Judgment :- (Criminal Appeal filed under Section 374 Cr.P.C. against the judgment dated 11.3.2003 passed in S.C.No.19 of 2002 on the file of Sessions Judge, Nilgiris at Udhagamandalam.) M. Karpagavinayagam, J. The appellants are A1 to A3. They were convicted for the offence under Sections 341, 307 and 302 I.P.C. Challenging the same, this appeal has been filed. 2. The short facts leading to the conviction are as follows: (a) A1 Srinivasan is the son of P.W.1 Gopal. A2 Savithiri is the first wife of P.W.1. A3 Padmavathi is the daughter of A2 and P.W.1. (b) 26 years back, P.W.1 Gopal came out of the house and was living with the deceased Thangammal. Even though, he did not marry her, they lived as husband and wife, through whom, P.W.2 Sasikala was born. (c) P.W.1 bought a lorry which was financed by P.W.7. The lorry was handed over to A1. A1 was asked to pay the instalments. Though, A1 paid instalments for certain period, he did not pay the instalments continuously. Hence the lorry was seized by P.W.7 who financed for the lorry. All the three accused demanded money from P.W.1 for payment of the instalments for getting back the lorry. P.W.1 did not pay the amount. Therefore, all the three accused, had grudge against P.W.1 and the deceased. (d) On 6.2.2001, P.W.1 and the deceased went to a temple at Mayar. They came back at 8.00 p.m. When they were walking towards their house, P.W.1 heard somebody calling him as father. When he turned back, he saw A1 to A3 standing nearby. A1 abused P.W.1 and beat him with M.O.15 iron pipe. The deceased tried to prevent A1 from beating him further. A2 and A3 caught hold of her and tied a nylon rope around the neck of the deceased and strangulated her. The deceased fell down unconscious with bleeding injuries. A1 attacked the deceased also with the iron pipe. All the accused ran away from the scene. (e) P.W.1 came back to his house with the bleeding injuries and informed about the occurrence to P.W.2 Sasikala, daughter of the deceased and P.W.3 Krishnan @ Raja, grandson of the deceased. Then, all of them came to the scene of occurrence and saw the deceased lying unconscious. Immediately, a jeep was arranged and the deceased and P.W.1 were taken to the hospital. Then, all of them came to the scene of occurrence and saw the deceased lying unconscious. Immediately, a jeep was arranged and the deceased and P.W.1 were taken to the hospital. (f) P.W.11 Dr.P.Chidambaranathan attached to the Government Hospital, Udhagamandalam, examined the deceased and found that she was unconscious and having breathing trouble. Within a few minutes, the deceased died. (g) Exs.P9 and P10 are the accident registers relating to the deceased and P.W.1 respectively. P.W.11 Doctor, sent intimation to the police station. (h) P.W.16 Sub Inspector of Police came to the hospital and obtained a complaint from P.W.1. The case was registered for the offence under Sections 341, 307 and 302 I.P.C. against the three accused and two unnamed persons. (i) P.W.17 Inspector of Police, took up further investigation. He went to the place of occurrence, observed all the formalities and prepared Ex.P2 observation mahazar. Then, he went to the Government Hospital and held inquest on the body of the deceased. The inquest report is Ex.P34. The body was sent to postmortem. (j) P.W.12 Doctor attached to the Government Hospital, Udhagamandalam, conducted postmortem and issued Ex.P15 postmortem certificate giving her opinion that the death was due to asphysia due to strangulation. (k) P.W.17 Inspector of Police arrested A2 and A3 on 7.2.2001. On the confession of A2, M.O.5 nylon rope was recovered. On 8.2.2001, A1 was arrested and on his confession, M.O.15 iron pipe was recovered. P.W.17 was not able to locate the other two unknown persons. (l) While the accused were sent for remand, the material objects were sent for chemical examination. (m) P.W.17 Inspector of Police requested the Magistrate to record a statement of P.W.1 under Section 164 Cr.P.C. Accordingly, P.W.15 Judicial Magistrate recorded the statement of P.W.1 under Ex.P31. (n) P.W.18 Inspector of Police succeeded P.W.17 Inspector of Police. P.W.18, after completion of the investigation, filed a charge sheet against the Accused 1 to 3. (o) During the course of trial, on the side of the prosecution, P.Ws.1 to 18 were examined; Exs.P1 to P38 were filed and M.Os.1 to M.O.20 were marked. (p) When the accused were questioned with regard to incriminating materials against them under Section 313 Cr.P.C. they pleaded innocence. As such, the case of the defence is one of total denial. On the side of the defence, no witness was examined. (p) When the accused were questioned with regard to incriminating materials against them under Section 313 Cr.P.C. they pleaded innocence. As such, the case of the defence is one of total denial. On the side of the defence, no witness was examined. (q) The trial court, after analyzing the evidence available on record, found the accused guilty under Sections 341, 307 and 302 I.P.C. and convicted them there under. The conviction and sentence as aforementioned is the subject matter of appeal before this Court. 3. We have heard Mr.Malarvannan, learned counsel for the appellants and Mr. E.Raja, learned Additional Public Prosecutor for the respondent State. 4. The only evidence available in this case is the evidence of P.W.1 who is none else than the father of A1. According to P.W.1, who is the author of the First Information Report, A1 attacked P.W.1 and the deceased and A2 and A3 tied the nylon rope around the neck of the deceased and strangulated her. Both of them were taken to the hospital where the deceased was declared dead. 5. On receipt of death intimation, P.W.16 Sub Inspector of Police came and obtained a complaint from P.W.1. Strangely, P.W.1, in his complaint, has stated that three known persons viz. A1 to A3 and two unknown persons came and attacked the deceased and P.W.1. No doubt, a reading of the earlier statement which was given by P.W.1, Exs. P9 and P10 accident registers of the deceased and P.W.1 respectively and the statement of P.W.11 Doctor who examined the deceased and P.W.1, disclosed that the deceased and P.W.1 were attacked by five known persons. However, P.W.1 turned hostile and did not support the case of the prosecution. Therefore, the complaint which has been given by P.W.1 to P.W.16 Sub Inspector of Police and the statement given under Section 164 Cr.P.C. by P.W.1 to P.W.15 Judicial Magistrate are of no value. 6. However, P.W.1 turned hostile and did not support the case of the prosecution. Therefore, the complaint which has been given by P.W.1 to P.W.16 Sub Inspector of Police and the statement given under Section 164 Cr.P.C. by P.W.1 to P.W.15 Judicial Magistrate are of no value. 6. As a matter of fact, as held by the Supreme Court in State of Delhi vs. Shri Ram Lohia ( AIR 1960 SC 490 ) and a Division Bench of this Court in In re Balan (1973 CRI.L.J.1311), in the absence of substantive evidence of the witnesses whether directly given in the Court of Session or given in the committal Court and marked under Section 288, the mere statements of those witnesses under Section 164 cannot be substantive evidence and cannot be used in any manner. 7. In this case, as indicated above, P.W.1 turned hostile. As such, Exs.P1 and P31 cannot be acted upon in the absence of direct substantive evidence. 8. The other evidence against the accused is, the evidence of P.Ws.2 and 3. According to them, P.W.1 came back to his house with bleeding injuries and both of them were informed that P.W.1 and the deceased were attacked by three persons viz. A1 to A3 which is quite contradictory to the statement given by P.W.1 to P.W.11 Doctor and also Exs.P9 and P10 Accident Registers. Therefore, the evidence of P.Ws.2 and 3 which relates to res gestae also would not be of any use to the prosecution as it was not supported by the evidence of P.W.1 who turned hostile. 9. Ultimately, the prosecution has to rely upon only on the recovery evidence. Mere recovery of weapon on the confession of the accused, as laid down by the Supreme Court and this Court as aforementioned, would not be sufficient to hold the accused guilty, that too, in a murder case. 10. Therefore, we are constrained to conclude that this is a case of no evidence and as such, all the accused are liable to be acquitted by giving benefit of doubt. 11. The appeal is allowed. The conviction and sentence imposed on the appellants by the trial court are set aside. The bail bonds executed by them shall stand cancelled and the fine amount, if any paid, shall be refunded.