JUDGMENT Per: Hon'ble R. C. Khulbe, J. The present appeal is preferred by the convict Arjun Singh challenging the judgment and order dated 07.04.2014 passed by learned Additional Sessions Judge, Khatima, Udham Singh Nagar in Session Trial No.27/2012 (State Vs. Arjun Singh) whereby he was convicted under Section 498-A IPC and sentenced to undergo three years' rigorous imprisonment with fine of Rs.1,000/-. He was further convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, with default stipulations. 2. The factual matrix of the case is that Smt. Dropati Devi filed an FIR on 14.10.2011 with the allegations that the marriage of her daughter-Reena was solemnized with the appellant Arjun Singh. After two years of marriage, a cow and Rs.10,000/- were given to her son-in-law. In spite of that, her son-in-law was not happy and started to harass her daughter. Ten days ago, her son-in-law assaulted her daughter and asked her to bring Rs.50,000/- from her parents. She denied to give dowry. On 13.10.2011 when the parents of Arjun Singh went to the market at about 4:30 PM, the accused killed her daughter by the blow of an axe. 3. A Chick FIR was lodged at about 3:20 AM at Police Station Nanakmatta, Khatima, District Udham Singh Nagar while the inquest report was prepared on 13.10.2011. Thereafter, the post mortem on the body of deceased was conducted at Khatima on 14.10.2011 at about 3:00 PM. After completion of investigation, charge sheet Ex.A-17 was filed against the accused Arjun Singh under Sections 302 and 498-A of IPC. Charges were, accordingly, levelled against the accused, to which he pleaded not guilty and claimed trial. 4. The prosecution was afforded opportunity to adduce evidence to prove the charges levelled against the accused. The prosecution has recorded the statements of as many as nine witnesses in support of its case. The prosecution has produced PW-1 Dropati Devi (informant), PW-2 Vishal Singh (son of deceased), PW-3 Mahesh Chandra Bhatt, in whose presence Panchayat Nama was prepared, PW-4 Dr. Pradeep Singh, who conducted the post mortem and prepared the post mortem report, PW-5 Shiv Narayan Singh in whose presence Panchayat Nama was prepared, PW-6 Man Singh, who gave information about the death of deceased Reena to PW1 Dropati, PW-7 Lalit Mohan Singh Constable, who lodged the Chick FIR as Ex.Ka-6. Pradeep Singh, who conducted the post mortem and prepared the post mortem report, PW-5 Shiv Narayan Singh in whose presence Panchayat Nama was prepared, PW-6 Man Singh, who gave information about the death of deceased Reena to PW1 Dropati, PW-7 Lalit Mohan Singh Constable, who lodged the Chick FIR as Ex.Ka-6. PW-8 SI Jagdish Prasad and PW-9 Rajesh Kumar are the Investigating Officers. 5. After completion of prosecution evidence, the statement of accused Arjun Singh was recorded under Section 313 Cr.P.C. No defence evidence was given by the accused. 6. PW-1 Dropati Devi stated that the marriage of her daughter solemnized with accused Arjun Singh. At the time of marriage some articles were given as dowry i.e. chain, ring and box etc. After some time of marriage her son-in-law (Arjun Singh) started harassing her daughter. He did not allow her daughter to come to the parental house and used to commit Maarpit with her daughter. After two years of the marriage, I had given a jarshi cow and Rs.10,000/- in cash but my son-in-law told my daughter to bring Rs.50,000/- from parents. This fact was also told by my daughter to us on phone. I refused to give Rs.50,000/-. My son-in-law was unhappy, and ten days before Diwali festival, he murdered my daughter Reena by an axe. This information was given to me by Maan Singh. After hearing this news, immediately I reached the matrimonial home of my daughter. When I reached the matrimonial home, the police was already present. Thereafter, I lodged the report to the Police Station. The dead body was sealed in my presence. Thereafter the body was sent to the Khatima Hospital to postmortem. 7. PW-2 Vishal Singh, who is the son of deceased stated that his mother was coating the courtyard and suddenly a wooden plank fell on top of her head. Thereafter his mother passed away. His father had not killed his mother. 8. PW-3 Mahesh Chandra Bhatt stated that on 13.10.2011 panchnama of deceased-Reena was prepared by the police before him. He was also appointed as Pancha. The panchnama Ex. Ka-3 is on record. 9. PW-4 Dr. Pradeep Singh conducted the post mortem examination on the body of deceased and prepared the report Ex.-4 and stated that on 14.10.2011, the following ante-mortem injuries were found on the dead body of the deceased:- 1. Contusion on forehead 4 x 3 cm. 2. He was also appointed as Pancha. The panchnama Ex. Ka-3 is on record. 9. PW-4 Dr. Pradeep Singh conducted the post mortem examination on the body of deceased and prepared the report Ex.-4 and stated that on 14.10.2011, the following ante-mortem injuries were found on the dead body of the deceased:- 1. Contusion on forehead 4 x 3 cm. 2. Lineal lacerated wound over post auricular of left ear, not opened, 5 x 1 cm. 3. Lineal lacerated wound over left parietal region skull, 4.5 x 1 cm, bony deep. 4. Contusion over left lateral aspect of chest, 2.5 x 10 cm. 5. Abrasion on left upper arm, 3 x 2 cm. Cause of death- Ante-mortem injuries and head injury leading to hemorrhage and shock. 10. PW-5 Shiv Narayan deposed that the panchnama of deceased Reena was prepared on 13.10.2011 by the police and he was also appointed the Pancha. The panchanama is Ex.Ka-3 on record. 11. PW-6 Man Singh stated that the deceased-Reena was his maternal cousin. He has no knowledge whether the accused used to assault his wife-Reena. He has also no knowledge that the accused had committed murder of Reena. He did not inform Dropati Devi about the incident. 12. PW-7 Lalit Mohan Singh stated that on 14.10.2011 he prepared the Chick FIR Ex. Ka-6 on the basis of the FIR Ex.-Ka-1. 13. PW-8 SI Jagdish Prasad stated that on the basis of FIR, he inspected the spot and prepared the site plan Ex. Ka-9 and recorded the statement of witnesses and prepared the panchnama. 14. PW-9 S.I. Rajesh Kumar stated that on 27.10.2011 the investigation was handed over to him. After recording the statement of witnesses, he filed the charge sheet Ex. Ka-17 against the accused. 15. As per the FIR Ex. Ka-6, on 13.10.2011 at about 4:30 PM, when the parents of accused Arjun Singh went to the market, the accused assaulted his wife-Reena with an axe, due to which, the deceased Reena succumbed to her injuries. 16. PW-6 Maan Singh is the star witness, who firstly informed PW-1 Dropati Devi. After receiving the sad news, she rushed to the matrimonial home of her daughter. Thereafter, she lodged the FIR Ex.Ka-1. This witness categorically stated that deceased-Reena was his maternal cousin. Her marriage was solemnized with Arjun Singh. He has no knowledge that Arjun Singh used to assault Reena. After receiving the sad news, she rushed to the matrimonial home of her daughter. Thereafter, she lodged the FIR Ex.Ka-1. This witness categorically stated that deceased-Reena was his maternal cousin. Her marriage was solemnized with Arjun Singh. He has no knowledge that Arjun Singh used to assault Reena. He has no knowledge that Arjun Singh has committed murder of his wife Reena. He has not given any information to PW-1 Dropati Devi about the murder of Reena. 17. From the evidence of PW-6 Maan Singh, it is clear that neither he saw the incident nor he gave any information regarding it to PW-1 Dropati Devi. 18. PW-3 Mahesh Chandra Bhatt and PW-5 Shiv Narayan are the witnesses of panchnama in whose presence panchnama Ex. Ka-3 was prepared. 19. PW-7 Constable Lalit Mohan Singh was also a formal witness. On the basis of Ex. Ka-1 (FIR), the Chick FIR Ex. Ka-6 was written by him. He also made entry in G.D. Ex. Ka-7. 20. The prosecution has produced PW-2 Vishal Singh who is the son of deceased-Reena. He categorically stated that when his mother was coating the courtyard, suddenly a wooden plank fell down on top of her head and she died. He also stated that his father did not kill his mother. 21. As per the prosecution story, PW-2 Vishal Singh was the eye-witness, but he categorically stated that his father Arjun Singh did not kill his mother. 22. In the FIR Ex. Ka-1 as well as in the statement of PW-1 Dropati Devi, it has come that the accused Arjun Singh assaulted Reena with an axe with the intention to commit her murder, while PW-2 Vishal Singh has stated that a wooden stick fell down on the head of his mother Reena and she died. 23. In the postmortem Ex. Ka-4 there is a contusion on the forehead of the deceased. In this regard, PW-4 Dr. Pradeep Singh clearly stated that none of these injuries were caused by sharp weapon. All the above injuries are possible due to fall of solid object from the height. 24. From the statement of PW-4 Dr. Pradeep Singh, it is clear that no such injury was found on the deceased which can be caused by axe. The story, as alleged by PW-1 Dropati Devi, does not support the medical evidence. All the above injuries are possible due to fall of solid object from the height. 24. From the statement of PW-4 Dr. Pradeep Singh, it is clear that no such injury was found on the deceased which can be caused by axe. The story, as alleged by PW-1 Dropati Devi, does not support the medical evidence. There is no evidence on record that the accused had either demanded dowry or tortured his wife. The prosecution did not produce any evidence, which may support the evidence of PW-1 Dropati Devi. Simply on the basis of the evidence of PW-1 Dropati Devi, the Court cannot reach to this conclusion that the accused Arjun Singh had tortured his wife on demand of dowry. Moreover, there is no clinching evidence available on record, which may prove that the accused had committed the murder of his wife. The trial court had convicted the accused merely on the basis of the statement of PW-2 Vishal Singh, which was recorded under Section 164 Cr.P.C., where he had said that his father killed his mother with a plank. 25. It is a well-settled principle of law that a statement recorded under Section 164 Cr. P.C. is not a substantive piece of evidence. In this regard, the Hon'ble Apex Court in the case of Ram Kishan Singh vs. Harmit Kaur, reported in (1972) 3 SCC 280 has held that a statement under Section 164 of the Code of Criminal Procedure is not a substantive evidence. It can be used to corroborate the statement of a witness. It can also be used to contradict a witness. For the sake of convenience, paragraph no.8 of the said judgment is reproduced here-in-below:- “8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence." 26. Furthermore, in the present case, PW1 Dropati Devi is not the eyewitness. Furthermore, in the present case, PW1 Dropati Devi is not the eyewitness. According to her statement, the accused had demanded the dowry and tortured her daughter Reena and committed her murder with the blow of axe. However, there is no other evidence available on the record to corroborate the sole testimony of PW1 Dropati. PW2 Vishal Singh, who is the son of deceased, did not support the story, as alleged in the FIR. It is a settled principle of law that though, the conviction can be based on the sole testimony of a single witness but the same must be reliable, cogent and trustworthy. The Hon'ble Apex Court in the case of ‘Kuna v. State of Odisha' reported in (2018) 1 SCC 296 , 2018 (1) NCC 822 has held that the conviction can be based on a testimony of a single eyewitness, if he or she passes the test of reliability. The Apex Court held as under: - “19. That conviction can be based on a testimony of a single eyewitness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukan, Ramji Surjya, Patnam Anandam and Gulam Sarbar with the apparent emphasis that evidence must be weighed and not counted, decisive test whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise." 27. It is on the touchstone of the aforesaid legal exposition that the evidence in the case in hand, has to be appreciated. Admittedly, PW1 Dropati is not the eyewitness to the incident. Thus, we find that it is not proper for this Court to convict the appellant on the sole testimony of PW1 Dropati because on the touchstone of the legal exposition, the same is not cogent, reliable and trustworthy. 28. That apart, according to PW1 Dropati Devi, the accused committed the murder of her daughter by inflicting her with a blow of an axe. However, no such injury was found by the doctor while conducting the post-mortem examination of the deceased. This also causes a dent on the prosecution story. 29. 28. That apart, according to PW1 Dropati Devi, the accused committed the murder of her daughter by inflicting her with a blow of an axe. However, no such injury was found by the doctor while conducting the post-mortem examination of the deceased. This also causes a dent on the prosecution story. 29. On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant opinion that the evidence of PW1 Dropati is wholly unacceptable and the same cannot be acted upon as the basis of conviction. The evidence of all the prosecution witnesses fall short of the requirement of proof of the charge beyond all reasonable doubt. The appellant is thus, entitled to the benefit of doubt in the facts and circumstances of the case. The contrary view taken by the Trial Court is against the weight of evidence on record. 30. For the reasons, as recorded hereinabove, the appeal preferred by appellant Arjun Singh is allowed. The judgment and order passed by the Trial Court, convicting and sentencing the appellant, as mentioned hereinabove, is hereby set aside. He is acquitted of the charges levelled against him. Appellant is in jail. Let he be released forthwith, if not wanted in connection with any other case. 31. A copy of this judgment and order along with the LCR be transmitted to the Court below for forthwith compliance.