JUDGMENT Mr. Rajiv Narain Raina, J.: - This appeal has been filed by Madan Lal and Charanjit sons of Kishori Lal residents of Village Dhira, Tehsil Pathankot, District Gurdaspur against the judgment dated 11.9.2007 of the learned Sessions Judge, Gurdaspur, convicting the accused-appellants under Sections 302/34 and 201/34 of the Indian Penal Code (for short “IPC”) as also against the order of sentence of even date whereby they have been sentenced to undergo imprisonment for life under Section 302/34 IPC on being found guilty of causing death of a new born child, besides, imposing fine of Rs.5,000/- each and in default of payment of fine to further undergo RI for three months. They have also been sentenced to undergo RI for two years under Section 201/34 IPC, besides, imposing fine of Rs.1,000/- each and in default of payment of fine to further undergo RI for one month. Both the sentences were ordered to run concurrently. 2. The prosecution story is that a female child was born to appellant No.1-Madan Lal and Sonia on the night intervening 31.3.2006/1.4.2006. The child was delivered by a midwife named Smt. Krishna, who later appeared as PW-7 at the trial and resiled from her statement recorded under Section 161 Cr.P.C. on 29.6.2006 by Sulkhan Singh SI, Incharge, Police Station, Division No.2, Pathankot. Thereafter, the statement of the midwife Krishna was recorded under Section 164 Cr.P.C. on oath before the Sub Divisional Judicial Magistrate (D), Pathankot on 30.6.2006 from which also she resiled at the trial. Her statement was that appellants brought Sonia to her house for delivery of a child. The place of birth according to Krishna in her aforesaid statements was at her residence i.e. Mohalla Sunder Nagar, Pathankot, which is at some distance from the native village of the appellants. She stated that during the night Sonia was in an unconscious condition and at daybreak when all the three were about to leave she inquired from them about the female child born and she was told that the girl child had been given to some relation since the couple had already two daughters. These statements were recorded three months after the alleged date of birth/occurrence. 3. These statements were recorded three months after the alleged date of birth/occurrence. 3. The complainant Bal Krishan, a Beldar in the Irrigation Department, made a statement before the police that at 9:30 AM on 1.4.2006 while on duty at Head Works, Village Dheera Jattan he discovered the dead body of new born child floating in the standing water in Spell No.1. The Sarpanch of the village reached the spot so also a village resident. They found that the infant was a female child. On the basis of this statement, an FIR No.60 dated 1.4.2006 under Sections 201/318/34 IPC at Police Station Division No.2, Pathankot was registered against unknown persons. The infant was found floating without any apparel worn. Inquest proceedings were initiated. The dead body of the new born child was sent for post mortem under the supervision of Head Constable Inderjit and Constable Satpal to Civil Hospital, Pathankot on 1.4.2006 itself. 4. The crime remained unsolved with no clue with the police. The mystery suddenly unfolded after about three months of the death on 27.6.2006 when Surjit Pal/PW-6 made a statement before the police naming the appellants as accused of the murder of the infant female child on the intervening night of 31.3.2006/1.4.2006. Surjit Pal is a chance witness. He is stated to be in government service with no further particulars on record. He stated that on the fateful intervening night while returning from his dairy farm at 1:30 a.m. as he reached near the Head Works, he saw both the accused by flashing his torch towards them. He saw accused Madan Lal throw something in the water. There was a scooter also lying there. He neither accosted them nor had a word with them and went on quietly towards his house passing by the side of the accused. He stated that there were rumors in the village and it was “town talk” that a child was born to the house of accused-appellant Madan Lal and on the discovery of the body later in the day Surjit Pal said that he imagined that the dead body must be that of the child born in the house of Madan Lal. He stated that he did not disclose the events of that impressionable night to anyone including the Sarpanch nor any member of the panchayat nor he informed the police about it. He stated that he did not disclose the events of that impressionable night to anyone including the Sarpanch nor any member of the panchayat nor he informed the police about it. His statement was recorded by the police in the village on 27.6.2006. He also stated that he was never cited as a witness by the police in any case before the present one. He denied the suggestion that he was a stock witness in about 8-10 cases of the police. Statement of Surjit Pal under Section 164 Cr.P.C. was recorded on 30.6.2006. The accused were arrested on 29.6.2006. 5. On 27.6.2006, the police recorded the statement of Vijay Singh, Member Panchayat, Village Dheera Jattan who ran a shop at the bus stop. He stated that the Panchayat had deputed a Chowkidar to patrol the market at night. He would sometimes go to check whether the Chowkidar was performing his duty. He stated that on the intervening night of 31.3.2006/1.4.2006 at about 12:30 mid night, he was present at the bus stop where he saw accused-appellant No.2/Charanjit @ Chana riding a scooter with accused-appellant No.1/Madan Lal sitting pillion and carrying in his hand something wrapped. They were coming from Pathankot side and were proceeded towards Dheera Head-Works. That is all that he saw. The next day he learnt of the dead body found at the Head Works. He stated that there was a loud rumour in the village that dead male child was born to Sonia wife of appellant No.1-Madan Lal. However, no body was cremated anywhere. Vijay Singh/PW-8 stated that as a member panchayat, he made his own verification and found that the couple had two daughters and the birth of the third female child had led them to take its life. 6. In order to add colour and authenticity to the prosecution story, one Kuldip Singh son of Babu Ram was introduced by the police as PW-5 on 29.6.2006; the date which is remarkable inasmuch as it is the date of arrest of the accused after three months of the alleged incident. Kuldip Singh is stated to be the Sarpanch of the Village. Kuldip Singh is stated to be the Sarpanch of the Village. He stated that the accused Madan Lal @ Madi and Charanjit Singh @ Chana made an extra judicial confession before him by narrating that they wanted to disclose that they took Sonia on a scooter to midwife Krishna at Pathankot where a female child was born but as they already had two daughters so they had decided to throw the female child in the Nalwa Canal where she died due to drowning. 7. After completing the investigation police report was filed under section 173 Cr PC. The case was committed to Sessions trial and the appellants were charged for the offences under Sections 302/34, 315 and 201 of the Indian Penal Code (for short “the IPC”). They pleaded not guilty to the charges and claimed trial. The prosecution lead its evidence. Thereafter, on closing of the prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C. Both the appellants pleaded innocence and stated that they had been falsely implicated. Madan Lal appellant also stated that he never threw the female child in the water. 8. In defence, the accused examined Ashwani Kumar, Ahlmad as DW-1 and also tendered in evidence statement of Surjit Pal under Section 161 Cr.P.C. in some other criminal case as Ex.DB, List of witnesses as Ex.DC and statement of S.S. Padda, Addl. P.P. as Ex.PD, recovery memo EX.DE, Ruqa Ex.DF, Challan Ex.DG. Thereafter, the accused closed their defence evidence. 9. We have heard Mr. Ashok Singla with Mr. Akash Singla, learned counsel for the appellants and Mr. Pavit S. Mattewal, learned Addl. A.G. Punjab, for the State. 10. Mr. Ashok Singla submits that in the face of prosecution witness having resiled from their statements under Section 161 Cr.P.C. and 164 Cr.P.C., no credence can be placed on the prosecution story insofar as the statements of Smt. Krishna/PW-7 and Vijay Singh/PW-8 are concerned. He submits that the statements under Section 164 Cr.P.C. are not substantive piece of evidence although the Magistrate has tendered evidence that the statements were recorded under Section 164 Cr.P.C. before him. 11. Mr. He submits that the statements under Section 164 Cr.P.C. are not substantive piece of evidence although the Magistrate has tendered evidence that the statements were recorded under Section 164 Cr.P.C. before him. 11. Mr. Pavit S. Mattewal on the other hand submits that it was for appellant No.1 and his co-accused brother to have examined Sonia as a defence witness to establish their innocence and failure to do so cannot be read against the prosecution and in favour of the defence. Mr. Mattewal submits that even if there is shoddy investigation still the benefit should not go to the accused as there is sufficient evidence on record to bring home their guilt. The evidence of Surjit Pal PW-6 is trust worthy enough to point the finger of guilt on the appellants inasmuch as he saw the accused though briefly in torch light throw something in the Head Works and the Court should assume it was the body of the child and none other in the special circumstances. 12. We have given our thoughtful consideration to the contentions of the learned counsel and have gone through the records. 13. The two core issues which require to be determined in the present case are firstly, whether Sonia wife of appellant No.1/Madan Lal delivered a child in March 2006 and secondly, whether there is conclusive evidence that Madan Lal and Sonia had two daughters prior to 31.3.2006 to establish motive of commission of crime. 14. While appearing as a star prosecution witness/PW-7, Krishna resiled from her earlier statements. In her examination-in-chief while appearing as a prosecution witness, she deposed that she did not know the accused nor had she assisted in the delivery of a child in the house of accused-appellant No.1/Madan Lal. On turning hostile the Public Prosecutor made a request to the Court for cross examination of the witness which was allowed by the trial Court. She was cross examined and confronted with her statement recorded under Section 161 Cr.P.C. Ex.PE with the portion that she had delivered a child and that she and the appellants are distant relatives. She denied that at 12:30 midnight Sonia gave birth to a female child or that she was present there. She stated that her statement was not read over to her by the police nor her signatures were obtained thereon. The witness Krishna appeared on 29.11.2006 before the trial Court. She denied that at 12:30 midnight Sonia gave birth to a female child or that she was present there. She stated that her statement was not read over to her by the police nor her signatures were obtained thereon. The witness Krishna appeared on 29.11.2006 before the trial Court. For some reason, the statement under Section 164 Cr.P.C. Ex.PQ was not put to the witness during recording of testimony. This Court while hearing the appeal issued process to Krishna for recording of her evidence by way of additional evidence by invoking the provisions of Section 391 Cr. PC with respect to her statement recorded before the Magistrate under Section 164 Cr PC and not put to her during evidence, through video conferencing in the presence of the accused-appellants lodged at Pathankot Jail but produced by the Jailors at the official teleconference facility at Pathankot under directions of this Court to fathom the truth. In her further statement before this Court in appeal recorded, she admitted that her statement under Section 164 Cr PC (Ex.PQ) bears her signature but went on to explain on oath that two men in uniform came to her residence a day earlier and compelled her to give statement before the Court at Pathankot the following day. Those two persons were present in Court at Pathankot, when statement was made. She deposed that she had been taken to the Court Complex on a scooter by the men in uniform. There were 4-5 persons on scooters when she was taken to Court complex. Before the Court at Gurdaspur, she neither made any statement during trial nor denied involvement in the alleged incident. She deposed that she made a statement under Section 164 Cr.P.C. under compulsion and threat that if she did not support the case of the prosecution, a case of opium would be planted against her by the police. During the recording of Section 164 statement at Pathankot, the persons standing beside her were policemen but not in uniform. She deposed that the Court (of Ilaqa Magistrate) at Pathankot never asked her whether she has given her statement voluntarily or under some pressure. She stated during cross examination conducted by Mr. Pavit S. Mattewal, Addl. A.G. Punjab, learned counsel for the State before us that her statement Ex.PQ was given under coercion and pressure of the police. She deposed that the Court (of Ilaqa Magistrate) at Pathankot never asked her whether she has given her statement voluntarily or under some pressure. She stated during cross examination conducted by Mr. Pavit S. Mattewal, Addl. A.G. Punjab, learned counsel for the State before us that her statement Ex.PQ was given under coercion and pressure of the police. This is the status of the testimony of an eye witness set up by the prosecution. It is well settled that the statement under Section 164 Cr.P.C. is not a substantive piece of evidence. 15. PW-1 Dr. Sucha Ram, Medical Officer, Civil Hospital, Pathankot conducted the post mortem on the dead body at 4:50 p.m. on 1.4.2006 of an unknown new born female child brought dead and opined that the cause of death was asphyxia due to drowning which is sufficient to cause death in the normal course and is ante-mortem in nature. 16. The Statement of Vijay Singh, however, was not recorded under Section 164 Cr.P.C. Vijay Singh appeared as PW-8 at the trial. He resiled from his statement under Section 161 Cr.P.C. and stated before the Court that no Chowkidar has been deputed for night duty at the bus stop and he did not even go to check on any Chowkidar on the intervening night of 31.3.2006/1.4.2006; nor had he seen the accused, who were present in Court throwing a newly born child in a Canal. Since the witness had turned hostile, the Public Prosecutor was allowed cross examination. He denied that he was an eye witness. He denied that there was any rumour or any talk in the town that a female child was born to Sonia wife of appellant No.1/Madan Lal. He denied that any dead body of a child had been cremated anywhere with respect to the alleged incident. He said that he knew both the accused. He, however, denied knowledge of Madan Lal and Sonia of having two daughters in the cross-examination. 17. Kuldip Singh, Sarpanch, before whom the appellants allegedly made the extra judicial confession, appeared as PW-5 and resiled from his statement recorded under Section 161 Cr.P.C. and was, therefore, declared hostile and the Public Prosecutor was permitted to cross examine the witness. He denied that the accused had confessed to the crime before him. The statement of Kuldip Singh was recorded by the learned Sessions Judge on 29.11.2006. He denied that the accused had confessed to the crime before him. The statement of Kuldip Singh was recorded by the learned Sessions Judge on 29.11.2006. He was confronted with the material part of the statement under Section 161 Cr.P.C. Ex.PD but he denied it as never having been made. With this, the foundation of the extra judicial confession appears to have crumbled. 18. The statement of PW-9 Sub Inspector Sulkhan Singh (part IO/SHO) who completed the investigation and presented the challan before the trial Court is of importance so also the statement of ASI Des Raj-PW-11 being part investigation officer. We have read both the statements carefully. It has not come in the evidence of both the investigation officers that Madan Lal and Sonia had two daughters prior to the incident nor we do find anything in their evidence to conclude as a matter of fact that Sonia wife of appellant No.1/Madan Lal actually delivered a child in March/April 2006. We have seen zimini No.8 recorded by the police on 27.6.2006 in the context of recording of statement of Surjit Pal under Section 161 Cr.P.C. It is only the police zimni which says that the couple had two daughters. That apart in his statement recorded at the stage of question of sentence appellant No 1 had stated that he was a poor person and has two daughters to look after. 19. The medical evidence should not detain us except to notice that in the statement of Dr. Sucha Singh appearing as PW-1, it has been stated that the dead body of unknown new female child, “naked with mouth open and eyes closed; tongue swollen; water coming out of nostrils; body was swollen; washer-man hand present; rigor mortis were present both in upper and lower extremities” leading to the conclusion that the cause of death was asphyxia due to drowning. The time elapsed between death and injury was immediate and between death and post mortem examination was within 24 hours. No evidence has come on record as to the mode of the disposal of the body of the dead child. 20. Insofar as the extra judicial confession of the accused-appellants is concerned allegedly made before Kuldip Singh/PW-5 Sarpanch by the accused, the witness turned hostile and resiled from his earlier statement. Mr. No evidence has come on record as to the mode of the disposal of the body of the dead child. 20. Insofar as the extra judicial confession of the accused-appellants is concerned allegedly made before Kuldip Singh/PW-5 Sarpanch by the accused, the witness turned hostile and resiled from his earlier statement. Mr. Singla would submit that the prosecution version is made extremely doubtful when both the appellants were not under any suspicion then why should they have made an extra judicial confession on 29.6.2006 before the Sarpanch. An extra judicial confession is in any case a very weak piece of evidence which requires corroboration of other evidence to complete the chain of events pointing to the conclusion of guilt of the accused. The appellants were named as accused only on 27.6.2006 after about three months of the death of the infant child. Still further, learned counsel argues that the midwife Smt. Krishna was set up as an eye witness. She, however, also resiled from her statements under Sections 161 and 164 Cr.P.C. The statement under Section 164 Cr.P.C. was put to Smt. Krishna in terms of order of this Court with a view to determine the truth through the process of teleconferencing with Smt. Krishna and the accused face to face on the screen in the presence of the learned counsel assembled for the purpose through extension of this Court. Therein, she has categorically stated that her statement under Sections 164 Cr.P.C. was recorded under coercion and duress of the police. She has denied that she participated in the birth of the child as a midwife. 21. Another prosecution witness PW-10 Suresh Kumar, who made statement to the effect that he had seen both husband and wife i.e. Madan Lal and Sonia going on the scooter probably to deliver a child, has also resiled from the previous statement and turned hostile. 22. The only witness who remains standing in favour of the prosecution is Surjit Pal/PW-6. His deposition is as follows: “I am owning dairy farm also which is across the canal to my house. On the intervening night of 31.3.2006 at about 1:30 A.M., I was coming back after seeing my cattle from the dairy farm. When I reached near the head works, where I saw both the accused present there and scooter was also lying there. On the intervening night of 31.3.2006 at about 1:30 A.M., I was coming back after seeing my cattle from the dairy farm. When I reached near the head works, where I saw both the accused present there and scooter was also lying there. I put torch light towards them and saw that Madan Lal threw something in the water but I went towards my house just passing towards by their side. On the following day, a dead body of a newly born female child was recovered from the water of the head works. There was rumor in the village and it was town talk child was to born in the house of Madan Lal. Police had also reached at the spot and then I imagined that the dead body is the same which was thrown in the water and might have been in the house of Madan Lal. My statement was recorded. XXX:- Police came in the morning but I cannot tell the exact time. Police remained there for 3/4 hours. Police had questioned many person present there including me. Police never came to the village thereafter in connection with the investigation of this case. I have never been cited as a witness by the police before the present case. I generally visit City Pathankot 4 to 5 days in a week. My village falls in the jurisidiction of P.S Division No.2, Pathankot and it not on my way from City Pathankot to my village. Police was not usually met me. Police had recorded my statement on 27.6.2006. I did not talk with any Sarpanch or member Panchayat regarding the incident of this case. I did not tell this fact to the police on 1.4.2006. It is wrong to suggest that I have been a witness in about 8/10 cases of the police. On 27.6.2006 my statement was recorded in the village by the police and before that I never disclosed the fact to any person or authority and the police. It is wrong to suggest that I am deposing falsely at the instance of police. One ASI and a Head Constable recorded my statement but I cannot tell their names. It is wrong to suggest that I used to tell the public in village that I often produce myself as a police witness to earn money. It is also wrong to suggest that I have deposed falsely. One ASI and a Head Constable recorded my statement but I cannot tell their names. It is wrong to suggest that I used to tell the public in village that I often produce myself as a police witness to earn money. It is also wrong to suggest that I have deposed falsely. It is wrong to suggest that I visited the house of the accused thrice with a view to grab money for resiling from my statement.” 23. PW-6/Surjit Pal is a chance witness. He is an alleged Government servant although it is not known in which department he served and in what capacity. He does not say in his statement that he knew the accused as inhabitants of the same village. He saw them at the dead of night by sheer coincidence at the Head Works. He saw them in the beam of a torch he was carrying. He deposed that appellant No.1 Madan Lal threw something in the water just as he flashed the torch. If he knew or recognized them, it would be reasonable to expect him to have accosted them to know what the matter was as a co-villager might do. They were not armed and obviously could have posed no threat but he actually slunk away to his house. He also saw a scooter lying thereabout. On the following day, he gained knowledge that a body of a newly born child was recovered from the water of the Head Works. He admits that he never disclosed what he saw to any person or authority or police till on 27.6.2006 his statement was recorded out of the blue by the police. He states emphatically that he had never been cited as a witness in any other case by the police before the present case. Defence evidence has, however, been produced showing facts to the contrary that he appeared as a witness in at least two cases. Mr. Singla would contend that he is not only a chance witness but a stock witness; that he lied in his cross examination, this is a material fact for the Court to evaluate his statement which deserves to be viewed with extreme caution since the conviction is based on the statement. 24. The spinal issue in this appeal is whether a conviction can be based on the statement of Surjit Pal/PW-6 the so called eye witness. 24. The spinal issue in this appeal is whether a conviction can be based on the statement of Surjit Pal/PW-6 the so called eye witness. The statement of Surjit Pal does not qualify as direct evidence. It is at best circumstantial evidence and has to be weighed accordingly with corroboration in material particulars to bring home the guilt. He did not know what was thrown in the water. If at all the brothers were present at the spot, his presence at the spot of occurrence appears to us to be extremely doubtful and one clouded with suspicion and more or less difficult to base a conviction. He is undoubtedly a chance witness. A chance witness, as is well known, though is not necessarily a false witness, it is proverbially rash to rely on him (see Ismail Ahmed Peepadi v. Momin Bibi; AIR 1941 PC 11). We find that the presence of the chance witness PW-6 at the place of occurrence is doubtful and his statement does not inspire confidence and is not sufficient to base a conviction. Furthermore, Surjit Pal/PW-6 does not appear only to be a chance but a stock witness as well. He did not speak the truth before the Court while sworn on oath that he had not appeared as a witness of the police in other cases, even if it were one it would tarnish him. 25. Before connecting the accused with the crime the least that was expected from the prosecution was an identification of the dead body by exhuming it in case the child was buried as normally done among the Hindus. That may have been trustworthy evidence connecting the appellants with the charge through the DNA test. The mode of disposal of the body and by whom thus gains importance. One cannot ignore the fact that when the post mortem was performed on the body of the infant whose identity was unknown it was then incumbent on the police to establish the identity of the dead body following the statement of Surjit Pal on 27.6.2006 and the arrest of the appellants on 29.6.2006. 26. There is also no evidence on record to conclude other than the statements under Section 161 and 164 Cr.P.C. that a child indeed was born to Madan Lal and Sonia in March 2006. 26. There is also no evidence on record to conclude other than the statements under Section 161 and 164 Cr.P.C. that a child indeed was born to Madan Lal and Sonia in March 2006. There is also no evidence for the Court to know as to who cremated or buried the new born infant child. No DNA matching was done during the investigation. If it was buried then the body was not exhumed nor any steps taken during the course of investigation to determine paternity and maternity. Sonia, wife of appellant No.1/Madan Lal has remained outside the pale of investigation and appears to be the most vital link to the dead infant as the alleged mother of child. Nothing has come in the investigation conducted by the I.Os PW-9 and PW-11 that the couple had two daughters prior to the incident in order to establish motive and that as a matter of pure fact a female child or a child at all was born to Sonia and Madan Lal. Prosecution led no other independent evidence from neighbours or from the members of the Gram Sabha to establish on record that in fact a child had been born to Sonia in March 2006. The identity of the deceased remains shrouded in mystery and biologically not connected to the appellant No 1 or established by concrete evidence. Unfortunately, no one identified the body of the deceased infant. We can only despair on the shoddy and faulty investigation by the police or its lack of determination to unravel the truth by scientific methods. There appears to have been abject failure on the part of the investigating police to collect vital link evidence in the present case to establish commission of crime at the hands of the appellants. The entire prosecution evidence was collected between 27.6.2006 and 29.6.2006 complete with the padding of an extra judicial confession to boot. The deposition of PW-6 Surjit Pal does not inspire confidence and is untrustworthy and unreliable. His presence seems to have been procured. His admittedly remained silent and dormant for three months of the incident. No reason has been given by him for the delay in reporting the crime. He was a procured witness brought into the picture one fine day by the local police to solve the crime. His presence seems to have been procured. His admittedly remained silent and dormant for three months of the incident. No reason has been given by him for the delay in reporting the crime. He was a procured witness brought into the picture one fine day by the local police to solve the crime. No medical examination was conducted to determine whether Sonia had indeed given birth to a child, while there can be many significant signs of childbirth on a mother, including tell-tale stretch marks etc; determining lactation levels or by conducting a Lochia test which could have been easily done to prove the prosecution case beyond reasonable doubt. 27. Mr. Singla relies on the decision of the Supreme Court in Palvinder Kaur v. State of Punjab; (AIR 1952 SC 354) to contend that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be and the necessity for adopting that caution becomes absolute in a case in which the situation of the parties demands, whether there is no direct evidence and the circumstantial evidence answers the questions. There may be a very strong suspicion against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since suspicion however grave cannot take the place of legal proof. If there is no conclusive evidence that the accused committed the offence of murder, this Court would evaluate the circumstantial evidence if any available on record on different aspects of the case before holding them guilty. 28. Mr. Singla further relies on the decision of the Supreme Court in Jarnail Singh and others v. State of Punjab; [2009(6) Law Herald (SC) 3820] : (2009) 9 SCC 719 and para 26 thereof to further his argument qua the DNA test. That was a case of a dead body being found reduced into skeleton beyond recognition. In such a case the Supreme Court has held that the DNA test may become essential. 29. We feel it rather unsafe to place reliance on the statement of Surjit Pal/PW-6 and the statements of Smt. Krishna PW-7 recorded under Section 161 and 164 Cr.P.C. or any part of her deposition in Court or of the other prosecution witnesses to record a conviction of murder under Section 302/34 IPC against the appellants and to sentence them to imprisonment for life. The prosecution has not, in our considered view, established guilt of the appellants beyond reasonable shadow of doubt or that the facts established on record point to only one conclusion that it was a case of murder committed by the appellants. 30. On the issue of statement under Section 164 Cr PC vis a vis Smt Krishna, PW-7, the only direct eye witness, we feel that it cannot be relied upon to base conviction in the face of her turning hostile and resiling therefrom. The Supreme Court has held that a statement under the aforesaid Section is not substantive evidence and requires corroboration from other acceptable legal evidence: see State of Delhi v. Shri Ram Lohia: AIR 1960 SC 490; Ram Kishan Singh v. Harmit Kaur: AIR 1972 SC 468; Audumbar Digambar Jagdane v. State of Maharashtra: 1999 Crl.L.J. 1936; and Utpal Das v. State of West Bengal, [2010(4) Law Herald (SC) 2209] : AIR 2010 SC 1894. 31. The extra judicial confession in the present case, albeit a weak piece of evidence, is also not of much consequence as Kuldip Singh PW-5 turned hostile and disclaimed the confession and thus this too can be of no help to the case of the prosecution. 32. Regarding the statement of the appellant No.1 recorded by the learned Sessions Judge on 11.9.2007 in the backdrop of sentencing, that he was a poor person and had two daughters to look after, in our view, that statement was made at the stage of question of sentence. It is trite that sentencing comes after conviction. Once conviction is set aside the stage of sentencing would not arise. In any case a conviction cannot be based on the mere assertion that the appellant No 1 had two daughters. 33. Therefore, for the reasons recorded above and in the totality of circumstances since there is no probative and unimpeachable evidence on record to connect the appellants with the commission of crime to establish the charge framed beyond any reasonable doubt, we would reverse the judgment and order dated 11.9.2007 and the findings of conviction and sentence recorded by the learned Sessions Judge, Gurdaspur, and resultantly, would acquit both the accused-appellants in FIR No.60 dated 1.4.2006 Police Station Division No.2, Pathankot by giving them the benefit of doubt. The appellants be released and set free forthwith if not required in any other case. 34. The appellants be released and set free forthwith if not required in any other case. 34. The case property, if any, be dealt with as per rules after the expiry of the period of limitation of appeal.