JUDGMENT : Surendra Narain Jha, J.–This appeal has been preferred by four appellants. All the appellants have been convicted under section 373 of the Indian Penal Code (hereinafter referred to as the 'Penal Code') and have been sentenced to undergo rigorous imprisonment for four years. 2. The prosecution case has been started on the basis of a complaint petition dated 30.11.1970 filed by Sharda Devi (P.W.1) wife of one Ramesh Chandra Dubey alleging, inter alia, that on 27.11.1970 at 2 P.M. her daughter (by first husband) aged about 11 years named Urmila Kumari (P.W. 3) had gone to Tapobsadh in Kokaibagh and from there the appellants kidnapped the girl on pretext that her mother is ill at hospital. It is further alleged that the said Urmila Devi (P.W. 3) was detained at the house of the "Phuphi" of appellant no. 3 for ten days and there she was proposed to submit to their sex hunger but she did not agree. However, she was returned to her mother (P. W. 1) after ten days by appellant no. 1 Luxman Mushar in court compound. 3. After the complaint was filed the learned Magistrate sent the same to the Sadar police Station Purnea for institution of a case where Sadar Police Station Case No. 18 (12) 70 was instituted. The police after completing the investigation submitted charge sheet against the appellants and they were committed to the court of Sessions to stand their trial after separating the trial of one Ganga Mushar who was also charge-sheeted. All the appellants were charged under section 373 of the Penal Code for obtaining possession of a minor girl Urmila Devi (P. W. 3) with intent to use her for immoral purpose. 4. In ORDER :to substantiate the charge against these appellants the prosecution has examined six witnesses, out of them P.W. 1 is Sharda Divi mother of the victim girl and P.W. 3 is Urmila Devi the victim herself. P.W. 2 has not supported the prosecution case and he has been declared hostile. P.W. 4 is a formal witness who has proved the first information report (Ext.1) and the signature (Ext.2). P.W. 5 Rameshwar Thakur is a tendered witness. P.W. 6 is a doctor, who has proved the medical certificate (Ext.3). The Investigating Officer of this case has not been examined by the prosecution. P.W. 4 is a formal witness who has proved the first information report (Ext.1) and the signature (Ext.2). P.W. 5 Rameshwar Thakur is a tendered witness. P.W. 6 is a doctor, who has proved the medical certificate (Ext.3). The Investigating Officer of this case has not been examined by the prosecution. On the other hand, defence has also examined one witness who certified the papers Ext. A and A/1 which are affidavits dated 17.11.1970 and 5.12.1970 filed by Sharda Devi (P.W. 1) and Urmila Devi (P.W. 3) respectively. 5. The case of defence, inter alia, is that the entire prosecution story is concocted and absurd. It has been filed at the instigation of one Tilak Bhagwan under whom these appellants ara Bataidars and they are living on the lands of Tilak Bhagwan and he (Tilak Bhagwan) in ORDER :to oust these appellants, has cooked up this false case against them. 6. The learned Sessions Judge having relied on the evidence of P.Ws 1 and 3 and on the statement of the girl (P.W. 3) under section 164 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has come to the conclusion that the prosecution has succeeded to bring home the Charge against the appellants. He has further held that the defence has failed to establish the cause which would lead Tilak Bhagwan to get the accused falsely implicated through P.Ws. 1 and 3 using them as tools. In view of the above findings, he held all the appellants guilty under section 373 of the Penal Code and convicted and sentenced them, as mentioned above, Hence this appeal. 7. The learned counsel appearing on behalf of the appellants has contended that on the basis of the evidence available on the record no charge under section 373 of the Penal Code has been made out against these appellants. It was also contended that prosecution has not been able to establish the age of the girl (P. W. 3) beyond reasonable doubt. It was further submitted that the statement under section 164 of the Code has not been proved by the Magistrate who recorded the same. It was also contended that prosecution has not been able to establish the age of the girl (P. W. 3) beyond reasonable doubt. It was further submitted that the statement under section 164 of the Code has not been proved by the Magistrate who recorded the same. Rather none of the prosecution witnesses has proved this statement and it has not been brought on the records in accordance with the provisions as laid down in the Indian Evidence Act and, therefore, any reliance made on it by the learned Additional Sessions Judge while convicting the appellants is illegal and fit to be set aside. 8. In ORDER :to appreciate the points raised by the learned counsel for the appellants it is essential to look into the ingredients of section 373 of the Penal Code. Section 373 of the Penal Code reads as follows : "373. Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will, at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Explanation I......................... Explanation II........................ It is not relevant for the purpose to quote Explanation No. I and II. From the bare reading of the section, it is clear that this section applies to a case of buying or hiring or other similar transaction by which possession of a person under eighteen years of age is obtained with the intention of employing or using that person for prostitution, or illicit intercourse with any person, or for any unlawful and immoral purpose. It does not differentiate the sex. It may include both males or females under the age of eighteen years. It does not differentiate the sex. It may include both males or females under the age of eighteen years. Section requires the following ingredients : – (i) Buying, hiring or otherwise obtaining possession of a person; (ii) the person should be under the age of eighteen years; and, (iii) the buying, hiring or otherwise obtaining possession must be with intent or knowledge of likelihood that the person shall at any stage be employed or used for the purpose of prostitution or illegal intercourse or any unlawful and immoral purpose; Therefore, in ORDER :to establish the charge under section 373 of the Penal Code it is essential for the prosecution to prove that the girl Urmila Devi (P. W. 3) must be within eighteen years and these appellants either bought or hired or otherwise obtained possession of the girl for using her for the purpose of prostitution or illicit intercourse. 9. In the instant case, it is essential to examine the evidence of witnesses as to find out whether the prosecution has been able to substantiate all the ingredients which are essential for proving the charge under section 373 of the Penal Code. The learned Additional Sessions Judge has relied on the evidence of P. Ws. 1 and 3. P. W. 1 has given her age as twenty-five years at the time of her examination before the Sessions Court. She (P. W. 1) has stated in her evidence that her husband Ramesh Chandra Dubey was not the father of the victim girl Urmila Devi (P. W. 3) but he was a step-father. She has further stated that her first husband was Pandeyjee of Darbhanga. She also stated that she was married to Ramesh Chandra Dubey eighteen years ago. Urmila Devi (P. W. 3) is her daughter through her first husband. After the death of her first husband, five years thereafter she married second time. According to her evidence, she got only one child i. e. Urmila Devi (P. W. 3) through her first husband. She also stated that she was married to Ramesh Chandra Dubey eighteen years ago. Urmila Devi (P. W. 3) is her daughter through her first husband. After the death of her first husband, five years thereafter she married second time. According to her evidence, she got only one child i. e. Urmila Devi (P. W. 3) through her first husband. Reading her evidence and specially in view of the aforesaid statements it is difficult to ascertain the age of the girl Urmila Devi (P. W. 3) to be of 11 years at the time of occurrence, which took place in the year 1970 and P. W. 1 was examined in the Sessions court in the year 1980 i. e. after ten years of the occurrence, when she was only aged twenty five years. If her statement as given in her deposition before the Sessions Court be accepted, then in my view it cannot be held exactly what was the age of the victim girl (P. W. 3) Urmila Devi at the time of occurrence, whether she was even born or not that becomes doubtful. 10. According to the evidence of P. W. 3, on the day of occurrence at about 10 to 11 A.M. she had gone to Topobandh which is near her house towards went to bring grass from where she was taken away by one Doman (not appellant), Sobhiya Mushar (appellant no. 2), Gangwa (not appellant). Rula Mushar (appellant no. 4) and Dhoria Mushar (appellant no. 3) on the pretext that her mother (P.W.1) was in the hospital. According to P. W. 3, she was taken in the rural side on bus and was kept in the house of Dhoria’ fufu. She has further stated that appellant Dhoria Mushar wanted to have forcible intercourse with her but her Fufu chastised him. Later on, she learnt that a case has been filed by her mother and they returned her back to her mother in court compound. In her cross-examination, she has also stated that had been married four years back (from the date of her examination). Her husband is a driver and he lives at Calcutta. She has also stated in paragraph 7 of her cross-examination that she did not narrate the story of her enticement to any passenger travelling in the bus, according to her, she was weeping in the bus and nobody asked the reason for it. Her husband is a driver and he lives at Calcutta. She has also stated in paragraph 7 of her cross-examination that she did not narrate the story of her enticement to any passenger travelling in the bus, according to her, she was weeping in the bus and nobody asked the reason for it. When she reached in the house of Fufu of Dhoria Mushar (appellant no. 3) she found many ladies in the court-yard and she narrated that the accused had brought her on false pretext. There is nothing in her evidence to show that she was ever forced by these appellants to indulge to any sexual intercourse, She has not even named appellant no. 1 Luxman Mushar as one of the persons who are alleged to have enticed her a way. 11. I have already indicated above that P. W. 2 Chhota Lal Thakur has been declared hostile as he has not supported the case of the prosecution. It is well settled that when a witness is declared hostile, the prosecution exhibits its intention not to rely on him so his version cannot be treated as the version of the prosecution. It is true that the evidence of a hostile witness may not be rejected outright, but the court has at least to be aware that prima facie if a witness is found to have made different statements at different stages, he must be one having no regard for truth. Therefore, it is not safe to rely upon his statement. P. W. 4 Chhote Lal Yadav is a formal witness who has proved the first information report and P. W. 6 Dr. P. Mukherjee is also a formal witness who has proved the certificate (Ext. 3) of another doctor. Learned counsel appeaing on behalf of the appellants vehemently argued that Ext. 3 should not be relied upon because even the signature of Urmila Devi (P. W. 3) seems not to be a genuine because it does not tally with her signature obtained on her deposition in court. I have examined both the signatures and find some substance in the contention of the learned counsel for the appellants. He further pointed out that even Urmila Devi (P. W. 3) has not stated any where in her evidence that she was ever examined by doctor. I have examined both the signatures and find some substance in the contention of the learned counsel for the appellants. He further pointed out that even Urmila Devi (P. W. 3) has not stated any where in her evidence that she was ever examined by doctor. Therefore, the certificate which shows that she was aged about 12 to 13 years at the time of occurrence becomes doubtful and suspicious and it is not safe to rely upon such a certificate to ascertain her age. I have already mentioned that the Investigating officer of this case has not been examined. 12. I have perused the impugned JUDGMENT : and I find that the learned Additional Sessions Judge while dealing with the evidence of Urmila Devi (P.W. 3) has observed that "by looking into the statement recorded by the learned Magistrate under section 164 of the Code marked as Ext. 4 she has given the name of her father (step) as Ramesh Chandra Dubey'' and her statement before the learned Magistrate under section 164 of the Code and before the trial court are consistent and corroborative on the material points. In the instant case, the statement under section 164 of the Code has not been brought on the, record under the provisions of the Indian Evidence Act. It has neither been proved by the learned Magistrate who recorded it nor by any other witness. In that view of the matter, I fail to understand as to how learned Additional Sessions Judge has marked the document as Ext. 4. It is well settled that the statement made under section 164 of the Code cannot be used as substantive piece of evidence and that it can be used only to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But the statement made out in court under section 164 of the Code is not always gospel truth and it cannot be made the basis of conviction specially in view of the fact that in this case it has not been legally brought on the record and, therefore, it is not admissible without proof. 13. But the statement made out in court under section 164 of the Code is not always gospel truth and it cannot be made the basis of conviction specially in view of the fact that in this case it has not been legally brought on the record and, therefore, it is not admissible without proof. 13. After giving my anxious consideration to the materials placed before me and having examined the question very closely I find that the prosecution has not been able to succeed in bringing home the charge under section 373 of the Penal Code against these appellants. Learned Addl. Sessions Judge has also observed, as indicated above, that the defence has failed to establish his case but in a criminal case it is the prosecution who has to prove its case. It cannot gain strength from the conduct of the accused. 14. Taking into consideration all these facts and in the circumstances of the case, I find myself in a difficult position to agree with the finding of the learned Additional Sessions Judge that the prosecution has succeeded in bringing home the charge against the accused persons (appellants). In my view the ingredients which are essential to establish the charge under section 373 of the Penal Code has not been proved, and they are lacking in instant case, his also the case of the prosecution that the victim girl Urmila Devi (P. W. 3) was returned to her mother after ten days. Now she is living with her husband to whom she was married in the year 1976 as it appears from her evidence itself. 15. Having considered all these facts, I find substance in the contention raised by the learned counsel appearing on behalf of the appellants. In the result, the appeal is allowed and the conviction and sentence imposed on the appellants are hereby set aside. The appellants are discharged from the liability of their bail bonds. Appeal allowed.