JUDGMENT B. PANIGRAHI, J. — Conviction and sentence passed by the Additional Sessions Judge, Khurda, in S.T. No. 58/25/316 of 1995/94 under Sec. 302 read with Section 34 of the Indian Penal Code directing the appellants to undergo imprisonment for life have been assailed in this appeal. 2. The prosecution story tersely stated in the judgment of the trial Court is as follows : The appellants except appellant Bachu Singh, undisputedly were working as Security Guards in M/s. Orissa Lamp Ltd., while the appellant Bachu Singh was working as Security Supervisor of the industrial unit which is situated in the Industrial Estate, Khurda. In the night of occurrence while they were on duty, some miscreants entered into the premises of M/s. Orissa Lamps. The miscreants were chased by the security personnel and in the proc¬ess of search it was noticed that an unidentified dead body was lying inside the premises. Therefore, the appellant Bachu Singh lodged a written report vide Ext.9 on 26.9.1993 before the Offi¬cer-in-charge of Industrial Out Post, Khurda, stating therein that when 3 to 4 miscreants made a clandestine entry into the premises of M/s. Orissa Lamps at about 3. a.m. they were chased away who successfully made good their escape. After they escaped during the night, it was appellant Bachu Singh who noticed a dead body of a male person aged about 20 to 22 years lying near glass plant area where civil construction was continuing. He, there¬fore, requested the Officer-in-charge of the Industrial Out Post to make necessary arrangement for removal of the dead body from the factory premises. 3. On receipt of the above written information from appel¬lant Bachu Singh, the A.S.I. Ramesh Ch. Kar registered U. D. Case No. 3/93 and started enquiring into the matter and made station diary entry No. 440. In course of enquiry he visited the spot and held inquest over the unidentified dead body of the person He prepared inquest report vide Ext.2 and thereafter made arrange¬ment for despatching the unidentified dead body to G.B.S. Hospi¬tal, Khurda for holding post mortem examination at 3.15 p.m. through Constable No. 1395-Jambeswar Paltasingh and Constable No. 1398-Dayanidhi Mohapatra under dead body challan vide Ext.3. The A.S.I. received the post mortem examination report vide Ext. 11 from P.W.3, an Orthopaedic Specialist of G.B.S. Hospital, Khurda. The A.S.I. received the post mortem examination report vide Ext. 11 from P.W.3, an Orthopaedic Specialist of G.B.S. Hospital, Khurda. The post mortem report, however, revealed that the death was homicidal in nature and due to shock and asphyxia and all the injuries appearing on the body of the deceased were ante mortem in nature. The A.S.I.- P.W.1 on receipt of the post mortem report (Ext.11) sent it to the Inspector-in-charge of Khurda P.S. along with a written report (Ext.8) alleging therein that in course of enquiry and spot visit and from confidential enquiry it was ascertained that the security personnel of M/s. Orissa Lamps had committed the offence of murder of an unidentified person between the night of 25/26.9.1993. It was also mentioned in the written report that the appellant while on duty as security personnel in the night of occurrence inside the premises of M/s. Orissa Lamps committed the offence and as such they were responsible for caus¬ing the death of the deceased Naran Behera, son of Sanatan Behera of Kukuda, P. S. Pipli. On receipt of the written report (Ext. 8) from P.W.1 at 10 p.m. on 30.9.1993 the then I.I.C., Khurda, treated it as F.I.R. and registered a case under Section 302/34, I.P.C. vide P.S. Case. No. 263/93 and immediately took up investigation. He also drew up a formal F.I.R. and visited the spot, prepared spot map, examined further witnesses, seized four cane lathis which were marked as M.Os. I to IV, on 2.10.1993 from the Security Post of M/s. Orissa Lamps and prepared the seizure list in presence of the witnesses. In course of investigation he also prayed for holding of a T.I. parade to the learned S.D.J.M., Khurda, in respect of suspects for their identification inside the Sub-Jail, Khurda. Shri R. S. Misra, the then Judicial Magistrate, First Class,Khurda, held T.I. parade in which P.W.4 is said to have identified the appellants. The I.I.C. on account of his transfer handed over the charge of investigation to his successor Shri B. K. Raju (P.W.5) who on completion of investigation placed charge-sheet against the appellants under Sec. 302 read with Section 34 of the Indian Penal Code before the S.D.J.M., Khurda. After submis¬sion of charge-sheet cognizance was taken against the appellants and thereupon the case was committed to the Court of Session at Puri. 4. After submis¬sion of charge-sheet cognizance was taken against the appellants and thereupon the case was committed to the Court of Session at Puri. 4. The prosecution, in all, has examined seven witnesses to bring home the charge against the appellants. The plea of the defence is a denial of the prosecution case in its entirety. 5. Learned Additional Sessions Judge on resume of the evidence recorded an order of conviction against appellants and sentenced them as stated above. He has taken into consideration the following circumstances while holding the appellants guilty of the offence : “(a) The medico legal evidence of P.W.3 that the death of the unidentified dead body over which he held autopsy on the identification of police personnel on 26.9.93 was homicidal in nature and the injuries found on his person were ante mortem in nature; (b) That all the accused persons were working as security personnel of M/s. Orissa Lamps and were on duty on the night of occurrence in the Industrial premises where they were employed; (c) That the dead body of a person of the age group of 20/22 was found lying in the premises of M/s. Orissa Lamps since the night intervening of 25/26.9.93; (d) That the dead body which was found lying in the premises of M/s. Orissa Lamps was later identified as that a Naran Behera son of Sanatan Behera of Vill. Kakudia, P.S. Pipli; (e) That one of the accused namely, Bachu Singh lodged a written information at the Industrial Police Out Post on 26.9.93 (Ext.9) that some miscreants numbering 3 to 4 had clandestinely entered into the premises of M/s. Orissa Lamps at about 3 A.M. on 26.9.93 and that the said miscreants made good their escape when chased; (f) That all the accused persons except Gunadhar Saha were identified in a T.I. parade on 3.11.93 before a Judicial Magis¬trate 1st Class and that they were seen to have assaulted a man on the night of occurrence under bright light by P.W.4. (g) That inquest report (Ext.2) shows that the dead body inquested over had marks of injuries; and (h) The ocular evidence of P.W.4 to have seen the accused persons assaulting the particular man on the night of occurrence inside their working premises." 6. Shri S. Mohanty, learned Advocate appearing for the appellants, has critically placed the evidence before us. (g) That inquest report (Ext.2) shows that the dead body inquested over had marks of injuries; and (h) The ocular evidence of P.W.4 to have seen the accused persons assaulting the particular man on the night of occurrence inside their working premises." 6. Shri S. Mohanty, learned Advocate appearing for the appellants, has critically placed the evidence before us. He made a categorical submission that in this case the prosecution has signally failed to bring home the charge against the appellant. It is further contended that although there has been no direct evidence for connecting the appellants with the crime, not even a single circumstance indicating the guilt of the accused has also been substantiated by the prosecution. Shri Mohanty has further submitted that the prosecution has used P.W.4 as a star witness in this case. But upon perusal of his evidence it is found that he has not supported the prosecution on any account except saying that he made certain statements before the learned Magistrate under Sec. 164 of the Code of Criminal Procedure under compulsion at the instance of the police. Therefore, he resiled from his statement in course of evidence. We have carefully gone through the evidence of P.W.4. He has made a clean breast admission pleading his ignorance about the incident. Although the prosecu¬tion was permitted to cross-examine P.W.4. but even in cross-examination nothing turned out which could be taken as a clinch¬ing evidence against the appellants. Shri Dhal, learned Advocate appearing for the prosecution, while supporting the judgment of the learned Additional Sessions Judge has drawn our attention to the statement made by P.W.4 before the learned Magistrate under Sec. 164 of the Code of Criminal Procedure and submitted that it should be taken as an incriminating circumstance against the accused. We are afraid, such statement cannot be taken as an incriminating circumstance against the accused, inasmuch as the maker of such statement has resiled from it during the course of trial. We are afraid, such statement cannot be taken as an incriminating circumstance against the accused, inasmuch as the maker of such statement has resiled from it during the course of trial. In this connection, we place reliance upon the judgment o the Apex Court reported in AIR 1960 Supreme Court 490 in the case State of Delhi v. Shri Ram Lohia, where it has been held as follows : “The Additional Sessions Judge observed in his judgment with reference to Aggarwal as follows : “He no doubt in his further cross-examination made certain damaging statements which would throw doubt on his previous statement but as the statement was made long after the first statement and at a time when Tara Chand accused had been dis¬charged it seems to me that this witness was won over and he has intentionally prevaricated under the influence of the accused whose ex-employee he was. This inference finds support from the fact that in his statement under S. 164, Criminal Procedure Code made on 20th October, 1951, he stated that he was still in the employment of Messrs. Iron and Hardware (India) Company, while has now asserted in Court that he had been already dismissed by Sri Ram accused because of Sri Ram’s differences with Tara Chand accused.’ It is clear therefore that the learned Judge relied on some statement of Aggarwal recorded under S. 164 of Criminal Procedure Code. The statement under S. 164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under Sec. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evi¬dence in the case. The Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under S. 164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination-in-chief was over.” 7. The Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under S. 164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination-in-chief was over.” 7. Shri Dhal places reliance on the statement of the learned Magistrate who held T.I. parade inside the jail. In respect of T.I. parade P.W.4 in his evidence has stated that before such identification the accused persons were shown to him by the police at the police station and accordingly asked him to identify in the T.I. parade. Therefore, even if we accept the evidence of the Magistrate (P.W.6) about conducting of T.I. parade, yet in view of the statement of P.W.4 that he was shown the appellants prior to such T.I. parade, we are unable to accept the credibility of the T.I. parade. The T.I. parade alone cannot bring home the charge against the appellants. We have minutely examined the evidence of the prosecution witnesses and do not notice that the appellants had at any time in the night of occur¬rence chased the deceased. There has been no material to estab¬lish that the appellants were seen in the company of the deceased in the night of the occurrence. In this regard Shri Mohanty, learned counsel for appellants, has placed reliance on a decision of this Court reported in 1985 (I) OLR 429 in the case of Santosh K. Chakrabarty v. State of Orissa. In the aforesaid judgment also this Court held that the statements made by the prosecution witness under Secs. 161 and 162, Cr.P.C. cannot be taken as a substantive evidence, much less under Sec. 164, Cr.P.C. The case depending upon circumstantial evidence would be of such nature that the evidence should be consistent only with the hypothesis of guilt of the accused, that is to say, the circumstances shall not be explainable by any other hypothesis except the guilt of the accused. Those circumstances should be of a conclusive nature which should point to the guilt of the accused. In this particu¬lar case, we are unable to agree with the learned Additional Sessions Judge as no circumstantial evidence linking the appel¬lants with the guilt of the appellants has been established. Those circumstances should be of a conclusive nature which should point to the guilt of the accused. In this particu¬lar case, we are unable to agree with the learned Additional Sessions Judge as no circumstantial evidence linking the appel¬lants with the guilt of the appellants has been established. In the result, we are constrained to upset the conviction and sen¬tence passed against the appellants. Moral conviction however strong it may be, cannot take the place of legal evidence. In the instant case since there is no sufficient legal evidence to connect the appellants with the crime, we are unable to be guided by moral conviction. It is true that the deceased met with a homicidal death inside the premises of M/s. Orissa Lamps. But because of perfunctory investigation the real culprit is going scot-free. 8. Accordingly the appellants are held not guilty and are acquitted of the charge under Sec. 302 read with Section 34 of the Indian Penal Code. L. MOHAPATRA, J. I agree. Appeal allowed.