‘Magisterial statement not substantive evidence’

Soumyadip Mullick, MP, 17 Jan 2025, Kolkata: Observing that magisterial statement is not substantive evidence, the Calcutta High Court set aside the conviction and sentence of a man accused of kidnapping and raping a minor girl. 

The bench of Justice Joymalya Bagchi and Justice Gaurang Kanth was moved by the accused challenging the trial court judgement and order which gave him a life sentence apart from other sentences. In the case, the man was accused by the father of the victim of having abducted his daughter and raping her. 

The daughter was found to be pregnant but she refuted the father’s version. She said she knew the accused and both had voluntarily left and resided at her sister’s residence. After three months they returned. 

The trial judge discarded her evidence and relied on her statement before Magistrate where she had said she was raped by the accused and thus became pregnant while adding that the accused also threatened to sell her in Bangalore. 

Later in court she resiled from her previous treatment and said she was tutored by her father. Court observed that the statement before Magistrate is not substantive evidence but can only be used to corroborate or contradict its maker. 

The trial judge erred in relying on the statement which was contrary to the deposition of the victim in court. 

Further, Section 53A and 164A of the CrPC provides in case of rape DNA examination of the victim and accused ought to be undertaken. No DNA examination of the foetus was done to establish that the appellant was its father, the court observed and said even if the pregnancy may lead to an inferential conclusion of sexual intercourse, it can’t be said the same was a forcible one, particularly when the victim said she voluntarily stayed with the accused. Court also didn’t find any evidence on record to suggest the victim was a minor. The conviction and sentence of the accused was set aside. 

https://www.millenniumpost.in/bengal/magisterial-statement-not-substantive-evidence-595068