JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 2nd July, 2004 passed by learned Sessions Judge, Koraputat Jeypore in Criminal Trial No. 264 of 2002 convicting the Appellant u/s 302, IPC and sentencing him to undergo R.I. for life is assailed in this Criminal Appeal. 2. The prosecution was set to motion on the basis of an F.I.R. filed by one Kalia Santa on 5.8.2002 at B. Singhpur Police Station of Koraput District. According to prosecution case on 5th August, 2002, which was a Monday, in the after-noon, Rukuna Santa had been to the house of accused-Appellant to collect the loan advance to him. In course of discussion, altercation cropped up and the Appellant quarreled with said Rukuna and created disturbances. At that juncture, the villagers like Lachu and Chingudu Paraja intervened and Rukuna Santa left the place. Some time thereafter, the Appellant took tea in his house and left the village. The Appellant's wife told the informant that her husband went out holding an axe informing her that he is going to murder Rukuna. On coming to know about the said fact, Chandra Halwa (P.W. 7) went in search of the Appellant. On the way he found the Appellant returning with the axe in his hand. On being asked, he told the informant and Ors. that he was returning after murdering Rukuna Santa near the mango tope in Pilatota near village Jhingiriput and went to his house holding the axe. On coming to know about the said fact, P.W. 7 and the informant went to the spot at about 6.00 P.M. and from a distance found that Rukuna was lying on the ground sustaining profuse bleeding injury on his head. Seeing the said incident, P.W. 7 and Ors. became afraid and returned back. It is further stated that one Ghasi Goudo of village Jhingiriput while going to cut grass saw two persons running away from the aforesaid area and on the next morning Todi Santa and Ganga Santa of village Bendraguda while going to Tuesday weekly market saw the dead body and being frightened left the place. On the basis of the F.I.R., B. Singhpur P.S. Case No. 45(1) of 2002 was registered and police commenced investigation, inquest was made on the dead body, materials were seized, statements were recorded and the dead body was sent for post mortem. On the basis of the F.I.R., B. Singhpur P.S. Case No. 45(1) of 2002 was registered and police commenced investigation, inquest was made on the dead body, materials were seized, statements were recorded and the dead body was sent for post mortem. After completion of investigation, charge-sheet was submitted in the Court of learned SDJM, Koraput in G. R. Case No. 539 of 2002. On being satisfied from the records produced by the police, learned SDJM committed the case for trial. 3. The plea of the defence was complete denial. 4. In order to prove the case, the prosecution got examined 10. witnesses and exhibited 15 documents. Eight material objects including the wearing apparels were marked. Out of the prosecution witnesses, P.Ws. 1 to 7 were the residents of the same village. P.W. 8 is the doctor, who conducted post mortem. P.W. 9 is the police constable, who carried the dead body to the hospital for post mortem. P.W. 10 is the O.I.C., B. Singhpur Police Station. From the side of the defence, no witnesses was examined. 5. Learned Sessions Judge after discussing the evidence in extenso, observed that though there was no eye witness to the alleged occurrence, the discovery of dead body coupled with the statement made by P.W. 7, which was reiterated in court in course of cross-examination made by the prosecution after declaring hirri hostile, the post mortem report and the confessional statement of the Appellant before the I.O. in presence of witnesses and discovery of weapon of offence complete the chain of circumstances and establishes that the Appellant had committed the offence. On the basis of such conclusion, the Appellant was found guilty u/s 302, IPC and was sentenced thereunder. 6. Mr. Mishra, learned Counsel appearing for the Appellant strenuously took this Court through the evidence both oral and documentary and submitted that there is no iota of evidence to connect the Appellant with the alleged crime. According to Mr. Mishra, all the witnesses have turned hostile except P.W. 6, who claims to be a witness regarding leading to discovery of axe made by the Appellant on the basis of confession recorded u/s 27 of the Evidence Act. According to Mr. Mishra the axe, which was seized did not contain any blood stain as is evident from the chemical examination report. According to Mr. Mishra the axe, which was seized did not contain any blood stain as is evident from the chemical examination report. Thus, the prosecution has failed to establish that the axe which was recovered was the weapon with which-the offence was committed and the court below acted illegally with material irregularity in convicting the Appellant only on the basis of the statement recorded u/s 27 of the Evidence Act and the statement of P.W. 7 made in cross-examination after being declared hostile. 7. Mr. Panda, learned Counsel for the State, on the other hand, submitted that learned Sessions Judge has taken into consideration all the facts and circumstances and the order of conviction and sentence suffers from no infirmity. According to Mr. Panda, in view of the confession made by the Appellant as well as recovery of axe, learned Sessions Judge has rightly arrived at a conclusion that the Appellant was the author of the crime and the order of conviction does not suffer from any infirmity. 8. Heard learned Counsel for the parties at length. Perused all the evidence meticulously. This is a case where the informant, who had lodged the F.I.R. has not been examined. It appears, he died during pendency of the trial. Perusal of the evidence of P.W. 10 and the post mortem report (Ext.4 and 5 series) leaves no doubt in our mind that the death was homicidal one. The only point, which needs to be determined, is as to who had committed the crime. As stated earlier, to establish the said fact though the prosecution examined ten witnesses, most of whom are residents of the same village, all of them have turned hostile. They have been cross examined at length, but in vain. Nothing could be elicited from them to support the prosecution case. 9. After going through the entire evidence, this Court further find that the prosecution relies upon only two pieces of evidence. One, recovery of axe at the instance of confessional statement said to have been made by the Appellant while in custody. P.W. 6 is a witness to the said statement. According to him, while in police custody, on interrogation the Appellant confessed his guilt before police in his presence and stated that he had murdered Rukuna Santa by assaulting him with axe and had kept the axe in his house. P.W. 6 is a witness to the said statement. According to him, while in police custody, on interrogation the Appellant confessed his guilt before police in his presence and stated that he had murdered Rukuna Santa by assaulting him with axe and had kept the axe in his house. It is further stated that the Appellant led the police to the room of his house and produced the axe from near cot and the same was seized. Admittedly, the verbatim statement said to have been made by the Appellant has not been recorded by the I.O. Even otherwise, the confessional statement according to the provisions of Section 27 of the Evidence Act, is admissible only with regard to recovery of weapon of offence. It is no more res integra that in consonance with Section 27 of the Evidence Act, even though the evidence relating to the confession made by a person while he is in custody of a police officer is inadmissible, the information given by him leading to discovery of a fact, i.e., recovery of weapon of offence can be accepted. 10. In the case in hand, the axe said to have been seized from the house of the Appellant on the basis of so-called confession did not contain any blood stains as would be evident from the report furnished by the chemical examiner. Even otherwise there is no evidence to connect the axe, which was seized from the house of the Appellant in the commission of the alleged offence. Neither the wife of the Appellant, who saw him going with the axe or other witnesses, who saw the Appellant returning, holding the axe, have identified the axe to be one which the Appellant was carrying when he went to commit the murder. In absence of any iota of evidence to the effect that the Appellant had used the axe for committing the murder, only seizure of the said axe on the basis of the statement said to have been made by the Appellant would not be of any assistance to the prosecution. 11. The second piece of evidence upon which the prosecution bases his case, is the statement made by P.W. 7. The said witness in examination in chief, did not support the prosecution case at all and was declared hostile. 11. The second piece of evidence upon which the prosecution bases his case, is the statement made by P.W. 7. The said witness in examination in chief, did not support the prosecution case at all and was declared hostile. Thereafter, on being confronted P.W. 7 stated that he had told before the police that he and some Ors. saw the Appellant returning with the axe in his hand and on being asked the Appellant told them that he was returning after murdering Rukuna Santa near the mango groove of Dengiriput village. The point which needs to be considered is Whether the evidence of P.W. 7, who was declared hostile, but thereafter admitted to have stated before the police relating to the incident is admissible in evidence and can be construed as substantive evidence. 12. In the case of Annasab Melappa Pattanshetty and Another Vs. State of Karnataka the Supreme Court held that the material elicitated as contradiction by use of Section 145 of the Evidence Act cannot be treated as substantive evidence to base a conviction. 13. In the present case, admittedly, P.W. 7 does not support the prosecution case and was declared hostile. But then, during cross-examination by the prosecution, he stated to have made such statement before the police. Law is well settled that the statements made before a police officer are not admissible in evidence. The same thus cannot be treated to be substantive evidence. 14. In the case of Prakash Sen v. The State, reported in 1988 Cri. LJ 12175, it was held as follows: The provisions of Section 162, Code of Criminal Procedure which impose a complete ban on the use of statements recorded by the police officer u/s 161, Code of Criminal Procedure for the purpose of corroboration or as substantive 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 Section 145 of the Indian Evidence 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 of explaining any manner referred to in the cross-examination. The question whether the statements were honestly and faithfully recorded by the police officer is entirely irrelevant. 15. The question whether the statements were honestly and faithfully recorded by the police officer is entirely irrelevant. 15. In the case of Prava alias Pravakar Gouda alias Mahakud Vs. State of Orissa our High Court has also expressed similar view. 16. A reading of the entire judgment reveals that the grounds basing upon which learned Sessions Judge convicted the Appellant, i.e., recovery of the axe from his house and the statement made by P.W. 7. The discussions made above, would clearly reveal that the prosecution has totally failed to substantiate the fact that the axe seized was used by the Appellant for commission of the offence. Similarly, the statement made by P.W. 7 before the police u/s 161, Code of Criminal Procedure, which he reiterated in court in course of cross-examination, cannot be accepted as substantive evidence. Thus, the entire prosecution case fails. 17. The accused-Appellant has remained in custody for about seven years. In view of the discussions made above, after due consideration of the evidence, we have no hesitation to hold that the prosecution has totally failed to establish its case against the Appellant beyond all reasonable doubt. Consequently, this Criminal Appeal is allowed and the order of conviction and sentence passed u/s 302, IPC is set aside. The Appellant be set at liberty, if his presence is not required in connection with any other case. B.K. Nayak, J. 18. I agree. Final Result : Allowed