CRIMINAL APPEAL No.102 OF 1988 Against the judgement of conviction and order of sentence dated 22.12.1987 passed by 10th Additional Sessions Judge, Munger in Sessions Case No.203 of 1986. 1. JAJMA TANTI 2. BANARA @ BANARSI YADAV--------------Appellants Versus THE STATE OF BIHAR --------------- Respondent ----------- For the appellants:- Mrs. Rina Sinha, Amicus Curiae For the State:- Sushri Shashibala Verma, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE DINESH KUMAR SINGH Dharnidhar Jha & Dinesh Kumar Singh,JJ. This appeal arises out of the judgement rendered by the 10th Additional Sessions Judge, Munger in Sessions Case No.203 of 1986 by which the two appellants were found guilty of having committed an offence under Sections 302/34 of the IPC and were directed to suffer rigorous imprisonment for life. 2. Nobody was named in the FIR which was lodged by the husband of the deceased stating that some unknown thieves broke into his house and his wife, who was sleeping in another room, was murdered. The informant went inside the room with a Dibia(earthen lamp) to find his spouse lying there in a pool of blood. - 2 - 3. As may appear from the evidence of police officers, there could not be any clue about the incidence for quite some times, but some how or the other they could fall back on P.W.1, the daughter- in-law of the deceased and elicit a statement under Section 164 of the Cr.P.C. from her and that could be the basis for sending of the appellants to trial. 4. The lady Ramdasi Devi, whose statement was recorded by the Judicial Magistrate under Section 164 of the Cr.P.C., while deposing in court, completely resisted from her statement and simply pointed out that she did not identify any body as the assailant of her mother-in-law, either by face or by name. As generally happens in such situations, she was declared hostile and her attention was drawn to the statements contained in Section 164 of the Cr.P.C.-record. 5. What the learned Judge appear doing is that he was treating the statements recorded by the Magistrate under Section 164 of the Cr.P.C. as a substantive piece of evidence so as to recording the order of conviction. We are called upon either to sustain it or to evaluate the evidence. 6. As we find from the record, there is no sustenance to the charges from any witness on - 3 - account of deposing as an eye witness. There is no circumstance either appearing from any material on record so as to pointing to the guilt of the two appellants unfailing. As regards Section 164 Cr.P.C.-statement, the learned Judge appears noticing the argument that it might not be a substantive piece of evidence, but still finding it very difficult for him to reject the contention because, in his opinion the record made by the Sub Divisional Judicial Magistrate, Jamui could not be discarded and that it could be sufficient to indicate that the lady Ramdasi Devi who had admitted putting her L.T.I. over it and also having admitted giving the statement, was probably adhering to the statement. This could not be the approach of a Judge, because that statement is a statement and it is quite different from evidence. It could have been evidence if the facts contained therein would have been stated by P.W.1 on oath. That not being the position, we find it utterly not admissible in law. We can not sustain the conviction of the appellants on the basis of 164 Cr.P.C. statements, the statement was not admissible evidence. It was merely statement which could hardly be categorized as evidence and as such the ‘picture of murder’ which - 4 - the learned Judge was seeing through it appears to us quite hazy as not leading to any inference. That being the position, we set aside the sentence passed upon the appellants by allowing the appeal. We acquit them. Both the appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 7. We appreciate the efforts of Smt. Rina Sinha who assisted us in hearing the present appeal. As such, she shall be entitled to a fee of hearing to be paid by the Patna High Court Legal Services Committee. 8. Let a copy of judgement be handed over to Smt. Rina Sinha. Patna High Court, Dated, the 20th of July, 2010, Brajesh Kumar/AFR. ( Dharnidhar Jha, J. ) ( Dinesh Kumar Singh,J. )