G. MALAVIYA, J. ( 1 ) RAJENDRA alias Buddhu was found guilty under Sections 302 and 308, Indian Penal Code read with Section 120-B of the Indian Penal Code for committing murder of his father Tilak Singh by administering poison. However since the trial Court found him to be a child within the meaning of Section 2 (4) of the Children Act, consequently instead of giving any sentence he was given benefit of Section 29 of the Children Act and was ordered to be sent to an approved school for a period of two years by the IIIrd Additional Sessions Judge, Mainpuri in Sessions Trial No. 598 of 1977. By the same judgment and order Kalawati was held guilty for the offence under Section 302 read with Section 34 Indian Penal Code as also for the offence under Section 120-B Indian Penal Code and was awarded life sentence and two years rigorous imprisonment respectively. Both her sentences were directed to run concurrently. Against their conviction and sentence the present appeal has been filed. ( 2 ) ACCORDING to the First Information Report lodged on 22-7-1977 at Police Station Kotwali Mainpuri by P. W. 4 Natthu Lal, the first informants father had married twice. Kalawati accused was the second wife who due to some reasons had left her husband Tilak Singh five or six years before the occurrence and had started living at Firozabad. About five or six days prior to the incident Kalawati along with her son Rajendra accused aged 17 or 18 years had come to Tilak Singh when Tilak Singh and Kalawati quarrelled again, while leaving Tilak Singh, Kalawati had said that she would get Tilak Singh finished soon. On 21-7-1977 Rajendra came to Tilak Singh in the evening at about 4 O clock. He took out the flour for preparing food and thereafter went to the first informants residence in Mandi Dharm Das. After taking his food with the first informant accused Rajendra again went back to his father Tilak Singh. In the evening his father Tilak Singh prepared chapatis from the same flour. Immediately after eating those chapatis the condition of Tilak Singh became critical. His neighbours Bala Prasad, PW 1, Sarvesh PW 2, Banwari and Rajendra took Tilak Singh to the hospital where he was admitted. In the night at about 10. 30 p. m. his father died due to poison. Immediately after eating those chapatis the condition of Tilak Singh became critical. His neighbours Bala Prasad, PW 1, Sarvesh PW 2, Banwari and Rajendra took Tilak Singh to the hospital where he was admitted. In the night at about 10. 30 p. m. his father died due to poison. Sarvesh, PW 2 informed the first informant at his residence when the first informant Natthu Lal asked Rajendra how his father died. In the presence of other witnesses Rajendra divulged that his mother Kalawati had given some poison to him in a Pudiya (small packet of paper) with a direction to mix it in the flour of his father and had instructed him not to take any chapati made of that flour; accordingly he had mixed that poison in the flour when he was mixing the flour of his father for preparing chapatis whereafter he had gone to first informants place to take his food. It was, therefore, certain that the mother of the first informant with a view to kill his father Tilak Singh had got some poison mixed in the flour by Rajendra with the result that after taking chapatis made of the said flour his father had died. The first information report further mentions that the remaining flour as also the chapatis made out of it are still in the room of his father. His father had also vomitted and some vomit was also lying on the spot and it was requested that necessary action should be taken forthwith. ( 3 ) AFTER the said First Information Report had been recorded and its chik prepared the flour as also the chapatis were recovered. The vomit of the deceased Tilak Singh was also recovered. Necessary recovery memos were prepared whereafter all these things along with viscera were sent for chemical examination. The report of the Chemical Examiner revealed Arsenic poison in the stomach, intestines, liver, kidney and spleen of the deceased as also in the flour, the dough prepared out of that flour as also the earth sample containing the vomit of the deceased. This report was duly proved in the Court by the evidence of C. W. 2 Dr. S. K. Harpalani. After completing the investigation the charge sheet was submitted whereafter the accused persons were tried. This report was duly proved in the Court by the evidence of C. W. 2 Dr. S. K. Harpalani. After completing the investigation the charge sheet was submitted whereafter the accused persons were tried. ( 4 ) DURING the trial PW 1 Bala Prasad and PW 2 Sarvesh were examined who deposed about the fact that Tilak Singh deceased was a tenant in the shop of Ram Awatar who married for a second time with Kalawati. Rajendra Singh was the son of Tilak Singh from his second wife Kalawati. After living together for some time both Tilak Singh and Kalawati quarrelled with the result that Kalawati after taking Rajendra Singh with her went away to Firozabad. Whenever Kalawati came to Tilak Singh with Rajendra there could not be any compromise. About five or six days earlier both Kalawati and Rajendra had come to Tilak Singh. When Kalawati wanted Tilak Singh to get her medically treated for which she wanted Tilak Singh to give her some money. Tilak Singh refused to part with the money and said that in case she came over to him at Mainpuri he would get her treated but would not give her any money. Kalwati could not agree and left asserting that she would get him killed within about a week. Thereafter on the day of the incident Rajendra had come to Tilak Singh stating that he would thereafter live with Tilak Singh. After sometime Tilak Singh asked Rajendra to take out the flour so that he may prepare the chapatis. On this Rajendra took out the flour. Rajendra took out a small packet of paper from his packet and mixed its content in the flour and thereafter said that he was going to his brother Natthu and went away. Later on he saw Tilak Singh eating chapatis made out of that flour whereafter Tilak Singh complained of burning in his throat and stomach. Thereafter Tilak Singh complained of uneasiness. He had a vomit and he also passed stool. Consequently they took him on the rikshaw of Banwari along with Rajendra to the hospital where after some time Tilak Singh expired. The doctor told him that Tilak Singh had died due to poison. Thereafter Natthu s/o Tilak Singh from his first wife was summoned. Thereafter Tilak Singh complained of uneasiness. He had a vomit and he also passed stool. Consequently they took him on the rikshaw of Banwari along with Rajendra to the hospital where after some time Tilak Singh expired. The doctor told him that Tilak Singh had died due to poison. Thereafter Natthu s/o Tilak Singh from his first wife was summoned. On being asked Rajendra confessed before all of them that his mother had given him the poison in a paper packet to be mixed in his fathers flour with clear cut instructions not to eat the chapatis made out of it and to take food with his brother Natthu. The witness was cross-examined at length but nothing substantial was gained by the defence from his cross-examination. ( 5 ) PW 2 Sarvesh had also testified in the Court below on the same lines as was deposed by PW 1 Bala Prasad including the fact of extra judicial confession by Rajendra. His cross-examination also did not yield any such infirmity which could render his evidence to be unworthy of being relied upon. ( 6 ) PW 4 Natthu Lal provided his First Information Report and also mentioned about the extra judicial confession made by Rajendra. The other formal evidence was also tendered during the trial on the basis of which the trial Court convicted the two accused persons as has been mentioned above. ( 7 ) IN this appeal we have heard Sri Kamal Krishna who had been appointed Amicus curiae by an order of this Court as also R. C. Deepak learned Addl. Govt. Advocate. ( 8 ) SO far as the appeal by Rajendra is concerned we are not inclined to accept the submission of Sri Kamal Krishna learned Amicus curiae that on the evidence adduced in this case his conviction is not proper. He was seen by all the witnesses to be mixing some powder in the flour. Thereafter he did not eat the chapatis made out of it and went away to his brother Natthu Lal. Coupled with the fact that he used to reside with Kalawati who had come to Mainpuri about five or four dates earlier and while leaving Tilak Singh she had threatened that she would get him killed, we find that the evidence of extra judicial confession made by him is also clear and positive. His conviction, therefore, is just and proper. Coupled with the fact that he used to reside with Kalawati who had come to Mainpuri about five or four dates earlier and while leaving Tilak Singh she had threatened that she would get him killed, we find that the evidence of extra judicial confession made by him is also clear and positive. His conviction, therefore, is just and proper. We also find that the learned Sessions Judge had rightly found him to be a child within the meaning of the Children Act and had extended him the benefit of Children Act by sending him to the approved school for two years, under Section 29 of the said Act. The appeal of Rajendra is, therefore, dismissed. ( 9 ) HOWEVER, so far as the appeal of Kalawati is concerned, we agree with the submission made by Sri Kamla Krishna that in this case there is hardly any substantial evidence to warrant conviction of Kalawati. Even if we accept the evidence of the witnesses to the extent that Kalawati had quarrelled with her husband Tilak Singh and had left him three or four days earlier alleging that she would get him killed, this evidence coupled with the extra judicial confession of Rajendra, in our opinion, is not enough to hold her guilty. As discussed earlier the only evidence against Kalawati is the statement of Rajendra by which he admitted having mixed poison in the flour of his father at the instance of Kalawati. This evidence could be read against Kalwati under Section 30 of the Evidence Act. However the Supreme Court had the occasion to consider the effect of such an evidence in the case of Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 . Referring to the case of Bhuboni Sahu v. The King reported in AIR 1949 PC 257 the Supreme Court clearly held that the evidence under Section 30 of the Evidence Act could not be a substantive evidence and could be used only to corroborate the other substantive evidence if available against any particular accused. As discussed earlier the learned Addl. Govt. Advocate has not been able to place before the Court any other substantive piece of evidence against Kalawati. The learned Addl. Govt. Advocate has relied upon the case of Mahavir Biswas v. State of West Bengal, reported in Addl. Criminal Cases 330 (sic ). As discussed earlier the learned Addl. Govt. Advocate has not been able to place before the Court any other substantive piece of evidence against Kalawati. The learned Addl. Govt. Advocate has relied upon the case of Mahavir Biswas v. State of West Bengal, reported in Addl. Criminal Cases 330 (sic ). However the last paragraph of this judgment also clearly indicates that the evidence under Section 30 of the Evidence Act could not be a substantive evidence and could be pressed into service only to lend support to other substantial and reliable evidence. ( 10 ) AS already discussed there is no other substantive and reliable evidence to bring home the guilt in respect of charge of murder against Kalawati. Consequently on the strength of extra judicial confession of Rajendra her conviction cannot be sustained. Accordingly the appeal of Kalawati is to be allowed. ( 11 ) THE result is that this appeal is allowed in part. Whereas the appeal of Rajendra alias Buddhu against his conviction and sentence by the trial Court is dismissed, the appeal of Kalawati is hereby allowed. Kalawati is in jail. She shall be set free forthwith unless wanted in any other case. The office will send a copy of this judgment to the Supdt. of District Jail, Mainpuri within a month for compliance. ( 12 ) SRI Kamal Krishna has very ably argued this case before this Bench for two days. We consider it proper to award him a fees of Rs. 1000. 00 per day for arguing this case as Amicus curiae before this Court. The Registrar is directed to pay a fees of Rs. 2000. 00 within two months from today. Appeal partly allowed.