JUDGMENT : Mridul Kumar Kalita, J. 1. Heard Mr. S. Das, learned counsel for the appellant. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State of Assam. 2. This criminal appeal was registered on receipt of a petition of appeal from the appellant, namely, Firdus Ali @ Rashidul Islam, who is serving out his sentence in the District Jail, Dhubri. 3. The appellant has impugned the judgment and order dated 19.02.2020 passed by the learned Sessions Judge, Bilasipara in Sessions Case No.69/2019, whereby the appellant was convicted under Section 366 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs 3,000/- and in default of payment of fine to undergo further imprisonment for three months. The appellant was also convicted under Section 342 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year under Section 342 of the Indian Penal Code for the said offence. The appellant was also convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 4,000/- and in default of payment of fine to undergo further imprisonment for four months. All the sentences were directed to run concurrently. 4. As this appeal was registered as a jail appeal and the appellant did not engage any counsel on his behalf, by order dated 19.06.2024, this Court had appointed an Amicus Curie to pursue his cause in this appeal. However, later on, the appellant engaged his own counsel by filing Vakalatnama. 5. The facts relevant for consideration of the present appeal, in brief, are as follows: i. On 11.06.2019, the mother of the victim girl lodged an FIR, inter-alia, alleging that her minor daughter (aged about 17 years) was kidnapped by the appellant Firdus Ali @ Rashidul Islam on her way to school on 10.06.2019. It has also been stated in the FIR that the family members of the victim girl searched for the victim girl, however, they could not find her. Later on, the appellant made a phone call to the informant stating that he had taken away her minor daughter (victim girl). ii. On receipt of the aforesaid FIR, Bilasipara Police Station Case No.69/2019 was registered under Section 366A/342 of the Indian Penal Code and investigation was initiated. iii. Later on, the appellant made a phone call to the informant stating that he had taken away her minor daughter (victim girl). ii. On receipt of the aforesaid FIR, Bilasipara Police Station Case No.69/2019 was registered under Section 366A/342 of the Indian Penal Code and investigation was initiated. iii. After completion of the investigation, a charge-sheet was laid against the appellant under Section 366A/342 of the Indian Penal Code. iv. The appellant faced the trial remaining in custody. v. After considering the materials available on record and after hearing both the sides, the Trial Court framed charges under Section 366/376/342 of the Indian Penal Code against the above-named appellant. When the said charges were read over and explained to the appellant, he pleaded not guilty to the same and claimed to be tried. vi. To bring home the charges against the appellant, the prosecution side examined seven witnesses including the victim girl. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. However, he did not reduce any evidence in his defence. vii. Ultimately, by the judgement which has been impugned in this appeal the appellant was convicted and sentenced in the manner has already described hereinbefore in paragraph No.3 of this judgment. 6. Before considering the rival submissions of learned counsel for both the sides, let us go through the evidence which is available on record. 7. The PW-1, who is the mother of the victim girl as well as the informant of this case has deposed that she knows the appellant and the occurrence took place about four months prior to date of her deposing before the Trial Court. She has deposed that the appellant gave them a proposal to marry their daughter (victim). However, the said proposal was not accepted by them and she has further deposed that on the date of occurrence of alleged offense, the victim girl went to college to attend her classes, however, she did not return back till 3.00 p.m. and on that day at about 4.00 p.m., the informant received a phone call from the appellant whereby he informed them that he had taken away the victim girl. She has further deposed that after about five days, the victim girl was recovered at Bishkhowa, Golokganj and thereafter, the FIR was lodged as per the story narrated to them by the victim girl. During cross-examination, PW-1 has denied the suggestion to the effect that the victim voluntarily accompanied the appellant. 8. PW-2, Keysar Ali, is the grandfather of the victim girl who in his deposition has stated that he is not an eyewitness to the incident. However, he has deposed that a few days prior to the incident, the appellant has approached them to marry the victim girl and the said proposal was rejected by them. He has also deposed that on the date of incident, a phone call was received by the first informant from the appellant whereby the appellant informed them that the victim girl was taken by him. He also deposed that after a few days, the victim was recovered from the appellant’s custody. 9. PW-3, Rubul Hussain who is the maternal uncle of the victim girl has deposed that he was informed about the incident by her sister, who is the mother of the victim girl. He has also deposed that a few days before the incident, the appellant approached the parents of the victim girl with a proposal to marry her which was not accepted by them. 10. PW-4, who is the victim girl herself, has stated in her deposition that the appellant had proposed to marry her but the said proposal was not accepted by her parents and on the day of the incident when she was going to her school, the appellant forcefully brought her into a car in front of her school gate and gave her something due to which she became unconscious. She has deposed that the appellant took her to his house where he took away her mobile phone and kept her in his house for four days and after four days, she was recovered there from by her family members. She has also deposed that her statement was recorded by Magistrate which is exhibited as Exhibit-2. During her cross examination, she has deposed that she could not recollect the date of the occurrence. She answered in the negative to some suggestion given to her by the learned defence counsel. 11. She has also deposed that her statement was recorded by Magistrate which is exhibited as Exhibit-2. During her cross examination, she has deposed that she could not recollect the date of the occurrence. She answered in the negative to some suggestion given to her by the learned defence counsel. 11. PW-5, Azad Hussain has deposed that one day the family members of the first informant of this case took his vehicle and they went to Bishkhowa from where the appellant as well as the victim girl were recovered. Thereafter, both were handed over to the police. 12. PW-6 is Dr. Rinku Ahmed who examined the victim girl after her recovery. On his examination, he found no evidence of any recent sexual intercourse on the victim girl. 13. PW-7, Chandra Bhushan Singh, who is the Investigating Officer of the case, has deposed regarding various steps he took during the investigation. He also deposed that he found both the appellant as well as the victim girl in a market at Lakhiganj where both were found loitering. Thereafter, he apprehended them and brought them to Lakhiganj Police Station. 14. During his examination under Section 313 of the Code of Criminal Procedure, 1973 the appellant has denied the truthfulness of the testimony of prosecution witnesses. However, he declined to adduce any evidence in his defence. 15. Mr. S. Das, the learned counsel for the appellant submits that the appellant has already undergone imprisonment for more than five years, and therefore, he has almost served out the sentences imposed on him by the Trial Court under Section 366 of the Indian Penal Code as well as under Section 342 of the Indian Penal Code and therefore, he fairly submits that the appellant is assailing the impugned judgment mainly on the ground of erroneous conviction of the appellant under Section 376 of the Indian Penal Code. 16. The learned counsel for the appellant submits that the Trial Court had erred in coming to the conclusion of guilt of the appellant under Section 376 of the Indian Penal Code, merely on the ground that in her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 , she has stated that the appellant had forcefully married her and kept her with him. 17. 17. He submits that while deposing as PW-4 before the Trial Court, the victim girl had not uttered anything, which would implicate the appellant for offence under Section 376 of the Indian Penal Code. 18. The learned counsel for the appellant submits that the Trial Court had committed error in considering the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 as a substantive piece of evidence and relying on the same to come to the conclusion of guilt of the appellant under section 376 of the Indian Penal Code. 19. To substantiate his submission, the learned counsel for the appellant has cited a ruling of the Apex Court in the case of “ R. Shaji Vs. State of Kerala ” reported in 2013 (14) SCC 266 wherein the Apex Court has observed as follows: “26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case. 27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [ (2000) 1 SCC 272 : 2000 SCC (Cri) 210 : AIR 1999 SC 2565 ] and CCE v. Duncan Agro Industries Ltd. [ (2000) 7 SCC 53 : 2000 SCC (Cri) 1275] ) 28. (Vide Jogendra Nahak v. State of Orissa [ (2000) 1 SCC 272 : 2000 SCC (Cri) 210 : AIR 1999 SC 2565 ] and CCE v. Duncan Agro Industries Ltd. [ (2000) 7 SCC 53 : 2000 SCC (Cri) 1275] ) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence. 29. During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 CrPC. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced. (Vide Mamand v. Emperor [(1946) 59 LW 138: AIR 1946 PC 45 ], Bhuboni Sahu v. R. [(1948-49) 76 IA 147: AIR 1949 PC 257 ] , Ram Charan v. State of U.P. [ AIR 1968 SC 1270 : 1968 Cri LJ 1473] and Dhanabal v. State of T.N. [ (1980) 2 SCC 84 : 1980 SCC (Cri) 340 : AIR 1980 SC 628 ])” 20. The learned counsel for the appellant has also submitted that even in the medical report of the victim girl there is no indication that she was subjected to the forceful sexual intercourse. 21. The learned counsel for the appellant has, therefore, submitted that the conviction of the appellant under Section 376 of the Indian Penal Code is not sustainable and same is required to be set aside and the appellant may be acquitted of charge under Section 376 of the Indian Penal Code. 22. On the other hand, Mr. P. S. Lahkar, the learned Additional Public Prosecutor has also fairly submitted that the Trial Court seems to have committed mistake by relying on the statement of the victim girl, recorded under Section 164 of the Code of Criminal Procedure, 1973 as in her said statement also she has nowhere mentioned that she was subjected to forceful sexual intercourse. P. S. Lahkar, the learned Additional Public Prosecutor has also fairly submitted that the Trial Court seems to have committed mistake by relying on the statement of the victim girl, recorded under Section 164 of the Code of Criminal Procedure, 1973 as in her said statement also she has nowhere mentioned that she was subjected to forceful sexual intercourse. She has only stated therein that she was forcefully married to the applicant and she stayed with the applicant that in itself may not be sufficient to arrive at a conclusion of guilt of the appellant under Section 376 of the Indian Penal Code. 23. I have gone through the materials on record, including the records of Bilasipara in Sessions Case No.69/2019, which was requisitioned in connection with this case. I have also considered the submissions made by learned counsel for both the sides. 24. Since the learned counsel for the appellant has not assailed the conviction of the appellant under Section 366 as well as Section 342 of the Indian Penal Code, this Court is refraining itself from examining the correctness or otherwise of the finding of the Trial Court as regards conviction under Section 366 and Section 342 of the Indian Penal Code as well as the sentence imposed against the said offences. 25. As regards the conviction of the appellant under Section 376 of the Indian Penal Code is concerned, neither the victim girl nor any of the witnesses have stated that the victim girl was subjected to sexual intercourse by the appellant. The medical report of the victim girl is also silent about the fact about any indication that she was subjected to forceful physical intercourse. 26. It is also pertinent to note that the appellant was convicted under Section 376 of the Indian Penal Code by the Trial Court mainly on the basis of her statement which was recorded under Section 164 of the Code of Criminal Procedure, 1973 . However, even if we peruse the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, 1973 no indication is made there that she was subjected to physical intercourse by the appellant. She has only stated in her statement that she was forcefully married by the appellant and was kept in his house. 27. As observed by the Apex Code in the case of “ R. Shaji Vs. She has only stated in her statement that she was forcefully married by the appellant and was kept in his house. 27. As observed by the Apex Code in the case of “ R. Shaji Vs. State of Kerala ” (Supra), the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 can only be utilized for the purpose of corroboration and contradiction. It cannot be used as a piece of substantive evidence as the defence is not afforded an opportunity of cross-examining the witnesses when such statement is recorded. Hence, this Court is of considered opinion that the trial court has erred in relying on the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 of the victim girl to convict the appellant under Section 376 of the Indian Penal Code when there is no substantive evidence on record which implicates the petitioner under Section 376 of the Indian Penal Code. 28. The conviction and sentence imposed on the appellant under Section 376 of the Indian Penal Code by the Trial Court is, therefore, found to be bad in law and accordingly, set aside. 29. This appeal is accordingly partly allowed. The conviction and sentence imposed on the appellant under Section 366 and 342 of the Indian Penal Code is not disturbed. However, the conviction of the appellant under Section 376 of the Indian Penal Code and sentence imposed on him under the said provision is hereby set aside. The appellant is acquitted of charge under Section 376 of the Indian Penal Code. 30. The appellant is entitled to be released from jail after serving out the sentence imposed on him under Section 366/342 of the Indian Penal Code, i.e., total period of 6 years. The jail authority shall compute the period which he has already undergone. The period already undergone shall be set aside against the sentence imposed under Section 366/342 of the Indian Penal Code, therefore, the appellant shall be released from prison on serving out the detention for 6 years in toto. 31. This appeal is accordingly, partly allowed. 32. Send back the records of the Trial Court to the Trial Court along with a copy of this judgment. Also send a copy of this judgment to the Superintendent, District Jail, Dhubri for compliance.