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02), who has stated that the death of the deceased could be homicidal, suicidal or accidental, but thereafter did not record any clear finding that the death of the deceased was homicidal in nature to convict the accused- appellants Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) for offence under Section 302/34 of IPC. In order to consider the issue the learned trial Court also referred to Diatom test, for which bones of the deceased were preserved, but as per FSL report (Ex.P/40), duly proved by Sushri Yogita Khaparde (PW-10), it has been opined that as bone 16 AIR 1954 SC 20 17 AIR 1975 SC 258 18 (2018) 16 SCC 475 19 (2014) 4 SCC 31 CRA-89-2013 & CRA-229-2013 of the deceased is broken it is not worthy for diatom test, therefore, cause of death via diatom test could not be ascertained. Further, from the dead-body of deceased, pieces of visara (i.e. pieces of stomach, lungs, liver, spleen, kidney and small intestine etc.), clothes (suit, paint, underwear etc.) were also preserved and seized vide Ex.P/34, but in the FSL report (Ex.P/47) it has been stated that no chemical poison has been found in the pieces of visara, which is also duly proved by Sushri Yogita Khaparde (PW-10). As such, firstly, Dr. Shivnarayan Manjhi (PW-02), who has conducted postmortem of the dead-body of the deceased, has not clearly opined that the death of deceased is homicidal in nature indeed stated that it could be homicidal, suicidal or accidental; secondly, diatom test to ascertain the cause of death of deceased also could not be conducted and thirdly, no chemical/poison has been found in the pieces of visara of the deceased, thus, the prosecution has not been able to proved the death of the deceased to be homicidal in nature and, therefore, there was no evidence available to record a finding that the death of the deceased was homicidal in nature. (33) Now the next circumstance, which is required to be considered is that the learned trial Court has relied on the marg intimation (Ex.P/05), which was registered by police constable Sudarshan Singh (PW-03) at the instance of Khuman Das Sahu (A-2), whereby it has been stated that: since 10.03.2010 his sister (prosecutrix/deceased) went missing and while he alongwith his other family members were searching the whereabouts of prosecutrix/deceased, on 15.03.2010, his mother, accused-appellant, Kunjbai (A-4) informed him that the dead-body of prosecutrix/deceased is found floating in the well of Kaushal Ram Sahu and, thereafter, the deliberate and mischevious act on the part of accused-appellants have been revealed. A CRA-89-2013 & CRA-229-2013 careful perusal of marg. Intimation (Ex.P/05) would show that marg intimation has been registered on the report made by Khuman Das Sahu (A-2) and the said information doesn't relates to what the investigating officer himself observed and saw. It is well settled that the statement of a witness recorded by the investigators during the inquest would be within the inhibition of Section 162 CrPC. The statement under Section 174 CrPC cannot be used as a substantive piece of evidence. At the most it can be used only as a previous statement to corroborate or contradict the person making it at the trial [See: Razik Ram vs. Jaswant Singh Chouhan20 , Harkirat Singh vs. State of Punjab21 and Suresh Rai vs. State of Bihar22]. Further, the statements contained in an inquest report, to the extent they relate to what the investigating officer saw and found are admissible, but any statement made therein on the basis of what the heard from others, would be hit by Section 162 CrPC [See: George vs. State of Kerala23]. (34) The Supreme Court further in the matter of Rameshwar Dayal and others vs. State of Uttar Pradesh24 held that the record of what the investigating officer himself observed and found, such an evidence is the direct or the primary evidence in the case and in the eye of law is the best evidence. The inquest report based on actual observation made by the investigating officer would not hit by Section 162 of CrPC and the same is direct evidence admissible under Section 60 of the Indian Evidence Act, 1872 and observed by their Lordships in following para:

".... Note No. 4 in Ex. K-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself founded observed at the spot. Such a

20 AIR 1975 SC 667, 684 : (1975) 4 SCC 769 21 AIR 1997 SC 3231 : (1997) 11 SCC 215 22 AIR 2000 SC 2207 : (2000) 4 SCC 84 23 AIR 1998 SC 1376 : 1998 (4) SCC 605 24 (1978) 2 SCC 518 CRA-89-2013 & CRA-229-2013 statement does not fall within the four-corners of section 162, Cr-P.C. III fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 Cr.P.C. except for the limited purpose mentioned in that section."