JUDGMENT B. PANIGRAHI, J. — In this appeal the sole appellant has challenged the conviction and sentence passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 28 of 1990 directing the appellant to undergo imprisonment for life under Section 302 of the Indian Penal Code for commission of murder of one Sanatan Rout. 2. Skeletal picture of the prosecution story as revealed during trial is that on 9.2.1990 the de facto complainant Rabin¬dra Kumar Rout, the brother of one Sanatan Rout sent his brother to his father-in-law’s house at village Sainkul at 3.00 P.M. to call him to their house for purchase of some utensils for the marriage of the sister-in-law of P.W.1. In the same night while P.W.1 was in his house one Alekha Jena, a co-villagers came to him and informed that at 6.30. P.M. while he along with Anakar Ojha were proceeding towards the village Tarava saw his brother Sanatan at the out-skirt or village Bareswar. But on returning towards his home from Tarava, he found the dead body of Sanatan lying in a mango grove of Bareswar village. Hearing this from Alekha, the de facto complainant P.W.1 rushed to the spot along with few others and found his brother Sanatan lying dead on the spot. There was some stab injuries on his right side neck. His cycle was kept propping to a mango tree. His hand bag was also lying there and also a pair of leather chappal. A banion which did not belong to the deceased was lying there. Therefore a great suspicion lurked in his mind that it might be the appellant Budhia Dalai of village Sahanandapur who was the perpetrator of crime, out of previous grudge. 3. The Officer-in-charge on receiving the verbal report from the de facto complainant, reduced the same into writ¬ing and registered it as P.S. Case No. 12 of 1990 under Section 302/201 of the Indian Penal Code and immediately took up inves¬tigation. He recorded the statement of the informant, visited the spot, held inquest over the dead body, prepared inquest report, took some snaps on the spot, prepared spot map, sent the dead body for post mortem examination, seized blood stained earth and sample earth along with some clothes lying there. After comple¬tion of investigation, he placed charge-sheet against the appel¬lant. 4. During investigation, certain articles were sent to the State F.S.L., Bhubaneswar. After comple¬tion of investigation, he placed charge-sheet against the appel¬lant. 4. During investigation, certain articles were sent to the State F.S.L., Bhubaneswar. The appellant was arrested. His nail clippings were also sent to State F.S.L. for examination. A knife was seized which had been sent to the State F.S. Laborato¬ry. 5. The appellant has of course denied the allegations and claimed to have been falsely implicated in this case. 6. The prosecution had examined 11 witnesses, of whom P.W.6 was regarded as a star witness who had claimed to have seen the appellant going through that way. In course of investigation, the I.O. unearthed a clue that while P.W.6 was being raped by the deceased, the husband who was passing through that way could not countenance such ugly scene and assaulted him. The trial Court held that P.W.6 was the only eye-witness to the occurrence. It has also accepted that the deceased and P.W.6 were in a copulat¬ing position. Therefore, the husband assaulted him as a result of which he died. In course of trial she has disowned her statement under Sections 161 and 164 of the Code of Criminal Procedure and pleaded ignorance about appellant’s involvement. Nonetheless, the learned Sessions Judge on the basis of previous statement under Section 164, Cr.P.C. convicted the appellant for commission of murder. 7. Mr. Nayak, the learned Advocate appearing for the appellant has submitted that once she disowned her previous statement recorded under Sections 161 and 164, Cr.P.C. in Court, even assuming she made such statement during investigation doesn’t it have any evidentiary value. If the answer is in nega¬tive, then the trial Court has ostensively committed an error of law to convict the appellant only on such basis. 8. In support of his submission he has relied upon a judgment reported in 1972 S.C.C. (Cri.) 493 (Ram Kishan Singh v. Harmit Kaur and another). In the decision stated supra, the learned Sessions Judge convicted the accused only on the basis of the statement recorded under Section 164, Cr.P.C. But the High Court set aside the said conviction by holding that such state¬ment even assuming to be true to have been made under Section 164, Cr.P.C., since it is not a substantive evidence, therefore, it could not have been relied upon. Therefore, the appellate Court set aside the conviction and sentence passed against the accused. Therefore, the appellate Court set aside the conviction and sentence passed against the accused. Such acquittal order was however challenged before the Hon’ble Supreme Court and it held in following manner : “A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corrobo¬rate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the con¬clusion of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, un¬truthful and unworthy of credence.” “It is true that the High Court as an appellate Court can set aside an order of acquittal. In doing so, the High Court has to review the evidence upon which the order of acquittal is founded. The High Court is to consider the views of the trial Judge as to the credibility of the witnesses. The High Court is also to keep in view the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. Finally the High Court is to give reasons that the acquittal was not justified. The acquittal by the Sessions Judge cannot be said to be against the evidence or in disregard to evidence. Nor can the acquittal be said to be in violation of the principles of criminal jurisprudence.” 9. In a recent judgment reported in (1998) 4 Supreme Court Cases 605 (George and others v. State of Kerala and another), in the same light the Supreme Court held as follows : “We may now turn to the evidence of PW 50, detailed earlier. From the judgment of the trial Court we notice that the substan¬tial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164, Cr.P.C. and not his evi¬dence in Court. From the judgment of the trial Court we notice that the substan¬tial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164, Cr.P.C. and not his evi¬dence in Court. The said statement was treated as substantive evidence; as would be evident from the following amongst other observations made by the learned trial Court; “If Ext.P-42 (the statement recorded under Section 164, Cr.P.C.) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime.” In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164, Cr.P.C. cannot be used as substantive evidence and can be used only for the pur¬pose of contradicting or corroborating him. Instead of appreciat¬ing the evidence of P.W.50 from that perspective the trial Court confined its attention mainly to his statement so recorded and discredited him. This legal infirmity apart, factually also the trial Court committed patent errors. As earlier noticed, one of the grounds for disbelieving him was that in the trip-sheet the name of the person who performed the journey, namely, A-1 was not shown. If the trial Court had cared to look into the other trip-sheets which form part of Ext. P-54 it would have found that in none of them the name of the person who hired the car is men¬tioned. The trial Court was, therefore, not at all justified in commenting upon such non-mentioning of the name of the hirer and concluding therefrom that the document was suspect. The comments of the trial Court that PW 50 made the statement before the Magistrate (Ext.P-42) to oblige the police as his brother was arrested in connection with an excise case is also without any basis whatsoever. In drawing the above inference the trial Court was much influenced by the fact that the car in question, namely, KEK 3114 was seized by the police on 31.5.1990 and that it was released on 28.6.1990. According to the trial Court it was wrong¬fully detained by the police for such a long period to compel PW 50 to make a statement according to its dictate. According to the trial Court it was wrong¬fully detained by the police for such a long period to compel PW 50 to make a statement according to its dictate. Once a car is seized in connection with a case it can be returned pursuant to the order of a competent Court only and there is nothing on record to indicate that in spite of such an order the car was not returned so as to entitle the trial Court to comment that the long detention of the car was itself a suspicious circumstance. Having gone through the evidence of P.W.50 we find that each of the reasons canvassed by the trial Court for disbelieving PW 50 is either legally unsustainable or factually incorrect. 10. There was an occasion to consider the evidentiary value of the statement recorded under Sections 161 and 162 also 164, Cr.P.C. This Court in a judgment reported in 1985 (I) OLR 429 (Santosh K Chakrabarti v. State of Orissa) held as follows : “It is unfortunate that the learned Additional Sessions Judge has relied on the statements made by P.Ws.9, 10 and 14 under Sec. 161 and before the Magistrate under Section 164 of the Code of Criminal Procedure as substantive evidence. A statement made by any person in the course of investigation to a police officer is hit under Section 162 of the Code of Criminal Procedure except when it comes under the purview of Section 27 or 32 of the Evi¬dence Act. A statement under Section 161 can only be used for the purpose of contradicting the evidence of a prosecution witness. it cannot be used for corroborating the evidence of a prosecu¬tion witness. A statement under Section 164 stands on a slightly different footing in that it can be used both for corroborating or contradicting the evidence of the maker of it. But one funda¬mental thing which the learned trial Judge has not kept in mind is that statements made under Sections 161 and 164 cannot be treated as substantive evidence against an accused person. This elementary and fundamental principle should not have been lost sight of. The learned trial Judge treated the statements of P.Ws. But one funda¬mental thing which the learned trial Judge has not kept in mind is that statements made under Sections 161 and 164 cannot be treated as substantive evidence against an accused person. This elementary and fundamental principle should not have been lost sight of. The learned trial Judge treated the statements of P.Ws. 9, 10 and 14 as substantive evidence, asked the appellant to answer questions relating to such statements, which under the law he was not competent to do as an accused person could be put to notice regarding the circumstances appearing in the evidence against him and such statements made under Sections 161 and 164 could not be treated as evidence and he even relied on those statements made under Sections 161 and 164 in basing a convic¬tion”. “We would, however, record a few words about the duties of the prosecution and the defence. The learned counsel appearing for both the sides ought to have brought to the notice of the trial Court when the appellant was being examined that such statements ought not to have been put to the appellant as they could not constitute substantive evidence. If a trial Court proceeds on a wrong track or on incorrect lines, it is the duty of the public prosecutor and the defence counsel to invite the attention of the Court to the relevant provisions of law”. 11. Therefore, in view of the aforesaid decisions it is no longer ‘res integra’ that a statement made by a witness during investigation under Sections 161 and 164, Cr.P.C. cannot be used for any purpose other than confronting such statement of a wit¬ness during investigation to ascertain and evaluate the veracity of such witness in course of trial. 12. By taking the rationale from the above judgments, we found that the learned trial Court has committed a serious ille¬gality in accepting the statement recorded under Section 164, Cr.P.C. as evidence in trial. Another incriminating circumstance has been narrated that a knife so also the wearing apparels of the accused have been seized. But all the seizure witnesses have turned hostile and those clothes as well as knife did not contain any incriminating material to connect the appellant with the crime. It is true that the deceased became a victim to the cir¬cumstance and lost his life. But satisfaction of such moral conviction cannot displace the legal proof. 13. But all the seizure witnesses have turned hostile and those clothes as well as knife did not contain any incriminating material to connect the appellant with the crime. It is true that the deceased became a victim to the cir¬cumstance and lost his life. But satisfaction of such moral conviction cannot displace the legal proof. 13. The learned Sessions Judge has of course relied upon the discovery statement made by the appellant in course of evi¬dence. The seizure witness has turned hostile. Therefore, we are left with the evidence of Investigating Officer. It is true that the Investigating Officer’s evidence also can prove seizure of the weapon of offence. But we find that the weapon of offence did not contain any incriminating material. Therefore, such state¬ment, even assuming to have been disclosed by the appellant, that by itself does not help the prosecution in order to prove its case against the appellant. 14. From the totality of the facts and circumstances of the case, we are, however, not satisfied with the findings of the learned Sessions Judge in convicting the appellant under Section 302, I.P.C. Accordingly the conviction and sentence passed there¬under are hereby set aside. His bail bond if any, shall stand cancelled. CH. P. K. MISRA, J. I agree. Appeal allowed.