(This is a Guest Post by Nandini Garg)
On 23 December 2012, a three member Committee headed by Justice (retd.) J.S. Verma was constituted which recommended amendments to criminal laws for quicker trial and more severe punishment for those convicted of committing sexual assault against women. Following these recommendations, sweeping changes were introduced in the Code of Criminal Procedure, 1973 (hereinafter as the “CrPC”). Section 164 (5A) was added to the CrPC as part of these changes as well, which concerned recording the statement of a victim of a sexual offence by a judicial magistrate. Section 164(5A) provided that, if such victim is physically or mentally disabled, her statement can be treated as the statement made in lieu of the examination-in-chief done later on at trial.
On 31 March 2021, while hearing an appeal, a division bench of the Bombay High Court noted that Section 164(5A) ought to be amended immediately to allow statements of victims of sexual offences to be treated as statements in lieu of their examination-in-chief, notwithstanding whether victims were differently abled or not. The appeal itself involved allegations of sexual abuse and capturing of nude photographs by the accused of his daughter. The court felt itself constrained to direct an acquittal on the rape charges largely due to its inability to treat the victim’s earlier statement as being her examination-in-chief. Thus, mindful of the victim’s plight, the Court urged for an immediate consideration of its suggestions and also directed its judgment be shared with the relevant authorities.
In this post, I look into the significance and evidentiary value of the statements recorded under Section 164, and the need to universalise the application of Section 164(5A) and the limitations of the same.
Role of Section 164, CrPC statements in Sexual Offences
Prosecutions for sexual offences often do not consist of independent witnesses to the heinous deed itself; the victim’s testimony, besides forensic evidence, is the bedrock of the case. At the same time, victims in such cases suffer immense physical, mental, emotional and social trauma, and are often not in a position to fearlessly and immediately report the crime let alone testify at multiple stages of the process about the trauma suffered by them. These universal problems are compounded by the unique societal pressures faced by victims in sexual offences; in India, the victim suffers great humiliation on account of a taint of ‘impurity’ which lends to poor rates of reporting sexual offences as well as of continuing with the prosecution. Keeping this in mind, various protections like recording of FIR by women officers and recording of the victim's statement by the magistrate etc. are currently provided under the CrPC, all to bolster the ability of a victim to give her version at the initial stages of the case.
As soon as a sexual offence is reported to the police, the statements of victims are ordinarily recorded by a magistrate under Section 164(5A) today. This statement has to be recorded like a statement recorded from a witness in the court and an oath has to be administered. As a result of an oath being administered, these statements are qualitatively more reliable than statements ordinarily made to police officers during investigations, which are unsigned and statutorily inadmissible in evidence.
Although statements under Section 164 are recorded by a magistrate on oath, they are recorded at the stage of investigation and not at the stage of trial. The defence has no opportunity to cross-examine the witness on such statements. Hence, they cannot be used as substantive evidence. It is settled law that the statements recorded under Section 164 can be used only for the purpose of contradicting or corroborating the witness during the trial under Sections 145 and 157 of the Indian Evidence Act, 1872 (hereinafter as the “IEA”), respectively. They are merely considered as ʻformer/previous statementʼ which can be used to either support or refute a witness's testimony. If the witness completely upends her Section 164 statement at trial and there is no other evidence against the accused, the accused cannot be convicted on the basis of Section 164 statement.
The testimony of the prosecutrix (i.e. the victim in a sexual offence) is of immense significance in cases of sexual offences. If credible, the court may convict the accused on the sole testimony of prosecutrix and it requires no corroboration. Statements made under Section 164(5A) CrPC add weight to testimony given by the prosecutrix in her examination-in-chief at trial; and, as was mentioned above, can also undercut the value of this testimony.
This gives rise to a peculiar difficulty in sexual offence prosecutions. In many cases where victim blows the whistle at first instance, the victim faces pressure subsequently to either withdraw the case or renege from her initial statement at trial. It is more visible where a victim's own relatives are accused (the majority of cases), and due to which the thrust is on saving and preserving the false notion of family ʻhonour and shameʼ. In other words, the victim's initial statement before a magistrate might have been recorded free of pressure, but this version may be upended at later stages due to factors beyond the victim's control, and she is forced to change her story which leaves a prosecution in tatters.
Need for Universalising Section 164(5A), CrPC and its Limitations
Section 164(5A), under clause (b), creates an exception to the general rule which does not allow for treating statements made during the investigation as substantive evidence by permitting such statements to be treated as statements in lieu of examination-in-chief if the victim is physically or mentally disabled, either on temporary or permanent basis. The victim can directly be cross-examined on the statement recorded under Section 164(5A)(a), doing away with the need of her examination-in-chief altogether.
But, as we already know, all victims of sexual offences often suffer various pressures outside of court, compromising their ability to give free and correct testimony. The Justice Verma Committee noted that -
“In our tradition bound society, structured on the basis of conservative values, when a woman is subjected to sexual assault in any form, it translates into a multiple crime. She is raped at home (literally and figuratively) and in public, followed by demeaning medical examination, examination and cross-examination by the police and in court, in salacious media reports, and in the insensitive response of society, including family and acquaintances. In sum, the victim suffers intermittent rape in full public glare.”
Keeping this in mind, if the victim's statement under Section 164(5A) is considered as statement in lieu of examination-in-chief in all cases, it will certainly prove advantageous and prevent the harassment of victims. Underlining the need for evolving a fast track procedure for prosecution of rape cases, the Supreme Court has also observed that –
“5. What we wished to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under section 164 Cr.P.C. 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 defence to cross examine them with further liberty to the accused to lead his defence 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 ...”
Universalising the application of Section 164(5A) CrPC to all victims of sexual offences will go a long way in strengthening the prosecution's case and minimising the harassment of victims. However, this cannot come at the cost of denuding accused persons of their opportunity to cross-examine the witness. This is, by no means, contrary to the spirit of making the trial environment more conducive to victims for enabling cross-examination only goes to ensure that the testimony of the victim is well-founded. It would, therefore, be a mistake to think that enabling 164(5A) to substitute the examination-in-chief will automatically result in convictions. The prosecution case must still be credible and reliable, supported by other evidence where available.
Conclusion
Considering the harsh and unsympathetic attitude of the system and society towards the victims of sexual offences the Bombay High Court has urged for, what this author thinks, is a much-needed amendment of Section 164(5A), CrPC. If the statement of a victim recorded under section 164 is kept in sealed cover and is directly produced in the Court as her deposition, it will help to ensure the authenticity of her statement, save her from being coerced to change her story, and will potentially serve as reliable evidence for trial. However, the ordinary rules of trial cannot be ignored altogether, such as permitting cross-examination of the victim and considering her overall testimony in light of other available evidence and material.
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