Judgment 1. The appellant/accused was convicted for an offence under Section 304(Part II) IPC and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.3,000/-, in default, to undergo three years rigorous imprisonment, by the learned I Additional Sessions Judge, Krishnagiri in SC No.8 of 2007 dated 26.11.2007. Aggrieved over the judgment of conviction and sentence, this appeal is filed by the accused. 2. The case of the prosecution is that the deceased was the brother of the appellant. The deceased was a drunkard, spendthrift and habitual offender and was not liked by the members of the family and villagers. By reason of the behaviour of the deceased, no one had come forward to marry the sister of the deceased. Therefore, the appellant decided to kill the deceased. With a view to do so, on 16.1.2006 at 9.00 p.m., the accused beat the deceased with a wood long on his head and dragged the body of the deceased from his house to the nearby father's house and again, voluntarily beat the deceased with a wooden log on his skull occipital region and due to the injuries sustained by the deceased, the deceased died at 11.00 p.m., on the same date. Therefore, the accused was charged for an offence under Section 302 IPC. 3. On the side of the prosecution, 13 witnesses were examined, 31 exhibits were marked and 7 MOs were produced. 4. The trial Court, on the basis of the evidence of PW.7 VAO who deposed about confession of the accused and recovery of the wooden log, and lungi of the accused; and the statement in Accident Register Ex.P.26, and Inquest Report Ex.P.31 held that the deceased committed the offence of culpable homicide not amounting to murder and found him guilty of offence under Section 304 (Part II). 5. It is submitted by the learned counsel for the appellant that the trial Court without properly appreciating the evidence of PW.1 to PW.5 erred in relying upon the evidence of PW.3 in cross-examination which is inadmissible in evidence and also erred in relying upon the evidence of PW.7 VAO whose evidence cannot be believed in the absence of any eye-witness and erred in convicting the appellant for offence under Section 304 (Part II) IPC. He submitted that PW.1 was the brother and PW.2 was the father and PW.3 was the cousin of PW.2 and PW.4 was also another brother of the deceased. All of them did not support the prosecution. As a matter of fact, these persons were also examined before the Judicial Magistrate PW.8 under Section 164 Cr.P.C and their statements given before the Judicial Magistrate did not support the prosecution case. Therefore, in the absence of any evidence to prove that the appellant attacked the deceased and the deceased died due to that, the learned Sessions Judge erred in convicting the appellant on the ground of recovery and also on the admission of PW.1 to the Doctor that the deceased was assaulted by one known person. He therefore submitted that the evidence of PW.1 to PW.5 did not support the prosecution case and the learned Additional Sessions Judge ought not to have relied upon their statement and the statement given in Ex.P.31 and also ought not to have relied upon the evidence of PW.3 given in cross-examination. He further submitted that though PW.3 was treated as hostile, in the cross-examination, he has stated that he told the police during investigation that the appellant attacked the deceased with wooden log. He submitted that the admission of PW.3 in cross-examination that he informed the police during investigation that the appellant attacked the deceased with a wooden log, cannot be taken as substantive evidence. In support of his contention, the learned counsel relied upon the judgment reported in 2014-1-LW (Crl.) 213 in the matter of Bala and others vs. State rep. by Inspector of Police, Jamnamarathur Police Station, Vellore District. He therefore submitted that in the absence of any evidence to prove the guilt of the accused, the learned Additional Sessions Judge ought not to have convicted the appellant for offence under Section 304 (Part II) IPC based on the evidence of PW.3 and PW.7. He therefore submitted that the appellant cannot be convicted only on the basis of alleged confession of the appellant/accused and recovery in the absence of any evidence given by the eye-witness and having regard to the admitted conduct of the deceased that he was having quarrel with all persons, it cannot be stated that the prosecution has proved the case against the appellant beyond reasonable doubt and therefore, he submitted that the appeal is liable to be allowed. 6. 6. The learned Additional Public Prosecutor submitted that though PW.1 and PW.2 and PW.4 turned hostile, having regard to the admission of PW.3 in the cross examination that the deceased was attacked by the appellant, the trial court rightly took into consideration that admission of PW.3 given in cross-examination. He further submitted that even though the witness has turned hostile, his evidence need not be rejected in toto and his evidence can be taken into account when it inspires the confidence of the Court and PW.3 has given statement before the police regarding the attack by the appellant and the trial Court rightly convicted the appellant for offence under Section 304 (Part II) IPC. He further submitted that the evidence of PW.2 is also corroborated by that of PW.7 VAO who has clearly spoken about confession and recovery of material objects, namely, wooden log and lungi, MO.1 and MO.7 which contained bloodstains and they were found to be human blood and therefore, the trial Court rightly believed the confession and recovery of MO.1 and MO.7 and the evidence of PW.7 and convicted the appellant rightly under Section 304 (Part II) IPC. He also submitted that PW.1 has given statement before the Doctor that his brother was attacked by one known person and therefore, the case of defence that the deceased was attacked by some known person was rightly rejected by the learned Additional Sessions Judge. He also submitted that the trial court rightly took into consideration Ex.P.31 Inquest Report and considering the evidence of PW.3 given in cross-examination and the evidence of PW.7 and confession and recovery of MO.1 and MO.7 rightly convicted the appellant for offence under Section 304 (Part II) IPC and therefore, the judgment of the trial Court does not call for any interference. 7. On the basis of the above submission of the learned counsel for the appellant and the learned Additional Public Prosecutor, we will have to see whether the prosecution has proved the case beyond reasonable doubt and whether the judgment of the trial Court is to be set aside? 8. As stated supra, the prosecution examined 13 witnesses and PW.1 to 4 were arrayed as eyewitnesses and PW.5 is the bus driver who took the deceased to the hospital at the instance of PW.1 and PW.3. PW.6 is the Observation Mahazar witness. 8. As stated supra, the prosecution examined 13 witnesses and PW.1 to 4 were arrayed as eyewitnesses and PW.5 is the bus driver who took the deceased to the hospital at the instance of PW.1 and PW.3. PW.6 is the Observation Mahazar witness. PW.7 is VAO who has given evidence regarding the confession and recovery of MO.1 and MO.7. PW.8 is the Judicial Magistrate, who recorded statement under Section 164 Cr.P.C.,. PW.9 is the Court staff. PW.10 is the Sub Inspector of Police. PW.11 is the Head Constable. PW.12 is the post-mortem Doctor. PW.13 is the Investigating Officer. 9. Admittedly, PW.1 to PW.4 were treated as hostile and they did not support the prosecution case. They were examined under Section 164 Cr.P.C. before the learned Judicial Magistrate PW.8, even in those statements, they did not implicate the appellant. Therefore, there is no eyewitness to the occurrence. 10. The learned Additional Sessions Judge relied upon the admission of PW.3 in cross-examination though he was treated as hostile. In the cross-examination, PW.3 admitted that he told the police that the deceased was attacked by the police with wooden log and he was dragged on to the street and he also beat the deceased. He did not state that the deceased was dragged on by the appellant with wooden log and the deceased was dragged on by the appellant to the street and thereafter, the appellant beat the deceased. What was deposed in cross-examination was he told the police that the deceased was attacked by the appellant and dragged on by the appellant in the street. We have to analyse as to whether such statement can be relied on to come to the conclusion that it was the appellant who attacked the deceased. 11. In the judgment reported in 2014-1-LW (Crl.) 213 supra, a Division Bench of this Court has held as follows:- “21. ....Though in their cross examination they have affirmed that they had told the police as stated in the 161 statement, unfortunately that cannot be considered as evidence of fact. In other words, a witness should narrate the facts known to him in the Court in the same manner as he had narrated the facts to the police during investigation. ....Though in their cross examination they have affirmed that they had told the police as stated in the 161 statement, unfortunately that cannot be considered as evidence of fact. In other words, a witness should narrate the facts known to him in the Court in the same manner as he had narrated the facts to the police during investigation. From the evidence of these witnesses, what has been established is, they had given the statement during investigation which has been correctly recorded by the police, beyond that it does not prove the fact which is required to be proved by their oral testimony in the witness stand. A previous statement can never be substantive evidence. It can be only either to corroborate or contradict the witness whilst he is in the witness stand. A 161 statement suffers from an additional disqualification, in as much as it cannot be used to corroborate the testimony of the witness...” 12. Therefore, the so-called admission of PW.3 that he told the police about the attack of the appellant on the deceased cannot be taken as substantive evidence. 13. Therefore, leaving the evidence of PW.3, we are having the evidence of PW.7 and the Doctor. Though PW.7 deposed that the appellant gave confession and pursuant to the confession, MO.1 and MO.7 were recovered, in the absence of any evidence regarding the attack of the deceased by the appellant, the appellant cannot be convicted only on the basis of recovery and confession. In Ex.P.26, PW.1 has stated that the deceased was assaulted by one known person and from that statement, it cannot be presumed that the deceased was attacked by the appellant. Similarly, in Ex.P.31, Inquest Report, witnesses have stated during examination that the appellant attacked the deceased. In the absence of any evidence given before the Court, the statement of witnesses given during the inquest, cannot be taken into consideration. 14. In the absence of any material evidence and in the absence of eye-witness to speak about the occurrence, it cannot be stated that the prosecution has proved the case beyond reasonable doubt. Therefore, I hold that the findings of the trial Court that the prosecution has not proved its case beyond reasonable doubt by relying upon the admission of PW.3 in cross-examination and the evidence of PW.7 and Exs.P.26 and 31. 15. Therefore, I hold that the findings of the trial Court that the prosecution has not proved its case beyond reasonable doubt by relying upon the admission of PW.3 in cross-examination and the evidence of PW.7 and Exs.P.26 and 31. 15. In the result, the Criminal Appeal is allowed and the impugned judgment of conviction and sentence imposed on the appellant is set aside and the appellant is acquitted of the charge levelled against him. He is set at liberty. The bail bond executed by him shall stand terminated and the fine amount, if any, paid by him shall be refunded to him.