alleging an offence under Section 363 IPC; subsequently, Sections 376 IPC, 4 and 6 of the POCSO Act, and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act were added.

The trial Court convicted the appellant under Sections 363 and 376(2)(n) IPC, Section 6 of the POCSO Act, and Section 3(2)(v) of the SC/ST (PoA) Act, imposing sentences including life imprisonment under the SC/ST (PoA) Act.

Whether the prosecution proved beyond reasonable doubt that the victim was a “child” under Section 2(d) of the POCSO Act on the date of the alleged offence?

Whether the prosecution proved that the appellant committed rape punishable under Section 376(2)(n) IPC read with Section 6 of the POCSO Act?

Whether the prosecution proved that the appellant committed the offence of kidnapping under Section 363 IPC?

Whether the prosecution proved the offence under Section 3(2)(v) of the SC/ST (PoA) Act?

Whether the conviction under Section 376(2)(n) IPC was legally sustainable when the trial Court had framed a charge only under Section 376 IPC?

The Court applied Section 2(d) of the POCSO Act, requiring the prosecution to establish that the victim was below eighteen years of age, and Sections 29 and 30 of the POCSO Act, while reiterating that such presumptions operate only after foundational facts are proved.

Under Section 363 IPC, the prosecution must prove taking or enticing a person from the lawful guardianship of the guardian.

Section 376(2)(n) IPC requires proof of rape committed more than once upon the same victim; conviction for that aggravated offence without a specific charge may be sustained only where no prejudice is caused under Section 464 Cr.P.C. and the aggravated ingredients were implicit in the charge, applying Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, Annareddy Sambasiva Reddy v. State of Andhra Pradesh, (2009) 12 SCC 546, and State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372.

The Court also applied Sections 164(5) and 207(iv) Cr.P.C., holding that the accused is entitled, as part of the Article 21 fair-trial guarantee, to the statement recorded under Section 164(5), relying on Jessica Lal murder appeal, P. Gopalakrishna @ Dileep v. State of Kerala, (2020) 9 SCC 161, Miss. ‘A’ v. State of Uttar Pradesh, Criminal Appeal No.659 of 2020, and Tarun Tyagi v. CBI, (2017) 4 SCC 490.

Proof under Section 3(2)(v) of the SC/ST (PoA) Act additionally required material showing that the accused knew the victim’s caste and committed the offence on that basis.

Entries in school records are admissible under Section 35 of the Evidence Act but their probative value depends on the source and reliability of the information, as explained in Satpal Singh v. State of Karnataka, (2010) 8 SCC 714, relying on Vishnu v. State of Maharashtra, (2006) 1 SCC 283.

The Court held that the victim’s age was not proved beyond reasonable doubt.

Although the school records recorded her date of birth as 1 October 2003, the Headmaster admitted that the underlying birth certificate or hospital/municipal document submitted at admission had not been produced.

The Investigating Officer also failed to collect the victim’s SSLC marks card, and the radiological opinion placing her age between fifteen and seventeen was not properly supported by the X-ray and underlying reports.

Consequently, the foundational fact necessary for applying the POCSO Act was absent.

The victim’s testimony was also found materially unreliable.

Her Section 164(5) statement did not allege kidnapping or sexual assault, whereas she made such allegations for the first time during trial.

The prosecution had not furnished that statement to the accused under Section 207(iv) Cr.P.C., thereby impairing his right to confront the witness and causing prejudice to a fair trial.

Her versions further conflicted regarding whether the alleged offence occurred at Ramaswamy’s or Narayanaswamy’s house; the alleged house owner and his wife turned hostile, and the mahazar witness did not support the prosecution.

The medical evidence disclosed no evidence of forcible intercourse, and the scientific examination did not detect semen or spermatozoa on the relevant articles.

The Court additionally found that the appellant had been convicted under Section 376(2)(n) IPC, an aggravated offence, although only a charge under Section 376 IPC had been framed.

Since the specific ingredients of repeated rape and the enhanced penal consequence were not notified to the accused, the omission caused prejudice and could not be treated as a curable irregularity.

The prosecution also failed to establish the ingredients of kidnapping under Section 363 IPC, and no witness proved that the appellant knew the victim belonged to a Scheduled Caste or that the offence was committed on that account.

It held that the prosecution failed to prove the victim’s minority, the offences under Sections 363 and 376(2)(n) IPC and Section 6 of the POCSO Act, or the offence under Section 3(2)(v) of the SC/ST (PoA) Act beyond reasonable doubt.

The appeal was allowed; the judgment of conviction and order on sentence dated 20–21 October 2020 were set aside, and the appellant was acquitted of all charged offences.

His bail bond was cancelled, and the Registry was directed to communicate the judgment to the jail authorities for his release if he was not required in any other case.

The Court also issued procedural guidelines requiring proper preservation, perusal, disclosure, and consideration of Section 164(5) statements during investigation and trial.