BIJAYESH MUKHERJI, J. ( 1 ) THIS appeal from jail by Masha Majhi convicted by the learned Session Judge, Purulia, on December 20, 1963, under Section 302 of the Penal Code and sentenced to imprisonment for life must be allowed. It must be allowed because there is no legal evidence upon which the conviction appealed against may rest. ( 2 ) THE prosecution charged the appellant with patricide. On February 21, 1963, the appellant and his deceased father, Sitaram Majhi, had had an altercation over a petty matter. The son wanted money or rice for going away elsewhere for work. The father was adamant. He would not give what the son had wanted. Irate, the son brought a Fooknal (iron blow pipe) and hit his father on the head so hard that he fell down and died. ( 3 ) THIS is a brief, outline of the prosecution's case, which the appellant resisted, with the plea that his father, insane as he was, had committed suicide. ( 4 ) IN fact, the appellant's mother, accompanied by the appellant and others went to the police-station on February 22, 1963, said just that and got it recorded. The police did not take such information at its face value and started investigation which culminated in submission of a charge sheet against the appellant and, ultimately, in his trial and conviction. ( 5 ) THERE is no substantive direct evidence implicating the appellant. Mrs. Maitra, appearing for the State, submits so. And we find that also on our own. The appellant's mother, Khudi Mejhan, the prosecution's witness no. 1, did tell the police, if one can go by the statement recorded under Section 161 of the Procedure Code, that the appellant had assaulted his father. So what? She is not a witness of truth. She says one thing before the police and another thing in Court. Let her be that: a witness of untruth. But her statement before the police - a statement unsworn, un-cross-examined, recorded not by a Judge or a Magistrate but by a police officer and that too behind the back of the accused - will not thereby elevate itself to the height of substantive evidence. If we may say so, that is one of the rudiments of elementary law. Barren, therefore, is any manner of approach resting on it. If we may say so, that is one of the rudiments of elementary law. Barren, therefore, is any manner of approach resting on it. ( 6 ) THEN, it is said that Khudi Mejhan told some of the neighbours, who came after the crime, of her son, the appellant, having struck down her husband. Her neighbours, such as the prosecution's witness numbering 3 (Babulal), 4 (Hari), 5 (Saibu), 8 (Budhu), say so; not, however, Khudi Mejhan. And Khudi Mejhan not saying so no substantive evidence comes into being. No substantive evidence being there, what will the corroborative evidence of the neighbours corroborate? Nil. So, such evidence, if it deserves that name, appears to be beneath notice. ( 7 ) AGAIN, there are statements of Khudi Mejhan and others recorded by a Magistrate under Section 164 of the Procedure Code - statements which implicate the appellant. Such statements, however can never, never be used as substantive evidence. Here, again, Khudi Mejhan's statement under Section 164 taints her substantive evidence with falsity. That is all it does. It does not establish what she stated out of Court under Section 164 to be true. Such too is the position about the statements made by others. And what is worse theirs are corroborative statements only. To mention only a few out of a crowd of decisions which cluster round the subject, Brij Bhusan Singh v. King Emperor, 50 CWN 348 (generally known as Bilasia murder case), Mamand and others v. King Emperor, 50 CWN 353, and Bhubani Sahu v. King, 53 CWN 609, Privy Council decisions all, lay down the law to be so. ( 8 ) THUS, we come full circle back to the point wherefrom we started: total absence of substantive direct evidence to sustain the conviction under appeal. So, it beats us how it appears to the learned Judge "highly probable" that the appellant had murdered his father. ( 9 ) THE learned Judge's findings that it was no case to suicide in view of the cogent medical evidence on the point and that insanity of the deceased Sitaram Majhi is not proved must stand. But that does not prove the guilt of the appellant. ( 10 ) THE learned Judge refers to one circumstance. Going by the medical evidence, Sitaram Majhi died at 5 or 5. 30 p. m. on February 21, 1963. But that does not prove the guilt of the appellant. ( 10 ) THE learned Judge refers to one circumstance. Going by the medical evidence, Sitaram Majhi died at 5 or 5. 30 p. m. on February 21, 1963. And the appellant along with his mother and others went to the police-station some 24 hours late. It does not prove the guilt of the appellant either. Nor other circumstances - such as calling murder a case of suicide, falsity of the substantive evidence etc. Are these circumstances of a conclusive nature and tendency, so much so that they exclude every hypothesis but the one proposed to be proved, namely, the appellant having committed the murder. The answer is : No. And that is the test laid down by the Supreme Court in a number of cases to which, amongst others, (4) Hanumant ( 1952 SCR 1091 : AIR 1952 SC 343 ), (5) Deonandan (AIR 1954 SC 801), (6) Bhagatram ( AIR 1954 SC 621 ) and (7) Mangaleswari ( AIR 1954 SC 715 ) have lent their names. ( 11 ) MORE, it is a mistake to think that witnesses can lie, but circumstances cannot. To quote from Powell on Evidence (10th Edition) at page 424 :"sometimes circumstances lie in a more dangerous fashion than men, and the coincidences of error, the fortuitous concourse of events, may sometimes give an air of truth to an absolutely false charge against a person. " ( 12 ) HERE, in the case in hand, the unfortunate Sitaram having been murdered by somebody else and the deceased's near and dear ones behaving in the manner they did can stand together. The possibility of a fortuitous concourse of events is always there. Who knows they were out to save another, and not the appellant. Say, if you will, suspicion lurks here. Say you must then that suspicion is not proof. In the result, the appeal is allowed. The conviction and sentence appealed against be set aside. The appellant be acquitted and set at liberty forthwith. Appeal allowed.