JUDGMENT : This appeal is against the judgment of conviction in a case in which the appellant was charged with committing the offence under Section 302 of the Indian Penal Code, 1860. The Trial Court found the appellant guilty of committing murder of one Sanicharwa (henceforth referred to as deceased victim) on 21st October, 1991. The appellant was sentenced to suffer rigorous imprisonment for life. As per the prosecution case, the deceased victim had left his village Chatakpur on 21st October, 1991 after sunset informing the family members that he was going to village Sidraul situated under the same Police Station i.e. Namkum to witness an entertainment programme (orchestra). The informant Ratia Baraik (P.W.3), father of the deceased, recorded in his statement made on 22nd October, 1991 on the basis of which First Information Report was registered that he (the deceased victim) had told his family members that one Kishore was waiting in the shop of one Prasad and that they were to go for watching a game. He did not return home till about 9:00 pm. When the F.I.R. maker, being the father of the 2 Cr. A. (DB) No. 118/1993(R) victim, enquired from Kishore about the whereabouts of the deceased, Kishore responded that he had gone along with one Amlendra during the programme. From his deposition, we find that such enquiry was made the next morning. Amlendra was then asked about Kishore and his response was that the deceased victim had stayed with him for sometime and thereafter he (the deceased victim) went somewhere with Kishore. Thereafter, the informant caused search of the entire locality. To the north of the village Chatakpur by the side of Kachcha road, P.W.3 (informant) found the dead body of his son. The P.W.3 thereafter reported the matter to the police and his statement was recorded, following which the First Information Report being Namkum P.S. Case No. 196 of 1991 was registered on 22nd October, 1991 at 15:45 hours. 2. The appellant appears to have been implicated on the basis of the statement of one Dilip Baraik, who has deposed as Prosecution Witness No. 1. He was however declared as hostile by the Trial Court. A statement made by him under Section 164 of the Code of Criminal Procedure, 1973 (the 1973 Code) formed the basis of his conviction. The Investigating Officer, Mr. He was however declared as hostile by the Trial Court. A statement made by him under Section 164 of the Code of Criminal Procedure, 1973 (the 1973 Code) formed the basis of his conviction. The Investigating Officer, Mr. M.R. Mehta (P.W.5) in his deposition before the Trial Court stated:- “4. I had recorded the statement of witness Dilip Kumar on 4-11-91. He had stated before me that he visited fair and he met Jogen, Luru, Shanicharwa and two boys of village Ghagra. This witness had stated before me that Ludu Baraik asked him about the place where wine was sold and take him there. Responding to it, these two took all those five persons to the hotel of Jitendra and the entire five persons drank wine there. This witness had also stated that Luru had told him to go to Chatakpur and search wine there also. This witness had also stated that as soon as he arrived at un-cemented road to 500 yards north of village Chatakpur then both boys of Ghagra village caught Shanicharwa; and Luru Baraik and Jogen Baraik began to attack Shanicharwa with Knife. This witness had also stated that when he and Jagan Minz asked them why you were attacking, and then they also ran to attack him and warned not to disclose anywhere otherwise he would be killed. This witness had also stated that both these were scared and fled to forest and continue to look the occurrence from that place. This witness had also stated that due to fear he did not disclose the occurrence to anyone. It is not correct that this witness had told me these facts under my threat.” 3. This witness had also stated that both these were scared and fled to forest and continue to look the occurrence from that place. This witness had also stated that due to fear he did not disclose the occurrence to anyone. It is not correct that this witness had told me these facts under my threat.” 3. In his statement made before the Magistrate under Section 164 of the 1973 Code, he stated :- ^^fn0 21-10-91dks eSa] txuk feat esyk ns[kus 9 cts jkr dks fudys vkdsZLVªk ns[kus fudysA esyk esa tksxu] yq<q+] 'kfupjok vkSj nks ?kk?kjk xk¡o dk yM+dk feyk geyksxksa dks rFkk ge yksxksa ls iwNk fd nk: dgk¡ feyrk gS rFkk os yksx ykbZu gksVy geyksxksa dks ys x, rFkk ;s lHkh ik¡pks fi, [kk, ih,A ykbZu gksVy ftrsUnz dk FkkA fQj og lHkh ge yksxksa ds lkFk esyk ns[kus pyus dks dgs rFkk jkLrk esa os lHkh tksxu oxSjg cksys 'kfupjok ls fd pyks pVdiqjA 'kfupjok dks tksxu] yq<+q rFkk ckdh nks ?kk?kjk xkao ds yM+ds ekjus yxs rks eSa euk fd;kA og yksx gesa /kedh fn, ekjus dhA gekjs lkeus 'kfupjok dks tksxu] yq<q rFkk nks ?kk?kjk xkao ds yM+dk ftldk uke ugha tkurk pkdw ls ekjk rFkk ekj dj Qsad dj og lHkh pkjks pys x, rFkk geyksx esyk pys x,A geyksx vius tku ds Mj ls fdlh dks ;g ckr ugha crk,A vkSj dqN ?kVuk ds lEcU/k esa ugha dguk gSA** “English version “On 21.10.91 at 9:00 O’clock at night, I and Jagan Minz went out to visit fair to see Orchestra. In the fair, we met Jogan, Luru, Shanicharwa and two boys of village Ghaghra and they asked us where wine was sold. They took us to the Line hotel and we all five drank wine and ate. Jitendra was the owner of the Line hotel. Then, all of them told us to accompany them to see fair and on the way all of them Jogan etc. told Shanicharwa to go to Chatakpur. Jogan, Luru and remaining two boys of village Ghaghra started assaulting Shanicharwa to which I forbade. They threatened me to kill. In my presence, Jogan, Luru and two boys of Ghaghra, whose name I do not know, attacked Shanicharwa with knife and killed and threw him, then they-all four went away and we went to see fair. Jogan, Luru and remaining two boys of village Ghaghra started assaulting Shanicharwa to which I forbade. They threatened me to kill. In my presence, Jogan, Luru and two boys of Ghaghra, whose name I do not know, attacked Shanicharwa with knife and killed and threw him, then they-all four went away and we went to see fair. Out of fear of our life, we did not disclose this matter to anyone. And I do not have to say anything more about the incident.” 4. Said Dilip Baraik was examined as P.W.1. He did not reiterate what forms part of his statements made under Section 164 of the 1973 Code. He however proved his signature on the statement. On the other hand he stated on oath that he did not know who had killed Sanicharwa Baraik. He was declared hostile. In his deposition, in substance, he retracted his statement recorded under Section 164 of the 1973 Code. He stated on oath that the police had recorded his statement upon beating him. He also stated in his deposition in course of cross-examination on behalf of the accused persons that the police had produced him before the Magistrate after his arrest and that he had given such statement before the Magistrate as was told to him by the police out of fear of the police. 5. The Magistrate who had recorded the statement under Section 164 of the 1973 Code has not been examined as a witness. Altogether five witnesses were examined. Apart from the informant-Ratia Baraik (P.W.3), Dilip Baraik (P.W.1), Baldeo Baraik (P.W.2) and Mahabir Sao (P.W.4) were examined as witnesses of fact and M.R. Mehta, Officer In-charge of Namkum police station deposed as the Investigating Officer. So far as Baldeo Baraik and Mahabir Sao are concerned, they were witnesses of inquest. But so far as this appeal is concerned, the inquest report is of little significance. The appellant has also not questioned the genuineness of the inquest report. Thus depositions of these two witnesses are not of much significance so far as this appeal is concerned. 6. The learned First Court convicted the appellant solely on the basis of the statement of P.W.1 made under Section 164 of the 1973 Code. As we have already observed, he had later on deposed that he was tutored to make such statement which was made out of fear. 6. The learned First Court convicted the appellant solely on the basis of the statement of P.W.1 made under Section 164 of the 1973 Code. As we have already observed, he had later on deposed that he was tutored to make such statement which was made out of fear. The statements recorded under Section 164 of the 1973 Code was also not proved by the recording Magistrate. The basis of finding of the learned First Court would appear from the following passage of the judgment under appeal:- “7. Now the whole truthfulness or otherwise of the prosecution case hinges on the evidence of Dilip Baraik when compared to and analysed with what he had stated before the police in course of investigation and what he had stated before the Judl. Magistrate in his statement u/s 164 Cr.P.C. In court, in course of recording evidence as far as the initial story regarding going to village Sidraul to witness orchestra playing was concerned, he admitted this fact but he denied that he happened to meet there with accused Jogen and others including the deceased Sanicharwa. He denied to have any knowledge as to who had murdered Sanicharwa. In cross-examination by the Addl. P.P he stated that the police had recorded his statement after causing hurt and that he has spoken about meeting with these boys including the accused Jogen and deceased Sanicharwa in the fare out of fear of the police. He also denied all other story regarding taking of wine etc. and going to village Chatakpur or that he had seen the ghastly murder having been committed by the accused Jogen Baraik and Lurhu Baraik. In para 4 of his cross-examination by the Addl P.P he admitted to have made statement before the Judl. Magistrate. He has proved his signature on this statement marked as Ext. 1. This statement was recorded u/s 164 Cr.P.C. This witness went back to what had stated before the Judl. Magistrate also. His attention was drawn to the statement before the Magistrate regarding the alleged fact that he had taken the accused and the victim to a line hotel, where they had taken wine and food and that from there they started for village Chatakpur and that on the way accused Jogen and his companion started inflicting dagger blows on the person of Sanicharwa. In cross-examination the witness stated that he was brought before the Magistrate by the I.O and he had made statement before the Judl. Magistrate as desired by the I.O. 8. Now, the evidence of P.W. 1 regarding his assertion that he made the statement before the Judl. Magistrate out of fear of the police is wholly unreliable. His statement regarding the P.O and nature of the injuries inflicted on the person of the victim synchronizes with the statement made before the I.O as well as before the Judl. Magistrate. It is not going to be believed that what he stated before the Judl. Magistrate he did out of fear of the police. And why should a police officer implicate an innocent person in the offence of murder? No motive whatsoever against the police in implicating the accused in the offence of murder has been attributed to. Therefore, the overall effect of the evidence of Dilip Baraik and P.W. 5 the I.O is that Dilip Baraik had actually seen the accused Jogen Baraik committing murder of Sanicharwa Baraik. Because Dilip Baraik has been declared hostile, his whole evidence cannot be thrown out. The truth has got to be found out from his evidence vis-à-vis his statement recorded by the police in course of his investigation as well as his statement recorded by the Judl. Magistrate u/s 164 Cr.P.C. And it clearly indicates that he had seen the accused and his companions murdering Sanicharwa Baraik.” 7. There is no other evidence emerging from the depositions of the prosecution witnesses or any of the Exhibits which would support the prosecution case or otherwise corroborate what the appellant is alleged to have said in his statement under Section 164 of the1973 Code. 8. For the purpose of conviction, the statement made by a witness under Section 164 of the 1973 Code is an unreliable piece of evidence. In this case there is no other material which could have proved beyond reasonable doubts the appellant’s involvement in the incident. In the decision of the Hon’ble Supreme Court in the case of Ram Kishan Singh Vs. Harmit Kaur and another reported in (1972) 3 SCC 280 in which it has been held :- “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. In the decision of the Hon’ble Supreme Court in the case of Ram Kishan Singh Vs. Harmit Kaur and another reported in (1972) 3 SCC 280 in which it has been held :- “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.” 9. The same view has been followed in a subsequent judgment of the Hon’ble Supreme Court in the case of Baij Nath Sah Vs. State of Bihar reported in (2010) 6 SCC 736 . Paragraph-6 of the said judgment records :- 6. We have heard the learned counsel for the parties and have gone through the record. We see from the judgments of the courts below that the only material that has been used against the appellant is the statement under Section 164 CrPC. This Court in Ram Kishan Singh v. Harmit Kaur1 has held that a statement under Section 164 CrPC is not substantive evidence and can be utilised only to corroborate or contradict the witness vis-à-vis statement made in court. In other words, it can be utilised only as a previous statement and nothing more.” 10. We have already found that there was no material before the Trial Court to convict the appellant barring the statement of P.W.1 under Section 164 of the 1973 Code. The Magistrate, who has recorded the statement under Section 164 of the 1973 Code, has also not been examined. The appellant had taken specific plea that he (P.W. 1) was tutored by the police on threat to record the statement in front of the learned Magistrate. 11. The Trial Court also misdirected itself in its reasoning that lack of motive on the part of police in implicating an accused in an offence can be a guiding factor in sustaining prosecution case. 11. The Trial Court also misdirected itself in its reasoning that lack of motive on the part of police in implicating an accused in an offence can be a guiding factor in sustaining prosecution case. We do not accept the reasoning on the basis of which the Trial Court believed the Investigating Officer and disbelieved the deposition of the P.W.1. In the given set of facts, we are of the opinion that the judgment of the learned First Court cannot be sustained. 12. Accordingly, the impugned judgment of conviction dated 26th May, 1993 and order of sentence dated 4th June, 1993 passed by the learned 6th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 444 of 1992 is set aside. The appellant is not found guilty and is acquitted of the charge. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 13. Let the original lower court records be sent back to the Court concerned forthwith, along with a copy this Judgment. 14. In the result, this appeal is allowed.