Judgment. - Three accused persons Bhagi, Bholar and Moti were tried before the Sessions Judge, Chamba, the first two for offences under Ss.302 and 457, Penal Code and the third for offences under Ss.460 and 411, Penal Code. Bhagi and Bholar were found guilty under S.460, Penal Code and sentenced to transportation for life. Moti was convicted under S. 411, Penal Code and sentenced to two years rigorous imprisonment.

2. The date of the judgment of the trial Judge is 11-6-2004 S. Moti will have served out his sentence by now. He is not an appellant in this Court. Bhagi and Bholar have appealed separately against their conviction and sentence. But as the facts are the same and their conviction and sentence are under the same section of the Penal Code and the same point of law is involved, the judgment will govern both the appeals.

3. The prosecution story is that one Dehnju of the village Taretha, some ten miles from Chamba, was found dead in his house on 3rd Har, 2003. In the afternoon of the 2nd Har, 2003, all the three accused persons were seen walking from Chamba towards Taretha. They were also seen returning to Chamba at dawn on 3rd Har 2003. Some ornaments were recovered from the persons of the accused. Other ornaments were recovered from those with whom they were pawned by the accused Moti. These ornaments were proved to have belonged to the deceased Dehnju.

4. The defence was a total denial of the commission of the crime.

5. Both the learned advocates for the two appellants argued that the judgment of the learned trial Judge was based on the statement of the prosecution witness, Mt. Jini (mistress of the accused Bhagi) under S. 164, Criminal P.C. They also laid stress on the inadmissibility of the confession of the co-accused Moti which was used against the appellants.

6. It will be better to dispose of these two points of law, before the facts are discussed.

7. The firat point is, if the statements of Mt. Jini, P.W. 36, under S. 164, Criminal P.C. can be used as substantive piece of evidence?

8. The learned trial Judge observes in his judgment as follows:

"The corroboration of Moti accuseds statement under S.164, Criminal P.C. is on material points by the witness, Bheki, P. W. 22 .... Further corroboration of Moti accuseds statement under S. 161, Criminal P.C occurs when he mentions the names of the prosecution witnesses he met on the way when he was going along with the two other accused towards Sila Gharat. Moti accused also states in his statement under S. 164, Criminal P.C. about the earthen pot, Ex. P-1, containing ghee.....In my opinion there is ample corroboration of the statement of Moti accused under S. 164, Criminal P. C, although retracted afterwards. Bhagi accused in his statement under S. 164, Criminal P.C. admits that he was present on the spot and he was with Bholar when Bholar accused struck the deceased with Danda, Ex. P-3."

9. Just a little before this the learned Judge held that the statements under S. 164, Criminal P. C, of Mt. Jini, Moti accused, Bholar and Bhagi accused, may be taken into consideration although they retracted from their previous statements under S. 164, Criminal P.C. He further held, that the statement of Mt. Jini under S.164, Criminal P.C., is a relevant piece of evidence."

10. In my opinion, the learned Judge was quite wrong to rely upon the statements under 164, Criminal P.C, as substantive pieces of evidence. The statement of a witness like Mt. Jini, P.W. 86, made under S. 164, Criminal P.C., can be used only to discredit the evidence given by her in Court and not for any other purposes. Such a statement cannot be treated as a substantive piece of evidence of the facts stated. It is an improper use of such statements if they are used as substantive pieces of evidence. A statement under S. 164, Criminal P.C, 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 what the witness stated out of

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