Judgment Bimalendu Narayan Sinha, J. 1. These appellants were tried in Sessions Trial No. 79 1978 by 2nd Additional Sessions Judge, Motihari, for an occurrence which allegedly took place on the night between 23rd and 24th of January, 1977 at village Goriyaowa Jagir tola, P. S. Sugiuli, district East Champaran in which it is said that the deceased Ram Ji Raut was murdered and all the appellants have been found guilty under Section 302 read with 34 I. P. C, and convicted to undergo rigorous imprisonment for life. Appellants Bindeshwar Raut, Birja Raut, Adaiat Sahni and Chandrika Raut have been also found guilty under Sec.302 and 148 of the I.P.C., but no sentence have been passed under these two heads, The remaining appellants have been also found guilty under Sec.147 I.P.C. but, no separate sentence has been passed against under section. 2. The prosecution case, in brief, is that on the alleged night of occurrence, deceased Ramji Raut was sleeping in his house with his children including Fulena Rai (P. W. 1) and his wife (P. W. 2) ; and his another son Shree Rai (P. W. 8) was sleeping in another room of the house. At about midnight these appellants along with some others entered into the room where the deceased was sleeping and Fulena Rai (P. W. 1) woke up on hearing the sound of their feet and the groaning sound of his father. Shrea Rai (P. W. 8) also by that time woke up hearing the groaning sound of his father. The prosecution case further is that (P. W. 1) (Fulena Rai) saw that the appellant Birja Raut and persons with him had tied the legs and hands of his father and were dragging his father (deceased) out of his room to the courtyard and from there to the Sahan. In the meantime Shree Rai (P. W. 8) also came out from his room, but, he was wrongfully confined by the appellants Bhikhari Raut and Chhabila Raut, who were armed with Lathi and they threatened him to remain silent and keep quite, otherwise he would be cut into pieces, and, therefore, he did not raise any alarm. In the meantime Shree Rai (P. W. 8) also came out from his room, but, he was wrongfully confined by the appellants Bhikhari Raut and Chhabila Raut, who were armed with Lathi and they threatened him to remain silent and keep quite, otherwise he would be cut into pieces, and, therefore, he did not raise any alarm. The further case of the prosecution is that the appellant Bindeshwar Raut was armed with gun, one accused Jaigovind Raut (now dead), appellants Birja Raut and Adaiat Sahani had Pharsa in their hands and that appellant Bindeshwar Raut fired two shots on the person of the deceased, as a result of which he sustained injuries on his face and abdomen; and that appellant Adaiat Sahani, appellant Birj Raut and accused Jaigovind Raut (now dead) assaulted the deceased with Pharsa and the remaining accused persons assaulted him with Lathi, as a result of which the deceased Ramji Rai died then and there. 3. Fardbeyan (Ext. 2) regarding the occurrence was recorded at 5 A.M. on the next day, i.e., on 24th of January, 1977 at the spot on the statement of Shree Rai (P. W. 8) on the basis of which formal F. I. R. was drawn and after usual investigation charge sheet was submitted in the case and after commitment trial proceeded. 4. At the trial altogether 8 witnesses were examined by the prosecution to prove Us case, out of them P. W. 2 Lal Pan Devi, P. W. 3 Langatu Raut, P. W. 4 Lal Bahadur Raut and P. W. 5 Joti Raut did not support the prosecution, and, therefore, they were declared hostile and with the permission of the court. Their attention was drawn to the statements said to have been made by them during the course of investigation. Dr. H. K. P. Verma (P. W. 6) held Post-mortem Examination on the dead body of the deceased on 25th January, 1977 at about 12 noon. Md. Sibli (P. W. 7) is the Investigating officer of the case. Fulena Rai (P. W. 1) is the sole eyewitness on the point of assault on the deceased by the accused. Shree Rai (P. W. 8) claimed to have learnt about the assault on the deceased by the accused from P. W. 1 and claimed to have seen the accused in his house at the alleged time of occurrence. 5. Fulena Rai (P. W. 1) is the sole eyewitness on the point of assault on the deceased by the accused. Shree Rai (P. W. 8) claimed to have learnt about the assault on the deceased by the accused from P. W. 1 and claimed to have seen the accused in his house at the alleged time of occurrence. 5. The learned trial court has accepted in part the evidence of P. Ws. 1 and 8 and based his verdict of guilt of these accused-appellants on the basis thereof. 6. It may be mentioned that neither at the trial nor before us in this appeal the fact that Ramji Raut had sustained injury in the night between 23rd and 24th of January, 1977 and he died as a result thereof have been challenged on behalf of the accused appellants and it stands established on the basis of the evidence of P. W. 6, Dr. Hari Kishore Prasad Verma the Doctor, who held post-mortem examination on the dead body of the deceased and found as follows : (i) Ligature mark around the neck, both wrists and feet. (ii) Gun shot wound on the right upper anterior arm with discolouration of the skin in an area of 2" in diameter. No pellet was found. (iii) Gun shot wound on the right side of umbilicus about 2" in diameter penetrating into the whole length of the abdominal wall. Four perforation holes in the small guts and about 500 CC of blood was collected from the peritorium cavity. One large pellet was removed along with Cotton. (iv) Gun shot wound on the chin with discolouration. Laceration of lower limb and gun margin. Lower two inciser teeth were also knocked out on account of injury with gun shot. Ten small pellets were recovered from this area. (v) Regarding ligature mark-both lungs were echymosed on the upper part. Trachia and the cartilage (soft bone of neck) were broken along with hyoid bones. There was collection of blood underneath the skin of the neck and ligature mark. Muscles were also damaged resulting into respiratory distress. (vi) Two incised wounds on the back of head. 2" x 2 1/2" bone deep with bleeding. They were simple, by sharp cutting weapons. Trachia and the cartilage (soft bone of neck) were broken along with hyoid bones. There was collection of blood underneath the skin of the neck and ligature mark. Muscles were also damaged resulting into respiratory distress. (vi) Two incised wounds on the back of head. 2" x 2 1/2" bone deep with bleeding. They were simple, by sharp cutting weapons. In the opinion of the doctor death was due to haemorrhage and shock as a result of injuries found by him and the time of death at the time of the post-martero examination was within 48 hours. The findings of the doctor is quite consistent with the prosecution case that the deceased was murdered on the night between 23rd and 24th of January, 1977. 7. The point to be decided, however, is if those injuries had been inflicted by these appellants. 8. It may be mentioned that P. W. 1 in his examination-in-chief has stated the facts regarding assault on the deceased, as stated, above, while stating the facts of the case. But, in cross-examination, he has stated that the accused persons were hiding their faces by Galmochha and, therefore, he could not identify any of them. From his evidence in cross-examination, it appears that he could not identify the accused-persons who dragged his father from the room to the courtyard and from courtyard to Sahan nor the persons who assaulted his father. P. W. 1 is the sole eye-witness and P. W. 8 claims to have learnt about the assault from his brother (P. W. 1) and he stated so in his examination-in-chief also, but, in cross examination he has stated that on the night of occurrence he had no talk with anybody regarding the occurrence. Hence, on the evidence in cross-examination of these two witnesses, the evidence of these two witnesses in examination-in-chief becomes wholly negatived and controverted. The learned trial court has accepted the part of the evidence of P. W. 1 by using the statement of this witness recorded under Sec.161 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) and has mentioned in his Judgment that those statements made by this witness in examination-in-chief stand corroborated by his statement recorded under Section 161 of the Code. It appears that the learned trial court has completely over-looked the provisions of Sec.162 of the Code which bars the use of the statements of a witness recorded under Sec.161 of the Code for any other purpose but for contradicting him if he is examined as a witness for the prosecution. In this connection, the relevant provisions of Sec.162 of the Code may be usefully quoted : 162. (1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Sec.145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. The first part of Sub-section (i) very clearly bars and restricts the use of statement recorded under Sec.161 of the Code for any purpose other than mentioned in that section. Therefore, the use made by the trial court or the statement of P. W. 1 recorded under Sec.161 of the Code for appreciating his evidence and for corroborating his evidence is illegal and the learned trial court ought not to have done so. 9 Moreover, it is the admission of P. W. 1 in his evidence that there was a murder case regarding the murder of one Had Sahani in which his father was accused and all the accused persons of this case were witness against him. In that situation, both P. W. 1 and 8 were highly interested witness and the learned trial court ought to have examined their evidence with caution. In that situation, both P. W. 1 and 8 were highly interested witness and the learned trial court ought to have examined their evidence with caution. In this back-ground of the enmity and taking into consideration the fact that these two witnesses have been making contradictory statements in their evidence-their statements in examination-in-chief being improbablished by their statements in cross-examination, the charges against these accused-appellants cannot be accepted as proved beyond reasonable doubts on the evidence of these P. Ws. 10. Before I conclude, I would like to mention that of course the Investigating Officer (P. W. 7) has said that he found blood at the place of occurrence, but, he has not specifically mentioned as to whether he found that blood in the house or in the Angan or in the Sahan, and his evidence does not add anything to the credibility of these witnesses, namely, P. Ws, 1 and 8. 11. For these reasons, I find that the conviction and sentence passed by the learned trial court cannot be upheld. I, accordingly, allow this appeal and set aside the judgment and order of conviction and sentence passed by the learned trial court against the appellants. Appellant No. 2, Bindeshwari Rai, who is still continuing in jail is directed to be released forth with, if not required in any other case and the other appellants shall be discharged from the liabilities of their bail bonds.