JUDGMENT
A. Pasayat, J.
1. Petition faced trial for allegedly attempting to commit rape on girl aged about 6-7 years. Learned C.J.M.-cum-Asst. Sessions judge, Sambalpur, found. the petitioner guilty for having committed an offence punishable under Secs. 345 IPC and not Under Section 376/511 of the Indian Penal code 1860 (in short ‘IPC’)
2. In appeal, learned Additional Sessions judge, Sambalpur, held that the evidence made out a case under Sec, 354, IPC and not Under Section 376/511, IPC. He therefore, modified the sentence of five years rigorous imprisonment as awarded to that of two years rigorous imprisonment.
3. Learned counsel for the petitioner submits that the learned Addl. Sessions judge has made cut a new case which was not on record and therefore, the conviction and sentence cannot be sustained.
4. Since the factual aspect as unfolded by the prosecution is somewhat gruesome, I have not referred to them because disposal of this case can be made with reference to legal aspects untrammelled by factual controversy.
5. On perusal of judgments of Courts below, I find that the case as made out by the appellate Court Under Section 354, IPC cannot be culled out from evidence of the witnesses. It has relied on statements recorded Under Section 161 of the Code of Criminal Procedure, 1973- (in short ‘the Code’) to come to the conclusion that offences Under Section 376/511, IPC were rot made out, but one Under Section 354 was o made out. The statement of witnesses in Court was at variance with their earlier, statement before police. He has also relied on first information report to come to conclusion that the incident as described made out a case Under Section 354, IPC. It concluded that there is no reason as to why the statement made by prosecution witnesses before Investigating Officer will not be believed, and is do be discarded.
6. Learned counsel for petitioner submits that conviction on the basis of statement before police is unknown to criminal jurisprudence. The learned counsel for the State, however, submits that in a heinous case of this nature involving allegations of attempted rape on a tender girl, technicalities should not stand on the way of doing justice.
7. On a conspectus of evidence, I find that the statement of witnesses in Court was substantially different from what they had allegedly stated before the police. Under Section 161 of the Code, any police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case which he is investigating. He may reduce into writing any statement made to him in course of such examination. Under Section 162 of the Code, the statement recorded in writing can be used, whether by the accused or by the prosecution, only for one purpose, namely, to contradict the witness who had made that statement, in the manner provided in Section 145. It cannot be used either as substantive or for the purpose of corroboration of any other witness whether for the prosecution, or the defence, or as Court witness. (See AIR 1959 SC 1012 ; Tahasildar v. State of U P. : AIR 1975 SC 1324 : Shakila v. Nausher). A statement recorded by police Under Section 161 of the Code, therefore, cannot be used for either party for coming to, the conclusion about guilt of the accused unless evidence in Court establishes it. The. appellate Court was not justified in holding that conviction can be made on the basis of statement made before the police and recorded Under Section 161 of the Code.
8. I also find that necessary allegations requisite for bringing home the charge Under Section 354, IPC were not put to the accused in terms of Section 313 of the Code. The procedure laid down in Section 313 is not a meaningless and purposeless exercise. It aims at bringing to the notice of the accused the substance of accusation which he is to answer and explain. The desirability of bringing the material aspect of the prosecution case to the accused has been stressed time and again. Reference may be made to a decision of this Court in 70 (1990) CLT 558 : Nidhi Sahu v. State. The accused is not to be taken by surprise by suddenly being confronted with an aspect which was not indicated to him. That has also added to vulnerability of the prosecution case. The inevitable conclusion, therefore, is that the petitioner is entitled to acquittal. The order of conviction and sentence awarded against him by the learned Additional Sessions Judge is set aside. The bailbond be discharged.