Judgment This appeal is directed against the judgment of conviction and order of sentence dated 17.3.2004/18.3.2004 [arising out of Chirkunda (Galfarbari) P.S. case no.352 of 1994] passed by the then Additional Sessions Judge XIII, Dhanbad in Sessions Trial No.242 of 1996 whereby and whereunder learned Judge having found the appellants and one Mahendra Singh guilty for committing murder of Shankar Bouri convicted the appellants and one Mahendra Singh under Sections 302 and 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for three years for the offence under Section 201/34 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. It is the case of the prosecution that on 3.11.1994 at about 5 P.M. Shankar Bouri, husband of the informant Shanti Bouri (P.W.12) had gone to the house of Mahendra Singh for playing gamble. At about 6 P.M, Shanti Bouri came to the house of Mahendra Singh in search of her husband Shankar Bouri (deceased) where she found all the appellants and Shankar Bouri playing cards. When she asked her husband to come home, he said that he will come later on. At about 7.30 P.M, one Sainul came to her house and told her that Shankar Bouri is still playing gamble. Thereafter she after taking meal retired to bed. At about 10.30 P.M, Mani Ram Bouri (P.W.10) came to her house and asked about the whereabouts of her husband, upon which she told him that he has still not returned home. On knowing this, he told her that they should go in search of him. Thereupon the informant Shanti Bouri (P.W.12) along with Pradip Bouri (P.W.2), Surendra Bahadur (P.W.5), Lakhi Kand Bouri (P.W.11), Aditya Bouri (P.W.3) and Bablu Bouri (P.W.4) came to village in search of him. In the night, they did not find him. In the morning at 6 A.M, they found a dead body lying behind the bush near dumping spot of colliery. The police reached over there to whom Shanti Bouri (P.W.12) gave her fardbeyan (Ext.1), upon which a formal FIR was drawn and case was registered as Chirkunda (Galfarbari) P.S. case no.352 of 1994 under Sections 302/201/34 of the Indian Penal Code against the appellants and one Mahendra Singh. 3. The matter was taken up for investigation. The police reached over there to whom Shanti Bouri (P.W.12) gave her fardbeyan (Ext.1), upon which a formal FIR was drawn and case was registered as Chirkunda (Galfarbari) P.S. case no.352 of 1994 under Sections 302/201/34 of the Indian Penal Code against the appellants and one Mahendra Singh. 3. The matter was taken up for investigation. In that course, the police along with the informant (P.W.12) and also other witnesses, P.Ws 2, 3, 4, 5 and 11 came to the house of the accused Vivek Singh where at the doorstep, they found blood spots. One brick was found smeared with blood. When they came inside the house, they found one mat over which blood spots were there. There one Muffler of Shankar Bouri was also found. Those materials were seized. The police held inquest on the dead body of the deceased and sent it for post mortem examination. 4. Dr. Dhrub Kumar Dhiraj (P.W.13) held autopsy on the dead body and found following injuries. (a) Abrasions (i) 1” x ¼” on the upper part of left side of neck. (ii) 3” x 1” on the top of left shoulder over inner aspect. (iii) 1½” x ¼” over the middle of left shoulder blade. (b) Incised wound (i) 2” x ¼” x scalp deep on the left occipital region. (ii) 2” x ½” x scalp deep ¾” below preceeding injury. Said injury was found placed horizontally ½” behind ear. (iii) ¾” x ¼” x muscle deep on the lower part of the back of left arm. (C) Ligature mark brown in colour, 5½” x ¼” on the front of neck in the middle portion placed horizontally. Mark on the right side was quite prominent. On dissection – Contusion of scalp on he right parietal area 2” x 2” in size was found. Accordingly, post mortem report was prepared (Ext.3) by Dr.Dhrub Kumar Dhiraj (P.W.13) with an opinion that death resulted from asphyxia and comma, due to aforementioned head injury and strangulation. 5. In course of investigation, the police recorded the statement of witnesses. On completion of investigation, the police submitted charge sheet against these appellants and one Mahendra Singh, who during pendency of this appeal, has died. Accordingly, cognizance of the offences was taken. On committal of the case, the charges were framed to which the accused persons pleaded not guilty and claimed to be tried. 6. On completion of investigation, the police submitted charge sheet against these appellants and one Mahendra Singh, who during pendency of this appeal, has died. Accordingly, cognizance of the offences was taken. On committal of the case, the charges were framed to which the accused persons pleaded not guilty and claimed to be tried. 6. The prosecution in order to bring the charges home has examined as many as 13 witnesses. Of them, P.W.1, Sinaka Bouri is the daughter of the informant, who has derived knowledge about the occurrence from her mother. P.Ws. 2, 3, 4, 5 and 11 are the witnesses, who along with the informant (P.W.12) had gone in search of the husband of the informant in the night. In the morning, they found a dead body lying behind the bush near a dumping spot of colliery. They also did notice trail of blood coming from the doorstep of Vivek Singh. Inside the house, they also found one mat over which blood spots were there. One Muffler of the deceased was found there. P.W.6, Tulsi Uraon happens to be the formal witness. P.Ws.7, Subhadra Devi, sister of Vivek Singh, appellant no.4 & P.W.8 Harimala, the mother of Vivek Singh have been declared hostile. P.W.8, Harimala, in course of investigation had made statement under Section 164 of the Code of Criminal Procedure that on the night of occurrence, some body entered into her house and tried to caught hold of her. When she put on light, she found Shankar Bouri on her bed and then she raised alarm, upon which Vivek Singh (appellant no.4) when came over there he started assaulting him with fist and slap. She asked her son to let him go. Thereupon her son also started assaulting her. She fled from there and came to the house of one Badan Bouri where his son came and caught hold of her and started dragging her. Meanwhile, some persons came and rescued her from the clutches of her son. P.W.9, Badar Bouri is also on the point of recovery of the dead body from behind bush. P.W.10, is Maniram Bouri at whose instance the informant and other witnesses had gone in search of Shankar Bouri (deceased). P.W.10 did also testify that while he had come to the house of one Dilu Bouri, he had seen Shankar Bouri at the door step of the accused Vivek Singh. P.W.10, is Maniram Bouri at whose instance the informant and other witnesses had gone in search of Shankar Bouri (deceased). P.W.10 did also testify that while he had come to the house of one Dilu Bouri, he had seen Shankar Bouri at the door step of the accused Vivek Singh. P.W.12 is the informant, who has testified in the same manner as she had made statement in her fardbeyan. 7. After closure of the case, the court put the incriminating materials to the appellants under Section 313 of the Code of Criminal Procedure to which they denied. The court on the basis of materials did record that following three circumstances are there which complete the chain showing that it could be the appellants who committed murder of the deceased. (i) The deceased was seen in front of the house of Vivek Singh. (ii) Trail of blood was found from the door step of the appellant, Vivek Singh upto the point where the dead body was found. (iii) The circumstances, which are appearing from the statement made by P.W.8 under Section 164 of the Code of Criminal Procedure, does suggest that the deceased had come to the house of the accused Vivek Singh where her mother was there with some ill-motive and therefore, Vivek Singh had also assaulted him and this was taken by the court to be the motive. 8. Learned Judge by placing reliance on the aforesaid three circumstances did hold that those circumstances do suggest that it were the appellants who committed murder of Shankar Souri. Accordingly, all the appellants were convicted and sentenced as aforesaid. 9. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred. 10. Learned counsel appearing for the appellants submits that none of the circumstances upon which the court has based his finding gets established from the evidences led on behalf of the appellants. In spite of that, the court recorded the order of conviction based on the statement made under Section 164 of the Code of Criminal Procedure by P.W.8 taking it as substantive piece of evidence, though it has been recorded by the court that the statement made under Section 164 cannot take place of the substantive evidence and thereby the court has committed illegality. 11. 11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that as per the evidence of the informant, Shanti Bouri (P.W.12) her husband Shankar Bouri in the evening of Diwali (3.11.1994) had gone to the house of Mahendra Singh for playing gamble. She at about 6 P.M. when went there and found her husband playing cards along with the appellants. She asked her husband to come home, upon which her husband told her that he will come later on. Thereafter she came home back and could know that till 7.30 P.M, they were playing cards. After taking meal, she retired to bed. In the night, Maniram Bouri (P.W.10) came and made her to wake up and asked her as to whether her husband has returned home. When she replied in negative, he asked her to come along with others in search of him. In course of search, a dead body was found in the morning which was lying behind the bush near a dumping spot of colliery. There when the police came, she gave her fardbeyan. Further she has testified that she along with police and others when came to the house of Vivek Singh, she found trail of blood and when they came inside the house, they found a mat over which blood spots were there and there a muffler of the deceased was also found. Other witnesses, P.Ws. 2, 3, 4, 5 and 11 have also testified that in course of search, they found a dead body behind the bush. When they came to the house of Vivek Singh, they found trail of blood and also other materials as stated by the P.W.12. P.W.10, Maniram Bouri has testified that when he had come to the house of Dilu Bouri, he had seen Shankar Bouri standing near the house of Vivek Singh. 12. The court having taken into account of the evidences did come to the finding that following circumstances showing the culpability of the appellants are there. i. The deceased Shankar Bouri had been seen near the house of Vivek Singh. ii. There were trail of blood of starting from the door step upto the place where the dead body was lying. iii. Shankar Bouri has come to the house of Vivek Singh which fact does appear from the statement made under Section 164 by P.W.12. 13. i. The deceased Shankar Bouri had been seen near the house of Vivek Singh. ii. There were trail of blood of starting from the door step upto the place where the dead body was lying. iii. Shankar Bouri has come to the house of Vivek Singh which fact does appear from the statement made under Section 164 by P.W.12. 13. Before the circumstances are used against the accused persons, it has to be seen as to whether those circumstances have been established by the prosecution or not. So far as the first circumstance of deceased being seen near the house of Vivek Singh is concerned, it is only the P.W.10, who is speaking about that fact but it would be strange to note that P.W.10 came in the night at the house of the informant and made her wake up to ask as to whether the deceased is in the house or not. When she replied in negative, P.W.10 asked her to come in search of him along with others. In that course, he never seems to have disclosed that fact to P.W.12. The fact was so significant that under the normal circumstances, it is expected that he should have disclosed this fact to P.W.12. In absence of it, version of P.W.10 regarding the fact stated above does not inspire confidence to be believed. 14. The other circumstances of finding blood trail etc. is concerned, presence of it has been stated by all the witnesses but the prosecution has failed to bring the seizure list on record, perhaps on account of non-examination of the Investigating Officer. Even if this fact is taken to have been proved by the witnesses, it alone would not be sufficient to convict the appellants as other circumstances appearing in the statement made by P.W.8 under Section 164 of the Code of Criminal Procedure cannot be taken to be substantive piece of evidence. The statement made under Section 164 by P.W.8 even if accepted to have been made by P.W.8, though she later on resiled from it that cannot be used as a substantive piece of evidence, rather it may have been used for the purpose of corroboration. But here as it has been stated above, no substantive evidence is there of the fact which has been disclosed under Section 164. 15. But here as it has been stated above, no substantive evidence is there of the fact which has been disclosed under Section 164. 15. Under the circumstances, the trial court has committed illegality in recording the order of conviction and sentence. Accordingly, the judgment of conviction and order of sentence is hereby quashed. Consequently, the appellants are directed to be released forthwith, if not wanted in any other case. 15. Thus, this appeal stands allowed.