Statements recorded under Section 161 and 164 CrPC are inadmissible in evidence and can only be used for limited purposes.

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. 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. 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