JUDGMENT : R.NARAYANA PISHARADI, J 1. Committing rape on his own daughter by a person is the most abominable and heinous crime which shall be condemned and dealt without any mercy. But, conviction of a person accused of such crime shall be recorded only on sufficient proof. However great the suspicion against the accused and however strong the moral belief of the Court, unless commission of the offence by the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he shall not be convicted. 2. Very recently, in Raghavan v. State of Kerala (2021 SCC OnLine Kerala 4134), a Division Bench of this Court had occasion to observe that false allegation against an accused of committing rape on his daughter is lethal to his life even if he is eventually acquitted. The present case is another example. 3. The appellant is the sole accused in the case S.C.No.99/2013 on the file of the Additional Sessions Court-I, Kottayam. 4. The prosecution case is that, the accused, the father of the victim girl, repeatedly committed penetrative sexual assault and rape on her, on many days during the period from 29.08.2012 to 03.03.2013. 5. According to the prosecution, the victim girl was aged seven years, when she became a prey to her father. She was studying in Class II at that time. Her mother was no more. She was being nursed and looked after by the accused. PW4 was her class teacher. She saw the child being very gloomy in the class. As per the instruction given by the Headmaster, she asked the child what was the matter but the child did not reveal anything. Subsequently, the members of the Childline came to the school and talked with the child. Then the child revealed the acts of sexual assault committed on her by her father and the matter was reported to the police. 6. PW10, Sub Inspector of Women Cell, Kottayam went to the school on 05.03.2013 and recorded Ext.P1 statement of the victim girl. On the basis of that statement, PW19 Sub Inspector registered Ext.P8 F.I.R. PW20 Circle Inspector conducted the investigation of the case. 6. PW10, Sub Inspector of Women Cell, Kottayam went to the school on 05.03.2013 and recorded Ext.P1 statement of the victim girl. On the basis of that statement, PW19 Sub Inspector registered Ext.P8 F.I.R. PW20 Circle Inspector conducted the investigation of the case. After completing the investigation, he filed final report against the accused for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and also under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act'). 7. The trial court framed charge against the accused only for the offences punishable under Section 376(2)(f) of the Indian Penal Code and under Section 3 read with Section 4 of the POCSO Act. The accused pleaded not guilty and he claimed to be tried. 8. The prosecution examined the witnesses PW1 to PW20 and marked Exts.P1 to P11 documents and MO1 to MO3 material objects. No evidence was adduced by the accused. 9. The trial court found the accused guilty of the offences punishable under Section 376(2)(f) of the Indian Penal Code and under Section 3 read with Section 4 of the POCSO Act and convicted him thereunder. The trial court awarded him a common sentence for both offences, of rigorous imprisonment for a period of seven years and fine of Rs.50,000/-and in default of payment of fine, rigorous imprisonment for a period of two years. 10. Conviction entered against and the sentence imposed on him by the trial court are challenged in this appeal filed by the accused from the jail. 11. Heard Adv.Smt.S.Santhy, learned counsel for the appellant (State Brief) and the learned public prosecutor. Perused the records. Specific Acts of Sexual Assault 12. Before discussing the evidence, it is to be noted that the specific allegations made against the accused in the charge framed against him by the trial court are (1) that he committed rape on his daughter, who was aged seven years, on several occasions during the period from 29.08.2012 to 03.03.2013 and thereby committed the offence punishable under Section 376(2) (f) of the Indian Penal Code and (2) that he inserted his penis into her vagina and mouth on several occasions during the aforesaid period and thereby committed the offence punishable under Section 3 read with Section 4 of the POCSO Act. Material Witnesses 13. Material Witnesses 13. Out of the 20 witnesses examined by the prosecution, the material witnesses are PW1, PW3, PW4, PW7, PW11 and PW15. PW1 is the victim girl. PW3 was a Counsellor in the Childline. PW4 was the class teacher of PW1. PW7 was the Headmaster of the school in which PW1 was studying. PW11 was the Director of Childline at Kottayam. PW15 is the doctor who examined PW1 at the hospital on 05.03.2013 and issued Ext.P4 medical certificate. Testimony of the Victim Girl 14. The victim girl was aged seven years at the time of the alleged incident. At the time of examination before the trial court, she was aged 12 years. 15. PW1, the victim girl, has stated in examination-in-chief as follows: It was her father who assaulted her. He does the work of rubber tapping. Her mother is no more. She was residing with her father and brother. She used to sleep alongwith her father. Her father used to undress her and to kiss her on the body. He used to kiss on her vagina. He had done so on the Onam day and the Christmas day. She does not remember anything further. The incident happened when she was studying in Class I. She had felt pain when her father committed the act. She does not like to reside with her father. 16. On cross-examination, PW1 has stated as follows: She used to sleep on the cot along with her father. She used to sleep by 21.00 hours. Her father would sleep after she had slept. It was her father who used to make her ready to go to the school. She had been going to the school with her elder brother. All three of them did not use to sleep together on the cot. It was her father who used to prepare and give her food. PW4 was her class teacher in Class II. PW4 used to buy and give her bangles. PW4 did not give her tofee. She told the incident, at first, to PW4. She did not tell the incident to anybody other than her teacher. It was not her father who used to wash her body. She used to take bath by herself. She does not remember what all things she told her teacher. Evaluation of Evidence of Child Witness 17. She told the incident, at first, to PW4. She did not tell the incident to anybody other than her teacher. It was not her father who used to wash her body. She used to take bath by herself. She does not remember what all things she told her teacher. Evaluation of Evidence of Child Witness 17. Evaluation of the evidence of a child witness, especially when the child herself is the victim of sexual assault, is very often a tricky affair. Conflicting considerations come into play in the evaluation of the testimony of such a witness. The tender years of the child, coupled with other circumstances appearing in the case, may rule out falsehood in her testimony. Children are assumed to bear no ill-will and malice against anyone. At the same time, there is likelihood of a child witness being tutored. There may also be the possibility of a small child not speaking the whole details of the incident. Very often, the evidence of child witnesses would be riddled with contradictions and discrepancies, being unable to withstand the cross-examination. 18. The judicial approach advised by the Apex Court in evaluation of the evidence of a child witness is the exercise of care and caution. The reason is that child witnesses are usually regarded as susceptible to tutoring. They become easy prey to tutoring. They are liable to be easily influenced, shaken and moulded. A child is susceptible to be swayed by what others tell him. 19. But, after careful scrutiny of the evidence, if the court comes to the conclusion that there is an impress of truth in it, there is no hurdle in the way of accepting the evidence of a child witness. The evidence shall be scanned by the Court to find out whether it contains traces of tutoring. The Court has to assess the statement of the child victim to ascertain whether it is a voluntary expression made and that he/she was not under the influence of others. Where the trial court is satisfied that the child witness before it is not tutored, it can treat the evidence of such witness like any other witness (See Nivrutti Pandurang Kokate v. State of Maharashtra : AIR 2008 SC 1460 ). 20. There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in memory. 20. There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in memory. A child is always receptive to abnormal events which take place in life and would never forget those events for the rest of the life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments and the same inspire the confidence of the Court, his deposition does not require any corroboration whatsoever (See State of U.P. v. Krishna Master : AIR 2010 SC 3071 ). 21. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence (See Gagan Kanojia v. State of Punjab : (2006) 13 SCC 516). 22. In State of M.P v. Ramesh : (2011) 4 SCC 786 , the law on the issue was summarised as follows: “The law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition”. Who is a Sterling Witness? 23. When can a witness be labelled as a sterling witness? In Rai Sandeep v. State : AIR 2012 SC 3157 , it has been held as follows: “In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged”. A three-Judge Bench of the Supreme Court has reiterated the above principles in Ganesan v. State ( AIR 2020 SC 5019 ), while considering the testimony of a victim girl who was aged 13 years at the time of the incident and who was aged 15 years at the time of giving evidence in the trial court. Is PW1 a Sterling or Wholly Reliable Witness? 24. A close scrutiny of the evidence of PW1 would show that the only statement made by her with regard to any act of sexual assault committed on her by the accused is that he used to kiss on her vagina. This is the substantive evidence given by PW1 with regard to the sexual assault made on her by the accused. PW1 has not deposed with regard to any other act of sexual assault committed on her by her father. She did not state before the court that the accused put or inserted his penis into her vagina or mouth. 25. Of course, PW1 stated that she could not remember any other matter. True, it was about five years after the alleged incident that she gave evidence before the court. But, if she had been subjected to sexual assault and rape by her father by putting his penis into her vagina and mouth, it is unlikely that she would have forgotten about such act. Such acts committed on a tender child by a person would have got imprinted in her mind and she would rather find it difficult to forget about them. As held in Krishna Master (supra), a child is always receptive to such abnormal events which take place in life and would never forget those events for the rest of the life. 26. The statement of PW1 about the acts of sexual assault committed on her by her father is not consistent from the very starting point till she deposed before the court. Her statement in examination-in-chief has got traces of tutoring and it cannot be accepted on its face value. She has stated in examination-in-chief that, when her father sexually assaulted her, she was studying in Class I. On cross-examination she would say that PW4, to whom she disclosed the incident, was her class teacher in Class II. The evidence of PW4 is that, though she had interacted with the victim girl, the child did not disclose anything to her. She has stated in examination-in-chief that, when her father sexually assaulted her, she was studying in Class I. On cross-examination she would say that PW4, to whom she disclosed the incident, was her class teacher in Class II. The evidence of PW4 is that, though she had interacted with the victim girl, the child did not disclose anything to her. The entire statement of PW1 in examination-in-chief has got an artificial touch which could be the result of tutoring. The dates on which she was sexually assaulted, Onam day and Christmas day, as spoken to by PW1, appear to be dates selected by someone, as they are days or dates which any child could easily remember. In such circumstances, PW1 cannot be considered as a sterling witness. Her testimony is not wholly reliable. Her evidence that her father used to kiss on her vagina cannot be acted upon without corroboration. Necessity of Corroboration 27. In practice, a conviction for an offence of rape almost entirely depends on the credibility of the victim, so far as the essential ingredients are concerned, the other evidence being merely corroborative. 28. Corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases. But, such evidence cannot be expected in sexual offences, having regard to the very nature of such offences. 29. The victim of a sexual offence is not an accomplice. Requirement of corroboration of her testimony is not a rule of law. It is only a rule of prudence. Rule of corroboration is of practical wisdom than of law. Corroborative evidence is not an imperative component of judicial credence in every case of sexual assault. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. The rule is not that corroboration is essential before there can be a conviction. But, the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge (See Rameshwar v. State of Rajasthan : AIR 1952 SC 54 ). 30. The rule is not that corroboration is essential before there can be a conviction. But, the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge (See Rameshwar v. State of Rajasthan : AIR 1952 SC 54 ). 30. If for some reason the court finds it difficult to place implicit reliance on the testimony of a victim of sexual assault, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The extent of corroboration required, when it is not considered safe to dispense with it, varies with the circumstances of each case. When it is found that corroboration is necessary, all that is required is that there must be some additional evidence rendering it probable that the story of the victim is true. Corroboration need not be by way of direct evidence. It is sufficient if it is merely circumstantial evidence. 31. In the instant case, the prosecution relies upon the evidence of PW3, PW4, PW7 and PW11 and also medical evidence to corroborate the testimony of PW1. Former Statement as Corroborative Evidence 32. Section 157 of the Indian Evidence Act states that, in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. 33. Section 157 of the Indian Evidence Act envisages two categories of statements of witnesses which can be used for corroboration. First is the statement made by a witness to any person "at or about the time when the fact took place". The second is the statement made by him to any authority legally bound to investigate the fact. 34. It is clear that there are only two things which are essential for Section 157 of the Evidence Act to apply. The first is that a witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place. The first is that a witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place. If these two things are present, the former statement can be proved to corroborate the testimony of the witness in the court. 35. If the statement is made to an authority competent to investigate the fact, such statement gains admissibility, no matter that it was made long after the incident. But if the statement is made to a non-authority, it loses its probative value due to lapse of time. 36. If the statement was made contemporaneous with the occurrence, the statement has a greater value as res gestae and then it is substantive evidence. But if it was made only after some interval of time, the statement loses its probative utility as res gestae, still it is usable, though only for a lesser use. 37. Any former statement made by a witness at or about the time when the incident look place becomes usable as of corroborative value under Section 157 of the Evidence Act. Even if such statements are not part of the main transaction, they have probative value for corroborative purposes if such statements have been made without delay. If delay is involved in making such statement, its utility would be restricted to confronting the maker for contradicting him. A delayed statement would have no corroborative value. If there is no appreciable delay, the statement made by the witness can be used for corroborating his own testimony as provided in Section 157 of the Evidence Act. 38. What is meant by the expression "at or about the time when the fact took place"? This expression in Section 157 of the Evidence Act should be understood in the context according to the facts and circumstances of each case. The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Evidence Act. The test to be adopted, therefore, is this : Did the witness have the opportunity to concoct or to have been tutored? The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Evidence Act. The test to be adopted, therefore, is this : Did the witness have the opportunity to concoct or to have been tutored? The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction (See State of Tamil Nadu v. Suresh : AIR 1998 SC 1044 ). 39. The words "at or about the time" in Section 157 of the Evidence Act must receive a pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeding into, such statement has credence, and hence can be used, though not as substantive evidence but as corroborating evidence, on the principle adumbrated in Section 157 of the Evidence Act (See Nathuni Yadav v. State of Bihar : AIR 1997 SC 1808 ). 40. The former statement may be in writing or may be made orally to some person at or about the time when the fact took place. If it is made orally to some person at or about the time when the fact took place, that person would be competent to depose to the former statement and corroborate the testimony of the witness in the court. 41. The statement relating to the incident made by a victim of sexual assault, at or about the time when the incident occurred, to a close relative comes within the first limb of Section 157 of the Indian Evidence Act and it can be used for corroborating her testimony in the Court. Unless that statement was made as part of the same transaction, it cannot fall within the purview of Section 6 of the Evidence Act. 42. Unless that statement was made as part of the same transaction, it cannot fall within the purview of Section 6 of the Evidence Act. 42. A statement referred to in Section 157 of the Evidence Act cannot become substantive evidence unless the statement falls within the purview of one of the provisions in the second chapter of the Evidence Act. Otherwise, the statement has only the limited utility of corroborating the witness concerned. In either case, the statement is admissible in evidence, though utility wise it may have some variation (See Rajan v. State of Kerala : 1992 Cri.L.J 575). Evidence of PW3, PW4, PW7 and PW11 43. Now, it shall be examined whether the evidence given by PW3, PW4, PW7 and PW11 can be used to corroborate the substantive evidence of PW1 that her father used to kiss on her vagina. 44. PW3 was a person working as a Counsellor in the Childline. She has given evidence that information was obtained in the Childline that PW1 was being subjected to sexual assault by her father. She saw the child on 01.03.2013. Then, PW1 told her that during the Onam holidays of 2012, her father had molested her. She again saw the child on 04.03.2013. Two other Childline co-ordinators were also with her at that time. Then the child told them about the incident. The child told them that her father used to molest her. The matter was then informed to the police. 45. PW11 was the Director of the Childline at Kottayam at the relevant time. He would say that he got message from the Child Welfare Committee that a student was being subjected to sexual assault by her father. He sent the Childline co-ordinators to the school. But they did not get any information. Thereafter, information was obtained from the school with regard to the assault on the child by the father. Then, the Childline counsellor (PW3) went to the school and obtained the relevant details from the child. The victim girl told PW3 about the incident. Thereafter, on 04.03.2013, he (PW11) went to the school with Childline co-ordinators. Then, the victim child told him that her father used to sexually assault her. 46. According to PW3 and PW11, it was in the first week of March, 2013 that PW1 told them about the acts of sexual assault committed on her by her father. Thereafter, on 04.03.2013, he (PW11) went to the school with Childline co-ordinators. Then, the victim child told him that her father used to sexually assault her. 46. According to PW3 and PW11, it was in the first week of March, 2013 that PW1 told them about the acts of sexual assault committed on her by her father. Their version is that the child told them that her father molested her during the Onam holidays and the Christmas holidays in the year 2012. The interval is too long and it cannot be found that the alleged former statement made to them by the victim girl was "at or about the time" when the incident occurred. 47. PW4 was the class teacher of the child in Class II. She has given evidence that she saw the child being gloomy very often. She asked the child the reason for it. The child then did not state anything to her. Subsequently, the headmaster told her that he had got information that the child was being subjected to assault and he asked her to enquire about it. As per the instruction given by the headmaster, PW4 asked the child what was the matter. PW4 has deposed that, then also, the child did not say anything to her. According to PW4, the child had given a written statement to the members of the Childline. 48. PW7 was the headmaster of the school in which the victim girl was studying. He has stated that it was in June, 2012 that he took charge as headmaster in the school. At the time of the incident, the victim girl was studying in Class II. PW7 would say that he got information regarding the incident from one Sreekumar, the owner of the house in the compound of which he had parked his motor cycle one day. The evidence of PW7 does not disclose that the victim girl told him anything. 49. PW4 has categorically stated that the victim girl did not disclose anything to her. The evidence of PW7 also does not show that the victim had told him anything about the matter. Therefore, no question of using their evidence to corroborate the testimony of PW1 arises. Medical Evidence 50. PW15 is the doctor who had examined the victim girl on 05.03.2013 at the Medical College Hospital, Kottayam and issued Ext.P4 medical certificate. The evidence of PW7 also does not show that the victim had told him anything about the matter. Therefore, no question of using their evidence to corroborate the testimony of PW1 arises. Medical Evidence 50. PW15 is the doctor who had examined the victim girl on 05.03.2013 at the Medical College Hospital, Kottayam and issued Ext.P4 medical certificate. She has given evidence that the victim child was brought to her by a Childline worker. PW15 would say that the 'history' was told to her by the child herself. The child told that, during the past one year, her father used to kiss and bite her and to kiss on her vagina. 51. The injuries noted on the body of the child by PW15 can have no relevance because mere kissing on the private part would not have resulted in any visible physical injury. 52. The question is whether the evidence of the doctor with regard to the 'history' told to her by the child can be used to corroborate the statement of the child that her father used to kiss on her vagina. Here also, the interval between the date of the incident and the date on which the statement made by the victim to the doctor is too long. Moreover, there is no evidence given by the victim girl that during the period of one year prior to the date on which she was examined by the doctor she was being molested by her father. Therefore, the evidence of PW15 with regard to the statement of 'history' made to her by the child suffers from the very same infirmity as in the case of the evidence of PW3 and PW11 and it cannot be used to corroborate the testimony of PW1. Suspicious Circumstances 53. The evidence adduced by the prosecution would show that information with regard to the alleged sexual assault of the child by her father was first obtained by PW7, the headmaster of the school, from one Sreekumar. No such person was even cited as a witness by the prosecution. It remains a mystery as to how or from where this Sreekumar obtained such information. 54. PW3 has given evidence that the written statement made by the victim girl to the Childline co-ordinator was handed over to the police. No such person was even cited as a witness by the prosecution. It remains a mystery as to how or from where this Sreekumar obtained such information. 54. PW3 has given evidence that the written statement made by the victim girl to the Childline co-ordinator was handed over to the police. PW4 has categorically stated that, the victim child had given a written statement to the Childline workers with regard to the problems experienced by her. PW11 has stated that he was the person who wrote the details given by the child. The evidence of PW4 is that the child wrote the statement by herself and gave it to the Childline workers. At any rate, the statement of the child had been reduced to writing. What happened to this statement in writing also remains a mystery. 55. The mother of the victim girl was dead. If her father had sexually assaulted her, the first person to whom she would have confided the matter was her class teacher (PW4), who even used to buy and give her bangles. But, PW4 has stated that, inspite of specifically asking PW1 about her problems, PW1 did not disclose anything to her. The conduct of PW1 in that regard appears to be quite unnatural. This is a crucial circumstance which makes her testimony unreliable. 56. The accused is entitled to avail the benefit of the above suspicious circumstances. Statement of Witness Under Section 164 Cr.P.C 57. The trial court has heavily relied upon the contents of the statement given by the child to the Magistrate under Section 164 Cr.P.C and also Ext.P1 statement of the child, which was recorded by PW10 Sub Inspector, to find that the accused had committed penetrative sexual assault on the victim girl. 58. PW1 did not give any evidence before the court to the effect that her father committed any act of penetrative sexual assault on her. Then, no question of using her statement under Section 164 Cr.P.C to corroborate the evidence given in the court arises. 59. A statement made under Section 164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in court by the person who made the statement (See Bhuboni Sahu v. The King : AIR 1949 PC 257 ). 60. 59. A statement made under Section 164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in court by the person who made the statement (See Bhuboni Sahu v. The King : AIR 1949 PC 257 ). 60. Statement of a witness recorded under Section 164 of the Code of Criminal Procedure is not sustantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that his statement was recorded under Section 164 of the Code and that what he had stated in it 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 (See State of Delhi v. Shri Ram Lohia : AIR 1960 SC 490 ). 61. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 of the Code of Criminal Procedure, such statements cannot be treated as substantive evidence (See R.Shaji v. State of Kerala : AIR 2013 SC 651 ). 62. The statement of a witness recorded under Section 164(5A)(b) of the Code of Criminal Procedure may be an exception to the above principle because that provision specifically states such statement shall be considered as statement in lieu of examination-in-chief. 63. A corroborative piece of evidence can only corroborate a substantive piece of evidence and not another corroborative piece of evidence (See Udhyanithi v. State : 2019 SCC OnLine Madras 9061). 64. Regarding the first information statement allegedly given by the victim to PW10, it only shows that it was recorded by PW10. There is no evidence that the contents of that statement were read over and explained by PW10 to the victim or to any person who was present with her. PW10 has not given any evidence to that effect. Ext.P1 statement does not bear any endorsement to that effect. 65. It is needless to state that the first information statement also does not constitute substantive evidence. It can only be used as a previous statement for the purpose of either corroborating its maker or for contradicting him (See Utpal Das v. State of West Bengal : AIR 2010 SC 1894 ). 66. 65. It is needless to state that the first information statement also does not constitute substantive evidence. It can only be used as a previous statement for the purpose of either corroborating its maker or for contradicting him (See Utpal Das v. State of West Bengal : AIR 2010 SC 1894 ). 66. The statement of a witness in the trial court about facts which he has perceived by his senses is substantive evidence. In the absence of any substantive evidence, no question of using other evidence for corroboration arises. Whatever material collected during investigation can be converted into evidence only when a certain witness deposes before the Court. If the evidence of principal fact is not there, no question of corroboration of it by some other evidence arises. 67. In the instant case, the trial court fell into the error of treating the statements given by PW1 before the Magistrate and to the police as substantive evidence. 68. As already found, in view of the suspicious circumstances pointed out earlier, the evidence of PW1 that her father used to kiss on her vagina cannot be accepted as reliable and trustworthy. 69. It is not prudent to convict a person only because there is rampant increase in heinous crimes. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of the witnesses. If a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The Court would not be justified in withholding that benefit on the ground that the acquittal might create adverse reaction in the society or among those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious. It is a primary principle that the accused 'must be' and not merely 'may be' guilty before a court can convict him and the distinction between "may be" and "must be" is long and divides vague conjectures from sure conclusions. 70. In the final analysis, inspite of the allegation of penetrative sexual assault made against the accused that he used to insert his penis into the vagina and the mouth of the victim girl, the substantive evidence is only that he used to kiss on her vagina. The evidence to that effect given by the victim girl is not reliable and trustworthy in the absence of sufficient corroboration and in view of the suspicious circumstances already pointed out. It follows that the accused is entiled to get the benefit of doubt. 71. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court is set aside. The appellant/accused is found not guilty of the offences punishable under Section 376(2)(f) of the Indian Penal Code and under Section 3 read with Section 4 of the POCSO Act and he is acquitted of those offences and he is set at liberty. He shall be released from jail, if his detention is not required in connection with any other case. 72. The Registry shall forthwith forward a copy of this judgment to the Superintendent of the jail concerned for necessary action.