J. C. GUPTA, V. M. SAHAI, JJ. ( 1 ) THE above noted appellants who have been convicted and sentenced to imprisonment for life under Section 302 read with Section 34 I. P. C. to undergo R. I. for 7 years under Section 201/34 I. P. C. and to undergo R. I. for 10 years under Section 394 I. P. C. by the judgment dated. 22-3-1980 passed by the then III Addi. Sessions Judge. Fatehpur in Sessions Trial No. 227 of 1979 have preferred this appeal before this court. ( 2 ) THE case relates to the murder of Smt. Basdeia wife of Ram Asrey. P. W. 1. A written report was lodged by Ram Asrey at the police station on 17-10-1997 at 12. 20 p. m. to the effect that his wife Basdeia was not traceable since the preceding evening and despite a vigorous search having been made during night her whereabouts could not be known and that she was having some ornaments on her body. On this report case was registered and police came into action. The investigating Officer Shri Shiv Kumar Singh (P. W. 7) caught hold of Smt Salatunnisa (P. W. 4) the wife of appellant Nabi Ahmad and he got the lock of one of the rooms of her house opened by the keys provided by her. On entering that room it was noticed that some portion of the floor of the room was blood stained and some pieces of broken bangles were also lying there. The investigating Officer took into his custody blood stained and plain earth and so also the pieces of the angles through recovery memo. Ext. Ka 1 and Ext. Ka 8. It is further alleged that at the instance of Smt. Salatunnisa the investigating Officer got the dead body of the deceased searched in the pond situated in front of her house whereupon pieces of her dead body kept in two earthen pots were recovered Memo Ext. Ka 3 was prepared in respect thereof. It was also disclosed by Smt. Salatunnisa to the investigating Officer that in the intervening night of 16/17 October, 1977 the present appellants had committed the murder of the deceased in the room of her house and after committing the murder the dead body was cut into pieces and put in two earthen pots. It was also disclosed by Smt. Salatunnisa to the investigating Officer that in the intervening night of 16/17 October, 1977 the present appellants had committed the murder of the deceased in the room of her house and after committing the murder the dead body was cut into pieces and put in two earthen pots. They also wrapped her head with her Dhoti and threw the pots in the aforesaid pond. ( 3 ) DR. M. M. S. A. Khan conducted the post mortem examination and found the following ante-mortem injuries:1. Incised wound 7 x 2, liquefied brain matter flowing out on the right from to parietal region horizontally; clotted blood present underneath the scalp clean cut fracture of right from to parietal bone extending below as a linear fracture into anterior and middle cranial fossa reaching the base of skull meanings clean cut. 2. Incised wound 5-1/2 x 2 x bone deep extending from the left ear to left superior orbital margin, clotted blood present underneath, clean-cut fracture of left fronto parietal bone present underneath. 3. Incised wound 6-1/2 x 5-1/2 x through and through present over the Upper part of neck-at the level of 3rd cervical vertebra; cleanly cutting the body of 3rd cervica 1 vertebra, trachea, Oeshphagus, vessles of the neck nerves of the neck alongwith the other structures of neck cleanly cut through and through clotted blood present all round the wound and into the subcuetaneous tissues. According to the opinion expressed by the Doctor death of the deceased was caused due to shock and hemorrhage on account of ante mortem injuries. The post mortem report is Ext. Ka 19. The blood stained earth. Dhoti of the deceased and a piece of rope were sent to the Chemical Examiner and Serologist. As per the report of Serologist human blood was found on the Dhoti whereas the blood on earth and on rope was found disintegrated. The blood group of blood stained Dhoti, however could not be fixed. ( 4 ) AFTER completing investigation the police submitted charge sheet against all the-appellants who were duly tried before the trial court in support of their case the prosecution examined nine witnesses in all namely am Asrey the first-informant and the husband of the deceased as (P. W. 1); Chotey Lal (P. W. 2); Visheshwar (P. W. 3); Smt. Salatunnisa. (P. W. 4) the wife of the accused Nabi Ahmad. (P. W. 4) the wife of the accused Nabi Ahmad. Constable Afaq Husain (P. W. 5); ishaq (P. W. 6); investigation Officer-Shiv Kumar Singh (P. W. 7); Sri Bharthari Prasad (P. W. 8) the Judicial Magistrate who recorded the statement of the witness Smt. Salatunnisa under Section 164 Cr. P. C. and Dr. M. M. S. A. Khan (P. W. 9) who conducted the post mortem examination. ( 5 ) THE appellants in their statements recorded under section 313 Cr. P. C. denied the prosecution allegations and stated of their false implication. They produced no witness in defense. ( 6 ) THE learned Sessions Judge found that the prosecution has proved its case beyond reasonable doubt and consequently has recorded conviction of the appellants by the impugned judgment. ( 7 ) WE have heard learned counsel for the appellants and the learned A. G. A. at length. Record of the court below has also been perused. It is not disputed by the learned counsel for the appellants that the pieces of dead body which were found in the two earthen pots and recovered from the pond were of the deceased Basdeia. It is also not challenged that Smt. Basdeia died a homicidal death. However the argument of the learned counsel for the appellants is that there is absolutely no evidence direct or indirect to connect the appellants with the murder of the deceased. It is argued that the learned Sessions Judge has committed a grave error of law in basing conviction of the appellants solely on the basis of statement of Smt. Basdeia recorded under Section 161 Cr. P. C. during investigation and statement recorded under Section 164 Cr. P. C. We find substance in the above submission of the learned counsel for the appellants. ( 8 ) AS already stated above after when the report of disappearance of Smt. Basdeia was lodged by her husband-Ram Asrey, P. W. 1 the police came into action and the investigating Officer interrogated Smt. Salatunnisa who herself opened her house and got the inspection made. It is further the case of the prosecution that it was Smt. Salatunnisa who took the investigating Officer to the pond and on her pointing, out pieces of the dead body of the deceased were recovered from the pond which were kept in two earthen pots. It is further the case of the prosecution that it was Smt. Salatunnisa who took the investigating Officer to the pond and on her pointing, out pieces of the dead body of the deceased were recovered from the pond which were kept in two earthen pots. At the trial Smt. Salatunnisa was examined as a prosecution witness (P. W. 4 ). She however did not support the prosecution case at, all and turned hostile. She was confronted with her statement recorded by the investigating Officer under Section 161 Cr. P. C. and also with her statement recorded under Section 164 Cr. P. C. She denied to have given any statement to the investigating Officer, in respect of her statement recorded under Section 164 she stated that she was kept at the police-station for three days and was forced to give such a statement. The learned Sessions Judge has, however, relied upon the statement of the said witness as was recorded under Section 161 Cr. P. C. and under Section 164 Cr. P. C. and has based the conviction of the appellants on such statements. ( 9 ) IT is well established law that statements recorded during investigation under Section 161 Cr. P. C. are wholly inadmissible and accepting them as evidence is utterly erroneous. Under no circumstances, the statement given by a witness to the police during investigation can be used as substantive evidence. It can be relied upon for the purpose of contradicting the maker thereof as is provided under Section 162 Cr. P. C. and its proviso. The fundamental and legal proposition is that a statement made to a police officer by any person, examined in the course of the investigation, recorded under Section 161 Cr. P. C. is not and cannot be treated as substantive evidence except when falling within the provisions of clause (1) of Section 32 of the Evidence Act or with regard to a discovery under. Section 27 of the same Act, it may be used only for the purpose of contradicting the evidence of the said person when examined as a prosecution witness in the manner provided by Section 145, Evidence Act. Such a statement cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in the court. ( 10 ) SIMILARLY, a statement recorded under Section 164 Cr. Such a statement cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in the court. ( 10 ) SIMILARLY, a statement recorded under Section 164 Cr. P. C. can never be used as substantive evidence and cannot be made use of except to corroborate or contradict the witness. Even where the witness admits that a statement of his was recorded under Section 164 Cr. P. C. and that what he had stated there was true would not make the entire statement admissible. A statement made under Section 164 Cr. P. C. can be used to cross-examine the person who made it and the result may be to show that the evidence of the witness is false. But that does not establish that what had been stated by him out of court under Section 164 Cr. P. C. was true. Substantive evidence is one which is given by a witness in court on oath in the presence of the accused whereas the statement under Section 164 Cr. P. C. is recorded in the absence of accused and therefore the same cannot be made basis of conviction even where the court may be of the opinion that the witness has been won over. ( 11 ) IN the present case, the learned Sessions Judge has committed a gross error of law in placing reliance on the statement of Smt. Salatunnisa as recorded by the investigating Officer under Section 161 Cr. P. C. and also on her statement recorded under Section 164 Cr. P. C. by using such statements as substantive evidence. It, may also be relevant to mention here that the two witnesses Chotey Lal P. W. 2 and Visheshwar P. W. 3 also turned hostile and did not support the prosecution case. They were cross examined on behalf of the State but nothing material could come in their cross examination, which could be used in corroboration of the prosecution story. In the present case even as per the prosecution case, the dead body was got recorded by Smt. Salatunnisa and not by any of the accused persons. Therefore, provisions of Section 27 of the Evidence Act also could not be attracted against any of the appellants. In the present case even as per the prosecution case, the dead body was got recorded by Smt. Salatunnisa and not by any of the accused persons. Therefore, provisions of Section 27 of the Evidence Act also could not be attracted against any of the appellants. From the report of the Serologist it is also not established that the earth recovered from one of the rooms of the appellant Nabi Ahmad was stained with human blood. The mere fact that the Dhoti which was wrapped on the head of the deceased contained human blood cannot be used as an incriminating circumstance against the appellants as it is not established that the Dhoti belonged to any of the accused persons. After examining the entire record we find that there is absolutely no legal evidence whatsoever to connect the appellants with the murder of the deceased. Since the dead body was got recovered at the instance of wife of one of the appellants. Only a suspicion could arise but that suspicion alone will not be sufficient to hold the appellants guilty of the commission of the murder of the deceased or for connecting them for the offence punishable under Section 201 I. P. C. or 394 I. P. C. and they are entitled to be acquitted. ( 12 ) FOR the reasons stated above the order of conviction and sentence passed by the learned Sessions Judge has to be set aside. ( 13 ) THE appeal is allowed. The judgment dated 22-3-1980 is set aside and the appellants are acquitted of all the charges levelled against them. They are on bail and they need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .