JUDGMENT : Sujit Barman Roy, J. 1.This appeal at the instance of the sole Appellant Dharmananda Sahoo is directed against the judgment and order dated 17.1.1995 passed by the learned 2nd Addl. Sessions Judge, Cuttack convicting the Appellant u/s 302, Indian Penal Code and sentencing him thereunder to undergo life imprisonment. 2. The prosecution case in brief is that on 12.6.1993 at about 1.00 P.M. the Appellant himself appeared at Jagatpur Police Station and lodged an information stating, inter alia, that on the previous day (11.6.1993) after selling a plot of land, he had kept an amount of Rs. 10,000/- in his almirah formarriage of his daughter. That very evening (11.6.1993) at about 7.00 P.M., his son Rabi @ Ramakanta' Sahoo (since deceased), challenged the Appellant and his wife for having sold the land and further stated that the marriage of the Appellant's daughter could not be held and forcibly took away the aforesaid amount of Rs. 10,000/- by breaking the lock of the almirah. The deceased returned home in the next morning at about 7.00 A.M. When the Appellant and other members of the family requested the deceased to return the money, which he had taken away forcibly, the deceased did not listen to the request and threatened the Appellant with dire consequences. This fact was later on narrated by the Appellant to some of the village elders as mentioned in the F.I.R. and the Appellant requested them to recover the said amount of Rs. 10,000/- from the deceased. On being so requested by the Appellant, the village elders came and requested the deceased to return the money to his father. But the deceased scolded those people in filthy language. Thereupon the Appellant handed over a piece of rope to the village elders, who thereafter tied the hands and legs of the deceased, whereafter the Appellant himself assaulted the deceased with a crowbar with a view to break his hands and legs. The other persons present there also assaulted the deceased with lathi as a result of which the deceased succumbed to the injuries. The Appellant and his wife untied the deceased, sprinkled water on his face and yet the deceased died. In this connection, the Appellant further stated in the F.I.R. that the deceased was involved in a series of criminal cases and in connection with such criminal cases, he had been in prison a number of times. The Appellant and his wife untied the deceased, sprinkled water on his face and yet the deceased died. In this connection, the Appellant further stated in the F.I.R. that the deceased was involved in a series of criminal cases and in connection with such criminal cases, he had been in prison a number of times. He was living separately from the Appellant. On the basis of the aforesaid oral information, which was reduced to writing by the concerned police officer of Jagatpur Police Station, a case under Sections 302/342/34, Indian Penal Code was registered against the Appellant and others. 3. After completion of investigation, the police submitted chargesheet against the Appellant and Ors. as aforesaid u/s 302/34, Indian Penal Code. In course of time, the case was committed to the Court of learned Sessions Judge, Cuttack and on transfer, the case was ultimately tried before the Trial Court. The learned Trial Judge on perusal of the materials on record, discharged all the accused persons except the present Appellant. Against the Appellant, the charge u/s 302, Indian Penal Code was framed to which he pleaded not guilty. On behalf of the prosecution, as many as 9 witnesses were examined. The evidence of all the witnesses except the police witnesses, is of no consequences as they turned hostile and did not support the prosecution case at all. The plea of the Appellant was that of complete denial. On conclusion of trial, the Appellant was convicted and sentenced as already stated. 4. All the alleged eye-witnesses turned hostile and did not support the prosecution case. As a mater of fact, there is absolutely not iota of evidence against the Appellant except what appears in the F.I.R. lodged by the Appellant himself recorded by the concerned police officer of Jagatpur Police Station. The statement in the F.I.R. reveals complete acknowledgement of guilt by the Appellant and therefore, it amounted to confession recorded by a police officer. As is wellknown, such confession recorded by a police officer or made even in presence of a police officer is inadmissible in evidence. Therefore, as a matter of fact, there is absolutely no of evidence. We do not like to enter into any further discussion of the materials on record except what is stated hereunder. 5. Mr. As is wellknown, such confession recorded by a police officer or made even in presence of a police officer is inadmissible in evidence. Therefore, as a matter of fact, there is absolutely no of evidence. We do not like to enter into any further discussion of the materials on record except what is stated hereunder. 5. Mr. M.R. Dhal, learned Additional Standing Counsel appearing for the State in course of hearing pointed out that during examination of the Appellant u/s 313 Code of Criminal Procedure, he was asked that he lodged an F.I.R. before the police stating as to how his son had died and in reply thereto he gave answer in one word, Le., 'yes'. Sub-section (1) of Section 313 of the Code of Criminal Procedure requires that in an inquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing against him in evidence, the Court may ask him certain types of questions as mentioned thereunder. But the F.I.R. as it contains confession recorded by a police officer, is inadmissible in evidence and hence, it is not even evidence. If it is not an evidence at all, it is not a circumstance appearing against the accused in evidence on record.and therefore, the accused had no obligation to give any explanation thereto. Despite the aforesaid position of law, the learned Trial Court proceeded to ask the Appellant certain questions, as noted above to the Appellant with respect to the F.I.R. The procedure adopted by the learned Trial Court in this regard was clearly in violation of law and therefore was not proper. Basing upon the answer given by the Appellant during examination u/s 313, Code of Criminal Procedure in response to such improperly asked questions, we cannot sustain the conviction of the Appellant. On perusal of the impugned judgment, it appears that except the said F.I.R., the trial Court had nothing to rely upon for conviction of the Appellant. We are of the further view that the Appellant should have been discharged and no charge should have been framed against him. Be that as it may, we are of the view that the impugned judgment cannot be sustained and must be set aside. 6: Accordingly, we allow this appeal and set aside the impugned judgment. The Appellant is acquitted of the charge u/s 302, Indian Penal Code. Be that as it may, we are of the view that the impugned judgment cannot be sustained and must be set aside. 6: Accordingly, we allow this appeal and set aside the impugned judgment. The Appellant is acquitted of the charge u/s 302, Indian Penal Code. The bail bond, of the Appellant be discharged. Final Result : Allowed