( 1 ) THIS is an appeal against the judgment and order of First Additional Sessions Judge, Banda, convicting and sentencing each of the appellants to imprisonment for life u/s. 302 read with S. 149, IPC. It is noteworthy that the lower court had held the appellants guilty of the offences punishable u/ss. 147, 148 and 109, IPC also, but no punishment was proposed under any one of these sections. The appellants were sentenced only u/s. 302 read with S. 149, IPC. ( 2 ) A report was lodged by constable Ragho Prasad of police station Karvi, district Banda at 11. 00 a. m. in the aforesaid police station that while on duty he reached old bus station and there he had been informed by people of the locality that the dead body was lying near well. Hence he rushed to the spot and noticed the dead body. On enquiry, he found that the dead body was of Deo Raj Singh. It had several gun-shot wounds. ( 3 ) A case was registered on the said report and the investigation was taken up by Janki Jiwan Misra (PW5 ). Mahtab Singh, Sub Inspector had prepared inquest report of the dead body and sent it in a sealed covered to the mortuary for post mortem. He had inspected the site and prepared site plan. He had interrogated Ragho Prasad (PW 1), Shri Singh (PW 2), Gillari (PW 3) and Chabi Nath (PW 4) and thereafter submitted charge-sheet against the appellants. ( 4 ) THE prosecution story, as put forward by the prosecution, was that there was an enmity between Deo Raj Singh and the appellants. It was alleged that in the murder of Natthu Singh (brother of appellant Pheran Singh) the deceased Deoraj Singh, his brother Shri Singh and three others were accused. This Sessions Trial resulted into acquittal, Smt. Shanta, sister of appellant Ram Lakhan had implicated Deoraj Singh and Shri Singh in a murder case of some hill area. In this case also, Deoraj Singh was acquitted, Deoraj Singh had lodged a report against Pheran Singh and others u/ S. 307, IPC in which they were also acquitted. It was alleged that on account of the aforesaid enmity there was no relationship between the two parties. On 26/01/1972, Gillari, Chhabi Nath and Deoraj came to Karvi. Nandlal and Bhuru Singh had also accompanied the aforesaid three. It was alleged that on account of the aforesaid enmity there was no relationship between the two parties. On 26/01/1972, Gillari, Chhabi Nath and Deoraj came to Karvi. Nandlal and Bhuru Singh had also accompanied the aforesaid three. Chhabi Nath was to get a litigation of his sister-in-law Smt. Ramaiya settled. Hence they stayed at the quarter of Ram Lakhan appellant who was residing in a Kothari within the premises of public works Department. Smt. Shanta, sister of Ram Lakhan went to see a movie along with her son Parasi and Smt. Ramaiya. At about 8. 00 p. m. Deoraj, Gillari and Chhabi Nath were sitting on the Chabutra where Ram Lakhan was cooking his food. At that time, other appellants, namely, Sheo Kumar, Sheo Das, Ram Lal and Pheran Singh came. Pheran Singh and Ram Das had gone. Others had lathis. They gagged Ramraj and dragged him forcibly. At that time, Ram Lakhan exhorted them to kill him soon. Thereafter, these persons had shot Deo Raj near the well. The appellants have threatened the witnesses that if they disclosed this fact to anybody, then they would also be done to death. Hence after return of Smt. Ramaiya, the two witnesses hurried back to their houses. ( 5 ) THE prosecution examined Ragho Prasad (PW 1), Shri Singh (PW2) Gillari (PW 3) and Chhabi Nath (PW 4 ). The appellants had pleaded not guilty to the charges. They had alleged that they had been falsely implicated in this case. They had not produced any witness in decency. After appraisal of evidence. the learned Judge found the appellants guilty of the offences punishable u/ss. 302, 147, 148 and 109, I. P. C. ( 6 ) OUT of four witnesses of fact, Ragho Prasad ( PW. 1) was a witness relating to the information about the presence of the dead body and his report regarding this dead body in the police station. He has not stated any thing about actual killing by the appellants. ( 7 ) SHRI Single (P. W. 2) had only stated about the previous enmity. He had only stated that on return, Chhabi Nath and Gillari had informed him that they had stayed in the previous night at the residence of Ram Lakhan where he was murdered by the appellants. His statement is not material about actual occurrence. ( 7 ) SHRI Single (P. W. 2) had only stated about the previous enmity. He had only stated that on return, Chhabi Nath and Gillari had informed him that they had stayed in the previous night at the residence of Ram Lakhan where he was murdered by the appellants. His statement is not material about actual occurrence. ( 8 ) GILLARI (P. W. 3) and Chhabi Nath (P. W. 4) have not supported the prosecution story. They only stated that they were staying at the residence of Ram Lakhan at Karvi. They had seen that eight to ten persons had arrived at about 8. 00 p. m. on the date of occurrence at the place of occurrence and dragged Deoraj forcibly and killed him outside the boundary of Public works department. These witnesses were declared hostile and cross-examined by the prosecution. Only their statenients made before the Magistrate u/s. 164, Cr. P. C. were put to them. They had stated that they had given these statements on the asking of the police. It was not their voluntary statements. ( 9 ) LEARNED counsel for the appellants urged that there was no evidence at all to entail conviction of the appellants. There was no justification for holding the appellants guilty u/s. 302, IPC on the basis of the statements made u/s. 164 of the Code of Criminal Procedure (hereinafter referred to as the Code ). ( 10 ) WE have heard learned A. G. A. also. ( 11 ) WE are surprised that the learned Sessions Judge, little realizing the value of the statements u/s. 164 of the Code, had placed implicit reliance on these statements and held the appellants guilty. The statements of Chhabi Nath and Gillari (Exts. Ka-15 and Ka-16) respectively were recorded by S. D. M. , Karvi on 8-2-1972. On that date, the old Code of Criminal Procedure was in force. ( 12 ) THE trial was held when the new Code of Criminal Procedure had come into force. The wordings of S. 164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 a Division Bench of the Calcutta High Court had held that the statements u/s. 164 of the Code can be used only to corroborate or contradict the statements made u/ss. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 a Division Bench of the Calcutta High Court had held that the statements u/s. 164 of the Code can be used only to corroborate or contradict the statements made u/ss. 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 the Privy Council had observed that the statement u/s. 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 and in Bhagi v. Crown, (AIR (37) 1950 HP 35 ). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioners court that statement u/s. 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642. A division Bench of this Court had also observed that statements u/s. 164 of the Code cannot be used as a substantive evidence. ( 13 ) THE above catena of cases go to show that where the witnesses do not support the prosecution story in the Court, then their statements u/s. 164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as substantive piece of evidence. ( 14 ) THERE was no evidence at all on the basis of which the learned Sessions Judge could come to the conclusion that the appellants had actually committed the crime. The lower court ought to have acquitted all the appellants. ( 15 ) IN this case, a report has been received from Chief Judicial Magistrate, Banda, that appellants Ram Lal and Pheran Singh are dead. The appeal of appellants Ram Lal and Pherar Singh abates. The appeal of other three appellants are allowed. The judgment and order of the lower court are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed.