Das J. — Helaluddin, an unfortunate boy of 7/8 years old had to meet his death on 23.9.83 at about 6/7 P. M. P. W. 1 Md. Afeuddin is the elder brother of the deceased who is a shop keeper at Asimganj “Tinmukhi” in Karimganj. According to P. W. 1 on 23rd September, 1983 at about 6 in evening while he was in his shop he was reported by some people that his brother Helaluddin was run over by a car running towards Ratabari which had killed hire; on the P. W. D. road near Nankar. P.W. 1 hurriedly went to the place1 Of occurrence and he found the dead body of his brother Helaluddiri lying on the P. W. D. road surrounded by huge crowd. He noticed an incised wound on the neck of his brother and the body was smeared with blood. This left no doubt in his mind that his brother was stabbed to death by somebody and on such suspicion P. W. 1 went to the Police Station and lodged an ejahar with the Officer-in-Charge, Patharkandi Police Station in the same evening. On receipt of the ejahar police started investigation, visited the spot and after completion of the enquiry and investigation submitted charge sheet against the present appellant Maklis Uddin @ Maklisur Rahman to stand the trial. The appellant who was the only charge sheeted accused had to stand the trial in the Court of the learned Sessions Judge, Cachar and Karimganj at Silchar. The charges were framed under sections 302 and 201 of the Indian Penal Code against the accused and while explained the charges, he took the plea of denial. The prosecution thereafter led the evidence to prove the charges against the appellant and in the course of the trial as many as seven witnesses were examined on behalf of the prosecution. The learned Session Judge recorded the statement of the accused under Section 313, Cr. P. C. The defence did not adduce any evidence, perhaps, on the ground that the accused pleaded not guilty. The learned trial Court on going through the evidence on record, direct as well as circumstantial evidence, as adduced by the prosecution, found that the prosecution could prove the guilt of the accused beyond reasonable doubt. P. C. The defence did not adduce any evidence, perhaps, on the ground that the accused pleaded not guilty. The learned trial Court on going through the evidence on record, direct as well as circumstantial evidence, as adduced by the prosecution, found that the prosecution could prove the guilt of the accused beyond reasonable doubt. Accordingly, the learned trial Court held the accused to be guilty under Sections 302 and 201, I. P. C. and sentenced him to suffer rigorous imprisonment for life, However, no separate sentence was passed by the learned trial Court under Section 201, I. P. C. to the accused. The accused who is the appellant before us now challenged the impugned judgment and order of conviction and sentence inflicted on him by the learned Sessions Judge holding him guilty under sections 302 and 201, I. P. C. Mr. M. A. Laskar, the learned counsel for the appellant has submitted before us that the conviction of the appellant is absolutely without any evidence on record and the prosecution failed to prove the guilt of the accused beyond the shadow of doubt and as such, the findings of the learned trial Court holding the accused guilty under sections 302 and 201. I. P. C. is wholly untenable in law. The learned counsel has led us to the evidences adduced by the prosecution. We have scanned the evidence also and at our cursory glance we have noticed that there are two witnesses, namely P. Ws. 3 and 4, whose evidence are based by the prosecution to prove the guilt of the accused apart from the circumstantial evidence and the discovery of the weapon stated to be used by the accused at the time of commission of the offence. Before we take up the evidence of P. Ws. 3 and 4 and to scrutinise the correctness of the findings of the learned trial Court let us examine the other evidence on record. We now turn to the evidence of P. W. 5, the autopsy surgeon who held the post-mortem over the dead body of the deceased Helaluddin. Before we take up the evidence of P. Ws. 3 and 4 and to scrutinise the correctness of the findings of the learned trial Court let us examine the other evidence on record. We now turn to the evidence of P. W. 5, the autopsy surgeon who held the post-mortem over the dead body of the deceased Helaluddin. In his evidence, P. W. 5 has stated that he was the Superintendent of Karimganj Civil Hospital and on the said date he held the post-mortem over the dead body of Helaluddin, a boy of about 8 years old, who was identified by Constable No. 611 Chinta Haran Chakravarty and Constable No. 1246 Kunardhan Singha. P. W. 5 has further stated that in holding . he post-mortem he found one incised wound at the throat almost severing the head from the neck, situated on the lower part of the neck extending from the right side of the neck directly and obliquely downwards, rupturing all vital organs. We quote the injury below as found by the P.W. 5: "Injury: One incised wound at the throat almost severing the head from the neck, situated on the lower part of the neck extending from the right side of the neck directed obliquely downwards, rupturing all vital organs, i. e. all blood vessels, muscles, trachea, esophagus, cervical vertebrae and ends of the left side of the neck leaving only skin." The autopsy surgeon has further noticed that the deceased got the fracture on his third, fourth and fifth cervical vertebrae due to injury of the neck. According to his opinion the death was due to shock aad haemorrhage caused by injury on the neck and the death was instantaneous. Defence did not cross-examine the doctor P.W. 5. The death of Helaluddin has not been denied by the defence though pleaded innocence. Therefore, it was incumbent on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. One of the cardinal principle in our system of criminal admini­stration of justice for the criminal cases is that if a person is arrayed as an accused he is presumed to be innocent. The presumption is rebutable and the prosecution is to prove and rebut the presumption by adducing evidence and to show him that he and none else was guilty for the offence. The presumption is rebutable and the prosecution is to prove and rebut the presumption by adducing evidence and to show him that he and none else was guilty for the offence. That burden of the prosecution can be discharged either by oral evidence which may be direct or by circum­stantial evidence without any missing link to connect the accused with the offence alleged to have been committed by him. In this case, admittedly, there is no eye witness of the occurrence except P. Ws. 3 and 4, as stated by the prosecution. P. W. 1 is the informant. He has stated that on hearing information be rushed to the place of occurrence and saw his brother Helaluddin lying on the P.W. D. road with an incised injury on his neck. He, therefore, presumed that the injury might have been caused by sharp weapon. He has further stated that he did not notice any blood stain. In cross-examination he has stated that he was informed by 3 or 4 persons that his brother was run over and killed by a motor car running towards Ratabari. This averment was made before the police which has not been denied in his evidence in Court. He has, however, admitted that there was no enmity between the two families, namely, of the deceased and the accused. P. W. 2 is not an eye witness. She has stated that she was informed by some people as to the death of Halaluddin. She has however stated in her evidence that she saw a cut wound in the neck of her son. Most of the parts of her evidence appears to be hearsay and as such the prosecution also rightly did not take her as a vital and an important witness of the occurrence. It may be said that P. W. 2 is the unfortunate lady being the mother of the deceased but she being not an eye witness of the occurrence no direct evidence as to the actual assault could be gathered from her, P. W. 6 Md. Abdul Kuddus is also another witness who was declared hostile by the prosecution. The main ground for declaring this witness as a hostile witness by the prosecution is some contradic­tions were noted in his deposition made in the Court and also the statements made before the police while his statement was recorded during the course of investigation. Abdul Kuddus is also another witness who was declared hostile by the prosecution. The main ground for declaring this witness as a hostile witness by the prosecution is some contradic­tions were noted in his deposition made in the Court and also the statements made before the police while his statement was recorded during the course of investigation. In the context of the testimony-of P.W. 6 Mr. Laskar, the learned counsel for the appellant has submitted that no evidentiary value can be attached to the testimony of this witness and that the prosecution cannot get any benefit from , his evidence to prove the guilt of the accused or to connect the accused with the guilt by showing circumstantial evidence, to the effect that the dead body of the deceased was found lying on the P. W. D. road and there was some foot prints seen on the nearby paddy field. It is further submitted by Mr. Laskar that though the prosecution had tried to show that the occurrence took place inside kitchen of the accused and thereafter the deceased was dragged through the field to the P. W. D. road is not a complete circumstantial evidence to connect the accused with the guilt. We have noticed in the evidence of P. W. 6 that this witness has stated that he accom­panied the police and the police officer who investigated as matter could see that a portion of the cook-shed was newly mud plastered. The floor of the kitchen was of earth and it was strewn over with paddy husk and bran. In cross-examination he has denied that he ever made any statement before the police stating the facts that what has been asked by the prosecution in cross-examination after declaring him a hostile witness. We agree with the submission of Mr. Laskar that the evidence of this P. W. 6 cannot be of any help to the prosecution. Next we come to the two vital witnesses, namely, P. Ws. 3 and 4. P. W. 3 is Rahima Khatoon, the mother of the accused. Both the families, namely, the family of the accused and the deceased are related. The prosecution has declared P. W. 3 as a hostile witness and in cross-examination this witness had brought out certain contradictions in her evidences as deposed earlier by her before the police officer as well as before. The Magistrate. Both the families, namely, the family of the accused and the deceased are related. The prosecution has declared P. W. 3 as a hostile witness and in cross-examination this witness had brought out certain contradictions in her evidences as deposed earlier by her before the police officer as well as before. The Magistrate. Referring to those evidence the prosecution cross-examined her but most unfortunately it does not appear whether those contradictions are to be accepted either under section 162, Cf. P. C. “or under Section 164, Gr. P. C. No formal Statement was "exhibited nor there is any evidence to the effect as to Whether the contradiction was at all be of any help to the prosecution. Several decisions have been placed before us by Mr. Laskar, the learned counsel for the appellant. It is not necessary to refer a catena of cases in this regard as because the law is settled on this point. In Ram Charan vs. “State of U. P. as reported in AIR 1968 SC 1270 it was held by their Lordships that if a "statement of a witness is .previ­ously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. A further reliance is placed on a decision rendered in Ram Kishna vs. Harmit Kaur, AIR 1972 SC 468 where it was held by the Supreme Court that a statement under section 164, Criminal Procedure Code is not a substantive evide­nce. It can be used only to corroborate the statement of the witness or to contradict him. Merely because the Sessions Court has not taken into consideration the statement of a witness under section 164, Criminal Procedure Code the High Court cannot direct retria.1 by setting aside the order of acquittal when that order of acquittal could not be said to be against the evidence, or in disregard of evidence, or in violation of the principles of criminal jurisdiction. In Sat Paul vs. Delhi Administration, AIR 1976 SC 294 it was held that under the proviso to section 162. Cr. P. C. the statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Evidence Act, and for no other purpose. They cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in Court. This case was relied upon in a subsequent decision of the Supreme Court in State (Delhi Admn.) vs. Laxman Kumar as reported in AIR 1986 SC 250 . It was held by the Supreme Court that the statement made to a police officer during the investigation can be used only for the purpose of contradicting the prosecution witnesses under section 145 of the Evidence Act. It cannot be used for the .purpose of cross-examination. This finding was based on the earlier finding as rendered in Sat Paul (supra). Applying the ratio of the aforesaid judgments rendered by the Apex Court as well as the law as followed by this Court and the correct interpretation of the provisions of sections 161, 162 and 164, Cr.P.C. we are unable to place any reliance on the evidence of P.W. 3. On going to the evidence of P.W.4 we are to express our opinion in me same line and in the same manner as that of the evidence of P.W.3. Mr. D. Goswami, the learned Public Prosecutor has vehemently urged before us that even besides the oral evidence there is circumstantial evidence which is strong enough to convict the accused. The circumstantial evidence as referred to us by the learned Public Prosecutor is to the effect that the evidence on record discloses that there was sufficient proof that the occurrence took place inside the kitchen of the accused and it was only the accused who dragged the deadbody of the deceased to destroy the evidence to a place which may not raise any suspicion on the accused that he was the real culprit. The Police Officer who investigated the offence found the foot-steps clear from the kitchen through the paddy field till the dead-body was placed on the P. W. D. road. That connects the accused with the guilt. The next submission for Mr. The Police Officer who investigated the offence found the foot-steps clear from the kitchen through the paddy field till the dead-body was placed on the P. W. D. road. That connects the accused with the guilt. The next submission for Mr. Goswami is another circumstance which is more strong to prove the guilt of the accused is the discovery of the dao which according to prosecution was recovered by the Investigating Officer from the house of the accused. Of course we do not get any evidence to the effect that the dao was stained with blood while it was recovered from the house of the accused. We are unable to agree with the submissions of the learned Public Prosecutor. The reason being, that there is no clear evidence by any independent witness that, the occurrence took place inside the kitchen of the accused and that the deadbody was dragged to the P.W.D. road by the accused. In the absence of any other corroborative evidence we are unable to hold that there is any connecting link at least to show that the offence alleged to have been committed by him. As regards the recovery of the dao, we also cannot accept the submission of Mr. Goswami in the absence of correct proof that this dao was recovered by following the provisions of section 27 of the Evidence Act. That apart, no suggestion was put to the doctor relating to injury No. l which was incised could would only be caused by the dao as seized in connection with this case. Therefore, it is doubtful as to whether the dao seized by the Police Officer was actually used for the commission of the offence or the injury sustained by the deceased could be caused by the said dao. One facet cannot be lost sight of.The Investigating Officer did not seize the wearing of the dead body. It is in the evidence that while the deadbody was found on the P.W.D. road he was wearing one vest and a lungi. The evidence clearly shows that no blood mark either on the lungi or on the vest. Therefore, it is very difficult to understand the reason as to why the police officer did not seize the wearing clothes of the deceased. These are the circumstances which go against the prosecution. The evidence clearly shows that no blood mark either on the lungi or on the vest. Therefore, it is very difficult to understand the reason as to why the police officer did not seize the wearing clothes of the deceased. These are the circumstances which go against the prosecution. On overall examination of the evidence on record it appears That there is sufficient materials for doubt as to whether the appellant was the author of the injuries as a result of which, as stated by the prosecution, the death occurred to Helaluddin. The event is unfortunate, but we must express our opinion that for the lack of proper evidence the prosecution failed to prove the guilt of the accused. The learned trial Court was, therefore, not correct in his finding whereby the accused-appellant was held guilty under sections 302 and 201. LP.C. Therefore, we set aside the conviction and sentence inflicted upon the appellant. While we are setting aside the conviction and sentence of the appellant we record it that we have to allow the appeal on the benefit of doubt. The appellant is entitled to acquittal on benefit of doubt. In the result, the appeal is allowed and the conviction and sentence of the appellant under sections 302 and 201, I.P.C. are set aside, and the bail bond of the appellant is cancelled.