JUDGMENT This Government Appeal under Section 378 Cr. P. C. is directed against the judgment and order dated 17.2.2016 passed by Additional District & Sessions Judge, Fast Track Court (Offence against Women) Court no.36, Barabanki in Sessions Trial no.1109 of 2010 arising out of Case Crime No.505 of 2010 under Section 363 , 366 and 376 IPC, P. S. Zaidpur, District-Barabanki whereby accused Rajesh Kumar and Ram Saharey have been acquitted for the aforesaid offences. 2. Heard learned A. G. A. for the State of U. P. 3. As per the averments of the FIR in the night of 9.5.2010 the victim of the offence Nafees (name changed) aged about17 years disappeared in the night. Her disappearance was noticed in the morning. Later a telephone call is alleged to have been received by the brother-in-law from the prosecutrix stating that she is at Amausi Airport, Lucknow. She was searched there, but could not be traced out. Later on the same day at about 8.30 pm, another message was communicated by the prosecutrix that she was in Gangaganj. The FIR further reveals that one Sangram along with one other person kidnapped the prosecutrix and later on Rajesh Kumar and Ram Saharey of the village forcibly took her in a maruti car. Thereafter, they went to Lucknow and committed physical assault/rape with her. 4. PW-1, Pyare (father of prosecutrix), PW-2, Smt. Munni (mother of prosecutrix), PW-3, Ashfaq and PW-6, Shahid (brothers of prosecutrix) have been examined as witnesses of fact. 5. Learned Court below has critically appraised the testimonies of the witnesses of fact. PW-1 had categorically admitted that his daughter (i.e. prosecutrix) disappeared in the night and no one had seen her at the time of her leaving the house. He further admitted that his daughter was recovered all alone. None of the accused was present there. The learned Court below has also considered the admission made by PW-2 that she had not seen any one taking her daughter away. The learned Court below has further considered the admission made by PW-3 in his cross-examination wherein he has conceded that his sister suo moto eloped from the house in the night. Her sister was recovered all alone at Gangaganj and no one was present with her. 6. The learned Court below has further considered the admission made by PW-3 in his cross-examination wherein he has conceded that his sister suo moto eloped from the house in the night. Her sister was recovered all alone at Gangaganj and no one was present with her. 6. The learned Court below after critical appreciation of the evidence has recorded a finding that PW-1, PW-2, PW-3 and PW-6 are the hearsay witnesses.They have deposed with respect to the role of the accused persons in commission of the offence on the basis of information furnished by the prosecutrix to them. As such, the learned Court below has rightly recorded the finding that these witnesses are hearsay witnesses. 7. PW-4, PW-5 and PW-7 are formal witnesses and they have simply proved the execution of documents. PW-7 is a Constable and he has simply proved the execution of the statement of prosecutrix recorded under Section 164 Cr. P. C. by the Presiding Officer, (A. C. J. M., Court no.19, Barabanki). It is a secondary evidence. Since, PW-7 has admitted that the statement was not recorded in his presence hence his testimony is of no avail with respect to the contents of the statement. 8. The learned Court below placing reliance upon the judgment in the case of Baij Nath Sah v. State of Bihar, 2010 (70) ACC 11 (SC) has appreciated the evidentiary value of the statement under Section 164 Cr. P. C. and has followed the observation of the Hon'ble Apex Court that the statement under Section 164 Cr. P. C. is not a substantive evidence and can only be used to corroborate or contradict the statement made by the witness in Court. 9. After considering the various propositions of law laid down by the Apex Court from time to time, the Hon’ble Apex Court in the case of Selvaraj v. State of Karnataka, (2015) 10 SCC 230 has considered the principle of appreciation of evidence in a case arising against an order of acquittal placing reliance on a judgment in the case of Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715 : (1961) 1 Cri L J 766 : (1961) 3 SCR 120 . The relevant paragraph 9 is quoted hereinbelow : “9. The relevant paragraph 9 is quoted hereinbelow : “9. The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded ; (2) the principles laid down in Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal ; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons” are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.” 10. Bearing in mind the above guidelines laid down by the Apex Court, we are of the considered opinion that the trial Court has rightly recorded the finding with respect to the witnesses of fact that they had not seen the incident by themselves. Their testimony with respect to the role of the accused persons and with respect to the offence committed by them was of a hearsay witness. The star witness of the case i.e. the prosecutrix has not been examined. In absence of her testimony the allegation regarding rape and kidnapping or abduction cannot be substantiated. Mere proving of the execution of the statement under Section 164 Cr. P. C. is not sufficient to substantiate the guilt against the accused persons. 11. In view of the discussions made above, we are of the considered opinion that the learned Court below has not committed any error of law in appreciating the evidence available on record and in recording the findings of acquittal of accused persons, which are solely justified on the basis of the materials available on record. The findings recorded by the Court below are reasoned one and are justified. We do not find any justification to interfere with the order of acquittal. The findings recorded by the Court below are reasoned one and are justified. We do not find any justification to interfere with the order of acquittal. The appeal is bereft of merits and is, accordingly, dismissed.