Judgment ( 1. ) APPELLANT has challenged his conviction and order of sentence passed by sixth Additional Sessions Judge, Bhopal in S. T. No. 378/93 vide judgment dated 17-03-94. ( 2. ) APPELLANT has been convicted under Section 307 of IPC and sentenced to rigorous imprisonment for four years with fine of Rs. 1,000/- in default, further R. I. for six months by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 04-07-1993, at about 12 Oclock at night, complainant Hari had gone to the house of the appellant, on being called by his mother to pacify the appellant who was beating his wife. When complainant hari reached the house of the appellant at Kainchi Chola, Bhopal, he found that appellant was beating his wife. Complainant Hari tried to intervene and pacify him, but the appellant got annoyed and picked up a knife and gave a knife blow to the complainant in his abdominal region with intent to kill him. As a result, complainant sustained injury and started bleeding profusely. He was then rushed to Hamidia Hospital, Bhopal. The police was informed by the hospital authorities. The FIR in the form of Dehati Nalishi was recorded at the instance of injured hari in the hospital. On the basis of his report, an offence was registered against the appellant at P. S. Hanumanganj and was investigated. During investigation, the knife used in the commission of the offence was seized at the instance of the appellant. After due investigation, appellant was prosecuted under Section 307 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of evidence adduced in the case, found the appellant guilty under section 307 of IPC and convicted and sentenced him as aforesaid by the impugned judgment. Hence this appeal. ( 6. ) LEARNED Counsel for the appellant submitted that the Trial Court gravely erred in law and facts in convicting and sentencing the appellant under section 307 of IPC, though no case was proved against him. ( 7. ) LEARNED Counsel for the State, on the other hand, justified and supported the impugned judgment. ( 8. ) PERUSED the evidence on record. Complainant Hari (P. W. 5) is the sole witness to the incident. ( 7. ) LEARNED Counsel for the State, on the other hand, justified and supported the impugned judgment. ( 8. ) PERUSED the evidence on record. Complainant Hari (P. W. 5) is the sole witness to the incident. His wife Muraliyabai (P. W. 4) turned hostile and did not support the prosecution case. ( 9. ) COMPLAINANT Hari (P. W. 5), however, nowhere stated that appellant assaulted him with knife. According to complainant Hari (P. W. 5), he had gone to appellants house on being called by his mother to pacify the appellant, who was quarrelling with his wife. As per statement of Hari (P. W. 5), he had sustained injury in his abdomen in beech-Bachav when he tried to intervene and pacify the appellant during the scuffle between the appellant and his wife. ( 10. ) DURING cross-examination, complainant Hari (P. W. 5) clearly stated that appellant was assaulting his wife with an iron thing like knife which hurt him accidentally, when he (P. W. 5) tried to intervene. According to complainant hari (P. W. 5), appellant never wanted to assault him and he was hurt accidentally by mistake. ( 11. ) COMPLAINANT Hari (P. W. 5) also resiled from the contents of Dehati nalishi (Exh. P-6) during his cross-examination and deposed to have signed it in unconscious state. Complainant Hari (P. W. 5) also denied to have given the statement as per his dying declaration (Exh. P-6), though he admitted his signature on Exh. P-6. However, the statement of a person recorded as dying declaration in a case under Section 307 of IPC, where the declarant or injured survives, remains nothing more than a former statement and cannot be used as substantive evidence. Needless to add that FIR by itself is also not a substantive evidence. ( 12. ) ALTHOUGH, complainant Hari (P. W. 5) admitted during re-examination by the Public Prosecutor that he made incorrect statement on the previous date, yet on the same day, he gave a clear statement in Para 6 of his deposition that appellant never assaulted him by knife. ( 13. ( 12. ) ALTHOUGH, complainant Hari (P. W. 5) admitted during re-examination by the Public Prosecutor that he made incorrect statement on the previous date, yet on the same day, he gave a clear statement in Para 6 of his deposition that appellant never assaulted him by knife. ( 13. ) ALTHOUGH, as observed by the Trial Court, complainant Hari (P. W. 5) might not be making a correct statement in order to defend the appellant for some reason or the other, but the fact remains that there was no legal evidence on record that appellant assaulted the complainant by knife and it could not be inferred or presumed, in absence of such evidence, that appellant assaulted the complainant by knife. In any case, it could not be held on the basis of aforesaid testimony of Hari (P. W. 5) that appellant intentionally or voluntarily caused hurt to him by knife. ( 14. ) THUS, it was not established from the evidence on record that appellant gave a knife blow to the complainant Hari (P. W. 5) and intentionally or voluntarily caused hurt to him as found by the doctor (P. W. 8) or attempted at his life with intent to kill him. No case under Section 307 of IPC was proved against the appellant. ( 15. ) THE Trial Court did not correctly appreciate the evidence on record and fell in error in convicting and sentencing the appellant under Section 307 of ipc. ( 16. ) THE appeal is, therefore, allowed. The conviction of the appellant and the impugned sentence passed on him under Section 307 of IPC are set aside. Appellant is acquitted of the charge. ( 17. ) APPELLANT is on bail. His bail bonds shall stand discharged.