JUDGMENT Ranjan Gogoi, J. 1. This appeal from jail is directed against the judgment and order dated 28.11.2002 passed by the learned Ad hoc Addl. Sessions Judge, FTC, Sonitpur in Sessions Case No. 102(S)/02. By the aforesaid judgment, the accused/appellant has been convicted under Section 302, IPC and sentenced to imprisonment for life. Additionally, a fine of Rs. 5,000 has been imposed, in default, the accused-appellant has been sentenced to suffer R.I. for two months more. 2. The short case of the prosecution is that at about 9 a.m. of 30.1.2002, PW1 Subhash Bhowmik lodged a FIR in the Thelamara Police Station stating that at about 6.30 p.m. of the previous day (29.1.2002) while his elder brother one Pranash Bhowmik was sleeping in his house, the accused/appellant Prabhas Bhowmik, who is the younger brother of the first informant caused serious injuries to Pranash Bhomik with a broken plough resulting in his death in the hospital. 3. On the basis of the aforesaid FIR lodged, Thelamara P.S. Case No. 2/2002 was registered. PW11 Sri Gopiram Koch, Sub-Inspector of Police was entrusted with the investigation of the case who, in course thereof, visited the place of occurrence and held inquest on the dead body which was also sent for post mortem examination. The statements of persons who claimed to be acquainted with the offence were recorded by the Investigating Officer. On conclusion of the investigation, charge sheet was submitted against the accused/appellant under Section 302, IPC. The offence alleged being exclusively triable by the court of Sessions, the learned SDJM(S), Sonitpur, Tezpur by order dated 26.6.2002 committed the case for trial to the court of Sessions at Tezpur. In the Sessions Court charge under Section 302, IPC was framed against the accused/appellant to which he pleaded not guilty. In the course of trial, eleven witnesses were examined by the prosecution. The statement of the accused/appellant was recorded under Section 313, Cr.PC. No defence evidence was adduced. Thereafter, by the impugned judgment and order dated 28.11.2002 the accused/appellant has been convicted and sentenced as aforesaid. 4. A brief resume of the relevant part of the evidence adduced by the prosecution witnesses will be called for at this stage: PW1, Subhas Bhowmik, the first informant, is the younger brother of the deceased Pranash Bhowmik. Thereafter, by the impugned judgment and order dated 28.11.2002 the accused/appellant has been convicted and sentenced as aforesaid. 4. A brief resume of the relevant part of the evidence adduced by the prosecution witnesses will be called for at this stage: PW1, Subhas Bhowmik, the first informant, is the younger brother of the deceased Pranash Bhowmik. According to PW1, at about 6.30 p.m. of 29.1.2002 after he along with the deceased, the accused/appellant and another brother had taken their evening meal together (this was because their mother had died recently), he had gone out to answer the call of nature. While outside, he heard some sound in the room where the deceased was sleeping and coming back to the house he saw the accused/appellant going out towards the paddy field. Entering the room where his elder brother was sleeping he found the deceased Pranash Bhowmik lying on the ground and bleeding. Thereafter, he along with his younger brother and other villagers took his elder brother to the Civil Hospital at Tezpur where he was declared to have been brought dead. 5. PW2, Bikash Ch. Bhowmik is another brother of the deceased who was, at the relevant point of time, in the adjacent room. He has supported PW1 in all material particulars, particularly, the fact that the accused/appellant was seen running away from the house. 6. PW3, Smt. Debi Bhowmik is the sister-in-law of the deceased who has supported PW1, PW2 and PW4, Tapan Kr. Bhowmik, the son of the deceased has also deposed in a similar manner. PW5, Chandan Das and PW6, Sunil Ch. Bhadra are the neighbours who were informed of the incident and at the request of the members of the family they had arranged a vehicle to take the injured (deceased) to the Civil Hospital at Tezpur. 7. PW7, Dilip Kr. Dhar in his deposition had stated that he had gone to the place of occurrence after hearing hue and cry and he was informed about the incident by others. PW7 is a witness to the seizure of the plough made by Exhibit-2. PW8, Kripendra Rai visited the place of occurrence in the next morning. This witness is also a witness to the seizure of the plough. Additionally, PW8 has deposed that on being asked by the police, the accused/appellant had admitted that he had hit the deceased twice with the plough. PW8, Kripendra Rai visited the place of occurrence in the next morning. This witness is also a witness to the seizure of the plough. Additionally, PW8 has deposed that on being asked by the police, the accused/appellant had admitted that he had hit the deceased twice with the plough. Similar is the evidence of PW9 who reached the place of occurrence 10-15 minutes after the same on hearing hue and cry. 8. PW10 is Dr. Achintya Kr. Baruah who had carried out post mortem of the deceased. The findings of post mortem are extracted below: 1. There was depressed fracture of the skull over the right frontal bone. 2. 4" lacerated cut over the right eye brow. 3. 2" and 1/2" size, 2 cut mark 1" apart over the frontal region. 4. Nobel bridge is fractured. There was a cut injury over the scalp as mentioned. Compound and communitted fracture right frontal bone. Laceration of the brain underneath. Other organs are healthy. Injuries are ante mortem in nature and caused by heavy weapon. Opinion: Death was due to head injury. The injury is sufficient to cause death in the ordinary course of nature. 9. PW11, S.I. Gopiram Koch is the Investigating Officer of the case who apart from deposing on the different facets of the investigation, had stated in cross-examination that PWs 1, 2, 3 and 4 had not stated before him that on hearing sound/hue and cry from the room where the deceased was sleeping they had come out and had seen the accused/appellant running away from the house. Coincidentally in the cross-examination of each of the aforesaid PWs, i.e., PWs 1, 2, 3 and 4 a suggestion was put to them that they had not made any such incriminating statement before the Investigating Officer which suggestion was denied by each of the witnesses. 10. A perusal of the core of the evidence of the prosecution witnesses extracted above would go to show that there is no eye witness to the occurrence. The four other residents of the house who are immediately related to the deceased, i.e., PWs 1, 2, 3 and 4 had been examined by the prosecution. 10. A perusal of the core of the evidence of the prosecution witnesses extracted above would go to show that there is no eye witness to the occurrence. The four other residents of the house who are immediately related to the deceased, i.e., PWs 1, 2, 3 and 4 had been examined by the prosecution. According to all the aforesaid four prosecution witnesses, on hearing hue and cry/sound emanating from the room where the deceased was sleeping they had rushed to the room and found the accused/appellant running away from the house and further that the deceased was lying in an injured condition with severe bleeding injuries. The correctness of the conviction of the accused/appellant under Section 302, IPC, therefore, has to be decided on the basis of the above stated evidence adduced by the prosecution. 11. Sri D.K. Chomal, learned amicus curiae has pointed out to the court that the vital part of the evidence on which the prosecution case rests was brought for the first time in the course of trial and all the prosecution witnesses who had implicated the accused had not made any such statement before the Investigating Officer. In such a situation, according to the learned amicus curiae, it must be held that the evidence tendered by PWs 1, 2, 3 and 4 suffers from material contradictions affecting the veracity thereof. The vital part of the evidence having been stated for the first time in court and not before the Investigating Officer, according to the learned amicus curiae, no reliance ought to be placed by the court on the said part of the testimony of the witnesses. It is further submitted that if the aforesaid part of the evidence of the witnesses is to be excluded, the conviction of the accused/appellant would have no legs to stand. 12. Opposing the contentions advanced by the learned amicus curiae, Sri Z. Kamar, learned Public Prosecutor has vehemently contended that the statements of PWs 1, 2, 3 and 4 at best disclose omissions and omissions do not amount to contradiction. The learned public prosecutor has further pointed out that the previous statements made by the witnesses to the Investigating Officer can only be used for the purposes of proving contradictions, if any, and, that too, in accordance with the provisions of Section 145 of the Evidence Act. The learned public prosecutor has further pointed out that the previous statements made by the witnesses to the Investigating Officer can only be used for the purposes of proving contradictions, if any, and, that too, in accordance with the provisions of Section 145 of the Evidence Act. Neither the said provision of the Act has been followed nor the statements sought to be termed as contradictions really amount to contradiction. 13. We have considered the evidence on record and the submissions advanced by the learned amicus curiae as well as the learned Public Prosecutor. 14. The core issue that has to be decided in this appeal is whether the absence of any statement by PWs 1, 2, 3 and 4 before the Investigating Officer with regard to their rushing the room of the deceased on hearing sound emanating there from and their seeing the accused/appellant running away would amount to a contradiction so as to discredit the statement made to the said effect by PWs 1, 2, 3 and 4 in the course of their depositions in court. The question whether omissions amount to contradiction has received an elaborate consideration of a Division Bench of this Court in The State v. Md. Misir Ali and Ors. AIR 1963 Gau. 151 . The Bench after a due consideration of the provisions contained in Section 162, Cr.PC and those contained in Section145 of the Evidence Act, took the view that strictly speaking an omission does not amount to contradiction. Though in paragraph 16 of the judgment, it has been held that the view expressed to the above effect should not be understood to mean that "in no case a serious and glaring omission from a police statement can be relied upon", it was clarified that such a statement may be relied upon not as a contradiction but it must be so done as a relevant circumstance. 15. The issue had also received considerable attention of the Supreme Court in one of its early decisions in the case of Tahsildar Singh and Anr. v. State of U.P. AIR 1959 SC 1012 . In para 25 and 26 of the judgment in Tahsildar Singh (supra), the Apex Court, after elaborately considering several illuminating judgments of the High Court held, as follows: (25) It is not necessary to multiply cases. v. State of U.P. AIR 1959 SC 1012 . In para 25 and 26 of the judgment in Tahsildar Singh (supra), the Apex Court, after elaborately considering several illuminating judgments of the High Court held, as follows: (25) It is not necessary to multiply cases. The two conflicting views may be briefly stated, thus: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness box; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the Legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches the meaning of the word "statement" to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word "statement". Such a construction is not permissible. When the section says that the statement is to be used to contradict the subsequent version in the witness box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word "statement". Such a construction is not permissible. (26) From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied, i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was, a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. 16. From the view expressed by the Apex Court in the aforesaid two paragraphs of the judgment in Tahsildar Singh (supra), it clearly follows that omissions do not amount to contradictions except in a situation where the two statements are mutually irreconcilable, a situation which has been fully explained by the Apex Court by the elaborate illustration contained in para 26 as noticed above. In the present case, the contradiction that is sought to be attributed to the evidence of PWs 1, 2, 3 and 4 is not from the facts stated by them before the police but from the fact that the four witnesses had kept silent on an aspect which was deposed to by them in court. The provisions of the Evidence Act would clearly go to show that a statement made before the police can be put to limited use as spelt out by Section 145 thereof and Section 162 of the Code of Criminal Procedure, i.e., only for the purpose of contradiction and that too, after drawing attention of the maker of such statement so as to enable him to offer his explanations, if any. 17. In the present case, the omission is to state before the police what came to be eventually stated in court. There was no positive statement before the police which contradicts the evidence tendered in court. The evidence before the court on the fact in issue and the silence of the witnesses before the police, in the present case, is not mutually irreconcilable. In such circumstances, if the omission in question is to be treated as a contradiction the same would tantamount to treating a non-existent fact, i.e., a fact not stated as having been specifically denied. Such an omission, therefore, does not amount to a contradiction which could be proved under Section 145 of the Evidence Act. In any case, there was no attempt on the part of the defence to prove the said omission as a contradiction by following the provisions of the Evidence Act. Merely because a relevant fact is stated for the first time in court and the witnesses had remained silent on the said fact while the case was being investigated cannot, in our considered view, cast any doubt on the testimony of such witnesses so as to enable us to discard the same as untrustworthy. Merely because a relevant fact is stated for the first time in court and the witnesses had remained silent on the said fact while the case was being investigated cannot, in our considered view, cast any doubt on the testimony of such witnesses so as to enable us to discard the same as untrustworthy. That apart, in the present case, it must be taken note of that not one but as many as four witnesses who were in the house at the time of occurrence and who are related to the accused as well as the deceased, had clearly implicated the accused in the crime committed. 18. For the aforesaid reasons, we do not find any merit in this appeal. The appeal is, accordingly, dismissed. 19. We acknowledge the able assistance rendered by the learned amicus curiae in disposing of the case. We, therefore, direct the State to pay to Sri D.K. Chomal, learned amicus curiae two days' hearing fee at the rate of Rs. 2,500 per day. Appeal dismissed