JUDGMENT Ansari, J. 1. This appeal is directed against the judgment and order, dated 22.08.2006, passed, in Sessions Case No. 131 of 2005, by the learned Sessions Judge, Dibrugarh, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer imprisonment for a period of 1 (one) month. The case of the prosecution, as emerged at the trial, may, in brief, be described thus: Deceased Nagen Bhumij was elder brother of PW 1 (Binod Bhumij), who used to live with his wife, Champa Bhumij, his son, accused Biju Bhumij, and his elder brother, Nagen Bhumij (since deceased), in one and the same house. On 01.01.2004, at about 08:30 PM, the accused gave blows, by means of dao, on Nagen Bhumij and killed him on the spot. PW 1, then, accompanied by his wife, Champa, went to the VDP President, Naba Bora (PW 4) and informed him that their son, Biju Bhumij, had killed his uncle, Nagen Bhumij, by assaulting him with a dao. PW 4 accordingly came to the house of PW 1 and found Nagen Bhumij lying dead on the floor, whereupon he informed the local police, over telephone, about the occurrence. This was followed by lodging of an Ejahar, at Naharkatia Police Station, by PW 1, the Ejahar having been written by PW 2 (Santiyal Araya). Treating the said Ejahar as First Information Report (in short 'FIR'), Naharkatia Police Station Case No. 1/2004, under Section 302 IPC, was registered against the accused-appellant. During investigation, police visited the place of occurrence, held inquest over the said dead body and seized a blood stained dao by seizure list, which is Ext. 3. The dead body was subjected to post mortem examination, and, on completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8 (eight) witnesses including 2 (two) investigating officers. The accused was, then, examined under Section 313 Cr. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8 (eight) witnesses including 2 (two) investigating officers. The accused was, then, examined under Section 313 Cr. PC and, in his examination aforementioned, he denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that Nagen Bhumij (since deceased) wanted to kill the accused and gave a blow on the hand of the accused and the accused pushed Nagen Bhumij away and went out of the house, the accused spent the night at his maternal uncle's place and, when he returned home on the following day, he came to learn that Nagen Bhumij had died. In short, thus, the defence of the accused was that he was ignorant as to how Nagen Bhumij had died. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed, the accused, as the convicted person, has preferred this appeal. 5. We have heard Ms. N. Mitra, learned amicus curiae, and also Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. Before entering into the discussion of the various incriminating pieces of evidence, which have been relied upon by the learned trial Court in arriving at the conclusion of the guilt of the accused, we refer to the medical evidence on record. We notice that, according to the doctor (PW 8), who had, admittedly, performed, on 02.04.2004, the post mortem examination on the dead body of Nagen Bhumij, he found, according to his evidence, as follows: A male dead body of average built wearing one red full sweater, sporting ganji, grey trouser, all were blood stained. Rigor mortis was present in all limbs. P.M. hypotension back. Injuries: One incised wound measuring 5 x 1.5 cm on front of the neck placed horizontally in the middle part over the lower part of the larynx. The larynx is found incised. The muscles, nerves, carotid vessels on front of the neck on both sides incised. Rigor mortis was present in all limbs. P.M. hypotension back. Injuries: One incised wound measuring 5 x 1.5 cm on front of the neck placed horizontally in the middle part over the lower part of the larynx. The larynx is found incised. The muscles, nerves, carotid vessels on front of the neck on both sides incised. Abrasions incised measuring 3 x 0.5 cm, 2 x 0.5 cm present on middle left forehead. Incised wound measuring 6 x 1 cm bone deep on right parietal area. Incised wound measuring 3 x 1 cm bone deep on left parietal area. Examination of abdomen - all were healthy and pale. Small intestine was pale, contains digested fluidly materials. Examination of thorax - all were healthy and pale. Examination of cranium and canal - scalp was incised. Others were health. 7. The doctor (PW 8) has opined that all the injuries were of ante mortem and homicidal in nature and the same were caused by a sharp-cutting weapon. The cause of death, according to the doctor (PW 8), was shock and hemorrhage, which resulted from the injuries, which had been sustained by the said deceased. 8. The evidence, given by the doctor, was not challenged either by the prosecution or by the defence. We, too, notice nothing inherently incorrect or improbable in the evidence given by the doctor. His unshaken evidence, therefore, shows that there were multiple incised wounds, the wounds being, primarily, on the forehead and on both, right as well as left parietal area. These injuries were ex facie homicidal in nature and we have no doubt that shock and hemorrhage, resulting from the injuries, became the cause of death of the said deceased. 9. Bearing in mind the medical evidence on record, when we turn to the evidence of PW 1, father of the accused, who was claimed by the prosecution to be an eye witness to the occurrence, we notice that, according to his evidence, he was not present at home on the day of the occurrence inasmuch as he was sitting at the house of his friend, Ali Ghosh, and it was at about 11:00 PM that his wife, Champa, informed him that there was an incident of murder in their house, whereupon he came to his house and found his elder brother, Nagen Bhumij, lying dead. It is in the evidence of PW 1, that he informed their VDP President, Naba Bora (PW 4), who, in turn, informed the police over telephone and, on the following day, in the morning, police visited the place of occurrence. 10. PW 1 has asserted that he does not know who had killed Nagen Bhumij, though he admits that he lodged the FIR (Ext. 1) at the Police Station. 11. We may pause here to point out that the prosecution declared PW 1 hostile and cross-examined him. On being so cross-examined, PW 1 admitted that he had stated before the police that though Biju Bhumij was his son, he had to lodge the FIR against his son, because he (Biju Bhumij) had killed his (PW 1's) brother, Nagen Bhumij, by causing injuries on his neck by means of a dao. Notwithstanding the admission, so made, when PW 1 was cross-examined by the defence, he denied that he had stated before the police that accused had killed the said deceased. 12. Apart from the inconsistency, which PW 1 has exhibited in his evidence, what cannot be ignored, and ought not to have be ignored by the learned trial Court, was that the previous statement, which PW 1 was alleged to have made, was not substantive evidence and could have, at best, under the proviso to Sub-Section (1) of Section 162 Cr. PC, been used for contradiction. This apart, PW 1 did not state, while being cross-examined by the prosecution, that what he had stated before the police, was true. 13. Thus, while PW 1 even, on being cross-examined by the prosecution, admitted to have made statement before the police to the effect that his son, i.e., the accused, had killed his uncle Nagen, the fact remains that neither PW 1 was asked by the prosecution nor PW 1, while on oath, admitted that the statement, so made by him before the police, was true. 14. Situated thus, we have no hesitation in holding that the previous statement of PW 1 could have, at best, if we may reiterate, been used for the purpose of contradicting PW 1. Consequently, as far as PW 1 was concerned, his evidence was not substantive evidence and the same could not have been used for founding conviction of the accused-appellant of the offence of murder. 15. Consequently, as far as PW 1 was concerned, his evidence was not substantive evidence and the same could not have been used for founding conviction of the accused-appellant of the offence of murder. 15. Coupled with the above, one may also note that as far as the FIR is concerned, the contents of the FIR cannot be treated as substantive evidence, particularly, when PW 1 did not stand, at the trial, by the contents of the said FIR. 16. As far as PW 2 is concerned, he was, admittedly, not an eye witness to the occurrence nor was PW 4 (Naba Bora), VDP President, inasmuch as both these witnesses were alleged to have been informed by PW 1 that his son (i.e., the accused) had killed his uncle, Nagen Bhumij. The evidence of PW 2 and PW 4, as to what PW 1 had reported to them, was nothing but hearsay and the same could not have become the basis of conviction of the accused-appellant. 17. Turing to the evidence of PW 3, we notice that his evidence doest not advance the case of prosecution inasmuch as he has clearly deposed that he does not know as to who had killed the said deceased. This apart, PW 3 as well as PW 7 (investigating officer) have claimed that the accused had produced the dao, which was seized. The evidence, so given, is belied by Ext. 5, which is alleged to be the statement leading to the discovery of fact inasmuch as in the said statement, there is nothing to show that it was the accused, who had produced the dao. This apart, no serological examination of the dao was carried out and there is no iota of evidence to show, other than what we have already discussed hereinbefore, that the said dao was the weapon of offence. 18. With regard to the above, we may also point out that though PW 5 has been examined as a witness of the alleged seizure of the dao, PW 5 has, in no uncertain words, has admitted in his cross-examination that he does not know from where the dao was recovered. 19. 18. With regard to the above, we may also point out that though PW 5 has been examined as a witness of the alleged seizure of the dao, PW 5 has, in no uncertain words, has admitted in his cross-examination that he does not know from where the dao was recovered. 19. What surfaces from the above discussion of the evidence on record, as a whole, is that there was no cogent, convincing and substantive evidence on record, which could have enabled a Court of law to arrive at the conclusion of guilt of the accused-appellant. 20. Coupled with the above, as far as the statement made by the accused, under Section 313 Cr. PC, is concerned, the same also does not help the case of the prosecution inasmuch as even in his examination under Section 313 Cr. PC, the accused never admitted to have killed his uncle, Nagen Bhumij. Far from this, as we have already indicated above, he stated to having pushed away Nagen Bhumij, went out of the house and spent the night at his maternal uncle's house and when he returned home, he learnt that Nagen had died. 21. Because of what have been discussed and pointed out above, we do not find that the evidence on record could have been treated as sufficient to hold the accused-appellant guilty of the offence charged with. He ought to have, therefore, been acquitted of the charge of murder punishable under Section 302 IPC. 22. In the result and for the reasons discussed above, this appeal succeeds. 23. The impugned conviction of the accused-appellant and the sentence passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence, charged with, and he is acquitted of the same. 24. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 25. Let the learned amicus curiae be paid a sum of the Rs. 5,000/- for her valuable assistance rendered to the Court. Send back the LCR. Appeal allowed