S.P. KUKDA Y, J. :- Appellants impuon order of conviction and sentence passed upon them on 31st August. 1994 by learned III Additional Sessions Judge. Aurangabad, convicting both of them of the offence punishable under section 302 read with Section 34 of the Indian Penal Code (for short "IPC") and sentencing them to imprisonment for life and to pay a fine of Rs.2,000/- each, in default to suffer RI for six months each; and further convicting appellant No.1 of the offence punishable under section 201 of the IPC and sentencing him to suffer RI for three years and to pay a fine of Rs.1,000/- in default, to suffer RI for six months. 2. Prosecution case in nutshell is that appellant No.1 Annasaheb Vishwanath Chavan is native of village Bhivdhanora, Tq. Gangapur, District Aurangabad. Appellant No.2 - Bhagirathibai is his wife. Appellant No.1 has five brothers, namely Laxman Nanasaheb (Original accused No.3). Shantilal Bhausaheb and Baban (deceased). Brothers are separate in mess and estate. Ancestral field bearing Gut No.178 was equally divided between them. They also have equal share in the common well situated in the field allotted to the share of Laxman. Fields of appellant No.1, his brother-Bhausaheb and adjoining owner Dada Patil (Sarpanch of the village) are to the north of the field of deceased Baban. During the relevant period, deceased had given his field for cultivation to Navnath Sakharam Bhandari (PW 4) on crop share basis. On the day of occurrence, i.e. on 18-12-1992, Navnath was watering the field by taking water from common well from 9 o'clock in the morning. Appellants were harvesting Tur crop (pulses) from their field and threshing it at the threshing flour of their field. Deceased Baban, came to the field with rubber pipe at about 3.00 p.m. in drunken condition. Thereafter, he started watering the field with the help of Navnath, by taking water from the well of Dada Patil. At about 5.00 p.m., there was a quarrel between appellants and deceased regarding use of electric motor installed at the common well. Navnath intervened to stop the quarrel. However, at about 6.00 p.m., deceased started filthily abusing appellants. This gave rise to a scuffle. During the struggle, appellant No.2 sustained abrasion on her left forearm. Appellant No.1 got annoyed and raised an axe for dealing a blow to the deceased. Navnath intervened to stop the quarrel. However, at about 6.00 p.m., deceased started filthily abusing appellants. This gave rise to a scuffle. During the struggle, appellant No.2 sustained abrasion on her left forearm. Appellant No.1 got annoyed and raised an axe for dealing a blow to the deceased. At that juncture, Navnath cautioned appellant No.1 not to use the axe but appellant No.1 proceeded to give an axe blow on the nape of the neck of deceased. As a result, deceased sustained fatal injury and collapsed. He expired before Navnath came to the scene of occurrence. Appellant No.1 asked Navnath to guard the dead body. He then went to adjoining field of Dada Patil and asked his servant Bhanudas (PW 9) to give company to Navnath (PW 4) Appellants, then, returned to their house in the village. Appellant No.1 and Nana (accused No.3) returned to the field at about 11.00 p.m. Four of them guarded the dead body till about 6 o'clock in the morning. 3. At 6.00 p.m. Bhanudas went back to his work and appellant No.1 went to Gangapur Police Station. At the Police Station appellant No.1 lodged report (Exh.11), giving intimation that his brother Baban was intoxicated. After having conversation with him at about 6 p.m. while returning to his field, Baban stumbled and fell on inverted spade sustaining fatal injury. On the basis of this report, Station House Officer Abdul Rehman registered accidental death at Sr.No.21/92 under section 174 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") and entrusted the enquiry to Police Head Constable Vinayak Vishwanath Barse (PW 1). Head Constable Barse went to the scene of occurrence and attached blood stained guilt, pieces of green coloured bangles, spade, bloodstained soil and adjoining soil under Panchnama of the scene of occurrence (Exh.12). He then held inquest on the dead body. During the course of inquest, Head Constable Barse noticed injury on the nape of the neck, on the back side of waist and small abrasion on the right testicle. He also noticed slight seminal discharge. These injuries were noted in the Inquest Panchnama (Exh.8). After the inquest, the dead body was sent for postmortem. Head Constable Barse, then, proceeded to record statements of Navnath (PW 4) and Bhanudas (PW 9). He also noticed slight seminal discharge. These injuries were noted in the Inquest Panchnama (Exh.8). After the inquest, the dead body was sent for postmortem. Head Constable Barse, then, proceeded to record statements of Navnath (PW 4) and Bhanudas (PW 9). In his statement Navnath disclosed that appellant No.1 had dealt an axe blow on the nape of the neck of deceased, which resulted in his death. As Head Constable Barse found that it was a case of murder, he lodged First Information Report (Exh.14) on behalf of the State. On the basis of this report, offence punishable under sections 302,201 read with Section 34 of the IPC came to be registered against appellants and Nanasaheb (original Accused No.3). The investigation was taken over by PSI Aute (PW.10). On the same day, Investigating Officer arrested both the accused. At the time of arrest of appellants, Investigating Officer attached one of the green coloured bangle worn by appellant No.2, under Arrest Panchnama (Exh.36). The autopsy was performed by Dr. Ashok Hawelikar (PW 3). Dr. Hawelikar found that deceased had sustained injury on the nape of the neck below the hairline having dimensions of 14 x 4 x 4 cms. There was a dislocation of vertebral column at cervical region at C-3 and C-41evel and spinal cord was contused at C-3 and C-41evel. Medical Officer found that death has been caused on account of asphyxia due to injury to cervical cord at C3 and C-4 level due to dislocation at this level and haemorrhage due to tear of blood vessels in the region of neck. 4. On the next day i.e. on 20-12-1992, appellant No.1 made a confessional statement (Exh.24) and produced blood stained axe from the sugarcane crop, standing in the field of Ramchandra Yadav Chavan at Bhivdhanora. The axe was attached under seizure memo (Exh.25). On 21st December, 1992, appellant No.1 made another confessional statement (Exh.26) and produced bloodstained Dhoti and Baniyan from his house situated at Bhivdhanora. The clothes were attached under seizure memo (Exh.27). Incriminating articles attached during the course of investigation were sent to Chemical Analyzer for examination. After completion of the investigation. Investigating Officer filed charge-sheet against the appellants for offence punishable under section 302 read with section 34, IPC and against appellant No.1 and accused No.3 for the offence punishable under section 201 read with Section 34 of the IPC. 5. Incriminating articles attached during the course of investigation were sent to Chemical Analyzer for examination. After completion of the investigation. Investigating Officer filed charge-sheet against the appellants for offence punishable under section 302 read with section 34, IPC and against appellant No.1 and accused No.3 for the offence punishable under section 201 read with Section 34 of the IPC. 5. During the course of trial, appellants maintained that on account of intoxication, deceased stumbled and fell on the inverted spade thereby sustaining injury which has resulted in his death. Original Accused No.3 adopted defence of total denial. 6. At the conclusion of trial, relying on the statement of Navnath recorded by learned Judicial Magistrate, First Class, Shri Ashok Ramvilas Vyas (P.W. 6) and the circumstantial evidence, learned Trial Judge found that appellants committed murder of deceased Baban in furtherance of their common intention. He further found that appellant No.1 gave false information to the Police regarding offence and caused disappearance of evidence for screening himself from legal punishment. Learned trial Judge further found that guilt of the accused No.3 has not been established beyond reasonable doubt. In conformity with these findings, learned trial Judge convicted both appellants of the offence punishable under section 302 read with section 34 of the IPC. He further convicted appellant No.1 of the offence U/S 201 and sentenced him to suffer, as stated earlier. As the guilt of accused No.3 was not established, he came to be acquitted of the offence under section 201 read with Section 34 of the IPC. As no appeal has been preferred by the State against the acquittal of original accused No.3, his acquittal has become final. 7. Shri. A. H. Kapadia, learned counsel for appellants, first submitted that deceased died an accidental death. Referring to the fact that eye-witness-Navnath and witness Bhanudas have turned hostile, learned counsel submits that in the absence of any other evidence, learned trial Judge should have accepted the plea of accidental death adopted by appellants. Even otherwise, in a murder case, the prosecution has to establish that the deceased died homicidal death. With the help of learned counsel for appellants, we have carefully scrutinised entire evidence. To establish homicide the prosecution relies on the evidence of Dr. Hawelikar (PW.3). During the course of autopsy, Dr. Even otherwise, in a murder case, the prosecution has to establish that the deceased died homicidal death. With the help of learned counsel for appellants, we have carefully scrutinised entire evidence. To establish homicide the prosecution relies on the evidence of Dr. Hawelikar (PW.3). During the course of autopsy, Dr. Hawelikar found that deceased had sustained a single injury on the nape of the neck in the from of sharp incised wound over the nape of the neck below hairline extending from midline of vertebral column to prominent neck muscles anteriorly. The injury having dimensions of 14 x 4 x 4 cms. is transverse in direction and had exposed blood vessels in the neck region. There was dislocation of vertebral column in cervical region at C-3 and C-4 level and spinal cord contused at C-3 & C-4 level. The Medical Officer found that the death has been caused on account asphyxia due to injury to cervical cord at C-3 and C-4 level and due to dislocation at this level and haemorrhage due to tear of blood vessels in the region of neck. Medical Officer found that the injury was caused within 24 hours of the post-mortem examination by sharp edged weapon. During the course of investigation, the spade was sent to Medical Officer for opinion as to whether the injury sustained by deceased could be caused by the spade found near the body of the deceased. After examination of the spade, the Medical Officer issued certificate (Exh.17) that the injury cannot be caused by the said spade. This opinion is maintained by Dr. Hawelikar during the course of his deposition before the Court. During the cross-examination, the Medical Officer repelled suggestion that the injury sustained by the deceased has, in fact, been caused by the spade. In addition to the medical evidence, ocular testimony of Head Constable Barse would show that there was no blood on the spade and the cutting edge was recently sharpened. The spade is an agricultural implement designed to gather the soil, for this purpose the blade is slightly curved. In the case of a person falling on the inverted spade, the blade would be inclined to the surface of the skin at the point of contact and would cause a flap wound. Besides a faltering drunkard moving backward would normally fall sideways. In the case of a person falling on the inverted spade, the blade would be inclined to the surface of the skin at the point of contact and would cause a flap wound. Besides a faltering drunkard moving backward would normally fall sideways. Assuming that the deceased did fall on the spade, there would be blood on the blade. Absence of blood further rules out possibility of the injury being caused by the spade found near the body of the deceased. Taking overall view of the evidence on record, in our considered opinion, the inescapable conclusion would be that the injury found on the neck of the deceased was caused by an axe and not by the spade found near the dead body. After considering all the pros and cons, we have no difficulty in holding that the prosecution has established beyond doubt that the deceased died a homicidal death. We are, therefore, unable to subscribe to the contention put forth by learned counsel for the appellants Shri. Kapadia that the death is accidental and not homicidal. 8. Shri. A. H. Kapadia, learned counsel for appellants, next contended that the learned trial Judge committed an error in placing reliance on the statement of Navnath (PW 4) recorded by learned Judicial Magistrate, F.C. Aurangabad under section 164, Cr.P.C. and portion "A" to "I" in his statement proved by the Investigating Officer, for corning to the conclusion that appellant No.1 has committed murder of deceased-Baban. 9. Learned trial Judge has elaborately discussed the evidence of Ashok Ramvilas Vyas (PW 6) Judicial Magistrate, F.C. who recorded the statement of appellant No.1 under section 164 of Cr.P.C. 1973 and the contradictions "A" to "J" proved from the statement of Navnath recorded by the Investigating Officer, in Paragraph Nos.20 and 21 of its judgment. From the tenor of the judgment, it appears that learned trial Judge was influenced by these statements. It is by now well-settled that statement recorded under section 164, Cr.P.C. can never be used as a substantive evidence of the truth of facts stated therein. This statement can only be used for the purpose of contradiction or corroboration of the witnesses who made it. 10. The Apex Court had an occasion to deal with this aspect in the matter of George and other V s. State of Kerala and another reported in (1998) 4 SCC 605 . This statement can only be used for the purpose of contradiction or corroboration of the witnesses who made it. 10. The Apex Court had an occasion to deal with this aspect in the matter of George and other V s. State of Kerala and another reported in (1998) 4 SCC 605 . In that case, the driver (PW 50) had turned hostile and the learned Trial Judge had elaborately referred to his statement recorded under section 164, Cr.P.C. In this context. Their Lordships observed in para No.36 of the report that: "36. We may now turn to the evidence of PW. 50, detailed earlier. Form the judgment of the trial Court we notice that the substantial parts of the comments, (quoted earlier) are based on his statement recorded under section 164, Cr.P.C. and not his evidence in court. The said statement was treated as substantive evidence: as would be evident from the following amongst other observations made by the learned trial Court. "If Ext.P-42 (the statement recorded under section 164, Cr.P.C. is found to be genuine statement it can be used as an important piece of evidence to connect the accused with the crime." In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under section 164, Cr.P.C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him." 11. In view of the settled position of law, it is not permissible to use statement recorded under section 164, Cr.P.C. or the contradictions proved from the statement of witnesses recorded under section 161, Cr.P.C. as substantive evidence. We therefore, accept contention of learned counsel Shri. Kapadia that learned Trial Judge has indeed committed an error in allowing these statements to influence his judgment. 12. We may now turn to the evidence on record. Appellants have not disputed their presence and the presence of Navnath (PW 4) at the time of occurrence. The place of occurrence is also not in dispute. Report (Exh.11) filed by appellant No.1 is, in fact, in the nature of defence. Recitals of this report clinch the issue regarding presence of the appellants and the deceased at the place of occurrence at the relevant time. The place of occurrence is also not in dispute. Report (Exh.11) filed by appellant No.1 is, in fact, in the nature of defence. Recitals of this report clinch the issue regarding presence of the appellants and the deceased at the place of occurrence at the relevant time. However, as Navnath (PW 4) and Bhanudas (PW 9) have turned hostile, the prosecution is left only with circumstantial evidence. In such a case, it is obligatory on the part of prosecution to establish that the circumstantial evidence forms a complete chain and unerringly points to the guilt of the accused. The first circumstance referred to by learned APP Shri. Kishor Patil is the signs of struggle between the deceased and the appellants. Learned APP has pointed out that C.A.'s report (Exh.41) shows that the pieces of green coloured bangles attached from the scene of occurrence has the same chemical composition as the bangle attached from appellant No.2 under Arrest Panchnama (Exh.36). According to learned APP this evidence substantiates prosecution version that there was struggle between the deceased and the appellants during the course of which appellant No.1 inflicted axe blow on the neck of the deceased. Panchnama of the scene of occurrence (Exh.12) is duly proved by Panch witness Vishwanath Bhivsen Sukhadhan (PW 2). Description of the scene of occurrence shows that the soil at the scene of occurrence was disturbed and the pieces of green coloured bangles were strewn over this place. This evidence does legitimize the deduction that there was struggle between the appellants and the deceased during the course of the incident. 13. Another circumstance relied upon by the prosecution is evidence of discovery of the weapon of offence. Appellants were arrested immediately after FIR (Exh.14) was lodged by Head Constable Barse. On the next· day i.e. on 20th December, 1992 Appellant No.1 made confessional statement and produced axe used for commission of offence from the crop of sugarcane standing in the field 9f Ramchandra Chavan. After making confessional statement, appellant No.1 took witnesses and the Investigating Officer to the place in the standing crop of sugarcane where axe was concealed and produced blood-stained axe. The blood stained axe came to be attached under seizure memo (Exh.25). On the very next day i.e. on 21st December, 1992, Appellant No.1, again, made a confessional statement and produced his bloodstained Dhoti and Baniyan from his house at village Bhivdhanora. The blood stained axe came to be attached under seizure memo (Exh.25). On the very next day i.e. on 21st December, 1992, Appellant No.1, again, made a confessional statement and produced his bloodstained Dhoti and Baniyan from his house at village Bhivdhanora. Confessional statement of appellant No.1 and consequent discovery has been proved by Dattatraya Raskar (PW 5). Chemical Analyser's report shows that human blood was found on the axe and dhoti and blood of deceased was found on the banian of appellant No.1. Learned counsel for appellant Shri. Kapadia has contended that the evidence of discovery is not admissible as the weapon was produced from the place accessible to all and sundry. 14. In the present case, the axe was found in the standing crop of sugarcane in the field of Ramchandra Chavan. Therefore, though the place is accessible to all, the fact that the axe was lying at a particular place was only within the knowledge of appellant No.1. As such, discovery cannot be discarded merely on the ground that place was accessible to all as the axe was hidden in the tall sugarcane crop and was out of sight of the others. The place where the axe was found was only within the knowledge of appellant No.1 till it was discovered. The Apex Court had an occasion to deal with this aspect in the matter of State of H.P. Vs. Jeet Singh reported in (1999) 4 SCC 370 . Their Lordships observed in para No.26 of the report that, "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." In this view of the matter, the contention of learned counsel Shri. Kapadia that merely because the place was accessible to all, no reliance can be placed on the evidence of discovery cannot be sustained. 15. In the present case, the medical evidence has established that the deceased died a homicidal death. Once the homicidal death is established the field narrows down to the appellants. Coupled with this, the circumstances established by the prosecution show that at about 6.00 p.m. near the thrashing floor in the field of appellant No.1, there was a struggle between the appellants and the deceased and during the course of struggle appellant No.1 used axe for inflicting injury on the deceased. Considering these facts, in our view, that the circumstances established by the prosecution prove that appellant No.1 is the perpetrator of the offence and has committed murder of his brother-Baban, planted spade near the dead body and concealed weapon of offence in the crop of sugarcane. The conduct of the appellant No.1 in lodging false report (Exh.11) with Gangapur Police Station establish the intention of appellant No.1 to cause disappearance of the evidence of the commission of offence with a view to screen himself from the legal punishment. 16. Shri. Kapadia, learned counsel for appellants, however, rightly pointed out that there is no evidence on record to show that appellant No.2 shared common intention with appellant No.1. Apart from the evidence that broken pieces of bangles belonging to appellant No.2 were found on the scene of occurrence, there is no evidence to establish overt acts of appellant No.2. 16. Shri. Kapadia, learned counsel for appellants, however, rightly pointed out that there is no evidence on record to show that appellant No.2 shared common intention with appellant No.1. Apart from the evidence that broken pieces of bangles belonging to appellant No.2 were found on the scene of occurrence, there is no evidence to establish overt acts of appellant No.2. He therefore, contends that in the absence of evidence against appellant No.2 learned trial Judge committed an error in convicting her with the aid of Section 34 on the basis of statement of Navnath recorded under section 164 of the Cr.P.C. and the portions "A" to "J" from statement recorded by Investigating Officer. The contention that learned trial Judge has indeed taken into consideration these statements is substantiated by observations of the learned trial Judge in para No.40 of the judgment where it is observed.- "Accused No.2 - wife of the accused No.1 also caught hold the hand of deceased and she participated in the crime of murder, therefore, she is also equally guilty with accused No.1." As Navnath has turned hostile, there is no evidence whatsoever against appellant No.2 showing her complicity in the commission of offence. There is no evidence on record to show that appellant No.2 had restrained the deceased by his hands while appellant No.1 dealt an axe blow on the nape of neck of deceased. In our considered opinion in the absence of such evidence, the conclusion reached by learned trial Judge that appellant No.2 shared common intention to commit murder of deceased Baban, cannot be sustained. As the complicity of appellant No.2 has not been established by the prosecution by adducing cogent and reliable evidence, therefore, appellant No.2 cannot be saddled with vicarious liability. In the absence of evidence, the finding recorded by learned trial Judge that appellant No.2 shared common intention with appellant No.1 to commit murder of deceased Baban by holding her hand cannot be sustained. 17. As the guilt of the appellant No.1 is established by cogent evidence, order of conviction and sentence passed upon appellant No.1 for offences punishable u/ss. 302 and 201 of the Indian Penal Code his conviction deserves to be upheld. However, in the absence of evidence of cogent the conviction and sentence of appellant No.2 will have to be set aside. 18. In the result, appeal is partly allowed. 302 and 201 of the Indian Penal Code his conviction deserves to be upheld. However, in the absence of evidence of cogent the conviction and sentence of appellant No.2 will have to be set aside. 18. In the result, appeal is partly allowed. The order of conviction and sentence passed on appellant No.1 in respect of offence punishable under sections 302 and 201 of IPC, by the learned trial Judge is confirmed. However, the order of conviction and sentence so far as appellant No.2 is concerned, for offence punishable under section 302 read with section 34, IPC, is set aside. The appellant No.2 is acquitted of the offence punishable under section 302 read with section 34, IPC. Her bail bond shall stand cancelled. The appellant No.1 shall surrender to bail before the trial Court for undergoing remaining portion of his sentence on or before 28th of August, 2006. Order accordingly. Appeal partly allowed.