JUDGMENT Hon’ble Shri Kant Tripathi, J.—The appellants Ram Singh and five others have preferred this appeal against the judgment and order dated 24.4.1982 rendered by IVth Additional Sessions Judge, Bijnor in Sessions Trial No. 77/1980, State of U.P. v. Ram Singh and others, whereby learned Additional Sessions Judge convicted and sentenced each of the appellants under Section 363, IPC to undergo rigorous imprisonment of four years and to pay a fine of Rs. 200/- and in default of payment of fine to undergo a further rigorous imprisonment of three months. 2. The prosecution story leading to this appeal is that the complainant PW-3 Sukh Lal, a resident of village Kiwar, police station Seohara, district Bijnor, had married his daughter Sushma to appellant No. 1 Ram Singh, who is a resident of village Kuchawli, police station Chhajlait, district Moradabad about 1-1/2 years before the occurrence. The complainant’s daughter Sushma, on account of certain differences with her husband appellant No. 1 Ram Singh, remarried with one Shyam Lal of village Chandpur before 4-5 days of the occurrence, which caused annoyance to the appellants. It is also alleged that in the night of 2nd and 3rd February, 1979, the complainant PW-3 Sukh Lal was sleeping in his kotha (room) with his wife PW-4 Tulia and daughter PW-8 Saroj and other children. At about mid night all the appellants entered inside his kotha and told him that since he had married his daughter Sushma to other person, they would take away PW-8 Saroj with them in lieu of Sushma. The appellants accordingly took away PW-8 Saroj from the lawful guardianship of her parents PW-3 Sukhlal and PW-4 Tulia. At that time, PW-8 Saroj was aged about 15-16 years and was minor. It is also alleged that the complainant PW-3 Sukh Lal raised alarm, consequently witnesses PW-6 Sukhey, PW-7 Lalloo and other persons came to the place of occurrence by flashing torches and witnessed the occurrence but the appellants taking advantage of darkness managed their escape alongwith the victim PW-8 Saroj and could not be apprehended. It is also alleged that the complainant PW-3 Sukh Lal, his wife PW-4 Tulia and his other family members identified the appellants in the light of kerosene lamp which was kept inside of the kotha in which they were sleeping at the time of the incident. It is also alleged that the complainant PW-3 Sukh Lal, his wife PW-4 Tulia and his other family members identified the appellants in the light of kerosene lamp which was kept inside of the kotha in which they were sleeping at the time of the incident. It is also alleged that the appellants were again identified while moving outside the kotha of the complainant, in the torch light flashed by the aforesaid witnesses. 3. PW-3 Sukhlal lodged the FIR Ext. Ka-4 at the concerned police station on the next day at about 12.30 p.m. The police registered the case under Sections 363/366, IPC against the appellants and proceeded to make the investigation. 4. On 4.2.1979, the Investigating Officer, on receiving an information from a mukhbir that the appellants were present alongwith the victim PW-8 Saroj at the railway station Mewa Nawada, proceeded to the railway station and recovered the prosecutrix PW-8 Saroj from the possession of the appellants. The appellant No. 5 Kallu was arrested at the railway station Mewa Nawada but other appellants any how managed their escape and could not be apprehended. 5. The prosecutrix Saroj (PW-8) was medically examined by a lady doctor on 4.2.1979 at about 5.15 p.m. in the District Women’s Hospital, Bijnor who prepared the medico legal report dated 4.2.1979 and referred the victim for X-ray of her elbow, knee and wrist joints. These joints were subjected to x-ray on 5.2.1979 and all the epiphysis around the joints were found not fused. The lady doctor who had medically examined the prosecutrix Saroj, prepared a supplementary report dated 19.3.1979 and opined that the prosecutrix Saroj was aged about 14 years but could not give any definite opinion in regard to recent sexual intercourse. The lady doctor, however, opined that the prosecutrix used to have sexual intercourse. 6. The Investigating Officer, after making usual investigation, filed charge-sheet Ex. Ka-7 against the appellants. 7. All the appellants were charged under Sections 363 and 366, IPC, who denied the charges and claimed to be tried. 8. The prosecution examined as many as 8 witnesses in support of its case. PW-1 Dr. Shiv Murti Lal proved copy of x-ray report. Ex. Ka-1 and x-ray plate material Ex. 1. This witness had not himself done the x-ray. It was Dr. R.S. Sharma who had done the x-ray and prepared the x-ray report. 8. The prosecution examined as many as 8 witnesses in support of its case. PW-1 Dr. Shiv Murti Lal proved copy of x-ray report. Ex. Ka-1 and x-ray plate material Ex. 1. This witness had not himself done the x-ray. It was Dr. R.S. Sharma who had done the x-ray and prepared the x-ray report. It appears that the prosecution instead of examining Dr. R.S. Sharma, who had done the x-ray, preferred to adduce secondary evidence by examining PW-1 Dr. Shiv Murti Lal, who has merely proved that x-ray report was in the handwriting of Dr. R.S. Sharma. It may also be mentioned that Dr. R.S. Sharma was not only alive at the time of the trial but his place of posting in the District Hospital, Agra was also well within the notice of the concerned Additional Sessions Judge because this fact was very clearly stated by PW-1 Dr. Shiv Murti Lal in the witness box. 9. PW-2 Ram Kishan Pandey has given merely evidence of formal nature. He has proved the chik report Ex. Ka-2 and copies of the GD Ex. Ka-3 and Ka-4. In the G.D. Ex. Ka-3 factum of lodging of FIR by the complainant has been mentioned and in the G.D. Ex. Ka-4 the factum of recovery of prosecutrix by S.I. Pawan Singh and arrest of appellant No. 5 Kallu and their production at the concerned police station has been mentioned. 10. PW-3 Sukh Lal, who is the complainant, has proved the FIR Ex. Ka-5 and supported the prosecution story in the witness box. He has given an eye-witness account of the occurrence and has also supported the recovery of the prosecutrix and arrest of appellant No. 5 Kallu. His wife PW-4 Tulia has also supported the prosecution story as an eye-witness. 11. Independent witnesses PW-5 Jagdish, PW-6 Sukhey and PW-7 Lalloo have no doubt supported the prosecution story to the extent that they went to the place of occurrence on hearing alarm and got information that appellants had taken away the prosecutrix PW-8 Saroj but these witnesses have very clearly stated that they could not see the appellants because the appellants had left the scene of occurrence and nearby places before they reached the place of occurrence. The complainant PW-3 Sukh Lal told the names of appellants. The complainant PW-3 Sukh Lal told the names of appellants. PW-7 Lalloo, however, stated ahead more by saying that he had himself heard the voice of the appellants that they were taking away the complainant’s daughter in lieu of Ram Singh’s wife. 12. PW-8 Km. Saroj, the prosecutrix, instead of supporting the prosecution story, stated that she had gone to the house of her maternal uncle and was taken back to the house of her father by two constables. She has further stated that none kidnapped her. During the cross-examination she stated that she was not subjected to any medical examination and x-ray. She was neither examined by any Magistrate nor the Investigating Officer. She has further denied the story that she was recovered from the possession of the appellants at the railway station Mewa Nawada and the appellant No. 5 Kallu was arrested by the police. 13. PW-5 Jagdish, who is alleged to be a witness of recovery of the prosecutrix and arrest of appellant No. 5 Kallu, has not supported the story of recovery and arrest and has very clearly stated that neither the appellant No. 5 Kallu was arrested nor the prosecutrix was recovered in his presence. This witness further stated that the recovery memo was not prepared in his presence and his thumb impression was obtained on the recovery memo at his house. 14. The accused persons have been examined under Section 313, Cr.P.C. They have denied the allegations made against them but admitted that the complainant’s daughter Sushma had married to appellant No. 1 Ram Singh. The appellant No. 5 Kallu has stated that he was arrested from his house at about 6 p.m. and was taken to the police station therefrom. The appellant No. 1 Ram Singh and appellant No. 2 Sapari have admitted that the relations of the appellant No. 1 Ram Singh with his wife viz. the complainant’s daughter Sushma, had become strained and as such she remarried with one Shyam Singh of village Chandpur. The appellants had made a protest to the complainant one day before the occurrence that his daughter Sushma illegally solemnised remarriage with Shyam Singh. The appellant No. 2 Sapari further admitted that he had participated in the panchayat alongwith the appellant No. 4 Mullu. 15. The appellants have not adduced any evidence in defence. 16. The appellants had made a protest to the complainant one day before the occurrence that his daughter Sushma illegally solemnised remarriage with Shyam Singh. The appellant No. 2 Sapari further admitted that he had participated in the panchayat alongwith the appellant No. 4 Mullu. 15. The appellants have not adduced any evidence in defence. 16. The learned Additional Sessions Judge arrived at the conclusion that the prosecutrix Km. Saroj PW-8 was not more than 14-15 years at the time of the occurrence. He has further held that the prosecutrix had not been kidnapped in order that she would be forced or seduced to illicit intercourse with another person or with the knowledge that she was likely to be forced or seduced to illicit intercourse with another person. There was also no evidence that she was subjected to sexual intercourse. The Additional Sessions Judge, accordingly, held that the charge under Section 366, IPC was not proved. The appellants were accordingly acquitted under Section 366, IPC but the learned Additional Sessions Judge believed the prosecution story in regard to the charge under Section 363, IPC and held that the charge under Section 363, IPC was proved against the appellants beyond all reasonable doubts and accordingly convicted and sentenced them. 17. I have heard Sri P.N. Mishra, senior counsel, assisted by Sri Apul Mishra for the appellants and learned AGA for the State and perused the record. 18. The learned counsel for the appellants submitted that the prosecutrix PW-8 Km. Saroj, who is a most important witness of the case, has not supported the prosecution version and, therefore, the learned Additional Sessions Judge has committed material error of law in placing reliance on the prosecution story. It appears that the learned Additional Sessions Judge disbelieved the prosecutrix’s statement on the ground that she had suppressed the truth during the trial. One of the reasons of this inference was that the prosecutrix had supported the prosecution story in her previous statements recorded under Sections 161 and 164, Cr.P.C. during the investigation. 19. The prosecutrix (PW-8 Km. Saroj) has stated during the cross-examination that she had not given any statement before the Magistrate nor put her thumb impression on any such statement and showed her ignorance as to how her statement had been recorded by the Magistrate. 19. The prosecutrix (PW-8 Km. Saroj) has stated during the cross-examination that she had not given any statement before the Magistrate nor put her thumb impression on any such statement and showed her ignorance as to how her statement had been recorded by the Magistrate. She further denied that she had made any statement before the Investigating Officer, and when her statement recorded under Section 161, Cr.P.C. was read over, she denied to have made any such statement before the Investigating Officer. 20. Section 155 (3) of the Indian Evidence Act provides for impeaching credit of a witness on the basis of proof of his former statement inconsistent with any part of his evidence, which is liable to be contradicted. In other words, if any witness makes any statement during the trial, which is inconsistent with his previous statement, his evidence in the Court can be contradicted with the previous statement by proving the former statement. In doing so the provisions of Section 145 of the Indian Evidence Act must also be kept in mind, which consists of two parts. The first part provides that a witness may be cross-examined as to the previous statement made by him in writing or reduced into writing, and relevant to the matters in question, without such writing being shown to him or being proved, whereas the second part provides that if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it, which are to be used for the purpose for contradicting him. The first part of Section 145 of Evidence Act has no relevance in this case but the second part is applicable, which must be followed in a case where a witness makes contradictory statements either in different proceedings or at different stages of the same proceeding. In other words, if the maker of the contradicting statement is sought to be contradicted, his attention must be drawn to his previous statement as required by Section 145 of the Indian Evidence Act so as to provide him an opportunity to explain the discrepancy or inconsistency and to clear up the ambiguity. 21. In other words, if the maker of the contradicting statement is sought to be contradicted, his attention must be drawn to his previous statement as required by Section 145 of the Indian Evidence Act so as to provide him an opportunity to explain the discrepancy or inconsistency and to clear up the ambiguity. 21. In the case of Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 , the Apex Court considered the ambit and scope of Sections 145 and 155(3) of the Evidence Act and held as follows : “12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that “if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose for contradicting him”. There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145.” 22. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145.” 22. The aforesaid principle has been reiterated by the Apex Court in the case of Karan Singh and others v. State of M.P., (2003) 12 SCC 587 , as follows : “When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. Section 145 of the Evidence Act is clear on this aspect. The object is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute.....” 23. In view of the fact that the witness PW-8 Km. Saroj has denied in the witness box that she made any statement before the Investigating Officer under Section 161, Cr.P.C. or before the Magistrate under Section 164, Cr.P.C., it was the duty of the learned Additional Sessions Judge to examine the concerned Magistrate and also the Investigating Officer to prove, respectively, the previous statements of PW-8 Km. Saroj made under Sections 164 and 161, Cr.P.C. but the learned Additional Sessions Judge has not done so. Even the statement alleged to have been recorded by the concerned Magistrate under Section 164, Cr.P.C., was not brought on record. Without proper proof of the previous statements of the prosecutrix recorded under Sections 161 and 164, Cr.P.C., it was not legally permissible for the learned Additional Sessions Judge to rely on the same for discarding her statements recorded during the trial. 24. The learned Additional Sessions Judge has further criticised the prosecutrix (PW-8 Km. Saroj) for suppressing the truth on the ground that she had been subjected to medical examination as well as X-ray. 25. In my opinion, the prosecutrix’s statements could not be discarded on the ground that she knew that she had been subjected to medical examination and X-ray. 24. The learned Additional Sessions Judge has further criticised the prosecutrix (PW-8 Km. Saroj) for suppressing the truth on the ground that she had been subjected to medical examination as well as X-ray. 25. In my opinion, the prosecutrix’s statements could not be discarded on the ground that she knew that she had been subjected to medical examination and X-ray. If her parents required her to go for medical examination and X-ray and she co-operated with them, it cannot be inferred that she did so only because she had been kidnapped. The statement of the prosecutrix recorded during the trial, ought not to have been discarded on the grounds recorded by the learned Additional Sessions Judge, specially when in the cases of kidnapping, abduction and rape the prosecutrix happens to be a very material witness and her versions carry more credibility than any other evidence. PW-8 Km. Saroj has very specifically stated that she had gone to the house of her maternal uncle and two police personnel brought her there-from to the house of her father and she was not subjected to kidnapping, as alleged by the prosecution. This statement of the prosecutrix shakes the very foundation of the prosecution case. 26. The story of recovery of the prosecutrix at the railway station Mewa Nawada and arrest of the appellant No. 5 Kallu also seems to be doubtful. According to the recovery memo, the prosecutrix was recovered from the possession of the appellant No. 5 Kallu, who was also arrested. But the prosecution, without giving any proper explanation, materially changed the story of recovery and alleged that all the appellants and the prosecutrix were found together on the railway station Mewanawada but only the appellant No. 5 Kallu could be arrested alongwith the prosecutrix and the other appellants managed their escape. Presence of the appellants other than the appellant No. 5 Kallu, at the time of the alleged recovery is a material improvement in the prosecution case without any proper explanation of the omission of these facts in the recovery memo. Moreover the recovery memo has not been proved and the Sub Inspector Pawan Singh, who had allegedly recovered the prosecutrix from the custody of the appellant No. 5 Kallu and prepared the recovery memo, was not examined during the trial. Moreover the recovery memo has not been proved and the Sub Inspector Pawan Singh, who had allegedly recovered the prosecutrix from the custody of the appellant No. 5 Kallu and prepared the recovery memo, was not examined during the trial. The prosecution has also not examined the witness Dharam Singh, who was allegedly present at the time of the recovery. PW-5 Jagdish, the other witness of the recovery, has not supported the story of recovery during the trial. PW-3 Sukh Lal, the father of the prosecutrix, has no doubt supported the story of recovery but his statement cannot be believed in view of the fact that the original recovery memo does not bear his signature or thumb impression and is also silent in regard to his presence at the time of the alleged recovery. If PW-3 Sukh Lal was present at the time of the recovery of prosecutrix PW-8 Km. Saroj, there was no reason for the Investigating Officer S.I. Pawan Singh not to mention his name in the recovery memo and not to obtain his signature or thumb impression on the recovery memo. The presence of PW-3 Sukh Lal at the time of the alleged recovery is, therefore, highly doubtful. 27. It further appears that the learned Additional Sessions Judge has given undue significance to the G.D. entry No. 33 dated 3.2.1979 in believing the story of the prosecutrix’s recovery. The observations of the learned Additional Sessions Judge in this regard are reproduced as follows : “........The prosecution failed to produce the I.O. S.I. Pawan Singh who is said to have arrested Kallu accused alongwith Saroj at Mewa Nawada railway station in the evening of 3.2.1979. The memo of recovery has also not been proved by the prosecution. Jagdish who is said to be an eye-witness of the arrest of Kallu and recovery of Km. Saroj from him has turned hostile to the prosecution. But the G.D. entry No. 33 of 9.5 p.m. on 3.2.1979 has been proved by producing its copy, Ex. Ka-4. A supurdginama Ex. Ka-6 in respect of Saroj also came on the record when the defence dispensed with its formal proof. The G.D. entry shows that Pawan Singh S.I. had returned to the police station at 9.5 p.m. on 3.2.1979 alongwith Kallu son of Sukhan resident of Maqora Pur Chhaprara P.S. Moonda Pandey Distt. Ka-4. A supurdginama Ex. Ka-6 in respect of Saroj also came on the record when the defence dispensed with its formal proof. The G.D. entry shows that Pawan Singh S.I. had returned to the police station at 9.5 p.m. on 3.2.1979 alongwith Kallu son of Sukhan resident of Maqora Pur Chhaprara P.S. Moonda Pandey Distt. Moradabad under custody and Saroj in connection with crime No. 24 under Section 363/366, IPC. Accused was put in the lock up and Saroj and his father were made to sit in the verandah of the office of the police station. The version of Pawan Singh S.I. at that time was that during investigation of the case he was returning to the police station; that an informer told him that six persons alongwith a girl were present at the Mewa Nawada railway station and were about to proceed to somewhere; that he alongwith the other members of the force went to the railway station and at the pointing out of the informer and on the confirmation by Sukhlal he arrested Kallu accused who was sitting with Saroj holding her arm; that the other accused escaped; that it was about 5.30 p.m.; that he brought Kallu and Saroj to the police station; that the G.D. entry further shows that Saroj was referred to the Bijnor Distt. Hospital for her medical examination.....” 28. The learned Additional Sessions Judge, therefore, relied on G.D. entry as substantive piece of evidence to believe the story of recovery of the prosecutrix and also to hold that the said entry was based on the statement made by the sub inspector Pawan Singh at the police station after coming back from the place of recovery. It is well-settled that neither the G.D. entries nor the facts mentioned in the G.D. are substantive piece of evidence and they cannot form any basis for recording a valid conviction. Whatever facts and statements had been recorded in the G.D., they ought to have been proved in the Court by examining the sub inspector Pawan Singh and other witnesses who were allegedly present at the time of the recovery. Whatever facts and statements had been recorded in the G.D., they ought to have been proved in the Court by examining the sub inspector Pawan Singh and other witnesses who were allegedly present at the time of the recovery. Only the statements of the witnesses recorded during the trial are substantive piece of evidence and the facts mentioned in the General Diaries or case diaries cannot legally take the place of substantive evidence, due to the reasons that they are neither recorded on oath nor subjected to cross-examination by the person against whom the same is relied on as evidence, specially when the person, who happens to be the main witness of the facts mentioned in the G.D., is alive and can be examined during the trial. Non-examination of the sub inspector Pawan Singh, on the basis of whose statements the G.D. entry was made, is not only a material omission on the part of the prosecution but also amounts to denial of an opportunity to appellants to test the veracity of the facts mentioned in the G.D. as well as in the recovery memo by cross-examining him. As such, it was absolutely against the settled principles of law in placing reliance on the un-proved facts mentioned in the G.D. In my opinion, the aforesaid views of the learned Additional Sessions Judge are not only perverse but also against the settled principles of law. 29. The prosecution story, as narrated by PW-3 Sukh Lal (complainant) and his wife PW-4 Tulia, seems to be highly improbable. It was quite unnatural for them not to resist the kidnapping of their minor daughter by the appellants. None of them sustained any injury nor they made any attempt to chase the appellants for taking back the prosecutrix from their clutches. PW-4 Tulia has no doubt tried to explain that her husband had not only been assaulted by some of the appellants with knife but had also sustained injuries on account of that assault and was subjected to medical examination and his injuries were even noticed at the police station, but this statement of PW-4 Tulia being inconsistent with the statement of PW-3 Sukh Lal, cannot be given any significance. PW-3 Sukh Lal has nowhere stated that he was assaulted by some of the accused with knife and he had sustained injuries and was also subjected to medical examination. PW-3 Sukh Lal has nowhere stated that he was assaulted by some of the accused with knife and he had sustained injuries and was also subjected to medical examination. It may also be mentioned that PW-4 Tulia has, however, stated that the accused persons were chased up to the jungle and grove which was far away from her house but they could not be apprehended. PW-3 Sukh Lal, on the other hand, stated that accused persons were not chased. In view of the fact that the prosecutrix (PW-8 Km. Saroj) has not supported the prosecution story and the story of her recovery from the possession of the appellants is also not proved, it was not proper to record conviction of the appellants merely on the basis of tainted, improbable and contradictory statements of PW-3 Sukh Lal and his wife (PW-4 Tulia). It is the duty of the prosecution to prove a charge beyond all reasonable doubts, but in the instant case, the prosecution story seems to be highly doubtful specially when PW-8 Km. Saroj (prosecutrix) has not supported the prosecution story during the trial and the prosecution has failed to put forth any plausible reason as to why she did not support the story of her own kidnapping, if the incident had actually taken place. 30. The learned Senior Counsel for the appellants further submitted that PW-4 Tulia has admitted during the cross-examination that the appellant No. 5 Kallu had come to her house during the day hour prior to the occurrence and made an inquiry about her daughters Sushma and Saroj. She then replied that they were in her house. After his talk, the occurrence took place in the succeeding night. The learned senior Counsel further submitted that the appellant No. 5 Kallu was arrested when he had gone to the house of PW-4 Tulia and was handed over to the police in the next morning with a concocted story of kidnapping. This statement of the learned senior Counsel seems to have substance in view of the fact that only the arrest of the appellant No. 5 Kallu has been alleged in the recovery memo and also in view of the fact that he had visited the house of the complainant during the day hours and had a talk with the complainant’s wife PW-4 Tulia. 31. There was even delay in lodging the FIR. 31. There was even delay in lodging the FIR. It is alleged that the occurrence took place at about 12.00 hours in the night of 2/3rd February, 1979 and the FIR was lodged on 3.2.1979 after about 12.00 hours of the occurrence. The complainant has not given any explanation of this delay. He has, however, stated that he reached the police station in the morning but failed to explain as to why the FIR was not handed over to the police in the morning and was lodged at 12.30 p.m. He has also failed to explain the causes of the delay that occurred at the police station itself, which implies that there was some deliberations and consultations before lodging of the FIR. 32. For the reasons discussed above, the appeal succeeds and is accordingly allowed. The impugned judgment and order dated 24.4.1982 is set aside. The appellants Ram Singh, Sapri, Sudesh, Mallu, Kallu and Budesh are acquitted of the charge under Section 363, IPC. The fine if already paid by the appellants shall be refunded to them. ————