JUDGMENT 1. - The appeal is directed against the judgment of the learned Sessions Judge, Udaipur dated August 12, 1976, by which the appellant Raju was convicted under section 302 I.P.C. and was sentenced to imprisonment for life with a fine of Rs 200/- in default of the payment of fine to further undergo two months rigorous imprisonment. 2. Briefly stated, the prosecution case is that the deceased-victim Nawa was the husband of PW4 Smt Tankli Both were living together with their children in village Nowaguda. The accused is also a resident of the same village. The accused developed illegal intimacy with the deceased's wife Smt Tankli. On March 18 1976 the deceased and his wife alongwith their children went to attend the marriage at the house of Dewa. There the sister of Smt. Tankli also came Both the sister fell out. After the celebration of the marriage, when Smt. Tankli and her husband Nawa were returning to their house, they were called at the house of Smt Roopli At the house of Smt. Roopli, her husband Wela picked up quarrel with the deceased as to why he had abused his wife Smt. Roopli. It is alleged that Wela pelted some stones at Nawa and thereby caused some injuries, to him, Nawa and his wife came to their house. The accused also came there. After sometime, the accused went to his house. In the mid-night when some persons came at the house of Nawa to take him to take meals, it was found that Nawa was no more alive and had passed away. Smt Tankli deputed the accused to lodge a report to police. The accused Raju reached Police Station, Nayee on March 19, 1976 and verbally lodged report Ex. P 8. It was stated therein that the death of Nawa had taken place on account of the injuries caused to him by the stones pelted by Wela. The police registered a case under section 302, I.P.C. against Wela. The postmortem examination of the victims dead body was conducted at about 5.15 p. m. on the same day by Dr. D. C. Dangi the then Medical Jurist, General Hospital, Udaipur. The doctor noticed the following ante-mortem injuries on the victims dead body:- 1. Bruise 11/2" X 1/2" irregular present over right side fore-arm. 2. Bruise 1/2" X 1/4" present 1" above and lateral to injury No. 1, 3. D. C. Dangi the then Medical Jurist, General Hospital, Udaipur. The doctor noticed the following ante-mortem injuries on the victims dead body:- 1. Bruise 11/2" X 1/2" irregular present over right side fore-arm. 2. Bruise 1/2" X 1/4" present 1" above and lateral to injury No. 1, 3. Bruise 1/2" X 1" present over the right side nose. 4. Abrasion 2" X 1" present over lateral aspect of left iliac fossa upper part. 5. Abrasion 1" X 1/2" irregular present over anterior superior iliacspino right side. 6. Abrasion 1 c. m. X 3/4 c. m. present over medical aspect right elbow joint. 7. Ligature mark present all around the neck. Anteriorly it is more- marked and present above the thyroid cartilage. It is also well marked over the lateral aspect both sides neck. It is present over the upper part of the neck. Posteriorly ligature mark is less prominent. Subcutaneous tissue compressed, muscles bruised beneath the ligature mark over the anterior and lateral aspect Trachea and pharynx congested, thyroid cartilage normal. Cornea of hyoid bone right side fractured, cervical vertebrae normal. 8. Lacerated wound 1 c. m. X 1 c. m. X skin deep right ear, bleeding from the ear and lacerated wound 1/2 c. m.x 1/2 c. m. X skin deep left ear. Bleeding from the ear present. The doctor was of the opinion that the mode of death was asphyxia as a result of ligature marks around the neck. The postmortem examination report issued by him is Ex. P 5. On investigation it revealed that the F. I. R. Ex. P 8 was falsely lodged by the accused against wela. It further revealed that due to the illegal intimacy between the deceased's wife and the accused, the accused had strangulated Nawa to death. The police arrested the accused Raju and in consequence of the information furnished by him. a piece of cloth and a stick were recovered, After when the investigation was over, the police presented a challan against the accused Raju in the Court of Additional Munsif cum Judicial Magistrate, Udaipur, who, in his turn; committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under section 302, I. P. C. against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined eight witnesses and filed some documents. The learned Sessions Judge framed a charge under section 302, I. P. C. against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined eight witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the learned Sessions Judge held the charge proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set. 3. We have heard the learned counsel for the appellant and the learned Public Prosecutor. We have also gone through the case file carefully. 4. The learned Sessions Judge, after scrutinising the prosecution evidence, concluded that (1) PW 4 Smt. Tankli. who is the widow of the deceased-victim, was a false witness. She has suppressed the truth and given contradictory statements to those recorded under sections 161 and 164 Cr.P.C. She had openly sided the accused to save him. However, her statements under sections 161 and 164, Cr. P. C. show that it was the accused who had committed the murder of Nawa; (2) the extra-judicial confession alleged to have been made by the accused before the deceased's brother Mana (PW 7); and (3) the recovery of the piece of cloth and the stick in consequence of the information furnished by the accused. 5. Needless to say that PW 4 Smt. Tankli has alleged herself to be an eye witness of the incident in her police statement and in her statement recorded under section 164, Cr. P. C. Unfortunately, she turned hostile and lent no support to the prosecution during trial. Despite cross-examination by the Public Prosecutor, she refused to state anything against the accused. Suffice it to say that her testimony, in no way, furnishes any incriminating evidence against the accused. The learned Sessions Judge crept into an error in putting reliance on the statement of this witness recorded under sections 161 and 164, Cr. P. C. with which she was confronted. It is the settled law that statements recorded under sections 161 and 164, Cr. P. C. do not constitute substantive evidence. They can be used only for contradicting and corroborating a witness and for no other purpose. The learned Sessions Judge, thus, erred in taking help from these statements recorded under Sections 161 and 164 Cr. P. C. for convicting the accused. 6. P. C. do not constitute substantive evidence. They can be used only for contradicting and corroborating a witness and for no other purpose. The learned Sessions Judge, thus, erred in taking help from these statements recorded under Sections 161 and 164 Cr. P. C. for convicting the accused. 6. As regards the extra-judicial confession of the accused, the sole witness speaking about it is the deceased's real brother Mana (PW 7). In his cross-examination he stated that he did not disclose this extra judicial confession to the police or to anybody else in the village. The extra-judicial confession is alleged to have been made by the accused before him on March 20, 1976, but, unfortunately, he did not disclose this fact to the police and remained silent. It was only on March 23, 1976 that the police recorded his statement and he disclosed this extra judicial confession. Since he remained silent nearly for three days, we are unable to put reliance on what he stated in respect of extra-judicial confession. His testimony about the extra-judicial confession is not creditworthy. 7. The recovery of the piece of cloth and the stick has no relevancy and does not furnish any incriminating material against the accused. No blood was found on them. It is also not on the record that the piece of the cloth and the stick were used in the commission of the murder of Nawa. There is again no material to show that these two articles belong to the accused. 8. There is, thus, no evidence to show that Nawa was done to death by the accused. We are, therefore, unable to sustain the conviction of the accused. 9. In the result, the appeal of accused Raju is allowed. His conviction and sentence under section 302, I. P. C. are set-aside and he is acquitted thereof. He is already on bail and deed not surrender. His bail bonds shall stand cancelled.Appeal allowed - Appellant Acquitted. *******