Honble SINGH, J. – Heard the learned counsel for the appellant and learned Public Prosecutor for the State and perused the record of the case. (2). The appellant Sumer Singh was tried by the learned District and Sessions Judge, Churu on charges punishable under Sections 302, 309 and 376 of the Indian Penal Code. After trial he was found guilty on all the three counts and he was sentenced to undergo life imprisonment under Section 302, 6 months rigorous imprisonment and a fine of Rs. 100/- and further imprisonment for 15 days for default in payment of fine under Section 309 and rigorous imprisonment for 4 years and a fine of Rs. 200/- and further imprisonment for one month for default in pay- ment of fine under Section 376 of the Indian Penal Code. Feeling aggrieved by the verdict of conviction and sentence the appellant has filed this appeal. (3). The facts of the case briefly stated are as below : According to the First Information Report lodged on 21st January, 1977 at about 9.30 P.M. by Dal Ram PW 9, on that day at about 5.00 p.m., he heard some hue and cry coming from the house of Balbir. He found that Sumer Singh was lying on ground and his elder brother Balbir and younger brother Ran Singh were present. On asking as to what had happened, Ran Singh told him that Sumer Singh had tried to hang himself. At that time Parmeshwari wife of Balbir was not visible and, therefore, a search was made for her and ultimately her deadbody was found in the room where animals are kept. Her throat was cut and blood was coming from it, she was naked and there was one dagger and a coat lying near her dead body. On the basis of the First Information Report lodged by Shri Dal Ram PW 9, police registered a case under Sections 302, 309 and 376 of the Indian Penal Code and commenced the investigation. After usual investigation a challan under Section 173 (2) Cr.P.C. was submitted in the court of learned Chief Judicial Magistrate, Churu, who committed the case to the District and Sessions Judge, Churu. (4). Charges under Sections 302, 309 and 376 of the Indian Penal Code were framed against the accused-appellant. He pleaded not guilty of the charges and the prosecution proceeded to produce its evidence. (4). Charges under Sections 302, 309 and 376 of the Indian Penal Code were framed against the accused-appellant. He pleaded not guilty of the charges and the prosecution proceeded to produce its evidence. As many as 12 witnesses were exa- mined by the prosecution in support of its case. The appellant was examined under Section 313 of the Criminal Procedure Code. He did not adduce any evidence in defence. In his statement recorded under Section 313 of the Criminal Procedure Code, the appellant denied all the circumstances appearing against him. (5). After carefully going through the evidence, the learned Sessions Judge came to the conclusion that the circumstantial evidence adduced by the prosecution was sufficient to convict the appellant on all the three counts. The circumstances, which in the opinion of the learned Sessions Judge, Churu, were established by the evidence on record were firstly, the marks of ligature of the neck of appellant which suggested that he tried to commit suicide after the alleged mur- der of Smt. Parmeshwari. Secondly, the recovery of a coat from the scene of occurrence and the presence of blood spot on the same. Thirdly, the recovery of some garments of appellant on which some blood stains were found. Fourthly, the circumstance that about one day prior to the date of occurrence accused had brought his wife from his in-laws house and thereafter when he attempted inter- course with her she resisted the attempt and at that time Parmeshwari, intervened and prevented the accused from proceeding with the sexual inter- course with his own wife. By implication the motive for commission of murder on the part of the appellant was that Parmeshwari tried to intervened when the accused after bringing his wife to his house tried to commit sexual inter-course with her. (6). We have gone through the evidence adduced by the prosecution. Almost all the material witnesses in this case have turned hostile. Ran Singh PW-1 is first witness who had given information that he had seen the appellant hanging from the ceiling and that he saved the life of the appellant and on the basis of the information given by Ran Singh an allegation that the appellant attempted suicide was made in the First Information Report by Dal Ram. Ran Singh PW-1 has turned hostile. So far as alleged motive is concerned, Kamla wife of appellant has been examined as P.W. 10. Ran Singh PW-1 has turned hostile. So far as alleged motive is concerned, Kamla wife of appellant has been examined as P.W. 10. She has not supported the prosecution version and deposed that after her arrival in husbands house she slept with her husband on both the nights and during night her husband did not go out and there was no quarrel between her and her husband. Regarding abrasion on neck of appellant she said that when she pushed her husband during his attempt he received that injury. This explanation appears to be after thought and learned Sessions Judge has not relied upon it. Since Smt. Kamla PW-10 has not supported the prosecution case, the alle- ged motive of the murder of Smt. Parmeshwari by the appellant does not stand proved. The learned Sessions Judge after considering the evidence adduced by the prosecution came to the conclusion that it has not been established that the coat which was found at the scene of occurrence, belonged to the appellant. In our opinion, that finding of the learned Sessions Judge cannot be described as unreso- nable. The learned Public Prosecutor has failed to point out any evidence to prove that the coat, which was found at the scene of occurrence, belonged to the appellant. (7). The learned Public Prosecutor has laid emphasis on the fact that Smt. Parmeshwari before her death was subjected to inter-course and according to Do- ctors Report semen was found in her Vagina. But in our opinion in view of the statement of Balbir Singh, the husband of the deceased he had committed sexual inter-course with Parmeshwari on the date of occurrence and, therefore, mere presence of semen inside the vagina of Parmeshwari cannot be used for the purpose inferring that she was raped. It is also pertinent to note that according to the testimony of the Doctor there were no marks of injury on the private parts and sexual inter-course was with her consent. The allegation that the appellant committed sexual inter-course with Parmeshwari has not been substantiated by any evidence circumstantial or otherwise. The learned Public Prosecutor has urged that murder of Parmeshwari was committed within the enclosed of her house and there was no reason for any outsider to have come to commit rape and cause her death. The allegation that the appellant committed sexual inter-course with Parmeshwari has not been substantiated by any evidence circumstantial or otherwise. The learned Public Prosecutor has urged that murder of Parmeshwari was committed within the enclosed of her house and there was no reason for any outsider to have come to commit rape and cause her death. In this connection, it would be useful to refer to the cross-examination of Balbir, the husband of the deceased. He has clearly stated in his statement that his wife Parmeshwari was of loose character. In our country husbands do not tolerate wives who are of loose character. Balbir Singh has stated in Court that his wife was of loose character and he cannot be presumed to have passively, submitted to the illicit relations which his wive might be having with others. The circumstances suggest that Balbir, who believed rightly or wrongly that him wife was of loose character had a strong motive to cause her death. Therefore, aforesaid possibility cannot be ruled out and the benefit of doubt must go to the appellant against whom there is absolutely no evidence to suggest that he caused the murder of her sister-in-law Smt. Parmeshwari. (8). Having gone through the evidence, we are of the opinion in this case that the learned Sessions Judge, Churu committed grave error in appreciating evidence produced by the appellant. This was a case where the conviction was not justified on any count. (9). While parting with the judgment, we deem it our duty to remined the lower courts of their responsibility under Section 136 of the Indian Evidence Act which provides that it is a right and duty of the Judges to decide admissibility of evidence and when either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. There are several decisions to the effect that the duty imposed on the Courts under Section 136 of the Indian Evidence Act cannot be ignored and must be scrupulously performed. There are several decisions to the effect that the duty imposed on the Courts under Section 136 of the Indian Evidence Act cannot be ignored and must be scrupulously performed. In this connection it would not be out of place tomention that the proviso given below Section 165 of the Indian Evidence Act clearly provides that the judgment must be based upon facts declared by this Act to be relevant, and duly proved. It is true that within meaning of Section 3 of the Indian Evidence Act whether a fact is proved or not ultimately depends on the belief of the Judge who tries the case and his belief is no doubt a personal phenomenon. But Section 3 of the Indian Evidence Act makes it obligatory to take into consideration all the matters placed before it and though the expression ``matters used in Section 3 of the Indian Evidence Act has not been defined anywhere yet in view of Section 136 and the proviso given below Section 165 of the Indian Evidence Act the ``matters must be those which are relevant as well as admissible. The presumption, which a Judge may draw under Section 114 of the Indian Evidence Act, refers to several things including the ordinary course of conduct and when the Indian Evidence Act prescribes certain conduct on the part of the parties to a litigation permitting them to produce, only relevant and admissible evidence, that conduct must be taken into account and no party should be permitted to rely upon any evidence which is not relevant and admissible. We have made these observations because the learned Sessions Judge in his judgment repeatedly referred to the statements made by witnesses under Section 161 of the Criminal Procedure Code forgetting altogether that the stateme- nts recorded under Section 161 of the Indian Evidence Act are neither substantive pieces of evidence nor they can be used for the purpose of corroborating the prosecution story. They can be used only for contradicting the witnesses who are examined in Courts. Reliance upon contents of First Information Report as if it is a substantive piece of evidence is also impermissible because in several decisions of Apex Court and of this Court it has been held and it is no doubt res-integra that the First Information Report is not a substantive piece of evidence and can be used only for corroboration or contradiction. If the learned Sessions Judge had taken care to go through the proviso in Section 165 of the Indian Evidence Act which we have referred in our judgment he would not have committed the mistake of relying upon inadmissible piece of evidence as substantive piece of evidence. (10). For the reasons stated above, this appeal deserves to be accepted. The conviction as well as sentence imposed upon the appellant under Sections 302, 309 and 376 of the Indian Penal Code is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged. Copy of this judgment be sent to the Registrar, Rajasthan High Court for circulation amongst all the Judicial Officers in this State.