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As observed above, the prosecution has examined seven prosecution witnesses. The statement of victim (P.W.2) is relevant to be discussed at this juncture. She before the court deposed that on 21.04.2006 at 06.30 a.m. she was going to attend her school, namely, Jhinka Devi Patel Balika Inter College, Fattepur, Belabagh, District Ambedkar Nagar. She further stated that when she reached Barwa Bazar, the accused forcibly got her seated on his motor-cycle and when the said attempt of accused was opposed, he threatened her that he will kill her if she resisted. She has further deposed that thereafter accused took her to Faizabad via Mahboobganj and parked his motor-cycle in the Agency and thereafter took her to Lucknow by Bolero(a motorized four wheeler). She further stated in her deposition before the court that the accused took her to railway station at Lucknow and thereafter he took her to Amratsar where he kept her in a rented room and committed rape on her without her consent and that the accused forcibly detained her at Amratsar for 5-6 months. In her deposition, she further stated that when the accused came to know that F.I.R has been lodged and attachment proceedings were also undertaken then the accused took her to Akbarpur at her aunt's house (Mausi). However, accused was apprehended by the police at Akbarpur Railway Station whereupon both of them were taken to Police Station where she had made her statement before the police. In her deposition, she further stated that she made the statement under Section 164, Cr.P.C. as well. However, when the statement recorded under Section 164, Cr.P.C. was read over to her she stated that she had not given any such statement. It is on record that the victim in her statement recorded under Section 164, Cr.P.C. had stated that she had relationship with the accused-Jitendra Kumar Yadav for the last 3-4 years and when her father settled her marriage elsewhere then she went away with the accused with a plan and accordingly on 21.04.2006 (the date of alleged occurrence), she went to Barwa Bazar from her residence where the accused was waiting for her and thereupon she with the accused went to Ayodhya via Mahboobganj and they got married in a temple at Ayodhya. In the said statement, she further deposed that after getting married they came to Faizabad and left the motor-cycle at the Agency for servicing and thereafter they went to Lucknow by Marshell (a motorized four wheeler) and took train at Lucknow railway station for Amratsar and on reaching Amratsar they started living together in a room where the accused worked as labourer and from there both of them left for Gurgaon where the accused did some computer related work.

However, when the victim was produced before the Court as witness, after 11 years from the date of occurrence, as P.W.2, she for the first time stated that on 21.04.2006 the accused had forcibly got her seated on his motor-cycle and took her to Amratsar where he kept her in a rented room and committed rape forcibly upon her and further that he kept her there for 5-6 months.

Learned trial court in the judgment of acquittal has thus found that there is substantial and material contradiction between the statement made by the victim under Section 164, Cr.P.C. and her statement recorded during trial before the court. Learned trial court has also observed that in case there is material contradiction between the statement recorded under Section 164,Cr.P.C. and the statement made before the court during trial and no sufficient believable explanation comes-forth from the victim for such material contradiction, the benefit should go to the accused. The learned trial court after noticing the statement made by the victim under Section 164, Cr.P.C. has stated that though in her examination-in-chief she stated that she did not give such a statement under Section 164, Cr.P.C. however, in her cross-examination she admitted that she had gone to get her statement recorded under Section 164, Cr.P.C. alone and that she had put her signatures on the said statement with her willingness. In her cross-examination the victim further stated that the statement recorded under Section 164, Cr.P.C. is the same which was stated by her on the asking of the Magistrate. She also stated that after reading the statement recorded under Section 164, Cr.P.C. she had put her signatures and when the victim was shown the statement made by her under Section 164, Cr.P.C. she stated that it is the same statement which she had got recorded before the Magistrate.

"12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of S.164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Section 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. Kind, AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence".

Similar view has been expressed yet in another Division Bench judgment in the case of Phool Chand and etc. Vs. State of U.P., reported in 2004 Cri.L.J. 1904.

Hon'ble Supreme Court in the case of Ram Kishan Singh Vs. Harmit Kaur and another, reported in (1972) 3 Supreme Court Cases 280 has held that a statement under Section 164 of the Code can be used to corroborate the statement of a witness and it can also be used to contradict a witness.

In Utpal Das and another Vs. State of West Bengal, reported in (2010) 6 Supreme Court Cases 493, the Hon'ble Supreme Court has again held that the statement recorded under Section 164, Cr.P.C. can never be used as substantive evidence of truth but it may be used for contradictions and corroboration of a witness. It has further been held that the statement made under Section 164, Cr.P.C. can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. Thus, the legal principle in respect of the provision of Section 164, Cr.P.C. which can be deduced is that the said statement can be used to impeach the credibility of the prosecution witness. The relevant observation made by Hon'ble Supreme Court in the case of Utpal Das (supra) is extracted herein below: