JUDGMENT : B. Panigrahi, J. - This appeal assails the order of conviction of the Appellant under Sections 302 and 201 read with Section 34, Indian Penal Code passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No. 64 of 1988 sentencing the Appellants to undergo imprisonment for life and R.I. for 5 years respectively; the sentences to run concurrently. 2. The skeletal picture of the prosecution story, as unfolded in course of trial, is as follows: On 13.6.1988 at 11.00 P.M. both the Appellants killed victim Gurucharan Mohanta by means of a 'Paniki' (an instrument for cutting vegetables) and threw the dead body in a nearby jungle. P.W. 11 Pankaja Kumar Mohanta was allegedly in their company in the night of occurrence. He is the only eye witness to the occurrence as depicted in the charge-sheet. It is stated by the prosecution that since P.W. 11 was threatened of dire consequences if he dared to disclose the aforesaid fact to anybody, he closed his lips tight till he was examined by the police. On 14.6.1988, station diary entry No. 282 was made in Barbil Police Station wherein it was reflected that an unknown dead body was lying near a cashew plantation near Mundanala. One Alli Imam had intimated the said fact at the police station. The matter was enquired into through the S.I. of Barbil Police Station. During enquiry, it was however noticed that the throat of the deceased was cut. There was mark of violence and patches of blood at the scene of occurrence. The wearing clothes of the deceased was drenched with blood. A pair of Hawai Chap pal were also scattered at the scene of occurrence. Therefore, a case of homicidal death was registered vide P.S. Case No. 52 of 1988 under Sections 302 and 201, Indian Penal Code. During investigation the police collected the clues against the Appellant Mithun, and he was accordingly arrested. His blood-stained Dhoti (M.O.I) was seized. The photographs of the dead body were taken. The I.O. held ingquest over the deadbody, arranged to despatch of the dead body for post-mortem examination and examined the witnesses. In course of investigation, Appellant Mithus is alleged to have made a disclosure statement, on the basis of which one blue-co loured full pant and one Terycot shirt with label "DISCO Tailor" attached to the collar were recovered. The I.O. held ingquest over the deadbody, arranged to despatch of the dead body for post-mortem examination and examined the witnesses. In course of investigation, Appellant Mithus is alleged to have made a disclosure statement, on the basis of which one blue-co loured full pant and one Terycot shirt with label "DISCO Tailor" attached to the collar were recovered. The Appellant Motilal also led the I.O. to the place of discovery and produced a full pant and a banian. The incriminating materials collected in course of investigation were sent to the Chemical Analyst for examination. The I.O. after completion of investigation had placed charge-sheet against the Appellants. 3. The plea of the Appellants was one of denial of the occurrence. They claimed to have been falsely implicated in this case. Appellant Mithu also complained of ill-treatment and torture by the police. 4. Although 13 witnesses had been examined, but the evidence of P.W. 11 is significant while determining the culpability of the Appellants. In case the evidence of P.W. 11 is believed, then the trial court's order of conviction is bound to be maintained in this appeal. But while decideding the culpability of the Appellant, we have to consider the other material factors. From the evidence of the witnesses, it is established that on the report of one Ali Imam (P.W. 2), the investigating agency immediately swung into action. They found the dead body lying in the jungle towards the west of the house of P.W. 2. P.W. 3, Pendi Dei first saw the dead body of the deceased on the spot and reported it to P.W. 2, who in turn gave information to the police. The evidence of P.W. 4 is not of much help to the prosecution. P.W. 6 is the father of the deceased. From ~is testimony it appears that three days after his son did not return to his residence, he made an enquiry about the deceased. In course of enquiry he collected information from the workers of a garage that they had seen the deceased in the company of the Appellants. But from his statement collected during cross-examination, it has appeared that he could not state the names of the persons of the garage, who passed on the information to have seen the deceased in the company of the Appellants to him. But from his statement collected during cross-examination, it has appeared that he could not state the names of the persons of the garage, who passed on the information to have seen the deceased in the company of the Appellants to him. P.W. 7 was examined for proving the 'Paniki' (an instrument for cutting vegetables) (M.O.IX). P.W. 8 was the Medical Officer, who conducted post-mortem examination over the dead body of the deceased. He noticed one incised wound on the front of the neck about 14th inch above the thyroid cartilage between the cartilage and thyroid bone extending to both antero-Iateral sides of the neck. The size of the wound was 8" x 1-1/2" x 2" at the deepest part. 5. From his statement it has been established that the deceased met a homicidal death out of the said injuries. P.W. 10 had carried the dead body of the deceased for post-mortem examination. P.W. 11 in his statement had stated that he did not know the deceased. His statement further disclosed that he was compelled to make a statement implicating the Appellants at the behest of the police people. In fact his statement in Court does not implicate the Appellants in any manner, save and except the statements purported to have been made during investigation. When confronted with such statement, he replied that he was forced to state so under threat, coercion and intimidation by the police. He was not aware about who killed the deceased. The learned trial Judge had however felt inclined to convict the Appellants only on the basis of the statement made during investigation to the police, which he has admitted to have stated so in Court. According to the learned Sessions Judge, such statement was a substantive piece of evidence. 6. Mr. Acharya, Learned Counsel appearing for the Appellants, has strongly contended that in no event such statement can be treated as evidence in Court, inasmuch as he stated to have made such statement under threat, coercion and intimidation. Secondly, he did not stick to such statement in Court and made a contrary statement that he was not aware as to who inflicted the injuries on the deceased. P.W. 11 further disclosed that he was detained in the police station for some days in connection with this case and was put to harassment. Therefore, he left for Madhya Pradesh. 7. P.W. 11 further disclosed that he was detained in the police station for some days in connection with this case and was put to harassment. Therefore, he left for Madhya Pradesh. 7. In that view of the matter, we are constrained to hold that the learned Sessions Judge has transgressed his power in assuming the statement made to the police as substantive evidence. If such statement is excluded from consideration, unfortunately there is nothing placed before the Court to connect the Appellants with the crime. The SC in the case of State of Maharashtra Vs. Anand Chintaman Dighe, held that even on a bail application the statement made by a witness in course of investigation by a police officer could not be regarded as a substantive evidence. Therefore, we are of the view that the learned trial Judge erred in treating the statement as a substantive evidence. 8. P.W. 12 was working in a garage at Barbil where Appellant Motilal was also engaged as a labourer. According to the prosecution, some seizure was effected in his presence. But P.W. 12 in clear terms has testified that no such seizure was effected in his presence. The statement of P.W. 12 is, therefore, not helpful to the prosecution. P.W. 13 is the I.O. in this case. According to him both the Appellants led him to the place of recovery while in custody and gave one yellow colour banian and also the 'Paniki'. The learned trial Judge was however reluctant to place any reliance on the evidence of recovery. While upholding such finding, were are constrained to hold that there is no proof of recovery of any incriminating articles from the Appellants' possession. Since no incriminating materials had been established against the Appellants apart from the statement of P.W. 11, which we have earlier discussed in the preceding paragraphs, we are constrained to disagree with the observation of the learned Sessions Judge and accordingly acquit the Appellants of the charge under Sections 302, 201/34, Indian Penal Code. 9. In the result, the appeal is allowed. The order of conviction and sentence passed against the Appellants are set aside. The bail bonds furnished by them are hereby discharged. Final Result : Allowed