JUDGMENT V. PERIYA KARUPPIAH, J. As the Criminal Appeal and the Criminal Revision Petition arise out of a common judgment delivered in S.C. Nos. 282 of 2004 and 283 of 2004 on the file of the learned Sessions Judge, Magalir Neethimandram, the following common judgment is passed. 2. Crl. A. No. 285 of 2005 is directed by the appellant/accused in S.C. No. 282 of 2004 against the judgment of conviction and sentence dated 24.3.2005 passed against her. 3. Crl. R.C. No. 582 of 2005 is also field by the above appellant against the judgment and order of acquittal passed in S.C. No. 283 of 2004 dated 24.3.2005 in favour of the respondents 1 to 4 in the Crl. R.C. 4. The accused in S.C. No. 282 of 2004 viz. the appellant in the Criminal Appeal is the wife of the 1st accused in S.C. No. 283 of 2005 viz. the 1st respondent in the revision Petition. respondents 2 to 4 are the in-laws of the appellant. For the sake of convenience, petitioner the parties are referred to as per their rank in the criminal appeal and the revision petition. 5. The appellant/revision petitioner was tried for the offences punishable under Sections 302 (2 counts) and 309 I.P.C. for the death caused to her two children and for attempting to commit suicide. On completion of the trial, she was found guilty of the offences and was therefore, convicted and sentenced to undergo simple imprisonment for life and also to pay a fine of Rs.100/- for each count and in default to undergo S.I. for one month, as against which the appeal is filed by the appellant/revision petitioner. 6. Respondents 1 to 4 in the Criminal Revision Petition were tried for the offences punishable under Sections 498-A , 302 read with Section 109 (two counts) and 309 read with Section 109 I.P.C. for causing cruelty to the appellant/revision petitioner, for abetting the murder of two children by the appellant/revision petitioner. On the completion of trial, respondents 1 to 4 were not found guilty and they were acquitted only against which the criminal revision is filed by the appellant/revision petitioner. 7. The case of the prosecution in common is as follows : (a) Gowri was married to the 1st respondent on 17.5.1998. At the time of marriage, she was given 40 sovereign of jewels and Rs.40,000/- was paid to the 1st respondent. 7. The case of the prosecution in common is as follows : (a) Gowri was married to the 1st respondent on 17.5.1998. At the time of marriage, she was given 40 sovereign of jewels and Rs.40,000/- was paid to the 1st respondent. Both the appellant revision petitioner and respondents 1 to 4 were residing under the same roof at Thirupur. A female and male children were born out of the wedlock of the appellant/revision petitioner and the 1st respondent. Respondents 1 to 4 were harassing the appellant/revision petitioner that she is not beautiful and if at all she had to live with her husband, the 1st respondent she has to bring a sum of Rs.1 lakh. The parents of the appellant/revision petitioner also agreed to pay the amount and asked their daughter to bear with them for some time. While this being so, about one month prior to the occurrence, Gowri informed her parents about the cruelty committed to her by her husband and her in laws and requested her parents to take back her and her two children. (b) On 29.6.2003, and P.W. 13 viz. the father and maternal uncle of the appellant/revision petitioner sent to the respondents house and brought the appellant/revision petitioner along with the children to their home. On 25.7.2003, at about 8.00 a.m. the appellant/revision petitioner talked to her husband over phone from her parental home. Thereafter, P.W.1 went to give tiffen to P.Ws. 11 and 12, the father and brother of the appellant/revision petitioner. When P.W.1 returned home at about 9.45 p.m. she found the door was locked from inside. When she peeped through the window, she found the appellant/revision petitioner and her two children hanging. On her shouting, P.W.2 and others broke open the door and tried to rescue Gowri and the children. On information, P.Ws. 11 and 12 also rushed to their home and they took Gowri and two children to Balaji Hospital. (c) P.W.6 Dr. Thanageerthi found both the children dead and found the appellant/revision petitioner unconscious. She admitted the appellant/revision petitioner in the Intensive Care Unit and made arrangements to give artificial breathing. The Accident Register Copy given to the appellant/revision petitioner is marked as Ex.P.3. The hospital authorities also gave intimation to the Guindy Police Station about the incident. Later on, the appellant/revision petitioner was referred to Royapettah Government Hospital where she was treated by P.W.5 Dr. The Accident Register Copy given to the appellant/revision petitioner is marked as Ex.P.3. The hospital authorities also gave intimation to the Guindy Police Station about the incident. Later on, the appellant/revision petitioner was referred to Royapettah Government Hospital where she was treated by P.W.5 Dr. Sundar and the admission and discharge slip is marked as Ex.P.4. (d) On the information received from Balaji Hospital P.W. 4 S.I. of police went to the hospital where he found the appellant/revision petitioner unconscious. P.W.1 the mother of the appellant/revision petitioner gave two complaints to him. On the basis of the said two complaints, he registered two cases in Cr.No. 667 of 2003 for the offence punishable under Sections 302 and 309 I.P.C. against the appellant/revision petitioner and Cr. No. 668 of 2003 for the offence punishable under Sections 498-A and 306 I.P.C. against respondents 1 to 4. The complaint given against the appellant/revision petitioner is marked ass Ex.P. 28 and the signature of P.W.1 found in Ex.P.28 is marked as Ex.P.1. The first information report with reference to Cr.No. 667 of 2003 is marked as Ex.P.2 he sent both the complaints and the F.I.Rs. to the respective Courts. (e) P.W.15 who took up the investigation gave requisition Ex. P.20 to the XVI Metropolitan Magistrate, George Town Chennai to record the dying declaration of the appellant/revision petitioner as she was in a serious condition when he visited the hospital on the same day. Accordingly, when the Magistrate went to the record dying declaration, doctors informed him that the appellant/revision petitioner was unconscious and that she was not in a condition to give statement. Hence the Magistrate returned without recording the statement. The report given by the Magistrate is marked a Ex.P.21. held inquest over the dead bodies of two children in the presence of panchayatdars and others form 3.30 p.m. to 6.00 p.m. and the inquest reports are marked as Exs. P.22 and 23. Thereafter, he caused the dead bodies of two children to be photographed through P.W.10 Then he sent the bodies of the children for postmortem to the Royapettah Government Hospital through the Head Constable. He also obtained the death certificates of the male child Ex.P.5 and the death certificate of the female child Ex.P6 form the hospital. (f) P.W.7 on receipt of the requisition for postmortem, conducted autopsy on the bodies of the children viz. He also obtained the death certificates of the male child Ex.P.5 and the death certificate of the female child Ex.P6 form the hospital. (f) P.W.7 on receipt of the requisition for postmortem, conducted autopsy on the bodies of the children viz. Ramya and Sathya-narayanan and issued postmortem certificates Exs. P7 and P 9 respectively. He found the following injuries in the bodies of the children, which are incorporated in the respective postmortem certificates. “An oblique incomplete ligature mark 16 cms. in length and 1 cm in breadth seen over the neck as follows: On front of the neck the ligature mark was 6 cms above the supra sternal notch. On right side the ligature mark was 4 cms below the right mastoid process. Appellant/revision petitioner appellant/revision petitioner On left side the ligature mark was 6 cms below the left mastoid process”. AND “An oblique incomplete ligature mark 12 cms in length and 1 cm in breadth seen over the neck as follows: On front of the neck the ligature mark was 6 cms above the supra sternal notch. On right side the ligature mark was 3 cms below the right mastoid process. On left side the ligature mark was 6 cms below the left mastoid process”. He preserved the viscera for chemical analysis. After obtaining the viscera reports Exs. P.8 and 10, the doctor of P.W.7 opined that the children would appear to have died of asphyxia due to hanging. (g) P.W.15 in continuation of the investigation, examined P.Ws. 10, 13 and the doctors and recorded their statements. Then he went to the scene of occurrence along with the photographer and caused the scene of occurrence to be photographed. He then prepared observation mahazar - Ex.P.24 and rough sketch Ex.P.25. He recovered plastic tapes M.Os. 1 to 4 bearings letters 0267905, 04/03 K.R.F. used for hanging the children and a saree M.O. 5 used for hanging by the appellant/revision petitioner and a cut piece of the said saree with knot - M.O. 6 under mahazar Ex. P.26 He examined some of the witnesses available there including P.W.14 and P.W.2 and recorded their statements. On receipt of the information that the appellant/revision petitioner was sent to the Royapettah Government Hospital, he went there were also he found the appellant/revision petitioner unconscious. There he examined P.Ws. 1 and 13 and recorded their statements. At 11.10 p.m. he returned to the police station. On receipt of the information that the appellant/revision petitioner was sent to the Royapettah Government Hospital, he went there were also he found the appellant/revision petitioner unconscious. There he examined P.Ws. 1 and 13 and recorded their statements. At 11.10 p.m. he returned to the police station. On 26.7.2003, he examined the photographer and recorded his statement and obtained the negatives and photographs produced by him and the same are marked as Exs. 19 and 19A. (h) On 28.7.2003, he went to Royapettah Hospital to enquire the appellant/revision petitioner. But he was informed by the doctors that she is not in a position to give statement due to the injury sustained by her due to hanging, but she is out of danger and advised to enquire her after some days. In the meantime, on 29.7.2003, the appellant/revision petitioner obtained anticipatory bail. On 31.7.2003, he gave requisition Ex.P.13 to the Chief Metropolitan Magistrate to recorded the statement of witnesses (P.Ws. 1,11 to 13) under Section 164 Cr.P.C. On 3.8.2003, he saw the appellant/revision petitioner in her parents home after her return from the hospital. He also examined some of the witnesses in the house of the revision petitioner and recorded their statements. On 6.8.2003, he have application/petition to the Chief Metropolitan Magistrate to record the statement of the appellant/revision petitioner. Accordingly, the Chief Metropolitan Magistrate, George Town Chennai (P.W.9) to record the statement of the witnesses viz. P.Ws. 1 11, 13 under Section 164 Cr.P.C. The 164 Cr.P.C. statements recorded from the four witnesses by P.W. 9 is marked as Exs. P. 15 to 18 respectively P.W.8 recorded the 164 Cr. P.C. statement from the appellant/revision petitioner and it is marked as Ex. P. 12 (i) On 7.8.2003, when the appellant/revision petitioner came to police station to comply with the bail conditions, he recorded the confession statement of the appellant/revision petitioner in the presence of witnesses. The admissible portion of the confession statement is marked as Ex.P.27, pursuant to the appellant/revision petitioner took the police and pointed out the place where her two children were hanged and where she attempted to hang herself. Thus, P.W. 15 recording the statements from the witnesses and the appellant/revision petitioner and collecting all materials objects concluded the investigation and filed final reports against he appellant/revision petitioner and respondents 1 to 4. 8. Thus, P.W. 15 recording the statements from the witnesses and the appellant/revision petitioner and collecting all materials objects concluded the investigation and filed final reports against he appellant/revision petitioner and respondents 1 to 4. 8. When the accused in both the cases were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances available in evidence, they denied the same. 9. However, the learned Sessions Judge, Magalir Neethimandram, Chennai since the prosecution witnesses viz. P.Ws. 1 to 3 and 11 to 14 have turned hostile, they being the close relatives and neighbours of theappellant/revision petitioner and they did not even point out respondents 1 to 4 as the cause for the appellant/revision petitioner to come to the conclusion of ending her life and her children, acquitted respondents 1 to 4 finding them not guilty of the offences, but convicted and sentenced the appellant/revision petitioner as aforesaid. Hence the Criminal appeal and Criminal Revision Petition are filed by the appellant/revision petitioner seeking to set aside the judgment of conviction and sentence passed against her and questioning the judgment of acquittal made against respondents 1. 10. Heard Mr. R. Shunmugasundram learned senior counsel appearing for the appellant/revision petitioner learned Additional Public Prosecutor Mr. V.R. Balasubramaniam appearing for the State and the learned counsel appearing for respondents 1 to 4. 11. Learned Senior Counsel Mr.R. Shanmuga-sundaram appearing for the appellant/revision petitioner would submit in his argument. (i) that though for the purpose of arriving at a conclusion in bot the connected cases. V.R. Balasubramaniam appearing for the State and the learned counsel appearing for respondents 1 to 4. 11. Learned Senior Counsel Mr.R. Shanmuga-sundaram appearing for the appellant/revision petitioner would submit in his argument. (i) that though for the purpose of arriving at a conclusion in bot the connected cases. Common evidence has been recorded and both the Sessions Cases were tried together and a common judgment has been passed by the Court, but the lower Court had appreciated the same evidence in a different way to come to different conclusions in both the cases, which is impracticable and improper; (ii) that dowry harassment was said to be the cause to drive the appellant/revision petitioner to go to the extent of committing the murder of her two children and also for her alleged attempt of committing suicide, but the said harassment and the alleged abetment made by the respondents upon the revisions petitioner to commit murder of two children and attempt to commit suicide were found to be not proved by the lower Court without relying upon the statement of the appellant/revision petitioner given under Section 164 Cr.P.C. as a witness, where as relying on the same statement given under Section 164 Cr.P.C. the lower Court had not only come to the conclusion of finding guilty of the appellant/revision petitioner under Sections 302 (2 counts) and 309 I.P.C. but also to acquit respondents 1 to 4. (iii) that when the abetment said to have been made by respondents 1 to 4 on the appellant/revision petitioner is interconnected with the alleged crime said to have been committed by the appellant/revision accused and when the same is disbelieved, the lower Court ought not to have relied upon her statement to convict her, especially when the said statement was recorded by the learned Magistrate treating the appellant/revision petitioner as a witness; (iv) that the recording of witness statement under Section 164 Cr.P.C. is different from recording of confession statement of the accused and the learned Magistrate who recorded the statement of the appellant/revision petitioner had categorically stated that he had recorded the statement of the appellant/revision petitioner as a witness and he did not give any time for reflection and also not treated that recording of such statement as a confession statement. In these circumstances, the lower Court ought not to have based its conviction on the statement given by the appellant/revision petitioner under Ex.P.12; and (v) that if for any reason the statement of the appellant/revision petitioner given under Ex. P. 12 has to be relied upon, the entire contents of the same should have been applied for both the cases and respondents 1 to 4 in S.C. No. 283 of 2004 also ought to have been convicted for the abetment and dowry harassment which were said to be the cause for the appellant to commit to alleged murder of her two children and also attempt to commit suicide. 12. He had also cited he authorities in AIR 2001 SC 1512 : (2001) 4 SCC 9 to the effect that the requirement of obtaining signature of a person making confession is mandatory as per Section 164 (4) of Cr.P.C. and the Magistrate should ensure that all the other requirements for recording confession statement of an accused are complied with. He would also cite an authority reported in (2006) 12 SCC 268 : (2007) 1 MLJ (Cri) 747. On the same principle. He would submit yet another authority reported in AIR 2003 SC 1088 : (2003) 3 SCC 21 to the effect that the High Court should re-appreciate the evidence when the lower Court has misappropriated the evidence and can come to a conclusion. 13. The learned Additional Public Prosecutor Mr. V.R. Balasubramani, Mr. P. Kumaresan had submitted his reply argument in the appeal as well as the Criminal Revision Petition on behalf of the state on the following lines. 13. The learned Additional Public Prosecutor Mr. V.R. Balasubramani, Mr. P. Kumaresan had submitted his reply argument in the appeal as well as the Criminal Revision Petition on behalf of the state on the following lines. (i) that there is no dispute that recording of164 Cr.P.C. statement of a witness is different form recording of 164 statement of an accused but however, the lower Court had relied upon the statement recorded by the Magistrate from the appellant/revision petitioner, despite it was recorded as a witness statement ad had come to a correct conclusion of convicting the appellant/revision petitioner with the support of other clinching and circumstantial evidence and therefore, the said conclusion of the leaned Sessions Judge is perfectly all right and there is no need for setting aside the judgment of conviction and sentence of the lower Court passed against the appellant/revision petitioner: (ii) that the circumstances as spoken by the witness and documentary evidence produced by the prosecution despite all the important prosecution witnesses have turned hostile, would show that the appellant/revision petitioner could have committed the offence of committing murder of her two children and also attempted to commit suicide which is also proved by the medical evidence and therefore, the conviction and sentence passed by the lower Court needs to be confirmed; and (iii) that when the evidence adduced in common as considered by the lower Court in both as cases, the statement given by the appellant/revision petitioner under Ex. P. 12 should have also been applied to convict respondents 1 to 4 for the abetment made by them to commit murder of two children and to attempt to commit suicide by the appellant/revision petitioner, when particularly the said statement was recorded from the appellant/revision petitioner as a witness. 14. Similarly, the learned counsel for respondents 1 to 4 in the revision petition had also submitted in his arguments to the effect that the witnesses who could speak in respect of the alleged abetment and the dowry harassment made by respondents 1 to 4 had turned hostile and the statement of the witness viz. the appellant/revision petitioner as recorded by the Judicial Magistrate cannot be used by the lower Court as a sole piece of evidence to convict respondents 1 to 4. the appellant/revision petitioner as recorded by the Judicial Magistrate cannot be used by the lower Court as a sole piece of evidence to convict respondents 1 to 4. Therefore, the lower Court had correctly come to the conclusion that the case as against respondents 1 to 4 is not established and therefore, the judgment of acquittal passed in favour of respondents 1-4 need not be set aside and the scope of the revisional Court is very limited and there is no illegality in the judgment of acquittal made by the lower Court. 15. We have given our anxious thought and consideration to the arguments advanced by all the parties and perused the entire records. 16. From the perusal of records, we could see that two complaints in Cr.No. 667 of 2003 and Cr.No.. 668 of 2003 have been taken on file, common investigation had been done, separate committal orders were passed and the Sessions case were also taken separately. Since the cause of action emanated in both the cases are arising out of each other, the trial Court had clubbed the cases for a joint trial and evidence has been recorded jointly and a common judgment has been passed. The learned trial Judge had not believed the evidence of the prosecution and had acquitted respondent s 1 to 4. in S.C. No. 283 of 2004, who were charged under Sections 498-A , 302 r/w 109 and 309 read with 109 I.P.C. whereas the accused in S.C.No. 282 of 2004 was found to have been guilty under Section 302 I.P.C. (2 counts) for the commission of murder of her two children and also under Section 309 I.P.C. for her attempt to commit suicide. No doubt, the important and relative witness of the victim have turned hostile and nobody supported the prosecution case. Under the said circumstances, this Court has to see, when the case of the prosecution itself is not strong, whether the conviction and sentence, passed on the basis of the statement given by the accused (appellant/revision petitioner) as a witness, against the appellant/revision petitioner could be sustained and the acquittal order passed in favour of respondents 1 to 4 is proper. 17. The prosecution has examined P.Ws. 1 to 15 and out of them P.Ws.1 to 3 and P.Ws. 11 to 14 have turned hostile and the remaining witness are the medical and official witness. 17. The prosecution has examined P.Ws. 1 to 15 and out of them P.Ws.1 to 3 and P.Ws. 11 to 14 have turned hostile and the remaining witness are the medical and official witness. The prosecution has also produced Exs. P.1 to P.28 and M.Os. 1 to 6 in respect of its case. The lower Court had scrutinised the evidence and had found the ocular evidence and the mahazar witness and other important witnesses have turned hostile and there is no material to sustain conviction in S.C. No. 283 of 2004 and therefore respondents 1 to 4 were acquitted. The lower Court had also discussed the evidence in S.C.No.282 of 2004 and found that the ocular evidence and other mahazar and other important witnesses have turned hostile, but it had relied upon Ex. P. 12 the witness statement recorded by the VIII Metropolitan Magistrate from the appellant/revision petitioner and had convicted her solely on the basis of the statement recorded under Section 164 Cr.P.C. 18. According to the learned counsel for the appellant/revision petitioner, 164 (4) Cr.P.C. statement recorded from the appellant/revision petitioner by the learned Magistrate, who was examined as P.W.8 was purely a witness statement and the procedures adopted by P.W.8 was to the effect of recording a statement from a witness and no other precautions were given to the appellant/revision petitioner at the time of recording of such statement that the said statement could have been used against their and no time for reflection was granted by the learned Magistrate and therefore, it cannot be used against the appellant/revision petitioner for arriving to a conclusion of convicting her. It is also pertinent to note that the statement said to have been given by the appellant/revision petitioner was given as a witness on the summons issued by the Magistrate for recording 164 (4) Cr.P.C. statement. It is case of the appellant/revision petitioner at the time of answering to the questionnaire under Section 313 Cr.P.C. that the statement given by her was only at the instance of the police who had tutored her and she did not say anything on her own. Apart form that 164 (5) Cr.P.C. statement recorded by year another Magistrate P.W.9 from respondents 1 to 4 which were marked as Exs. Apart form that 164 (5) Cr.P.C. statement recorded by year another Magistrate P.W.9 from respondents 1 to 4 which were marked as Exs. P. 15 to P.18 were not relied upon by the lower Court by finding that they were recorded as witness statements and they could be either utilised by the prosecution for corroboration or by the defence for contradiction. The said statements viz. Exs.P.15 to P.18 were to relied upon as a sole piece of evidence for the purpose of coming to a conclusion in the said case. At the same time, the statement recorded from the appellant/revision petitioner in the form of a witness statement was relied upon by the lower Court for the purpose of ending with conviction against her. The citation relied upon by the learned senior counsel for the appellant was with regard to a judgment reported in (2006) 12 SCC 268 The following head note itself is sufficient to explain the position. “What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance with the provisions of Section 164 of the Code of Criminal Procedure which would mean compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. (para 16) It is also true that before a confessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence (para 17) Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the Court must be satisfied first that the procedural requirements laid down in sub-sections (2) to (4) are compiled with, These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. The Court, alleged upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The Court, alleged upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the Court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession.” (para 18) 19. The learned Senior Counsel for the appellant/revision petitioner has also cited yet another judgment of our Apex Court reported in (supra) wherein it is held as follows: “The function of the Magistrate in recording confession under Section 164 of the Code is very solemn act which is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach. Besides ensuring that the confessional statement being made before him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the section. Omission to comply with the mandatory provisions, one of such being as incorporated in sub-Section (4) of Section 164 is likely to render the confessional statement inadmissible. The words ‘ shall be signed by the person making the confession‘, are mandatory in nature and the magistrate recording the confession has no option. Mere failure to get the signature of the person making the confession may not be very materials if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy the omission to get the signature is fatal. Mere failure to get the signature of the person making the confession may not be very materials if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy the omission to get the signature is fatal. No reliance can therefore be placed on the judicial confession of A-4.” On a careful perusal of the above judgment of the Apex Court, we could see that any statement given in the form of confession statement by the accused should have been complied with the strict rules as framed under Section 164(2) (3), (4) and (6) of Cr.P.C. According to the said Section, it is mandatory that the Recording Magistrate should satisfy himself that the statement given by the accused is voluntary and not compulsory, that he should give a warning that the said statement could have been used against the accused that he must give time for reflection and that finally he must give a certificate to that effect also and the signature of the accused also should be obtained in the said statement. Admittedly, under Ex. P. 12 we could see that the Magistrate had recorded the statement of the appellant/revision petitioner as that of a witness and he had not given any time for reflection and obtained the signature of the appellant/revision petitioner and had not made any warning that it could be used against her in the case. Therefore, the said statement recorded by the Magistrate from the accused under Ex. P. 12 is not sustainable as per the aforesaid judgments of our Apex Court. 20. Before the trial Court also, a catena of decisions of our Hon‘ble Supreme Court were placed by the appellant/revision petitioner in support of her case. A few of them are listed below: AIR 1972 SC 468 : (1972) 3 SCC 280 (2003) SCC (Crl) 712 2004 AIR SCW 4930 (2003) 3 Crimes 72 2004 Crl. L.J. 1904 1999 Crl. L.J. 1936 AIR 2001 SCW 2757 On a careful perusal of the aforesaid judgments we could understand that the statement of a witness recorded under Section 164 Cr.P.C. cannot be used as a substantive evidence in various circumstances. It is pertinent to note that the appellant/revision petitioner had replied in her questionnaire under Section 313 Cr.P.C. that the statement given to P.W.8 under Ex. It is pertinent to note that the appellant/revision petitioner had replied in her questionnaire under Section 313 Cr.P.C. that the statement given to P.W.8 under Ex. P. 12 was not voluntary but was tutored by the police. It is also spoken by the her that the police had taken her to the Magistrate for recording her statement. Therefore, it cannot be said that the appellant/revision petitioner was not in a condition to obey the police at the time of recording of the statement. Even if the said statement given by the appellant/revision petitioner is voluntary, the procedure to be followed for recording a confession statement from an accused was not complied with by the Magistrate under Section 164 (2) (3) (4) and (6) Cr.P.C. which is entirely different form recording of statement from a witness under Section 164 (5) Cr.P.C. The statement recorded as a witness form the appellant/revision petitioner without complying with the mandatory procedures, cannot be sued as a confession statement against her. The reasoning of the lower Court that the statement Ex. P. 12 was given by the accused without any in documents, threat or promise and the decision to apply against the appellant/revision petitioner cannot be sustained since the basic procedures to be followed by the Magistrate were not admittedly followed by P.W.8 at the time of recording the statement. Therefore, no reliance could be placed on Ex. P. 12 which is a witness statement recorded by P.W.8 from the appellant/revision petitioner and it cannot be construed as a confession statement merely because it was recorded from the hands as an accused in the absence of following the procedures for recording the confession statement of an accused under Section 164 (2) (3) (4) and (6) Cr.P.C. It is pertinent to note that the lower Court had also come to the conclusion that the said statement Ex. P. 12 cannot be relied upon as that of a confession statement of the accused. But however, it has relied upon it and based its conviction solely upon the said document without any corroboration. The medical evidence and other evidence were also not supporting the statement given under Ex. P. 12 Moreover, the statements of respondents 1 to 4 as witnesses produced as Exs. P15 to P.18 were not relied upon by the lower Court for the purpose of ending a conviction against them. The medical evidence and other evidence were also not supporting the statement given under Ex. P. 12 Moreover, the statements of respondents 1 to 4 as witnesses produced as Exs. P15 to P.18 were not relied upon by the lower Court for the purpose of ending a conviction against them. Whereas the witness statement recorded from the accused was used against her despite the procedures were not followed by the Magistrate P.W.8 who had, without giving warning to the accused that the statement could have been used against her, recorded the statement, which vitiates the truthfulness of the statement Ex. P. 12 21. The learned Addl. Public Prosecutor would also submit in his argument that the evidence of the doctor viz. P.W. 5 would go to show that he had found the ligature mark on the neck of the appellant due to the attempt made by her to commit suicide by hanging and therefore, the said incident of attempting to commit suicide has been proved by the medical evidence and on that aspect the combined murder of her children in the same incident may also be considered as proved on the strength of the statement given by the appellant/revision petitioner in Ex. P. 12 He would further submit that though the said statement is not sufficient to hold conviction, a conjoint reading of the statement and the evidence of P.W.5 would prove at least the offence of attempting to commit suicide. 22. P.W.5 had categorically admitted in his cross examination that the ligature mark in the neck of the appellant/revision petitioner could have been caused if any person had attempted to kill her by strangulation. Therefore, the evidence as to the ligature mark was only due to the attempt to commit suicide by the accused cannot be sustained in order to hold a conviction on the appellant/revision petitioner. We have already discussed that the statement of the accused in Ex. P. 12 cannot be relied as that of a confession statement recorded under Section 164 (2) (3) (4) and (6) Cr.P.C. Therefore, we are of the considered view that the conviction and sentence passed against the appellant/revision petitioner under Section 302 I.P.C. on two counts and also under Section 309 I.P.C. cannot be sustained. 23. P. 12 cannot be relied as that of a confession statement recorded under Section 164 (2) (3) (4) and (6) Cr.P.C. Therefore, we are of the considered view that the conviction and sentence passed against the appellant/revision petitioner under Section 302 I.P.C. on two counts and also under Section 309 I.P.C. cannot be sustained. 23. The learned senior counsel for the appellant/revision petitioner has not put forth any materials to interfere with the decision of the lower in acquitting respondents 1 to 4 in viz. S.C.No. 283 of 2004, Moreover, the decision reached by us that Ex. P. 12 cannot be used as a sole piece of evidence against the appellant/revision petitioner is also applicable to respondents 1 to 4 viz. the accused in S.C.No. 283 of 2004. The lower Court had without relying upon the statement of the appellant/revision petitioner under Ex. P. 12 had decided the issues in favour of respondents 1 to 4 viz. the accused S.C.No. 283 of 2004. In these circumstances, we are of the considered view that we need not interfere with the decision reached in arriving to a judgment of acquittal in S.C.No. 283 of 2004 and there is no illegality in the said judgment. In fine the appeal is allowed and the conviction and sentence passed against the appellant/revision petitioner under Sections 302 (2 counts) and 309 I.P.C. are set aside, The appellant/revision petitioner is acquitted from all the charges. Fine amount paid by her is ordered to be refunded. Bail bonds executed by her shall stand cancelled. The criminal Revision Petition is dismissed. Petition dismissed.