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46.In RAM LAKHAN SHEO CHARAN AND OTHERS VS. STATE OF U.P. [1991 CRI.L.J. 2790], when the witness, whose statement has been recorded by the learned Magistrate under Section 164 Cr.P.C., during the Sessions' trial, turned hostile, did not support his statement to the Magistrate, a Division Bench of the Allahabad High Court observed as under :

"12.The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Sections 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh Vs. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A Division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence.
"18.Learned Additional Public Prosecutor Sri Amarjeet Singh has tried to emphasise that Karan (P.W. 1) and his wife Smt. Makkhan (P.W.2) were produced before the Magistrate for recording their statements under Section 164 Cr.P.C. in which they fully supported the facts/circumstances leading to the commission of multiple murders in this case. The learned counsel has contended that these statements should be given due weight and should be considered for proving the offences with which the appellants were charged. On thoughtful consideration on this legal aspect of the matter, we find that the aforesaid submission has no substance in it. The statement of a witness under Section 164 Cr. P. C. is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial Court and then a witness should be produced by the prosecution for his cross examination. In this context the learned Senior Advocate appearing for the appellants has cited the case law of Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 (1946 (47) Cri LJ 336) and Ram Kishan Singh v. Harmit Kaur, 1972 Cri. LJ 267 : (AIR 1972 SC 468). In these cases the Privy Council and the Hon'ble Supreme Court have categorically held that the statements recorded under Section 164 Cr. P. C. are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the witnesses (P.W.1 and P.W.2) have themselves did not support their version, their statements earlier recorded under Section 164 Cr.P.C. could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, but that too has not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis."

48.In T.DIWAKARA VS. STATE OF KARNATAKA [2006 CRI.L.J. 4813], during investigation, P.W.10 gave statement before a Magistrate under Section 164 Cr.P.C., but, later during the Sessions trial, he turned hostile. In such circumstances, the Karnataka High Court held as under :

"1....The statement of PW10 was recorded before the Magistrate. After the lodging of the complaint, PW10 has turned hostile. But the trial court convicted the accused on the strength of statement of PW10 recorded under Section 164 of Criminal Procedure Code. The trial court grossly erred in placing reliance on the statement recorded under Section 164 of Criminal Procedure Code as substantive evidence. While convicting the accused the statement recorded under Section 164 of Criminal Procedure Code does not have any better legal status than the one recorded under Section 161(3) of Criminal Procedure Code. At the most, if the deponent whose statement is recorded under Section 164 of Criminal Procedure Code turns hostile, he/she could be prosecuted for perjury but onthe strength of such statement no conviction can be placed. "

51.Thus, from the survey of the decisions relating to Section 164 Cr.P.C., as to its nature, scope, evidentiary value, consequences of the author of the statement resiling from his such statement before the learned Sessions Judge, his statement under Section 164 Cr.P.C., which is not a substantive piece of evidence loses its value. It cannot be used to record a finding of guilty. When the position of law is such that, in the case before us, inspite of the fact that the prosecutrix (P.W.1) has turned hostile, disowned her statement, the learned Additional Sessions Judge relied on it since it was recorded by a Judicial Officer. The trial court has completely went wrong.'' 25 From the above, the ambit, scope and utility of statement recorded from witnesses under section 164 Cr.P.C. is very clear. One need not be confused with such a statement recorded from a witness under section 164 Cr.P.C. with a statement (confession) recorded from an accused under section 164 Cr.P.C. Both are not one and the same except they are appearing in the same section.