Child molestation accused can’t be convicted based solely on victim’s statement under section 164: HC

The single judge bench of justice SM Modak said that even if the magistrate before whom a statement was recorded was examined, he would have only narrated what the survivor had told him about the incident

MUMBAI: The Bombay High Court has ruled that those accused in child molestation cases cannot be convicted based solely upon the survivor’s statement recorded before a judicial magistrate, under section 164 of the Criminal Procedure Code. The single judge bench of justice SM Modak said that even if the magistrate before whom a statement was recorded was examined, he would have only narrated what the survivor had told him about the incident.

The depression woman sit on the floor with sexual harassment concept (Getty Images/iStockphoto)

“It can be used for corroboration of the primary evidence. Such statements before a judicial magistrate cannot take place of substantial evidence,” justice Modak said while upholding the acquittal of a police constable accused of molesting a 17-year-old girl in the absence of her testimony.

According to the prosecution, the incident took place late in the evening on November 10, 2018, in the police colony in Dadar. The accused constable, a neighbour of the girl’s family, had called her to his residence where he allegedly misbehaved with her. She confided in her grandmother about the incident after the latter noticed a change in her behaviour and inquired with her. Two days later, the constable was booked by the Dadar police for molestation under relevant sections of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act.

During the course of investigation, the police recorded the girl’s statement under section 164 of the Criminal Procedure Code, but the girl died in May 2019 before her testimony could be recorded before the trial court. On August 27, 2021, a special court under the Protection of Children from Sexual Offences (POCSO) Act acquitted the constable.

The mother of the minor girl then approached the high court, challenging the verdict. She contended that though the girl was not available to testify during the trial, the trial court did not take into consideration her statement recorded under section 164 of the Criminal Procedure Code. The mother’s deposition before the trial court, wherein she had narrated the entire incident as narrated to her by her daughter, was also not considered, the plea said.

The single judge bench of justice SM Modak, however, noted that the girl’s mother had not witnessed the incident herself and in her testimony, she had only narrated what her daughter had told her, which could not be treated as “direct evidence” of what had transpired in the accused constable’s house.

As regards the girl’s statement recorded under section 164, justice Modak said though the judicial magistrate was an independent person, in this case, the magistrate was not examined as a prosecution witness to prove the statement recorded before him.

The court dismissed the mother’s appeal and upheld the acquittal of the constable, primarily in view of the fact that the girl was not available to testify before the trial court.