JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellants herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 28.04.2015 passed in Sessions Trial No.50/2014 by the 1st Additional Sessions Judge, Baloda-Bazar, District Baloda-Bazar, C.G., by which the appellants stand convicted & sentenced as under:- Conviction Sentence Under Section 302 read with 34 of Indian Penal Code (for short, ‘IPC’) for committing murder of Radheshyam Imprisonment for life and fine of Rs.5,000/- each, in default of payment of fine additional rigorous imprisonment for six months Under Section 302 read with 34 of IPC for committing murder of Ranichandrakali Imprisonment for life and fine of Rs.5,000/- each, in default of payment of fine additional rigorous imprisonment for six months 2. Case of the prosecution, in brief, is that on 06.05.2014 at about 6:00 pm, appellants assaulted Radheshyam and his wife Ranichandrakali (hereinafter called as 'deceased persons') with wooden stick and by pelting stones, by which, they suffered grievous injuries over their bodies and died and thereby committed the aforesaid offences. Further case of the prosecution is that on the fateful day, while PW-14 Ku. Dhanwantin, PW-6 Lakeshwar @ Sonu and deceased persons were in the house, at that time, appellants came there, abused the deceased persons in filthy language and assaulted them with wooden stick and by pelting stones, as a result of which, they suffered grievous injuries and died. The said incident was witnessed by PW-14 Ku. Dhanwantin & PW-6 Lakeshwar@ Sonu, who are the children of the deceased persons. Thereafter, the matter was reported to the Police Station by PW-14 Ku. Dhanwantin, pursuant to which merg intimation was recorded vide Ex.P-16, FIR was registered against appellant No.1 Prince @ Pinju vide Ex.P-15 and spot map was prepared vide Ex.P-01. Inquest proceedings were conducted vide Exs.P-18 & P-19 anddead body was sent for postmortem examination which was conducted by PW-12 Dr. B.K. Sahu, who has proved the postmortem reports of deceased persons vide Exs.P-4 & P-5. According to postmortem reports, cause of death of the deceased persons was due to cardiopulmonary arrest, coma and haemorrhage & head injury and death of the deceased persons was homicidal in nature. Memorandum statement of appellant No.1 Prince @ Pinju was recorded vide Ex.P-14 consequent to which, clothes of appellant No.1 were seized vide Ex.P-3. According to postmortem reports, cause of death of the deceased persons was due to cardiopulmonary arrest, coma and haemorrhage & head injury and death of the deceased persons was homicidal in nature. Memorandum statement of appellant No.1 Prince @ Pinju was recorded vide Ex.P-14 consequent to which, clothes of appellant No.1 were seized vide Ex.P-3. From the spot, plain and blood stained soil, wooden stick and stones were seized vide Exs. P-9 to 13 respectively. Seized articles were sent to FSL for chemical examination but no FSL report has been brought on record. During the course of investigation, appellant No.2 Mahetaru Ram was also taken into custody as is evident from final report. 3. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellants were chargesheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants abjured their guilt and entered into defence by stating that they have not committed the offence. 4. The prosecution in order to bring home the offence, examined as many as 16 witnesses in support of its case and exhibited 24 documents. Appellants in support of their defence haveexamined none and exhibited three documents i.e. Ex.D-1 to D- 3, statements of Smt. Neera Ratre, Kumari Dhanwantin and Smt. Kanti Bai recorded under Section 161 of Cr.P.C. 5. The trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted & sentenced the appellants as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC. 6. Learned counsel for the appellants submits that out of six eyewitnesses, PW-3 Bhuvneshwar, PW-7 Smt. Neera Bai Ratre, PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin have been examined but none of them have supported the prosecution case. However, the trial Court has relied upon the statements of PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin and the statement of PW-14 Ku. Dhanwantin recorded under Section 164 Cr.P.C. to base the conviction, which is totally inadmissible in law as PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin have not seen the incident and not supported the prosecution case and the statement of PW-14 Ku. Dhanwantin and the statement of PW-14 Ku. Dhanwantin recorded under Section 164 Cr.P.C. to base the conviction, which is totally inadmissible in law as PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin have not seen the incident and not supported the prosecution case and the statement of PW-14 Ku. Dhanwantin recorded under Section 164 Cr.P.C. is not a substantive piece of evidence under Section 3 of the Evidence Act, therefore, that could not have been relied upon by the trial Court to convict the appellants for the aforesaid offences. As such, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the said charge.7. Learned counsel for the State supports the impugned judgment and submits that the trial Court on the basis of testimony of PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin, who are the eye-witnesses to the incident and have seen the incident, has rightly convicted the appellants herein and only on the basis of minor contradictions, their statements cannot be thrown out and more particularly, a bare perusal of statement of PW-14 Ku. Dhanwantin recorded under Section 164 Cr.P.C. would clearly reveal that she has supported the prosecution case which has rightly been relied upon by the trial Court to base the conviction of the appellants. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question for consideration would be whether the death of the deceased persons was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem reports (Exs.P-4 & 5) proved by Dr. B.K. Sahu (PW- 12), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the next question is whether the appellants are the authors of the crime in question for which the trial Court has relied upon the statements of PW-6 lakeshwar @ Sonu, PW-14 Ku.Dhanwantin and upon the statement of PW-14 Ku. Dhanwantin recorded under Section 164 Cr.P.C., and the seizure of wooden stick and stones from the place of incident as an incriminating piece of evidence. 11. Dhanwantin recorded under Section 164 Cr.P.C., and the seizure of wooden stick and stones from the place of incident as an incriminating piece of evidence. 11. Now, we shall proceed to consider whether the trial Court was justified in convicting the appellants relying upon the aforesaid incriminating pieces of evidence. 12. PW-6 Lakeshwar @ Sonu, son of the deceased persons, aged about 9 years, has stated in para 2 of his deposition that the present appellants have assaulted his father and mother with wooden stick and stones, by which they suffered grievous injuries and died. This witness has named appellant No.2 Mahetaru Ram as Budhia and stated that appellant No.2 had caught hold of his mother's hand and appellant No.1 Prince @ Panju was assaulting. However, in para 13 of his cross-examination, he has stated that at the time of incident, he was watching T.V. In para 24, he has stated that he has not seen appellant No.1 Prince @ Panju while assaulting his father and mother. The aforesaid statement of this witness in paras 13 & 24 that at the time of incident, he was watching TV and he has not seen the appellant No.1 assaulting his parents also corroborates with the statement of his sister i.e. PW-14 Ku. Dhanwantin, who is also the eye-witness to the incident, in which in para 18 she has clearly stated the fact that her younger brother i.e. PW-6 was watching T.V at the date and time of offence. As such, the statement of PW-6 Lakeshwar @ Sonuthat at the time of incident, he had not seen the appellants assaulting his parents as he was watching T.V. is duly proved by PW-14 Ku. Dhanwantin. Thus, the trial Court is absolutely unjustified in holding that PW-6 Lakeshwar @ Sonu is the eyewitness and he has seen the appellants assaulting his parents/deceased persons, therefore, we hereby reject the evidence of PW-6 Lakeshwar @ Sonu as an eye-witness and further, considering the statement of this witness (PW-6) in paras 21 to 23, it cannot be held that he has seen the incident. 13. Now, coming to the statement of PW-4 Ku. 13. Now, coming to the statement of PW-4 Ku. Dhanwantin, who is the daughter of deceased persons, in para 4, she has clearly stated that appellant No.2 Mahetaru Ram caught hold of the hand of her mother and appellant No.1 Prince @ Pinju caused injury by wooden plate which is used for casting cement roof. She has also admitted in paras 10 & 11 that on the date of offence, her parents had consumed liquor and abused each other. However, in paras 28 & 29 of her cross-examination, she has clearly stated that how the marpeet took place between the appellants and deceased persons, she could not see and since her father and mother have died, therefore, on the basis of suspicion, she is telling the names of the present appellants. As such, though she has supported the prosecution case in examination-in-chief but in cross-examination, she has clearly refuted that she has seen the appellants assaulting her parents/deceased persons and killed them and made a statement to the Court on the basis of suspicion. As such, it wouldbe unsafe to rely upon her (PW-4) statement to base the conviction against the appellants and the other eye-witnesses namely PW-3 Bhuneshwar & PW-7 Smt. Neera Bai Ratre have not supported the prosecution case and have been declared hostile, and though leading questions have been asked after declaring them hostile, but they have not supported the prosecution case. As such, there is no direct evidence available on record to hold that the appellants herein assaulted the deceased persons with wooden stick and stones by which they suffered grievous injuries and died. 14. Now, we shall consider the statement of PW-14 Ku. Dhanwantin recorded under Section 164 of Cr.P.C. vide Ex.D-2 on 06.05.2014, which has been relied upon by the trial Court to convict the appellants for the aforesaid offences. In her statement under Section 164 of Cr.P.C., PW-14 Ku. Dhanwantin has supported the case of the prosecution, but in her statement before the Court, she has not supported the prosecution case and clearly stated that she has not seen the appellants assaulting the deceased persons and since her parents/deceased persons have died, therefore, on the basis of suspicion, she has named the appellants herein. 15. However, the question that arises for consideration herein is, whether the statement of PW-14 Ku. 15. However, the question that arises for consideration herein is, whether the statement of PW-14 Ku. Dhanwantin recorded under Section 164 of Cr.P.C. would come within the meaning of evidence under Section 3 of the Evidence Act, 1872 ? 16. In the matter of Brijbhusan Singh v. Emperor, AIR 1946 38, the Privy Council has observed that a statement made under Section 164 CrPC cannot be used as a substantive piece of evidence and it can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 CrPC is true. Similarly, in Mamand and others v. Emperor, AIR 1946 45, it has been observed by the Privy Council that the statement of a witness made under Section 164 CrPC can be used only to discredit the evidence given by him in Court, and not for any other purpose. Such a statement cannot be treated as substantive evidence of the facts stated. 17. In the matter of Ram Kishan Singh v. Harmit Kaur and another, AIR 1972 SC 202 , with regard to the value to be given to a statement under Section 164 CrPC, the Supreme Court has held that “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.” 18. The Supreme Court, in the matter of Sunil Kumar and others v. State of Madhya Pradesh, AIR 1997 SC 940 , has held that statement recorded under Section 164 of CrPC can be used for corroboration or contradiction. 19. Similarly, in the matter of George and others v. State of Kerala and another, (1998) 4 SCC 605 , their Lordships of the Supreme Court have considered the issue as to whether the statement recorded under Section 164 CrPC constitutes substantial evidence and held that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement. 20. 20. Furthermore, in the matter of R. Shaji v. State of Kerala, (2013) 14 SCC 266 , similar proposition of law has been laid down by their Lordships of the Supreme Court, which state as under :- “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272 and CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53 ) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” 21. Finally, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police, (2020) 7 SCC 722 , a three judge bench of the Supreme Court considered the purport and value of Section 164 CrPC and further considered the issue which is similar to the issue in hand before us as to, what would be the position if the person giving the statement resiles from the same completely when he is examined as s witness ? In paragraph 81 of the report following question was framed by their Lordships :- “81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement or confession under Section 164 ? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness ? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.” 22. Thereafter, considering the decisions rendered in the matters of George (supra) and R. Shaji (supra), their Lordships held in paragraph 84 as under :- “84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position ? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” 23. From the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that statement of a person/witness under Section 164 of Cr.P.C. is not an evidence, much less, substantial evidence within the meaning of Section 3 of the Evidence Act and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of Cr.P.C., no conviction can be recorded on the basis of statement under Section 164 of Cr.P.C. 24. Now, the next piece of evidence is the recovery of stones and wooden stick that have been seized from the place of occurrence and not seized at the behest of appellants pursuant to their memorandum statements. Though pursuant to the memorandum statement of appellant No.1, clothes of appellant No.1 were seized vide Ex.P-3 which were sent to FSL for chemical examination, but no FSL report has been brought on record, therefore, in absence of FSL report, recovery of clothes from the possession of appellant No.1 would not help the prosecution case. Though pursuant to the memorandum statement of appellant No.1, clothes of appellant No.1 were seized vide Ex.P-3 which were sent to FSL for chemical examination, but no FSL report has been brought on record, therefore, in absence of FSL report, recovery of clothes from the possession of appellant No.1 would not help the prosecution case. Furthermore, recovery of wooden stick and stones seized from the spot vide Ex.P-10 is also of no use to the prosecution as it was not seized pursuant to the memorandum statement of the appellant, but it was seized from the place of occurrence. 25. In view of above-stated analysis, it is quite vivid that although the direct evidence brought on record by the prosecution has been relied upon by the trial Court in the form of statements of PW-6 Lakeshwar @ Sonu and PW-14 Ku. Dhanwantin, but on the minute scrutiny of the statements of PW-6 & PW-14, we are of the considered opinion that their statements do not inspire confidence as they have not seen the incident. In view of the discussion made hereinabove, it would be unsafe to rely upon their statements to base the conviction of the appellants. Furthermore, the statement of PW-14 Ku. Dhanwantani recorded under Section 164 of CrPC cannot be relied upon to base the conviction recorded by the Chief Judicial Magistrate as it is not a substantive piece of evidence in absence of any other legally admissible evidence on record and on the strength of the said statement, no conviction can be recorded. At the most, if PW-14 Ku. Dhanwantin has turned hostile and not supported the case of the prosecution, he/she can be prosecuted for perjury, but no conviction can be based and recorded, on the basis of that statement. Furthermore, no forensic examination of clothes seized from the possession of the appellant No.1 was conducted to hold that blood/human blood has been found so that the appellants could be held guilty. Furthermore, it has not been established by the prosecution that the wooden stick and stones seized from the spot were stained with human blood, therefore, recovery of such articles is of no use to prosecution. 26. Accordingly, we are of the considered opinion that the appellants are entitled for acquittal on the basis of benefit of doubt. Furthermore, it has not been established by the prosecution that the wooden stick and stones seized from the spot were stained with human blood, therefore, recovery of such articles is of no use to prosecution. 26. Accordingly, we are of the considered opinion that the appellants are entitled for acquittal on the basis of benefit of doubt. The learned trial Court is totally unjustified in convicting and sentencing the appellants for offence under Section 302 read with 34 of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 28.04.2015, passed by the learned trial Court is liable to be set-aside. Consequently, the conviction of the appellants for offence punishable under Section 302 read with 34 of IPC as well as the sentence imposed upon them by the learned trial Court is hereby set-aside. They are acquitted of the said charge extending them the benefit of doubt. Since appellants are in jail from 02.07.2014, we direct that they be released from jail forthwith, if not required in any other matter/case. 27. In the result, the criminal appeal is allowed. 28. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.