JUDGMENT Ramesh Madhav Bapat. J. - Crl. A. No. 1221/2000 is filed by A-1, whereas Cri. ANo.1218/2000 is filed by A-5 and A-6. Originally A-1 to A-6 were tried by the Sessions Judge, Warangal in Sessions Case No. 739/1996 and they were convicted. Since both the appeals arise out of the one and the same judgment they are being disposed of by this common judgment. 2. The accused appellants were facing two charges. The first charge against A-1 to A-4 was under Section 302 read with Section 34, I.P.C. The learned Sessions Judge found A-1 guilty of the said charge and convicted him to suffer imprisonment for life and also directed to pay a fine of Rs. 25,000/- and in default to suffer simple imprisonment for one year and A-2 to A-4 were acquitted of the said charge. The second charge against A-5 and A-6 was under Section 302 read with Section 109 I.P.C. and the learned Judge found them guilty of the said charges and sentenced them to suffer imprisonment for life and also directed them to pay a fine of Rs. 10,000/- and in default, directed to suffer simple imprisonment for six months. 3. The substance of the charge against the accused was that on 7-2-1996 while the deceased was returning from Gunturupalli, A-1 to A-4 armed with knives, stabbed the deceased indiscriminately and caused his death. 4. The case of the prosecution is narrated briefly as follows: The deceased was the son of A-5 and A-6. P.Ws.1 and 2 are the maternal uncles of the deceased. P.W.9 is the wife of the deceased. P.W. 8 is the grandmother of the deceased and mother of A-6 and mother-in-law of A-1 and P.W.1. P.W.11 is the daughter of A-5 and A-6 and sister of the deceased. P.W. 1 is the co-brother of A-5. P.W.8 was having three daughters. A-6 is her first daughter. Wife of P.W.1 is the second daughter. P.W.8 gave all the property to her three daughters equally. The deceased who is her grandson i.e., son of A-6 used to stay Jadcherla. After his marriage, the deceased was sent out of his house by his parents A-5 and A-6. The deceased went to P.W.8 and reported the matter to him. P.W.8 advised A-6 to look after the deceased properly and gave him a share in the property. The deceased who is her grandson i.e., son of A-6 used to stay Jadcherla. After his marriage, the deceased was sent out of his house by his parents A-5 and A-6. The deceased went to P.W.8 and reported the matter to him. P.W.8 advised A-6 to look after the deceased properly and gave him a share in the property. As no property was given, the deceased filed a civil suit, which ended in a compromise. In the compromise, ten acres of land was given to the deceased. Later on, A-5 and A6 sold away the property to A-1 for lesser price, which was objected to by P.W.8 and the deceased. The deceased raised a civil dispute and obtained injunction order and he was in possession of the entire land. When the deceased learnt that A-5 and A-6 were at the house of A-1, he along with P.W.7, P.W.1 and others went there. There was an altercation between A-1 and the deceased and A-1 tried to attack the deceased with an axe. The elders intervened and pacified the matter. This incident took place prior to the date of the incident in question. 5. On 7-2-1996, the deceased along with P.W.14 consumed toddy in the toddy shop of P.W.15. According to P.W. 16, who is the toddy vendor, the deceased and some others consumed toddy at 2. 15 p.m. and went away. At about 5.00 p.m. when P.W.1 was going to his fields, heard the shouts of P.W.2 from vagu (Stream). P.W.1 rushed there and found the deceased lying dead with injury on his body. P.W.2 is alleged to have told P.W.1 that Al and three others attacked the deceased and on seeing the dead body of the deceased, P.W.1 went to the police station and gave the first information Ex.P-1. On the basis of Ex. P-l, a case in Crime No. 14/ 1996 was registered under Section 302 read with Section 34 I.P.C, and the copies of the F.I.R., Ex.P-25 were sent to all the concerned. 6. P.W.21, the Inspector of Police received the information from S.I. of Police, Wardhannapet. On receipt of information, he proceeded to the scene of offence by 9-30 p.m. On 8-2-1996, he observed the scene of offence and prepared a sketch of the scene of offence and the same is marked as Ex. P-19. He then held an inquest over the dead body. On receipt of information, he proceeded to the scene of offence by 9-30 p.m. On 8-2-1996, he observed the scene of offence and prepared a sketch of the scene of offence and the same is marked as Ex. P-19. He then held an inquest over the dead body. Ex.P-15 is the inquest report. Thereafter, the dead body was sent for post-mortem examination. 7. The Professor of Forensic Medicine, Kakatiya Medical College conducted autopsy over the dead body and issued Ex. P-14 post-mortem report. As the said Professor retired from service and settled elsewhere, P.W.17, the Assistant Professor, identified the handwriting and the signature of the doctor who conducted the autopsy under Ex. P-14. According to the doctor, the deceased died due to shock and haemorrhage due to multiple stab injuries. 8. On 22-2-1991 A-1 surrendered before the IV Additional Judicial First Class Magistrate, Warangal. P.W.21, the Investigating Officer, obtained the police remand on A-1. On 6-3-1996, P.W.21 interrogated A-1 in the presence of P.W. 19 and recorded the confession, which is marked as EX.P-16. Pursuant to the confession, P.W. -21 recovered M.O.1 under EX. P-17. M.O.1 was sent to Forensic Science Laboratory and EX.P-22 is the report of the laboratory. On 18-3-1996, P.W.21 arrested A-2 to A-4 and recorded their confessional statements. And thereafter, he seized three knives under EX.P-24. Subsequently A-5 and A-6 were also arrested. Statements of P.Ws. 2 to 5 and 8 were recorded under Section 164 Cr. P.C. and after completing the investigation, P.W.21 filed the charge-sheet. 9. The case of the defence is of total denial. 10. In order to establish the guilt of the accused, prosecution examined P.Ws.1 to 21 and marked Exs.P-1 to P-25. Out of 21 witnesses, who were examined, P.Ws.2, 3, 4, 5, 6, 15, 16 and 20 turned hostile and they did not support the case of the prosecution. Therefore, we have to see whether the prosecution could bring home the guilt of the accused through the mouth of the other witnesses. 11. In order to establish the fact that deceased died homicidal death, prosecution- relied upon the evidence of P.W.21, who was the Investigating Officer and who conducted the inquest over the dead body of the deceased in the presence of P.W. 18. P.W.18 had attested the Inquest Report Ex.P-15. 12. After the inquest was over, the dead body was sent to Dr. P.W.18 had attested the Inquest Report Ex.P-15. 12. After the inquest was over, the dead body was sent to Dr. S.S. Hari Prasad, who was the Professor of the Forensic Medicine of the Kakatiya Medical College and since he has retired, his signature was proved by P.W. 17 and the autopsy report was marked as Ex.P-14. Considering the evidence led by the prosecution on the point of homicidal death, we hold that the prosecution was able to prove that the deceased died homicidal death. 13. In order to establish the guilt of A-I for the offence punishable under Section 302 I.P.C., the learned Sessions Judge has assigned some reasons, which are totally illegal. The learned Judge has formulated certain points in order to hold A-1 guilty. As far as motive is concerned, the learned Judge held that there is clinching evidence inasmuch as there is a dispute between the deceased and A-1 regarding some landed property. The learned judge further held that prior to the main incident, A-1 attempted to attack the deceased, but they were separated by the intervention of the elders and A-1 had proclaimed that he would kill the deceased and that he was waiting for an opportunity to commit the crime. As far as the evidence part which was led by the prosecution in the present case is concerned, the learned Judge had relied on the statement of P.W.2, (who is alleged to have been an eye-witness to the incident), recorded under Section 164 Cr. P.C. by the Magistrate and marked as Ex. P-2, as gospel truth for convicting the accused, even though he turned hostile. 14. The learned Judge should note that statement recorded under Section 164 of Cr. P.C. by the Magistrate cannot be taken as substantive evidence and as it is only a previous statement, it can be used by the defence for the purpose of contradiction under Section 145 of the Indian Evidence Act. The learned Judge had thus committed a gross mistake by relying on Ex. P-2 statement recorded under Section 164 Cr. P.C. and such practice should be stopped forthwith. The learned Judge referred to column Nos. 3 and 4 of the inquest report Ex. P-15, in which P.W.2 was shown as direct eye-witness to the incident, and had taken that into consideration for convicting the accused. This is also totally a wrong approach to the problem. P.C. and such practice should be stopped forthwith. The learned Judge referred to column Nos. 3 and 4 of the inquest report Ex. P-15, in which P.W.2 was shown as direct eye-witness to the incident, and had taken that into consideration for convicting the accused. This is also totally a wrong approach to the problem. Inquest report by itself is not a substantive piece of evidence and it can be used only for corroboration to the evidence of panch witnesses when examined in the Court. Therefore that part of the observation of the learned Judge is totally erroneous. 15. As stated earlier the eye-witnesses are only P.Ws.2 to 6, but they did (not) support the case of the prosecution in any manner. If their evidence is excluded, then nothing remains to involve A-1 in the crime. Therefore, we hold that the conviction and sentence recorded by the learned Sessions Judge on erroneous supposition of law is liable to be set aside and it is accordingly set aside. 16. As far as the case of A-5 and A-6 are concerned, the learned Judge had adopted very strange reasons for convicting them. The learned Judge attributed some motive to A-5 and A-6, as there was a civil dispute between the deceased on one hand theA-5 andA-6 on the other. As a matter of fact the deceased is the son of A-5 and A-6. It is true that there was some litigation between them for the reason that A-5 and A-6 did not want to give any share in the property to their son i.e., the deceased. Here it has to be seen that the property in question was given to A-6 by her parents, still she did not want to give any share to her son. Under these circumstances it cannot be said that they were interested in killing their own son by abetting A-1 to kill him. 17. The learned Sessions Judge while commenting on the conduct of A-5 and A-6 observed that much prior to the incident in question when A-1 tried to attack the deceased, A-5 and A-6 who were present there, maintained silence. Maintaining silence was taken as the basis by the learned Judge for convicting A-5 and A-6, that too in an incident which had occurred much prior to the incident in question. Maintaining silence was taken as the basis by the learned Judge for convicting A-5 and A-6, that too in an incident which had occurred much prior to the incident in question. Such reasoning of the learned Judge is totally erroneous and, therefore we hold that there is absolutely no evidence against A-5 and A-6 to connect them with the crime. 18. Considering the entire evidence on record, we hold that the order of conviction recorded against A-1 in Crl. A No. 1221/2000 is totally erroneous and similarly the order of the conviction recorded against A-5 and A-6 in Crl. A No.1218/2000 is also erroneous. Therefore, both the appeals are allowed and the order of conviction and sentence recorded against the accused appellants in both the appeals is hereby set aside and they are directed to be set at liberty forthwith if not required in any other case. Fine if any paid, shall be refunded. Appeal allowed.