C.R. Sarma, J;— 1. This appeal is directed against the judgment and order, dated 22/12/2003, passed by the learned Sessions Judge, Sonitpur, in Sessions Case No. 26/2003. By the impugned judgment and order, the learned Sessions Judge, held the appellant guilty of the offence under section 302 of the Indian Penal Code (hereinafter referred to as the “IPC”) and sentenced him to suffer imprisonment for life and pay a fine of Rs. 1,000/-, in default suffer rigorous imprisonment for another period of one month. Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. 2. We have heard Mrs. RD Mazumdar, learned Amicus Curiae appearing for the appellant and Mr. Z. Kamar, learned Additional Public Prosecutor, for the State of Assam. 3. The prosecution case, as revealed at the trial, is that, on 28/2/2002, at about 5.00 P.M., the appellant assaulted Smt. Rampuri Gowala, (hereinafter called the deceased) i.e. the mother of the informant with a dao and thereby caused her death. Shri Ramlal Gowala, son of the deceased, lodged an FIR, on 28/2/2002, with the Police. The said FIR has been registered as Dhekiajuli P.S. Case No. 71/2002, under section 302 IPC. During the investigation, Police visited the place of occurrence, prepared the inquest report of the dead body, forwarded the dead body for post mortem examination, seized a blood stained dao, vide Exhibit No. 3 and a blood stained chaadar, vide Exhibit 5, recorded statement of witnesses and arrested the appellant, who appeared in the Police Station, on 27/2/2003, along with the dao. At the close of the investigation, Police submitted charge sheet against the appellant under section 302 IPC against the appellant. 4. The offence being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Tezpur, committed the case to the Court of Sessions. The learned Sessions Judge, framed charges under section 302 IPC. The charge, on being read over and explained to the accused person, he pleaded not guilty. 5. In order to prove their case, the prosecution examined, as many as, ten witnesses, including the Police Officers (PW8, PW9 and PW10) and the Medical Officer (PW1), who performed the autopsy. At the close of the evidence for the prosecution, the appellant was examined under section 313 Cr.P.C. He denied the allegations brought against him and declined to adduce evidence. 6. At the close of the evidence for the prosecution, the appellant was examined under section 313 Cr.P.C. He denied the allegations brought against him and declined to adduce evidence. 6. Considering the evidence on record, the learned Sessions Judge, held the appellant guilty of the offence and accordingly convicted and sentenced him, as indicated above. 7. Learned amicus curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no substantive evidence in support of the prosecution version that the appellant had caused the death of the deceased. The learned Amicus Curiae has also submitted that the learned Sessions Judge committed error by recording conviction, relying on the statements, made by the witnesses, under section 164 Cr.P.C. and the circumstance that the appellant, along with a dao had surrendered before the Police after the incident. The learned Amicus Curiae has further submitted that the appearance of the appellant, along with a dao, in the Police Station, after the incident, cannot be substantive evidence to hold him guilty of the alleged offence. It is also submitted that the statement recorded under section 164 Cr.P.C. not being substantive evidence, the same cannot be accepted as legal evidence to base the conviction. 8. Controverting the said argument advanced, by the learned Amicus Curiae, Mr. Z. Kamar, learned Additional Public Prosecutor, Assam, has submitted that there is sufficient evidence to show that the appellant had caused death of the deceased and that he surrendered before the Police, immediately after the occurrence. The learned Additional Public Prosecutor supporting the impugned conviction and sentence has submitted that the learned Sessions Judge committed no error by recording the conviction and sentence. During the course of the arguments, it has been revealed that, on the fateful day i.e. 27/2/2002, the mother of the appellant namely Kali Majhi also died due to assault caused with a dao. By filing another FIR, which has been registered as Dhekiajuli P.S. Case No. 72/2002 under section 302, it has been alleged that the son of Rampuri Goala caused the death of Smt. Kali Majhi. The said FIR gave rise to Criminal Appeal No. 23(J)/2004 which would be disposed of separately. 9. Dr. By filing another FIR, which has been registered as Dhekiajuli P.S. Case No. 72/2002 under section 302, it has been alleged that the son of Rampuri Goala caused the death of Smt. Kali Majhi. The said FIR gave rise to Criminal Appeal No. 23(J)/2004 which would be disposed of separately. 9. Dr. Shiba Prasad Bordoloi (PW1), who performed the autopsy of the dead body found eleven numbers of deep cut over the left side of the face (cheek), left shoulder, left side of the neck, lower occiput, posterior neck, vertebrae etc. The Medical Officer opined that the injuries were ante-mortem in nature and caused by sharp weapon. He further opined that death was caused due to profuse haemorrhage from the cut injuries and that the neck being transversely severed there was no scope of survival of the deceased. Perusing the said medical evidence, as well as the evidence of the prosecution witnesses, we find no difficulty in understanding that the deceased died, on 27/2/2002, due to cut injuries inflicted on her. 10. Now the question is as to whether the appellant had caused the said fatal injuries. Except PW2, PW3, PW4, PW5, PW6 and PW7, others are formal official witnesses. The official witnesses had no knowledge about the involvement of the appellant. 11. Smt. Somari Bhuihor (PW2), stated that at the time of occurrence, she was in her house and hearing ‘halla’, she came out and found the deceased, lying in her courtyard, with cut injuries on her neck. In her cross-examination, she stated that on the same day, after the deceased was assaulted, the mother of the appellant was also killed by Aghonu Goala. Aghonu is the appellant in Criminal Appeal No. 23(J)/2004. She denied the suggestion that she had made statement before the Magistrate that she saw the appellant giving the cut blows to the deceased. She clearly stated that she did not see the appellant inflicted the injuries. From the above, it appears that this witness refused to support the prosecution version that the appellant had caused the fatal injuries. Sri Sukra Kheria (PW3), stated that he had seen the dead bodies of the deceased as well as the mother of the appellant. This witness further stated that he did not see the occurrence and that he was told by others that the appellant had killed the deceased. Sri Sukra Kheria (PW3), stated that he had seen the dead bodies of the deceased as well as the mother of the appellant. This witness further stated that he did not see the occurrence and that he was told by others that the appellant had killed the deceased. Sri Kandra Gore (PW4), stated that he had heard that the deceased was killed by the appellant. He also stated that he did not visit the house of the deceased. In his cross-examination, made by the defence, this witness stated that he did not see the incident himself. Shri Mohan Majhi (PW5) stated that he did not know as to who had killed the deceased. Sri Debra Hasda (PW6) also expressed his ignorance about the identity of the killer of the deceased. He was a witness to the seizure of the dao by the Police. He further started that his signature, in the seizure list (Exhibit 3), was taken by the Police, in the Police Station and that he did not know as to what was written in the Exhibit 3. 12. In view of the said evidence given by PW6, it cannot be held that any incriminating material was seized by the Police from the accused person. 6 Sri Birju (PW7), stated that on the same day, both the deceased and Smt. Kali Majhi were killed and that he did not know as to who had killed them. 13. Shri Afazuddin Ahmed (PW8), is the Police Officer, who was attached with the Dhekiajuli Police Station at the relevant time. He stated that the appellant appeared in the Police Station along with a dao and confessed that he had killed a person with a dao. According to this witness, the appellant was taken into the custody and the dao was seized from him. The confession of the appellant, if any, being made in the custody of the Police, is hit by sections 25 and 26 of the Indian Evidence Act. Shri Sashi Kanta Das (PW9) and Shri Ranjan Gogoi (PW10) were also the Investigating Police Officers. They had no personal knowledge about the incident of the appellant. 14. From the above discussed evidence, it is found that none of the non-official witnesses stated anything incriminating against the appellant. Therefore, there is no substantive evidence to believe that the appellant had caused the death of the deceased. They had no personal knowledge about the incident of the appellant. 14. From the above discussed evidence, it is found that none of the non-official witnesses stated anything incriminating against the appellant. Therefore, there is no substantive evidence to believe that the appellant had caused the death of the deceased. The learned Sessions Judge, while recording the conviction, against the appellant, relied on the circumstances that, immediately after the incident, the appellant had appeared in the Police Station with a dao. Appearance of the appellant with a dao, in the Police Station on the fateful day, cannot be sufficient substantive evidence to hold that he had killed the deceased. This circumstance cannot be the sole basis of conviction, without corroboration on material point. PW2 in her statement clearly stated that she came out from her house, immediately after the incident and found the deceased lying in the injured condition. She made it clear that she did not see the appellant inflicting the injuries. Learned Trial Judge has observed that this witness(PW2), while giving statement under section 164 Cr.P.C. implicated the appellant. The said statement made under section 164 Cr.P.C. has neither been proved nor brought to the notice of PW2. i.e. the maker of the said statement. Law is well settled that statement, made under section 164 Cr.P.C., is not a substantive evidence. Therefore, in our considered opinion, the learned Trial Judge, committed error by relying on the said statement, made under section 164 Cr.P.C., which has been denied by PW2 herself. The learned Sessions Judge has also relied on the alleged confession made before the Investigating Officer i.e. PW9. In sections 25 and 26 of the Indian Evidence Act, it has been made clear that no statement, made by an accused before a Police Officer or in the custody of the Police, can be used against him. Therefore, the said alleged confession cannot be used against the appellant. In the light of the above, we have no difficulty in holding that the prosecution failed to establish the case against the appellant, beyond all reasonable doubt. Therefore, the impugned conviction and sentence cannot be maintained. We find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Therefore, the impugned conviction and sentence cannot be maintained. We find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. In appreciation of the assistance rendered by the learned Amicus Curiae, we direct payment of Rs. 5,000/- in her favour by the Assam State Legal Services Authority, as her remuneration. Return the lower Court records. _____________