JUDGMENT S.C. PARIJA, J. — This Criminal Appeal is directed against the judgment 31.08.2004 passed by Shri J.K. Dash, Adhoc Addl. Sessions Judge, Fast Track Court, Baripada, in S.T. Case No. 23/94 of 2004, holding both the appellants guilty of offences under Sections 376(2)(g)/302/34 IPC and convicting them thereun¬der. 2. The prosecution case, as it reveals from the FIR dated 18.11.2003, is that one Samar Hansda (P.W.1) filed a written report before the Baisingha P.S., which was registered as U.D. Case No.12 of 2003 and the ASI of Police, Baisingha P.S. (P.W.10) was entrusted to enquire into the matter. As per the written report of P.W.1, on 17.11.2003, in the after noon, his sister Sitamani Hembrem had gone to the house of Sukul Hembrem (P.W.4) for observing Prathamastami festival but she did not return and on the next day, her dead body was recovered from the paddy field near village Purusottampur. P.W.10 during his enquiry ascertained that both deceased Sitamani and Sukul had frequent access to each other and were having regular sexual relationship. In the enquiry, it further revealed that on the date of occur¬rence, i.e. 17.11.2003 in the evening, while the deceased Sitama¬ni and Sukul were returning near Purusottampur, both the accused persons, namely, Budai @ Bhagaban Murmu and Fakir Soren, followed them and in an isolated place, both the accused persons assaulted Sukul (P.W.4), terrorised him and dragged Sitamani to the paddy field and forcibly raped her despite her protest and thereafter killed her. On the basis of the said enquiry, the ASI of Police, Baisingha P.S. (P.W.10) lodged the FIR, which was registered as Baisingha P.S.Case No.104 of 2003. 3. The O.I.C. of Baisingha P.S. (P.W.11), took up investi¬gation and during investigation of the case, he prayed before the S.D.J.M., Baripada, for recording of the statements of Sukul (P.W.4) under Section 164 Cr.P.C., which was recorded as per Ext.16 and P.W.4 was sent for medical examination. On 29.11.2003, the I.O. arrested both the accused persons, seized their wearing apparels, which were sent for chemical examination. After comple¬tion of the investigation, the C.I. of Police, Betanati P.S., filed charge sheet against the accused persons under Sections 376(2)(g)/302/201/34 IPC. 4. The stand of the accused persons was that of complete denial and that they have been falsely implicated in the case. 5. The prosecution examined 18 witnesses in support of the charges against the accused persons. After comple¬tion of the investigation, the C.I. of Police, Betanati P.S., filed charge sheet against the accused persons under Sections 376(2)(g)/302/201/34 IPC. 4. The stand of the accused persons was that of complete denial and that they have been falsely implicated in the case. 5. The prosecution examined 18 witnesses in support of the charges against the accused persons. P.W.1 is the brother of deceased Sitamani and is the informant, who submitted the written report on the basis of which U.D.Case No.12 of 2003 was regis¬tered. P.W.2 is the mother of deceased Sitamani, P.W.3 is the cousin brother of deceased and P.W.4 is the sworn friend of deceased Sitamani and is a witness to the occurrence, whose statement had been recorded by the Judicial Magistrate, under Section 164 Cr.P.C. P.W.4 however, turned hostile and did not support the case of the prosecution. P.W.5 is a witness to the seizure, whose statement had also been recorded by the Judicial Magistrate under Section 164 Cr.P.C. He also did not support the prosecution case and was declared hostile. P.W.6 is a witness to the inquest and P.W.7 is the Judicial Magistrate, who recorded the statements of P.Ws.4 and 5 under Section 164 Cr.P.C. P.W.8 is the doctor, who conducted the post-mortem over the body of de¬ceased Sitamani and P.W.9 is another doctor, who examined Sukul (P.W.4) and he also examined the accused persons. P.Ws.10, 11 and 12 are the I.Os. out of whom, P.W.12 on completion of the inves¬tigation, had filed the charge sheet against the accused persons. 6. The defence did not examine any witness in support of its plea. 7. The doctor (P.W.8), who conducted the post-mortem examination over the dead body of Sitamani stated in his evidence that he found the following external injuries:- (i) Two number of abrasions 2"x1/2" over the gluteal region. (ii) Large contusion three numbers over the lower abdomen. (iii) Laceration of the perineum from the lower portion of the vaginal orifice. (iv) Peeling of skin over right knee and right side of abdo¬men 1" lateral to umblicious. (v) Abrasion of irregular size around left elbow joint. P.W.8 further stated that there was cyanosis of mouth, pharynx and oesophagus. He further stated that there was lacera¬tion of perineum in the lower portion of vaginal orifice. (iv) Peeling of skin over right knee and right side of abdo¬men 1" lateral to umblicious. (v) Abrasion of irregular size around left elbow joint. P.W.8 further stated that there was cyanosis of mouth, pharynx and oesophagus. He further stated that there was lacera¬tion of perineum in the lower portion of vaginal orifice. P.W.8 opined that the cause of death of deceased Sitamani might be due to pain and shock and due to multiple forceful coitus. He reiter¬ated that the injury can only be caused due to multiple forceful intercourse against the will of the victim and proved the post-mortem report (Ext.8). 8. P.W.1 is the brother of deceased Sitamani, who in his evidence that his deceased sister Sitamani had sworn friendship (Sangata) with Sukul (P.W.4) of village Rautraipur. He further stated that on the occasion of Prathamastami, P.W.4 told him that he will take Sitamani to his village in presence of the mother of deceased, Ramani Hansda (P.W.2) and that P.W.4 took his sister Sitamani to his village and that she did not return on that day. On the next day, in the evening, he found the dead body of his sister Sitamani lying on an agricultural field. P.W.1 also stated that the police seized one cycle on production by Mangal of village Khantisahi, as per Seizure List (Ext.4). In the cross-examination P.W.1 stated that the seized cycle was brought to his house by P.W.4. 9. P.W.2, who is the mother of deceased Sitamani stated in her evidence that on the date of occurrence, Sukul (P.W.4) had come to her house for observing Prathamastami and took her deceased daughter Sitamani to village Rautraipur and in the same night her deceased daughter did not return home. On the next day, in the evening she found the dead body of her daughter Sitamani lying on a paddy field. 10. P.W.3 is the cousin brother of deceased sitamani, who stated in his evidence that Sukul (P.W.4) had come to his village to the house of P.W.1 for observing Prathamastami festival and took the deceased Sitamani to his village Rautraipur but the deceased did not return home and on the next date evening, they found the dead body of Sitamani lying on the paddy field. 11. P.W.4, Sukul Hembrem is said to be an eye witness to the occurrence, who is the sworn friend (Sangata) of deceased Sitamani. 11. P.W.4, Sukul Hembrem is said to be an eye witness to the occurrence, who is the sworn friend (Sangata) of deceased Sitamani. He stated in his evidence that on Prathamastami day, he had gone to the house of deceased Sitamani for observing the function and on the same day at about 12.30 P.M., he along with the deceased returned to his home. P.W.4 further stated that after taking their meal, he went to Hata along with his cock for cock fighting and on his return home, he did not find the de¬ceased and came to know that deceased Sitamani had left the house about 2 to 3 hours back. 12. P.W.5 is a seizure witness and as he did not support the case of the prosecution, he was declared hostile. P.W.5 in his evidence stated the deceased Sitamani had died about one year back and that accused Bhagaban left his cycle near Kia bushes near his house, which his wife recovered and brought the cycle to his house and that he informed the incident to the Choukidar. P.W.5 specifically stated that he had given his statement before the Judicial Magistrate at Baripada under Section 164 Cr.P.C. In the cross-examination, P.W.5 stated that the seized cycle belongs to Sukul (P.W.4). 13. P.W.10 is the I.O., who conducted enquiry relating to U.D. Case No.12 of 2003 and stated in his evidence that on 24.11.2003 at about 1 P.M., he seized one cycle from the house of Baidhar Murmu (P.W.5), as per Seizure List (Ext.4/1). In his cross-examination, P.W.10 clarified that he seized the cycle on production by Mangal Murmu, son of P.W.5. 14. P.W.7 is the Judicial Magistrate, who recorded the statements of Sukul Hembrem (P.W.4) and Baidhar Murmu (P.W.5) under Section 164 Cr.P.C. P.W.7 stated in his evidence that on 28.11.2003 he recorded the statements of P.W.4 and P.W.5 under Section 164 Cr.P.C., as per Exts.7 and 6, respectively. P.W.7 specifically stated that prior to recording of the statements, both the witnesses were kept in charge of his orderly and taking all precaution to keep the witnesses away from police and giving his proper identification, he recorded their statements under Section 164 Cr.P.C., which were voluntary and without any influ¬ence. P.W.7 specifically stated that prior to recording of the statements, both the witnesses were kept in charge of his orderly and taking all precaution to keep the witnesses away from police and giving his proper identification, he recorded their statements under Section 164 Cr.P.C., which were voluntary and without any influ¬ence. P.W.7 further stated that he read over and explained the contents of Exts.6 and 7 to both the witnesses, i.e. P.Ws.4 and 5 and after understanding the same, both the witnesses had put their LTI, as per Exts.6/2 and 7/2, respectively. 15. In the cross-examination, P.W.7 admitted that he had not mentioned in the order sheet regarding the keeping of the witnesses under the care of his orderly and disclosing about his identity. P.W.7 further stated in his cross-examination that he did not mention in the order sheet that he read over and ex¬plained the contents to the witnesses and that the witnesses deposed voluntarily. 16. P.W.9 is the doctor, who examined Sukul (P.W.4) as well as both the accused persons. He stated in his evidence that he examined accused Fakir Soren and Bhagaban Murmu and found that they were capable of sexual intercourse and further stated that their semen could not be collected due to non-cooperation of both the accused persons. 17. On an analysis of the evidence of P.Ws.4 and 5 and the medical evidence by the doctor (P.W.8), who conducted the post-mortem examination on the dead body of deceased Sitamani and opined that the cause of death was due to multiple forceful coitus, learned Additional Sessions Judge, came to hold that the accused persons are guilty of offences under Sections 376(2)(g)/302/34 IPC and accordingly convicted them thereunder. 18. Sri Sambit Ray, Learned counsel for the appellants has forcefully submitted that there being no direct evidence to prove the charges against the accused persons and the alleged chain of circumstances brought out by the prosecution being not complete, the conviction of the accused persons on the basis of such flimsy circumstances is not sustainable in law. 18. Sri Sambit Ray, Learned counsel for the appellants has forcefully submitted that there being no direct evidence to prove the charges against the accused persons and the alleged chain of circumstances brought out by the prosecution being not complete, the conviction of the accused persons on the basis of such flimsy circumstances is not sustainable in law. It is further submitted that as the evidence of the I.O. (P.W.10) clearly revealed that Sukul (P.W.4) had regular sexual relationship with deceased Sitamani and on the date of occurrence, P.W.4 had sexual inter¬course with deceased Sitamani in the nearby paddy field, while returning to his village, the medical evidence of the doctor (P.W.8) regarding the cause of death due to multiple forceful intercourse, has no relevance and in any case, the same cannot be attributed to the accused persons in absence of any cogent, credible and corroborating evidence. It is further submitted that no injury having been found on the body of the accused persons, as per the evidence of the doctor (P.W.9), the mere fact that the accused persons were capable of having sexual intercourse, does not imply that they have committed gang rape on deceased Sitama¬ni. In this regard, it is submitted that as per the Chemical Examination Report, no semen having been found on the wearing apparels of deceased Sitamani or the accused persons, which does not corroborate the opinion of the doctor (P.W.8), regarding forceful sexual assault, there no scope for connecting the ac¬cused persons with the alleged crime. 19. Coming to the evidence of P.Ws.4 and 5, whose statements had been recorded by the Judicial Magistrate under Section 164 Cr.P.C., it is submitted that as the witnesses resiled from their earlier statements before the Magistrate and having not supported the case of the prosecution and accordingly declared hostile, their statements recorded under Section 164 Cr.P.C. is of no avail to the prosecution and the same could not have been the basis for passing the impugned order of conviction. In this regard, learned Counsel has relied upon a decision of this Court in the case of Rabi @Manoj Kumar Parida Vs. State of Orissa, (2002) 23 OCR, 300 and the decision of the Jharkhand High Court in the case of Sahjad Ansari Vs. In this regard, learned Counsel has relied upon a decision of this Court in the case of Rabi @Manoj Kumar Parida Vs. State of Orissa, (2002) 23 OCR, 300 and the decision of the Jharkhand High Court in the case of Sahjad Ansari Vs. State of Jharkhand, 2007 CRL.L.J.3086, in support of his contention that since the witnesses (P.Ws.4 and 5) had retracted from their previous statements recorded under Section 164 Cr.P.C., the prosecution cannot avail any assistance from such statements. Accordingly, it i submitted that the learned Addl. Sessions Judge erred in relying upon the statements of P.Ws.4 and 5 recorded earlier under Section 164 Cr.P.C., in passing the impugned order of conviction. 20. On a perusal of the evidence on record, we find that Sukul Hembrem (P.W.4), who was stated to be an eye witness to the occurrence, had not supported the case of the prosecution and had been declared hostile. In his cross-examination by the prosecu¬tion, he had completely denied of having made any statement before the police regarding the occurrence and the involvement of the accused persons in any such incident. In his cross-examination by defence, P.W.4 specifically stated that he had not been examined by the police and that he had given the statement before the Judicial Magistrate under the threat and coercion of the police and that the police had brought him from his house and after recording of the statement, the police took him back to his house and that he had given the statement at the instance of the police. Similarly, Baidhar (P.W.5) did not sup¬port the case of the prosecution and was declared hostile and in his cross-examination, he completely denied of having any knowl¬edge about the occurrence or the involvement of the accused persons in any such incident. In his cross-examination by de¬fence, P.W.5 stated that the cycle recovered from his house be¬longs to Sukul (P.W.4) and that he has not been examined by the police. He further stated that the police had brought him to the Court to record his statement before the Judicial Magistrate under Section 164 Cr.P.C. and that he gave his statement before the Judicial Magistrate, as per the instruction of the police. 21. He further stated that the police had brought him to the Court to record his statement before the Judicial Magistrate under Section 164 Cr.P.C. and that he gave his statement before the Judicial Magistrate, as per the instruction of the police. 21. It is now well settled that a statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but it may be used for contradiction or corroboration of the witness who made it. Such a statement can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated under Section 164 Cr.P.C. is true. The statement of a witness recorded under Section 164 Cr.P.C. is one, where the accused have hardly any occasion to cross-examine him and if it is to be treated as a substantive piece of evi¬dence, it should be only tendered before the trial Court and then the witness should be produced by the prosecution for his cross-examination. In the instant case, when the witnesses have them¬selves did not support their versions, their statements earlier recorded under Section 164 Cr.P.C., could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction. It would be fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis. 22. Except the statements of P.Ws.4 and 5 recorded under Section 164 Cr.P.C. and the evidence of the I.O. (P.W.10), there is no other material evidence to show that it is the accused persons alone were the author of the alleged crime of gang rape and murder of deceased Sitamani. The medical evidence and the Chemical Examination Report also do not establish the involvement of the accused persons in the alleged crime. 23. Admittedly, there being no eye witness to the occur¬rence, the entire prosecution case hinges on circumstantial evidence. It is now well settled in law that the prosecution in order to establish its case on the basis of circumstantial evi¬dence, has to show that from such circumstances from which the conclusion of guilt is drawn, is fully established. 23. Admittedly, there being no eye witness to the occur¬rence, the entire prosecution case hinges on circumstantial evidence. It is now well settled in law that the prosecution in order to establish its case on the basis of circumstantial evi¬dence, has to show that from such circumstances from which the conclusion of guilt is drawn, is fully established. further the facts so established should be consistent only with the hypothe¬sis of guilt of the accused and that is to say, they should not be capable of being explained on any other hypothesis, except that the accused is guilty. The circumstances should be conclu¬sive in nature and they should exclude every possible hypothesis, except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must show that in all human possibility, the act must have been done by the ac¬cused. 24. In the present case, the circumstances as brought forth by the prosecution do not conclusively prove that the accused persons are responsible in any manner for the death of deceased Sitamani. A mere suspicion or possibility or even proba¬bility cannot by itself be a substitute for concrete evidence. In absence of any cogent and credible corroborating evidence to conclusively prove the involvement of the accused persons in the death of Sitamani, it would not be safe to base their conviction under Sections 376 (2) (g)/302/34 IPC, solely on the basis of the purported statements of P.Ws.4 and 5 recorded before the Judi¬cial Magistrate under Section 164 Cr.P.C., when the witnesses have retracted and resiled from the same. Accordingly, we feel that it is a fit case where the benefit of reasonable doubt must be extended to the appellants. 25. In view of the above, the conviction of the accused persons under Sections 376(2)(g) 302/34 IPC is set aside and the appellants are found not guilty and are acquitted of the charges. The appellants shall be set at liberty forth with, if they are in custody and their detention is not required in any other case. The Criminal Appeal is accordingly allowed. A.S. NAIDU, J. : I agree. Appeal allowed.