JUDGMENT : S.K. Mishra, J. Exception is taken in this Appeal against the judgment dated 07.08.2013, passed by the learned Additional Sessions Judge, Haldwani, District Nainital in Sessions Trial No. 24 of 2012, whereby the learned Additional Sessions Judge, Haldwani has convicted the appellant under Sections 302, 325 and 201 of the Indian Penal Code (hereinafter referred to as the ‘Penal Code’ for brevity). Under Section 302 of the Penal Code, the appellant was sentenced to undergo life imprisonment with fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo one year’s additional imprisonment. Under Sections 325 and 201 of the Penal Code, he was sentenced to undergo two years’ rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine, he was further directed to undergo two months’ additional imprisonment for each default. All the sentences were directed to run concurrently. 2. The case of the prosecution, in short, is that the deceased Pappu Singh happens to be the nephew of the appellant. About five years prior to the incident, the wife of the appellant, namely Bitto Devi alias Gyano, the complainant in this case, left the society of the appellant, and started living with deceased Pappu Singh. On 12.10.2011, in the night at about 08:30 PM, appellant Amar Pal Singh came to the house of the complainant with meat and liquor. The complainant prepared food. They had drinks and meat together and went to sleep. At about 01:30 AM at that night, the appellant committed murder of the deceased by attacking him by means of a sharp cutting weapon (Gandasa). He also assaulted the complainant when she protested. On 13.10.2011 at about 03:40 AM, the said Bitto Devi lodged an FIR before the SHO, Lalkuan, for which FIR No. 79 / 2011 was registered under Sections 302, 325, 201 of the Code, and the investigation of the case was taken up. In the course of the investigation, the Investigating Officer examined the complainant, recorded her statement, examined witnesses, held inquest of the deceased, recovered material object, recorded the statement of the daughter of the complainant under Section 164 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’ for brevity), and forwarded the material objects for chemical examination. Upon investigation, he submitted charge-sheet against the appellant for offences mentioned above. 3. Upon investigation, he submitted charge-sheet against the appellant for offences mentioned above. 3. In order to prove its case, the prosecution has examined ten witnesses. It may be stated that the complainant herself has not been examined; her daughter has also not been examined, though they were stated to be the eye-witnesses to the occurrence. PW1 Head Constable Dinesh Chandra Bhatt, PW2 Shankar Joshi, PW3 Doctor Sanjeev Prakash, PW4 Jitendra Singh, PW5 Sub Inspector Satish Chandra Kapri, PW6 Laxmi Dutt Pandey, PW7 Doctor A.K. Agarwal, PW8 Krishna Pal Singh, PW9 Vipin Chandra Pant and PW10 Smt. Gajan Devi, the then Judicial Magistrate, 1st Class, Haldwani, were examined on behalf of the prosecution. 4. In addition to examining witnesses, the prosecution also led into evidence about seventeen documents, including the post-mortem report, FIR, medical examination reports, etc. 5. The Defense in this case took the plea that the appellant has not committed the murder, but admitted that his wife was residing with the deceased. He did not examine any witness in his defense. 6. Taking into consideration the materials available on record, the learned Additional Sessions Judge, Haldwani took into consideration certain circumstances to come to the conclusion that the prosecution has proved its case beyond reasonable doubt. They are enumerated hereunder:- “(a) The Scribe of the FIR is resident of a nearby Village and was acquainted with the complainant. He was also a witness to the Panchnama. (b) The complainant has lodged the FIR without delay against the accused. (c) The complainant has deserted the appellant and was residing with the deceased in an illicit relationship. (d) The complainant, wife of the appellant, was present at the spot and that she had sustained injuries. (e) The post-mortem report revealed that the death of the deceased was due to the injuries on the neck of the deceased by means of a sharp cutting weapon. (f) The appellant’s daughter was examined under Section 164 of the Code. (g) The recovery of the weapon of offence, i.e. Gandasa at the instance of the appellant under Section 27 of the Indian Evidence Act, 1872. (h) The appellant was present in the occurrence night in the Village concerned. (i) The recovery of Voter ID and mobile phone belonging to the appellant from the spot. (j) The Chemical Examination Report. 7. Mr. (h) The appellant was present in the occurrence night in the Village concerned. (i) The recovery of Voter ID and mobile phone belonging to the appellant from the spot. (j) The Chemical Examination Report. 7. Mr. Bhupesh Kandpal, the learned Amicus Curiae, in course of the argument, would submit that the appellant, at this stage, does not dispute the medical evidence. He would not submit that the death of the deceased was homicidal in nature. However, criticizing this judgment very emphatically, he would argue that in this case though the prosecution was based on the narration of eye-witnesses, i.e. the complainant herself and her daughter, they have never been examined, and in fact, in Paragraph 10 of the impugned judgment, the learned Additional Sessions Judge has reflected that the witnesses are untraceable. He would further argue that the Additional Sessions Judge, basing on conjectures and surmises, took into consideration the alleged motive of illicit relationship between the deceased and the complainant, and relying upon the statements of the eyewitness, i.e. the daughter of the appellant under Section 164 of the Code, which has been exhibited by PW10, the learned Additional Sessions Judge came to the conclusion that the prosecution has proved its case beyond reasonable doubt. He would also argue that a sharp cutting weapon was recovered, and blood stained and simple soil were collected and sent for forensic examination, but the report thereon has not been exhibited on behalf of the prosecution, which creates a big lacuna in the case of the prosecution, and the alleged statement made by the appellant under Section 27 of the Indian Evidence Act, 1872 would not be admissible as it is not established that the human blood of the same blood-group as of the deceased was found on the alleged weapon. 8. Mr. Amit Bhatt, the learned Deputy Advocate General for the State of Uttarakhand, would argue that the factual contentions raised by the Amicus Curiae are correct, but other factors, like motive and the statement made by Kumari Kiran under Section 164 of the Code, which has been proved by PW10, the then learned Judicial Magistrate, 1st Class, Haldwani, who had recorded her statement, establish that the appellant had committed the murder of the deceased, and, therefore, he will urge that the Appeal should be dismissed. 9. 9. It is apparent from Para-10 of the judgment impugned that the learned Additional Sessions Judge recorded that the two eye-witnesses, i.e. the wife of the deceased Bitto Devi and his daughter Kumari Kiran were eye-witnesses to the occurrence, but they did not appear before the Court for evidence, though coercive steps were taken against them, therefore, they were held to be untraceable and their examination could not be done by the prosecution. 10. Thus, if the eye-witnesses were not examined, the only material that was available before the Court are certain circumstances like the presence of the accused in the Village in question on the fateful night and recovery of the Voter ID as well as the mobile phone from the spot. However, as it is not disputed that the deceased was the nephew of the appellant and also the fact that the complainant was his legally married wife, recovery of Voter ID and mobile phone from the very same house will not itself incriminate the appellant in the commission of the crime. The circumstances of the Scribe knowing the complainant, the prompt lodging of the FIR, desertion of the appellant by the appellant by the complainant, implication in the FIR, and injuries on the person of the complainant by themselves will not be sufficient to prove the case of the prosecution. As far as the statement of Km. Kiran recorded under Section 164 of the Code is concerned, it is not a substantial piece of evidence. This issue is no more res integra. A statement made in the Court and recorded under the supervision of the Judge concerned in the presence of the accused duly represented by his counsel, who have a right and opportunity of cross-examination, is a substantial piece of evidence. Any statement recorded under Sections 161 or 164 of the Code, whether before Police or a Magistrate, either under Section 164 or Section 161 of the Code are only previous statements, and they can be used only for limited purposes. A statement recorded under Section 161 of the Code can only be used for contradicting prosecution witnesses either by prosecution itself, or by the defense. It can never be used as a substantial piece of evidence, whatever may be the conditions, with the exceptions of Section 27 and Section 32 of the Indian Evidence Act, 1872, which are not applicable in this case. It can never be used as a substantial piece of evidence, whatever may be the conditions, with the exceptions of Section 27 and Section 32 of the Indian Evidence Act, 1872, which are not applicable in this case. As far as the statement recorded under Section 164 of the Code is concerned, it may be used, both, for the purpose of corroboration and contradiction of the prosecution as well as defense witnesses, but it can never be used as a substantial piece of evidence. 11. Hence, in our considered opinion, in this case, the prosecution has failed to prove its case beyond reasonable doubt, and there is enough lacuna in the case of the prosecution to view it with suspicion. 12. We are of the opinion that the conviction of the appellant is not sustainable. Hence, the Appeal is allowed. The conviction of the appellant under Sections 302, 325 and 201 of the Code and the sentence awarded for those offences are hereby set aside, and he is acquitted of the said offences. 13. It is stated that at present the appellant is on bail granted by this Court. Hence, he is set at liberty forthwith by cancelling his bail bonds. 14. Before parting, we record our appreciation for the invaluable assistance rendered to the Court by Mr. Bhupesh Kandpal, the learned Amicus Curiae, who argued the case on behalf of the appellant before this Court pro bono. 15. In sequel thereto, pending application, if any, also stands disposed of. Urgent certified copy of this order be issued to the parties, as per rules.