JUDGMENT : Ashim Kumar Roy, J. 1. This statutory appeal preferred by convicts, Saroj Kumar Das is arising out of a judgment and order passed by the Learned Additional Sessions Judge, Jangipur, Murshidabad in connection with a Sessions Trial, wherein under he was convicted under Section 376 (2)(f) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for ten years and to pay fine with default clause. 2. According to the case of the prosecution on the date of occurrence around 7 P.M., in the evening, P.W. 1, mother of the victim girl, sent her (P.W. 4) to bring mustard oil from a nearby grocery shop. When after taking mustard oil, she was returning home, this appellant forcibly dragged her in a banana grove, undressed and forcibly raped her. Due to such sexual assault, victim (PW/4) sustained pain and bleeding injury on her private parts. The said incident was reported to the local police station on the next day by the mother of the victim, PW/1, to whom victim soon after the incident disclosed the entire episode for the first time. Then the investigation was commenced and her statement was recorded under Section 161 and under Section 164 CrPC. Simultaneously, several other witnesses were examined, her blood stained wearing apparels were seized and finally the appellant was charge sheeted for the self-same offence for which FIR was registered against him. 3. In the trial, the appellant was charged under section 376(2)(f) IPC and while the prosecution to prove its case examined total 9 witnesses, the defence examined none. However, from the trend of cross-examination of the witnesses and the answers given by the appellant against the questions put to him, during his examination under Section 313 CrPC, it appears that the defence case is one of complete denial and of false implications. 4. Mr. However, from the trend of cross-examination of the witnesses and the answers given by the appellant against the questions put to him, during his examination under Section 313 CrPC, it appears that the defence case is one of complete denial and of false implications. 4. Mr. Sekhar Basu, learned Senior Advocate, at the outset of his submissions invited our attention to the impugned judgment and the findings of the trial court and in his usual vehemence contended that the trial court in utter breach of rudimentary, cardinal and fundamental principle of criminal jurisprudence, took into consideration suo motu the statement of the PW/4 recorded under section 161 CrPC, drew corroboration and reached to his conclusion as to the guilt of the appellant, although no part of the statement of any witness recorded under section 161 CrPC is admissible in evidence being hit by sub-section (1) of section 162 CrPC, except for the purpose of contradicting such witness, in terms of the provision of section 145 of the Evidence Act, and similarly also illegally took into consideration the 164 statement of the victim, which is not at all a substantive piece of evidence and can only be used for the purpose of contradicting or corroborating its maker. He added the statement of the victim recorded under section 164 CrPC was illegally and erroneously exhibited and marked Ext.-5 and brought into record without the same being proved in accordance with law by the maker thereof the PW/4 and examining the Judicial Magistrate, who recorded such statement. 5. He then submitted that the trial court completely misread and misconceived the law laid down in the case of Agnel Kujur vs. The State, reported in (2008) 1 C Cr LR (Cal) 95 took recourse to Section 80 of the Evidence Act to admit 164 statement of the victim, PW/4 although that case has no manner of application in the facts and circumstances of the present case. He pointed out in that case the statement of the witness recorded under section 164 CrPC was duly proved and exhibited. He pointed out in that case the statement of the witness recorded under section 164 CrPC was duly proved and exhibited. However, the maker thereof having denied his signature in the said statement, he was declared hostile and the document was sent to a handwriting expert for verification and after the signature was found to be genuine, the witness was again examined and then he admitted what was recorded by the learned Magistrate was stated by him and true. 6. He further submitted the fact of the present case and the fact of the case relied on by the trial court were clearly distinguishable and then referred the question no. 13 put to the appellant, while he was examined under section 313 CrPC and the evidence in chief of the PW/4. He vehemently contended nowhere in her evidence, she claimed to have disclosed what has stated in court in her evidence, was also stated before the learned Magistrate and was correctly recorded, except that she was examined by a Magistrate and therefore, the said question is not in accordance with law. 7. He further submitted that during her cross-examination, the PW/4, the victim girl, was confronted with her evidence in chief and suggested those were not referred in her statement recorded under section 161 CrPC during investigation. He then contended since the investigating officer was not examined during the trial due to his death nor anyone of his colleagues acquainted with his handwriting, was examined, the defence has lost a very valuable right to impeach the credit of the said witness, the victim girl. He vehemently urged those portions of the evidence of PW/4 in respect of which she was confronted with reference to her statement recorded under section 161 CrPC, ought to be excluded from consideration. 8. Mr. Basu also pointed out the contradictions between the evidence of PW/1, the mother of the victim and that of her (PW/4). He submitted the PW/1 is a very vital witness to the prosecution and she was the first one to whom PW/4 immediately after getting rid of the appellant disclosed the incident. 8. Mr. Basu also pointed out the contradictions between the evidence of PW/1, the mother of the victim and that of her (PW/4). He submitted the PW/1 is a very vital witness to the prosecution and she was the first one to whom PW/4 immediately after getting rid of the appellant disclosed the incident. However, while PW/4 claimed that she was raped and threatened not to disclose any part of the incident to anyone on the point of knife but PW/1 contradicted her daughter claiming that she was told by her daughter (PW/4) that after committing rape the appellant offered her money and asked her not to disclose the incident to anyone. 9. According to him, there has been a long delay of more than 14 hrs. in reporting the incident to the police. He added even if it was accepted that the victim girl PW/4 was threatened not to disclose the incident to anyone still she disclosed the incident to her mother and it was not she herself but her mother PW/1 lodged the FIR and no explanation is forthcoming against such delay. 10. Mr. Basu submitted that PW/5 is a most vital witness of the prosecution and according to the prosecution case, while PW/4 was returning home purchasing mustard oil from the grocery shop of PW/5, she was allegedly raped by the appellant. He then drew our attention to the cross-examination of PW/5 and pointed out, the witness however, claimed that he heard about the incident, as PW/1 spread a rum our in the village and he had no talk regarding the incident with the villagers nor any villager told him anything about the incident and no salish took place in the village over the incident. 11. Mr. Basu further submitted not only the trial court acted on inadmissible evidence to reach its conclusion, at the same time did not consider that part of the evidence of PW/7 Dr. Kalyan Kumar Mishra, which materially impaired the allegation of rape against the appellant. He then took us to the evidence of PW/7 Dr. 11. Mr. Basu further submitted not only the trial court acted on inadmissible evidence to reach its conclusion, at the same time did not consider that part of the evidence of PW/7 Dr. Kalyan Kumar Mishra, which materially impaired the allegation of rape against the appellant. He then took us to the evidence of PW/7 Dr. Kalyan Kumar Mishra, who examined the victim girl one day after the incident and submitted that this doctor found no injury in the private parts of the victim and her hymen was intact although according to him, in case of a forcible rape of a virgin girl there must be injury and the scratch marks which was found on the chest of the victim has no nexus with a rape. Mr. Basu in this regard relied on a very recent decision of the Hon’ble Apex Court, in the case of State of Karnataka vs. F. Nataraj, reported in JT 2015 (9) SC 230. 12. He lastly pointed out that allegedly the blood stained wearing apparels of the victim was seized by the police during investigation and it appeared from the records that those wearing apparels were sent to the FSL and a report was also obtained. He then took us to the page 37 of the first file of the LCR and invited our attention to a document and submitted that was the report of examination of the seized wearing apparels of the victim girl and then pointed out that the description of articles contained in the parcel that was received by the FSL, nowhere indicated that those were blood stained and during examination no semen could be detected either in the vaginal swab or in the undergarments, which clearly belied the prosecution case. He then contended since the above document was never produced during the trial and exhibited, the defence was deprived of taking support there from to establish the innocence. Mr. Basu relied on a decision of the Hon’ble Apex Court in the case of Ramaiah @ Rama vs. State of Karnataka, reported in (2014) 9 SCC 365 and vehemently contended since the said report was with the records, the same can very much be taken into consideration by this court to accept the innocence of the appellant. 13. Mr. Basu relied on a decision of the Hon’ble Apex Court in the case of Ramaiah @ Rama vs. State of Karnataka, reported in (2014) 9 SCC 365 and vehemently contended since the said report was with the records, the same can very much be taken into consideration by this court to accept the innocence of the appellant. 13. On the other hand, the learned counsel appearing on behalf of the State resisted the appeal and contended since the victim and his family has no animosity with the appellant, therefore, there could not be any reason of false implication. He then pointed out that the 164 statement of the victim girl, Ext.-5 was marked and exhibited during the trial without any objection from the side of the defence and therefore same can always be acted upon. He then submitted that according to PW/7, the doctor who examined the victim girl after the occurrence, even if there was penetration, still the hymen may be intact and presence of injury near the private parts was not always an essential ingredients in case of forcible sexual intercourse. He further submitted that FIR was lodged on the very next day of occurrence which also established the truth of the prosecution case. According to him, there was no contradiction in the evidence of the witnesses. 14. Considering the respective submissions of the parties and the decisions relied upon by them and having perusal of the materials on record, we conclude as follows, 15. The statements recorded under section 161 and 164 CrPC both are within the realm and part of the investigation and recorded by the police and the Judicial Magistrate, respectively. None of those are substantive evidence. While the 164 statement can only be used either to contradict or to corroborate the maker thereof but any statement recorded under section 161 CrPC is completely inadmissible in evidence, on the face of specific statutory bar contained in section 162 CrPC. However, the provisions of section 162 CrPC itself provides, any part of such statement recorded under section 161 CrPC can always be used for limited purposes as provided there under. However, the provisions of section 162 CrPC itself provides, any part of such statement recorded under section 161 CrPC can always be used for limited purposes as provided there under. Firstly, by the accused to contradict any witness with reference to any part of such statement, or by the prosecution with the leave of the court in terms of section 154 of the Evidence Act, declaring his own witness hostile and may also be used in the reexamination of such witness, for the purpose of explaining any matter referred to in his cross-examination. Secondly, if the maker of such statement dies, irrespective of facts the death is homicidal or suicidal, provided the statement relates to the cause of death or exhibit circumstances leading to the death, as dying declaration under section 32 of the Evidence Act and lastly, under section 27 of the Evidence Act, when any fact is discovered in consequence of information received from an accused while in police custody and relates distinctly to the fact thereby discovered. 16. From perusal of the LCR, we find on June 17, 2001, during the trial, the statement of the victim PW/4, recorded under section 164 CrPC was tendered by the learned Public Prosecutor with a prayer for admitting the same, and the defence raised no objection and the same was marked as Ext.- 5. Truly speaking, the said statement was admitted in terms of the provisions of section 294 CrPC, may be that the learned trial Judge has not in so many words noted down the same. Therefore, we are unable to accept the submissions of Mr. Basu, that the Ext.-5 was brought on record and marked exhibit, not in accordance with law. Since the Ext.-5 was exhibited under section 294 CrPC, no formal proof is necessary. However, it goes without saying, since, any statement recorded under section 164 CrPC, is not a substantive piece of evidence and can be used only for a limited purpose to contradict or corroborate the maker thereof, unless the maker of such statement proved the same to be one reduced into writing correctly as stated by him or her, the content thereof cannot be used for any purpose. It is not at all permissible in law for a trial court to consider such statement suo motu to draw any inference far less seek corroboration, what has been wrongly done in the case at hand. It is not at all permissible in law for a trial court to consider such statement suo motu to draw any inference far less seek corroboration, what has been wrongly done in the case at hand. 17. The law in this regard is well-settled and it would be sufficient to refer the relevant observation of the Apex Court from the following decisions, (a) George and others vs. State of Kerala and another, (1998) 4 SCC 605 para 36. Para 36. We may now turn to the evidence of PW 50, detailed earlier. From the judgment of the trial court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 CrPC and not his evidence in court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial court: “If Ext. P-42 (the statement recorded under Section 164 CrPC) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime.” 18. In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. Instead of appreciating the evidence of PW 50 from that perspective the trial court confined its attention mainly to his statement so recorded and discredited him. This legal infirmity apart, factually also the trial court committed patent errors. (b) State of Delhi vs. Shri Ram Lohia, AIR 1960 SC 490 para 13. Para 13. ………The statement under S. 164 referred to was not specifically put to Aggarwal even to contradict him. statements recorded under S. 164 of the Code are not substantive 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 could be used as substantive evidence in the case. 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 could be used as substantive evidence in the case. The Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under S. 164 to come to the conclusion that he had been won over. 19. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination-in-chief was over. (c) State of Rajasthan vs. Kartar Singh, AIR 1970 SC 1310 para 11. Para 11. It may be pointed out that these two witnesses also made a statement under Section 164 of the Code of Criminal Procedure. These statements were, of course, not evidence but were corroborative of what had been stated earlier in the Committal Court. The attention of the witnesses was drawn to passages from those statements also and their explanation only was that they were made under ‘police pressure’. In our judgment the High Court was in error in not reading the statement of Ranjeet Singh made before the Committal Court and considering it as part of the evidence in the case. 20. In any event, in the above background the content of Ext.-5 cannot be gone into. 21. It would be evident from the following observation of the trial court that the statement of the victim recorded under section 164 CrPC was treated as substantive evidence, “In the case under reference, it is apparent from the statement made by the victim girl under section 164 CrPC that on earlier two occasions this accused allured her to have sex against payment of money. On both the occasions, the victim refused and finally, the accused taking advantage of the loneliness of the victim forced her and raped her.” 22. We have also noticed from the impugned judgment another erroneous approach adopted by the trial court in looking into the statement of PW/4 recorded under section 161 CrPC to seek corroboration, ignoring the embargo imposed under sub-section (1) of section 162 CrPC. We have also noticed from the impugned judgment another erroneous approach adopted by the trial court in looking into the statement of PW/4 recorded under section 161 CrPC to seek corroboration, ignoring the embargo imposed under sub-section (1) of section 162 CrPC. In this regard it would be quite relevant and enough to quote some of the observations of a three-Judges Bench of the Apex Court, in the case of Rameshwar Singh vs. State of Jammu & Kashmir, reported in AIR 1972 SC 102 , where the Apex Court deprecated the same and is quoted below, Para 7:- “…………We have referred to the statement of this witness under Section 161, CrPC because the High Court seems to have taken into consideration not only the statement of this witness under Section 161 CrPC for seeking corroboration of his testimony in court but the statements of a large number of other witnesses during investigation have also been used for this purpose…….” Para 8:- “The High Court was clearly in error in taking into consideration the contents of the statement recorded under Section 161 CrPC during the course of investigation for the purpose of finding corroboration of the statements made in court. …….” 23. Thus, in the case at hand undoubtedly the trial court has committed a great mistake in law and illegally took into consideration the content of Ext.-5, the statement of the victim, recorded under section 164 CrPC and part of her statement recorded under section 161 CrPC to corroborate her evidence in court. We also agree with Mr. Basu, the ratio of the decision in the case of Agnel Kujur vs. The State, reported in (2008) 1 C Cr LR (Cal) 95 has no manner of application in the facts and circumstances of the present case. 24. It was next contended by Mr. Basu that with a view to contradict the evidence-in-chief of the victim, PW/4 with reference to her statement made to the Investigating Officer of the case under section 161 CrPC, during her cross-examination she was suggested of not making those statements to the police and she denied but having regard to the facts neither the Investigating Officer of the case nor any police officer was examined during the trial the defence could not get any opportunity to impeach her credit and accordingly those part of her evidence to be excluded from consideration. On a close scrutiny of the evidence of the victim girl PW/4 we find, it is true with reference to her evidence-in-chief during her cross-examination she was suggested many important facts she deposed in court was not stated to the Investigating Officer of the case. Since the Investigating Officer was not examined during the trial nor any of his colleague police officers acquainted with her handwriting was examined in court, we are of the opinion the defence was really prejudiced. 25. According to the prosecution case, PW/5 Sukumar Mondal appears to be very vital and material witness. He was a grocer and at the time of occurrence, the victim went to his shop for purchasing mustard oil. PW/5 in his evidence stated that he heard about the incident as the mother of the victim spread a rumor in the village and none of the villagers told him anything about the incident and no villager supported him. This witness was however, not declared hostile and as the law stands the defence can very well rely on his statement to prove the innocence of the accused. 26. There has been a delay of about 14 hours in reporting the incident to the police. It has claimed the delay occurred due to the fact that the victim girl PW/4 was threatened by the appellant with dire consequences if she reported the incident to anyone. However, it is the admitted position immediately after the incident she allegedly disclosed the same to her mother PW/1 as it was the PW/1, who reported the incident to the police. We are not satisfied with the explanation of delay. 27. In this regard, it also be noted although PW/4 the victim girl claimed she was threatened with dire consequences, but according to her mother PW/1 she was told by her daughter that after the occurrence the appellant offered her money and asked not to disclose the same to anyone. 28. In a case of this nature, undoubtedly the most vital witness is the Doctor, who examined the victim after the incident. Here in this case PW/7 Dr. Kalyan Kumar Mishra on the very next morning examined the victim girl but no injury was detected near her private parts and hymen was found intact. 28. In a case of this nature, undoubtedly the most vital witness is the Doctor, who examined the victim after the incident. Here in this case PW/7 Dr. Kalyan Kumar Mishra on the very next morning examined the victim girl but no injury was detected near her private parts and hymen was found intact. According to the PW/7 even in a case of penetration hymen may be found intact but at the same time he admitted that in a case of forcible rape, presence of injury near the private parts is normal phenomenon. In his cross-examination the witness, however, disclosed question of sustaining injury in the private parts of victim depends on whether she is married or virgin. According to him in a case where a married woman, habituated to sexual intercourse is raped, there may not be any injury but where the victim girl is a virgin in case of forcible penetration injury must be there in her private parts but the magnitude of the injury may be variable. 29. The PW/7 in her cross-examination clearly admitted if a raped victim sustains severe injury on her private parts it can be detected even after lapse of 7 days after the incident but if she sustains minor injury such injury may not be detected if she is examined after lapse of a week. The PW/7 in reply to a question put to him by the court further explained that if any virgin is raped and she sustained any minor injury due to forcible penetration such injury may not be detected if the victim is medically examined after lapse of a considerable period. Then again he informed the court that if there is any superficial abrasions, the mark of such injury cannot be detected after lapse of 48 hours to 72 hours. In this case it is an admitted position the victim was examined by PW/7 within 24 hours. Lastly we find from the evidence of PW/7 that the scratch mark he found in the chest of the victim may not have any connection with rape because such injury was on her chest but not on her breast. 30. At this stage, it is quite relevant to note it was claimed by PW/1, the mother of the victim girl that her wearing pant was torn and blood stained. 30. At this stage, it is quite relevant to note it was claimed by PW/1, the mother of the victim girl that her wearing pant was torn and blood stained. We find from the cross-examination of the victim girl that she sustained bleeding injuries at her vagina both inside and outside. 31. Taking together the evidence of the victim girl and her mother in one side and the evidence of the Dr. PW/7 Dr. Kalyan Kumar Mishra, we find that the very story of the prosecution that the victim girl was forcibly raped becomes highly doubtful. In this background the decision of the Apex Court in the case of State of Karnataka vs. F. Nataraj (supra) relied from the side of the appellant is of great bearing. 32. In this case, the wearing apparels of the victim alleged to be blood stained was sent for FSL examination. The report was also obtained by the prosecution which we find lying with the records and according to such report no blood was found on those wearing apparels. However, for the reason best known to the prosecution the said report was not brought to the notice of the court at the time of trial. Now, relying on the decision of the Hon’ble Apex Court in the case of Ramaiah @ Rama vs. State of Karnataka (supra) relied upon from the side of the appellant, we take into consideration the FSL report. At the same time, in the above background we also draw an adverse inference against the prosecution as provided in the provisions of section 114 (g) of the Evidence Act. 33. In the light of above findings, we are constrained to hold the prosecution has miserably failed to prove the charge brought against the appellant. 34. In the result, the order of conviction and sentence is set aside. The appellant, who is now on bail, be discharged from the bail bond and be set at liberty. 35. Office is directed to send down the lower court records at once. 36. Urgent Xerox certified copy of this judgment be given to the parties, if applied for, as early as possible. I agree.