JUDGMENT M. PAPANNA, J. — The impugned judgment dt. 22.8.1997 of the Sessions Judge, Ganjam-Gajapati (Berhampur) passed in S.C.No. 402/96 convicting the appellant under Sec. 304, Part-II, I.P.C. and sentencing him to R.I. for ten years is under challenge in this Criminal Appeal. 2. The accused faced trial on the accusation of causing death of one Satyendra Misra (hereinafter referred to as the ‘d¬eceased’). The F.I.R. lodged by the informant, Rudra Prasanna Misra in Baidyanathpur P.S. discloses that on 26.6.1996 at about 12.30 P.M. the deceased met with an accident of an unknown vehi¬cle, As a result, he fell in a drain near a Jhumpudi hotel at New Bus Stand Road, Berhampur. On account of severe injury sustained by him on him on his head, he was shifted to Medical College Hospital. Berhampur. But he was shifted thereafter to S.C.B.Medi¬cal College, Cuttack where be expired on 26.6.96 at about 12.45 (night). Basing on the aforesaid information Baidyanathpur P.S. case No. 141/96 was registered. During investigation none could say about the incident on the relevant day at New Bus stand area. It is alleged that from the date of occurrence one road side hotel of Ramachandra Sahu was found closed. It was ascertained from the hotel owner, his wife and a garage worker Krushna Sahu that on 26.6.96 at about 12.00 noon the accused persons Prava alias Pravakar Gouda alias Mahakud and Gandu alias Dinabandhu Patra of Ashok Nagar picked up quarrel with the deceased inside the hotel. Both of them pushed the deceased to the rear side of the hotel. Accused Pravakar Gouda picked up iron rod and dealt blows on the head of the deceased as a result of which he became unconscious. Then the hotel owner Ramachandra Sahu and one Krushna Sahu took the deceased to Berhampur Medical College Hospital and disclosed that the deceased died due to accident to avoid complications. During investigation, accused Pravakar Gouda was apprehended by the police whereas accused Gandu alias Dinabandhu Patra absconded since then. The I.O.having found prima facie evidence against the accused persons, submitted charge sheet against them. 3. The accused persons pleaded innocence. The defence took a plea of total denial of prosecution case. 4. The prosecution, in order to prove the charges against the accused, examined four witnesses only. P.W.1 is Ramachandra Sahu, the owner of hotel where the alleged occurrence took place. 3. The accused persons pleaded innocence. The defence took a plea of total denial of prosecution case. 4. The prosecution, in order to prove the charges against the accused, examined four witnesses only. P.W.1 is Ramachandra Sahu, the owner of hotel where the alleged occurrence took place. P.W.2 is the informant who is no other than the brother of the deceased. P.W.3 is the Medical Officer who treated the deceased preliminary after which the deceased was referred to Medical Col¬lege Hospital, Cuttack for better treatment whereas P.W.4 is the I.O. 5. On consideration of the evidence on record, the learned trial Judge convicted and sentenced the accused appellants stated above. 6. Learned counsel for the appellant has addressed the following contentions : (i) Learned trial Judge has committed grass error by relying on statement of witness recorded under Sec. 161, Cr. P.C. which is not a substantive evidence. It cannot be made use of except to contradict the witness. (ii) Evidence of P.W.1 is not worthy of credence inasmuch as he first did not disclose to the Doctor as to the authorship of the injury sustained by the deceased and instead he told the doctor that the deceased had received the injury due to fall. This is a case of no evidence and as such the impugned order of conviction and sentence are liable to be set aside. 7. On the other hand, Shri P.K. Mohanty, learned Addl. Gov¬ernment Advocate supported the impugned order of conviction and sentence as quite justified. 8. Having gone through the post mortem report (Ext. 8) I found that the deceased had sustained one lacerated and stitched wonld of 4. c.m. long containing 4 nylon stitches detected on the back of head over left occipital area. Secondly, there was echy¬mased skin and contua at left post auricular and infraunicular region in an area of 6 c.m. x 5 c.m. on the left side head, neck and cheek. The doctor who conducted autopsy on the dead body of the deceased has opined that the above injuries as per Ext. 8 are ante mortem in nature and the death of the deceased was due to the said injuries. No doubt the learned trial Judge on perusal of Ext. 8 came to hold that the injuries sustained by the de¬ceased are ante mortem in nature, but there is no finding that death of the deceased is homicidal. 8 are ante mortem in nature and the death of the deceased was due to the said injuries. No doubt the learned trial Judge on perusal of Ext. 8 came to hold that the injuries sustained by the de¬ceased are ante mortem in nature, but there is no finding that death of the deceased is homicidal. In a case of murder the first and foremost finding of the Sessions Judge should be that the deceased dies a homicidal death. Perhaps such a finding could not have been arrived at by him due to non-examination of the doctor who conducted the autopsy on the dead body of the deceased. Even in post mortem examination report (Ext. 8) it has not been men¬tioned specifically whether the deceased died a homicidal or suicidal death. For non-examination of the doctor, this fact could not be ascertained from him. That apart the iron rod (M.O.I.) with which the injuries as per Ext. 8 are said to have been caused was sent to the Medical Officer for his opinion if the death of the deceased could be caused by means of the said weapon. As per the evidence of the I.O. (P.W.4), he issued requi¬sition (Ext.9) to the concerned doctor who replied affirmatively as per Ext.9/2. These facts cannot be relied upon as the doctor has not been examined. As such medical opinion which is only a corroborative piece of evidence is not decisive. Moreover, the accused would have got a chance to cross-examine the doctor on these aspects had he been put in the witness box. No reason has been assigned by the prosecution as to why the doctor could not be examined. It seems, no effort has been made to procure his attendance. For these reasons, the accused has been seriously prejudiced. 9. Now coming to the evidence of P.W.3 doctor Iswar Chandra Muduli. It is seen that on 26.6.96 the deceased was taken to M.K.C.G. Medical College Hospital, Berhampur. He examined the injured and found head injury on his person. As there was no facility for neuro surgery in the said Hospital be referred the injured to the neuro surgical centre of the S.C.B. Medical Col¬lege, Cuttack. His evidence is of no help to the prosecution. He examined the injured and found head injury on his person. As there was no facility for neuro surgery in the said Hospital be referred the injured to the neuro surgical centre of the S.C.B. Medical Col¬lege, Cuttack. His evidence is of no help to the prosecution. Therefore, this being the state of medical evidence as discussed above, I am of the considered view that the prosecution has failed to establish whether the deceased died a homicidal death. 10. So far as the evidence of the informant (P.W.2) is concerned, it is seen that he was told by some people that his brother (deceased) died in motor accident. However, later on he came to know from the owner of the hotel at Bhanjanagar Square that his brother was killed inside the said hotel. But he did not tell this fact to the I.O. during the investigation of the case. P.W.1 the so called hotel keeper has not supported the prosecution case. A perusal of his statement made during examination in chief shows that on the date of al¬leged occurrence the accused person, namely Gandu Patra and anoth¬er came to his hotel at about 12.30 to 1.00 p.m. Since the tiffin had been exhausted they wanted to take motor curry which was supplied to them accordingly. He has admitted that at that time the deceased Satyendra Misra went there. He was declared hostile for having resiled from his previous statement. Of course during confrontation by the public prosecutor he stated to have told the police that while the accused persons were taking chana curry one brahmin beggar came to his hotel. He has also stated before police that Satyendra Misra protested when the accused offered their used chana curry. This ensued quarrel between the accused persons on the one hand and the deceased on the other. During the said quarrel the accused persons dragged him to the back side of the hotel by giving pushes. At that time the accused took an iron rod from the hotel and dealt a blow by means of the said rod on the head of the deceased, as a result of which, he fell down and sustained bleeding injuries and became unconscious. During cross-examination by the defence he has admitted to have informed the doctor that the deceased received injuries due to fall. During cross-examination by the defence he has admitted to have informed the doctor that the deceased received injuries due to fall. This being the inconsistent evidence of P.W.1 the learned trial Judge ought not to have relied upon the same to reach a definite con¬clusion that the accused-appellant is the real assailant of the deceased. Even P.W.1 has not stated which of the accused persons dealt the fatal blow during his confrontation by the prosecution with reference to his previous statement. Moreover, even during cross-examination by the defence he has categorically stated that the deceased sustained injuries due to fall. The medical evidence which is not clear and conclusive with regard to the type of injuries found on the dead body of the deceased no definite opinion as to the cause of death can be given particularly when the doctor who conducted autopsy on the dead body of the deceased has been withheld from witness box. 11. While parting with this judgment it would be profitable to refer to the case law regarding the reliability of the evi¬dence of P.W.1 who has been declared hostile but subsequently, admitted to have stated before the I.O. regarding the quarrel between the accused persons on the one hand and the deceased on the other, during which the deceased was assaulted by the accused persons by means of an iron rod. 12. In 1982 Crl. Law Journal, 1553 (Annasab Melappa Pattan Shetty and another vrs. State of Karnataka) it is held that the material elicitated as contradiction by use of Sec. 145 of the Evidence Act cannot be substantive evidence to base conviction. In the present case P.W.1 does not support the prosecution case first but during his cross-examination by the prosecution he stated to have made such statement which cannot be a substantive evidence. Hence, it cannot be acted upon legally. Therefore, in such a view of the matter, it cannot be said that the prosecution had succeeded in establishing the charge or charges against the accused. In my opinion, there is no substantial legally accept¬able evidence against the accused persons. In 1988 Crl. Law Journal 1275, Prakash Sen Vrs. The State, the following view has been taken - “The provisions of Sec. 162, Cr.P.C. which impose a complete ban on the use of statements recorded by the police officer under Sec. 161, Cr. In my opinion, there is no substantial legally accept¬able evidence against the accused persons. In 1988 Crl. Law Journal 1275, Prakash Sen Vrs. The State, the following view has been taken - “The provisions of Sec. 162, Cr.P.C. which impose a complete ban on the use of statements recorded by the police officer under Sec. 161, Cr. P.C. for the purpose of corroboration or as substan¬tive evidence. Such a statement can be used by the accused, and with the permission of the Court, by the prosecution, only for the purpose of contradicting the witness, who has made such statement in the manner provided by Sec. 145 of the Indian Evi¬dence Act and any part of such statement is so used, any part thereof may also be used in the re-examination of such witnesses but for the purpose only of explaining any matter referred to in the cross-examination. The question whether the statements were honestly and faithfully recorded by the police officer is entire¬ly irrelevant.’’ 13. In the present case, the accused and the deceased are said to have been last seen together in the hotel of P.W.2 but chain of evidence must be so far complete as not to leave any ground for conclusion consistent with innocence of accused. Cir¬cumstances that accused and deceased were last seen in the hotel on the date of occurrence by itself does not lead to inference that accused murdered the deceased. 14. Therefore, in the facts and circumstances of the case and on consideration of the evidence available on the record I am not satisfied that the prosecution has successfully established its case beyond the shadow of all reasonable doubt. 15. In the result, the Criminal Appeal is allowed. The order of conviction and sentence under Sec. 304, Part-II, IPC recorded against the appellant is set aside. He is discharged of his bail bond. Appeal allowed.