Point of Law: Evidence of hostile witnesses - It is settled position of law that a statement under Section 164 of Cr.PC. is not substantive evidence. It can be used to corroborate statement of a witness. It can be used to contradict a witness.

JUDGMENT :

In Re:-Criminal Misc. (Leave to Appeal) Application No. 90 of 2021, under Section 378 (3) Cr.PC.

1. We have heard learned A.G.A and have perused the leave application, the grounds of appeal and the judgment of the court below.

2. The application seeking the leave to appeal against the common judgment and order of acquittal dated 2.12.2020 passed by the Additional District and Sessions Judge/Special Judge POCSO Act, [Prevention of Children from Sexual Offences Act, 2012] 2012, Court no. 2, Varanasi in Special Sessions Trial No 96 of 2014 (State of U.P. v. Rahul Chaube and 2 others), under Sections 363, 366, 376A, 506, 342, 386 Indian Penal Code (in short 'I.P.C.') and under sections 4, 16, 17 of the POCSO Act, 2012 and Special Sessions Trial No. 67 of 2014 (State v. Sanjay Chaube), under Sections 363, 366, 506, 342, 386 I.P.C. and under Sections 16, 17 of the POCSO Act, 2012, arising out of case crime no. 173 of 2014, Police Station Lanka, District Varanasi, has been filed on behalf of the State (the appellant).

3. The accused-respondents Rahul Chaube, Smt. Reeta Chaube and Shiv Dutt Tiwari were sent for trial on the charges under Sections 363, 366, 376A, 506, 342, 386 I.P.C. and under Sections 4, 16, 17 of the POCSO Act. The accused Sanjay Chaube died during the course of the trial, as such, proceeding against him was abated on 5.1.2018.

4. The first information report, [F.I.R.] (Ex.Ka.-1) of the incident was lodged by Kripa Shankar Singh (PW-1/informant/father of the victim) against the accused-respondents and Sanjay Chaube (since deceased) as case crime no. 173 of 2014 has been registered on 2.5.2014 under Sections 363, 366 I.P.C. P.S. Lanka, District Varanasi, by alleging that his daughter/victim, whose date of birth is 5.7.1999, was residing at the residence of his son-in-law (PW-3) and she is the student of Ist year in Ambition Polytechnic College, Parav, Varanasi; and accused Rahul Chaube son of Sanjay Chaube, resident of Parav, P.S. Ramnagar, District Varanasi, who was also student of IIIrd year in the said college, used to visit the place of his daughter; on 27.3.2014 at about 8:00 a.m., accused Rahul Chaube, Sanjay Chaube, Grandfather of Rahul Chaube and mother of Rahul Chaube met his daughter/victim on her way to college and enticed away the victim, by a tempo.

5. During the course of investigation, the prosecutrix was recovered, on the information given by her that she was subjected to rape by the appellant Rahul Chaube, an offence under Section 376A IPC was added. Thereafter, the prosecutrix was sent for medical examination, her ossification test was conducted. Medical examination report (Ex.Ka.-4) and pathology report (Ex.Ka.-5) dated 11.06.2014 were prepared by Dr. Manju Singh (PW-4). The statements of the prosecutrix, her father (informant) and son-in-law of the informant (PW-3) were recorded under section 161 Cr.PC., viginal slides which were received from the hospital were sent to FSL. The Investigating Officer collected the victim's date of birth certificate, prepared a site plan of the place of the incident and victim's statement under Section 164 Cr.PC. was recorded.

6. After concluding the investigating, charge sheet (Ex.Ka.-9) was submitted against Sanjay Chaube under Sections 363, 366, 506, 342, 386 I.P.C. and under Sections 16, 17 of the POCSO Act, by PW-7 S.I. Vinod Kumar Yadav. Another charge sheet (Ex.Ka.-10) was also submitted by the investigating officer against the accused-respondents under Sections 363, 366, 376A 506, 342, 386 I.P.C. and under Sections 4, 16, 17 of the POCSO Act.

7. The trial court framed the charges against Rahul Chaube under Sections 363, 366, 376A, 506, 342, 386 I.P.C. and under sections 4, 16, 17 of the POCSO Act, and against Smt. Reeta Chaube, Sanjay Chaube and Shiv Dutt Tiwari under Sections 363, 366, 506, 342, 386 read with Section 34 I.P.C. and under sections 16, 17 of the POCSO Act.

8. In order to substantiate the charges against the accused-respondents the prosecution