Criminal Appeal (SJ) No.325 of 1998 Against the Judgment and order dated 28.8.1998 / 29.8.1998 passed by Vth Additional Sessions Judge, Begusarai, in Sessions Trial No.239/97. . ---- 1.Shanti Devi wife of late Batoran Khalifa. 2.Shahid Khalifa son of late Batoran Khalifa. 3.Muni Devi daughter of late Batoran Khalifa. ………… Appellants. Versus State Of Bihar ………… Respondent. For the appellants : Mr.Ashok Kumar Mishra, Advocate. For the State : Mr.Sujit kumar Singh, A.P.P. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. The appellants have been convicted for the offence under sections 373 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case as alleged in the fardbeyan by the informant Dhaneshar Das is that his elder brother Jagdish Das had got three daughters and two sons. On 28.10.1976 at about 7 P.M. Manju Devi, Bhabhi of the informant who happens to be the wife of Jagdish Sah disclosed that her daughter Nibha Kumari aged 8 years is missing. Thereafter his bhabhi went to collect fire- wood and returned at 1 P.M. Jagdish Das also asked about Nibha Kumari. Manju Devi asked Jagdish Das that he had taken her Yesterday then why he is asking about her on which Jagdish Das said that he does not know. However, ultimately it is alleged that five persons collected and asked Jagdish Das where he has kept the victim and then Jagdish Das admitted that he has sold Nibha Kumari for Rs.2,500/- with two unknown ladies and one gent for prostitution who had taken her away on car. 3. On the fard beyan the F.I.R. was lodged and 2 investigation proceeded. During course of investigation the house of the appellants were raided and the victim was recovered. The statement of the victim was recorded under section 164 Cr.P.C. and after investigation charge sheet was submitted. Cognizance of the offence was taken. 4. However, during the trial ten witnesses were examined. The trial court taking into consideration the evidence of the witnesses as well as statement of the victim under section 164 Cr.P.C., the seizure-cum-house search list convicted the appellants. 5. The learned counsel for the appellants, however, contended that there is no legal evidence regarding the bying or purchasing of the minor for the purpose of prostitution. Hence, the order of the conviction and sentence passed by the learned trial court is not sustainable. 6. However, prosecution case in the fardbeyan is that Jagdish Das, father of the victim sold the victim for consideration of Rs.2,500/- to three persons and when Sagar Das, Indradeo Das, Ramottar Das, Satyanarayan Das and Prahlad Das pressurized Jagdish Das then Jagdish Das admitted that he had sold the victim for Rs.2,500/- to three persons, two ladies and one male. 7. However, so far ten witnesses were examined by the prosecution. P.W. 1 is the mother of the victim. Though she supported the prosecution case about missing of the victim and has stated that she informed her Dewar who made search. However, this witness has been declared hostile as this witness has not supported the prosecution regarding the sale of the victim or purchase of the victim by the accused persons. P.W.2 is the 3 informant. He has also not supported the prosecution story about the sale or purchase of the victim for prostitution. This witness has also been declared hostile as he has stated that the victim was found from the house of the sister of his bhabhi, though he does not name the sister and brother of the victim. P.W.3 is the victim herself. She has stated in her evidence that she went to the house of her Mausi and remained there and returned from there. Though her evidence in court is contradictory to her statement under section 164 Cr.P.C. she has stated in her statement under section 164 Cr.P.C. that the police brought her to Ballia and there were no mausi and the father had sold her. However, it is true that statement under section 164 Cr.P.C. is found contradictory to the evidence of the victim in Court. She has not supported the part of the statement recorded under section 164 Cr.P.C. P.W. 3 has also been declared hostile having not supported the prosecution case and stated in the evidence. P.W. 4 is the I.O. who, however, supported the prosecution case. However, his evidence is that he recovered the victim from the accused persons who was present in court. P.Ws.5 and 6 have in their evidence stated that they learnt about missing and, hence, their evidence has got no significance P.W.7 is the Officer-in- Charge of Police Station and was witness who recorded fardbeyan & proved it was a witness of raid and recovery of the Victim. However, P.W.8 is the Advocate Clerk who has come to prove the statement recorded under section 164 Cr.P.C. 8. Hence, taking into consideration the entire evidence in court there is no reliable evidence with regard to the 4 sale and purchase. 9. However, the sole basis of the conviction of the appellant is statement of the informant in the fardbeyan on the basis of which F.I.R. was lodged. 10. However, the statement of the informant in the fardbeyan Ext.1 is not a basis of substantive evidence but has got only a corroborative value. If the informant supports the prosecution further the statements of witnesses recorded under section 164 Cr.P.C. is also not a substantive evidence but also only either a corroborative value or can be used for contradiction but it cannot be used as a substantive evidence. 11 . Hence, taking into consideration the entire evidence only evidence against the appellants that the victim was recovered from the possession of the appellants. However, there is no legal evidence that they had purchased and brought the minor for the prostitution. As P.Ws.1,2 and 3 were father, uncle and informant have not supported the prosecution case regarding the sale of the victim for the purpose of prostitution and has taken into consideration the evidence except the part of the recovery there is no legal evidence that the victim was sold for the purpose of prostitution and, hence, the charge for the offence recorded under section 373 of I.P.C. has not been proved and the Judgment and order of conviction is set aside. The appeal is allowed. Patna High Court,Patna. The 13th October,2011 AnilKrSinha/N.A.F.R. (Gopal Prasad )