JUDGMENT 1. These are two appeals, one by accused Anandsingh and Leharnath, and the other by Chiranjilal against the judgment of the learned Session Judge, Pratapgarh dated February 28, 1978 convicting the appellants under sections 376 and 394, IPC and sentencing them to three years' rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine to further undergo six months like imprisonment under each count. Since, the appeals arise out of one and the same judgment, they were heard together and are disposed of by a common judgment. 2. Put briefly, the prosecution case is:- The prosecutrix P. W. 13 Smt. Mohini-a grown up woman of 20 years in age, is the resident of village Ticker, District Udaipur. She was married to one Ratanlal, who lived in Bombay. Mohini went to Bombay to live with him. But the relations between them became unhappy. P.W. II Kanhaiylal is also a resident of village Ticker. P. W. 12 Shivlal happens to be his brother in some distant relation. P. W. II Kanhaiylal and P.W. 12 Shivlal went to Bombay and somehow or other managed to bring the prosecutrix to village Tinker with them. In route, they came to Chittorgarh on April 5, 1974 and dropped there for sight scenes. They stayed in Birla Dharamshala situate on the fort. At about 2 p. m., while the prosecutrix and P.W. 11 Kanhaiyalal were at 'Gomukh' on the fort, accused Moharnath and Anandsingh met them. After an exchange of preliminaries, they asked the prosecutrix and P. W. 11 Kanhaiyalal to accompany them in police out-post. She and Kanhaiyalal accompanied them. In the way, they demanded some money from Kanhaiyalal. if they wanted to escape from police clutches. P. W. 11 Kanhaiyalal got afraid and in order to avert any trouble in future gave ten rupee note to accused Anandsingh. The prosecutrix P W. 13 Smt. Mohini and P.W. 11 Kanhaiylal returned to Dharamshala P.W. 12 Shivlal, who had gone to bring food. also returned there. While the prosecutrix P.W. 13 Mohini, P.W. 11 Kanhaivalal and P.W. 12 Shivlal were there in a room of the Dharmshala, the accused Chiranjilal came there at about 8 p. m. He asked them to accompany him to police out-post. The three accompanied him to go to the police out-post. While they were in the way, accused Anandsingh and Moharnath also joined them. The three accompanied him to go to the police out-post. While they were in the way, accused Anandsingh and Moharnath also joined them. Instead of taking the prosecutrix and her companions to police out-post, the three accused-persons took them to fatch Prakash Palace. There the accused contacted the watchman Mohanlal. The watchman opened the gate and took the party inside. The accused-persons took the prosecutrix in a corner and P.W. 11 Kanhaiyalal and P.W. 12 Shrvlal to another side. Kanhivalal and Shivlal were given heating by them. Thereafter, the three accused-persons committed rape upon the prosecutrix one after the other. The prosecutrix was wearing silver and gold ornaments. She was relieved of her ornaments by the accused. After committing rape upon her, the accused brought the prosecutrix and her companions out of the palace. They also forcibly took Rs. 40/- from Shivlal. The accused threatened them not to disclose the incident to any body lest none of them would be spared. 'Thereafter, the party was allowed to go to Dharamshala. The party came to Dharamshala and narrated the incident to the Manager. They. then packed up their luggage and left the Dharamshala. While they were coming down from the fort, they met some persons and narrated the incident to them. One of them viz. P. W. 9 Keshuram happened to be a police constable. He took the party to the police out-post of the fort. The Head Constable, on duty informed the Station House Officer, P. W. 16 Mahendrasingh on telephone about the incident. The Station House Officer immediately reached the police out-post. The prosecutrix lodged verbal report Ex. P'27 of the occurrence A case under Section 392, 394, 376 and 347, IPC was registered and the investigation ensued. The medical examination of the prosecutrix was conducted on April 6, 1974 by Dr. H. Rehman (P. W. 5) the then Medical Officer-in-charge Referal Hospital, Chittorgarh. He found multiple injuries on the body of the prosecutrix. It was also found that rape was committed with her about 12-14 hrs, before the examination. The accused-persons were arrested and in consequence of the information furnished by accused Chiranjilal, stolen ornaments and wrist watch were recovered from his house. The three accused-persons were medically examined by 17r. Rehman. Injuries were found on their person. Their penis were found clean and smeare absent. The accused-persons were arrested and in consequence of the information furnished by accused Chiranjilal, stolen ornaments and wrist watch were recovered from his house. The three accused-persons were medically examined by 17r. Rehman. Injuries were found on their person. Their penis were found clean and smeare absent. The clothes of the prosecutrix and the accused-persons were also seized and sealed. On chemical examination, human seman was detected on the petti-cot of the prosecutrix and the underwears of accused Anandsingh and Meharnath On the completion of investigation. the police submitted a challan against the three accused appellants and Mohanlal (Chowkidar of the palace) in the court of Munsif and ,Judicial Magistrate. Chittorgarh, who in his turn committed the case for trial to the court of Session Judge, Pratapgarh. The learned Judge framed charges under sections 376, 394 and 347, IPC against the appellants and under the same sections read with section 109, IPC against accused Mohanlal. The accused pleaded not guilty to the charges and faced the trial. They challenged the prosecution story as a false and fabricated piece of concoction. It was alleged by accused Chiranjilal that the stolen articles recovered at his instance, were pawned to him for a sum of Rs. 100/-by P.W. 11 Kanhaiyalal. Regarding the presence of seman on the underwears, the accused-persons took the plea that since they were married persons, seman was detected. In the course of trial. the prosecution examined 16 witnesses and filed some documents. In defence, accused Chiranjilal examined two witnesses. On the conclusion of trial, the learned judge found no incriminating evidence against accused Mohanlal. He was, con- sequently, acquitted. He also found no case under section 347 IPC against the remaining three accused-appellants and acquitted them. However, charges under sections 376 and 394, IPC were held duly proved against them. They were, therefore, convicted and sentenced as mentioned at the very out set. Aggrieved against their conviction and sentence, the accused have taken this appeal. 3. I have heard the learned counsel for the accused-appellants and the Public Prosecutor. I have also gone through the case file carefully. 4. Launchingh a blistering attack on the judgment of the court-below. the learned counsel appearing for the accused-appellants contended that the conviction was wholly wrong and unwarranted. 3. I have heard the learned counsel for the accused-appellants and the Public Prosecutor. I have also gone through the case file carefully. 4. Launchingh a blistering attack on the judgment of the court-below. the learned counsel appearing for the accused-appellants contended that the conviction was wholly wrong and unwarranted. It was argued that as per prosecution rape was committed upon P W. 13 Smt. Mohini and it was she, who was alleged to have been robbed of her ornaments and wrist watch. But she has not supported the prosecution on any count. She deposed that no rape was committed upon her by the accused-appellants nor was she robbed by them. In fact, she has denied the whole prosecution story of rape and robbery. And yet, the learned Judge held the charges proved. It was argued that none had seen the accused- persons committing rape with the prosecutrix or taking away the ornaments from her. There was, thus, not the slightest evidence against the accused-persons. They should, therefore, be acquitted. 5. In reply. the learned Public Prosecutor supported the judgment of the court-below and submitted that there was strong circumstantial evidence against the accused-persons to prove their complicity in the crime. There was medical evidence against the aroused. The stolen articles were recovered in consequence of the information furnished by accused Chiranjilal. It was further submitted that the story of the pledge of the ornaments put forwarded by accused Chiranjilal was was wholly unfounded. I have taken the respective contentions into consideration. 6. Needless to say that in a case of rape, the testimony of the prosecutrix plays a very vital. almost a decisive role to determine the guilt or innocence of the accused. So also in a case of robbery. it is the robbed victim, who alone can state, whether he or she has been robbed or not. As such, the testimony of the prosecutrix Mst. Mohini is of vital significance. Unfortunately, she lent no help to the prosecution She was declared hostile by the prosecution and was cross- examined. But she stuck and clung to her denial throughout and despite cross- examination, nothing could be elicited from her, which may furnish implicating material against the accused-persons. 7. Prosecutrix P.W. 13 Smt Mohini deposed that she did come to Chittorgarh with Kanhaiyalal (P.W. 11) and Shivlal (P.W. 12) and stayed in a Dharashala on the fort. But she stuck and clung to her denial throughout and despite cross- examination, nothing could be elicited from her, which may furnish implicating material against the accused-persons. 7. Prosecutrix P.W. 13 Smt Mohini deposed that she did come to Chittorgarh with Kanhaiyalal (P.W. 11) and Shivlal (P.W. 12) and stayed in a Dharashala on the fort. But she denied that she went for sight scenes with Kanhaiyalal and any of the accused-persons met her at 'Gomukh'. Site also denied that the accused persons asked her and Kanhaiyalal (P.W. 11) to accompany there. She further denied that was taken to Fatch Prakash Palace and any sexual intercourse was committed there upon her by the accused-persons. In fact, she had denied the whole prosecution case of rape and robbery alleged to have been committed with her. She turned so much hostile to the prosecution that she even denied to have lodged the first information report Ex. P/16 or to have given statement Ex. P/19 under sec 164 Cr P C. before the Magistrate. She denied that she was medically examined by the doctor and injuries were found on her person. 8. In view of the categorical denial of the prosecutrix that rape and robbery were committed with her. it is difficult to hold the charges as proved against the accused-appellants. It may be stated even at the fault of reputation that in a case of rape, it is the prosecutrix and the prosecutrix alone, who can state that the sexual intercourse was committed with her and that, it was against her will or without her consent. Here in the instant case, the prosecutrix by denying the story of rape and robbery, has given a verdict of innocence to the miscreants. The whole case of rape and robbery, thus, crumbled down due to her denial. 9. The learned trial Judge made an attempt to seek help from the first in- formation report Ex. P/16 lodged by the prosecutrix and her statement Ex. P/19 recorded under section 164. Cr.P.C. to convict the accused. 10. Now, it is well settled that the first information report cannot be used as a substative or primary evidence of truth of the contents made therein. In Charma Ram Bhagare v. State of Maharashtra ( AIR 1973 SC 476 ) , it was observed that the first information report is never treated as a substantive piece of evidence. 10. Now, it is well settled that the first information report cannot be used as a substative or primary evidence of truth of the contents made therein. In Charma Ram Bhagare v. State of Maharashtra ( AIR 1973 SC 476 ) , it was observed that the first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. 11. The importance of the first information report Ex. P/16, is only to the extent that it was made by the prosecutrix. It does not constitute substantive evidence nor has any independent existence to seek the conviction of the miscreants. 12. So also, the statement recorded under Section 164, Cr. P.C. cannot be admitted or used as a substantive evidence against an accused. It can be used only for the limited purpose of corroborating or contradicting the witness by whom it was made. In State of Delhi v. Shri Ram Lohia ( AIR 1960 SC 490 ) , it was observed- "Statements recorded under s. 164 of the Code are not substantive (sic) evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it would be used so substantive evidence in the case." 13. Again, in State of Rajasthan v. Kartarsingh(AIR 1979 SC 1388) , it was laid down that the statement of a witness under Section 164, Cr. P.C. is not substantive evidence. It cannot be used to seek a verdict of guilty against the accused-person. 14. In view of the settled position of law that the first information report and a statement under Section 164, Cr. P C. cannot be used as substantive evidence: no help can be sought from Ex. P/16 (F.I.R.) and Ex. P/19 (statement under section 164, Cr. P. C.) to convict the accused. 15. The learned Judge attached too much importance to the testimony of P W. 11 Kanhaiyalal and P.W. 12 Shivlal. P C. cannot be used as substantive evidence: no help can be sought from Ex. P/16 (F.I.R.) and Ex. P/19 (statement under section 164, Cr. P. C.) to convict the accused. 15. The learned Judge attached too much importance to the testimony of P W. 11 Kanhaiyalal and P.W. 12 Shivlal. According to him, these persons have heard the cries of the prosecutrix and that, soon after the commission of the offence, was told them that she was raped and robbed by the accused-persons. However, these two witnesses do not claim to have seen the commission of rape and robbery. As such, even if they heard the cries of the prosecutrix or that she told them about the rape and robbery, it is not of much help to the prosecution. If the prosecutrix had supported the prosecution version of rape and robbery, these facts could have been used to corroborate her testimony. But as she has denied the very occurrence, these facts lose their entire importance of corroboration. 16. The recovery of stolen articles in consequence of the information furnished by Chiranjilal also weighed much with the learned Judge in convicting the accused-persons. But, again the difficulty is the hostile attitude of the victim P.W. 13 Smt. Mohini. She has denied the very fact of robbery. Therefore, the mere recovery of stolen articles is not sufficient to conclude that the robbery teas committed. If the victim had supported the allegation of robbery, the recovery of stolen articles would have afforded a very valuable piece of corroboration to her testimony. But due to her denial this recovery, is of no significance. 17. It appears that the learned Judge was moved with the woeful story narrated by the prosecutrix in the first information report Ex P/16 and her statement Ex P/19 (under section 164, Cr.P.C.) It is true that worthy prosecutrix stated that rape and robbery in Ex. P/16 and Ex. P/19 is grim and phathetic sufficient to melt even a rock-heart. But that in itself is not enough to seek the conviction of the accused-person. In order to convict an accused moral certainty into his guilt alone is not sufficient. There should be legal certainty as well on record to give the finding of guilty against the miscreant. In the instant case, the moral certainty is certainly there, but the legal certainty is completely missing. In order to convict an accused moral certainty into his guilt alone is not sufficient. There should be legal certainty as well on record to give the finding of guilty against the miscreant. In the instant case, the moral certainty is certainly there, but the legal certainty is completely missing. The witness is a medium through which the court the judges the truth or falsity of a charge. If that medium breaks down or turns out as untrustworthy, the court is left with no option except to acquit the accused. The prosecutrix P.W. 13 Smt. Mohini is the principle medium. But she has adopted a hostile attitude. I am, therefore, left with no alternative except to quash the conviction of the accused- appellants. 18. In the result, these appeals are allowed. The judgment of the learned Session Judge, Pratapgarh dated February 28, 1978 is set aside and the accused- appellants are acquitted of the offences under sections 376 and 394, IPC. They are already on bail and need not surrender. Their bail bonds shall stand cancelled. *******