JUDGMENT S. PUJAHARI, J.- Both the appellants in both the appeals being indicted in Talcher P.S. Case No.113 of 197 for alleged commission of offences punishable under Section 302/34 of the I.P.C. faced trial in S.T. Case No.64-A/31 of 1998/2000 in the file of learned Additional Sessions Judge, Talcher. The Trial Court on conclusion of the trial while acquitting both the appellants (hereinafter referred to as the accused) of the charge under Section 302/34 of the I.P.C. held them guilty of the charge under Section 304 (I) of the I.P.C. and sentenced each of them to undergo R.I. for seven years. They have assailed the said conviction and sentence in their respective appeals. 2. As both the appeals have been arisen out of same judgment of conviction and order of sentence, both are heard together and disposed of by this common judgment to avoid any conflicting finding. 3. The prosecution placed before the Trial Court a case that the informant Bijay Kumar Naik (P.W.13) and his friend Debabrata Sadangi (the deceased), were students of I.T.I., Talcher and inmates of the hostel. The accused Tutuna @ Govinda Narayan Tripathy was a local resident who used to provide rental accommodation available with him to the students of the I.T.I. in need of the same. Some of his erstwhile tenants had moved to the hostel on getting accommodation leaving his tenanted premises. The accused Gobinda as such used to visit his such erstwhile tenants in the hostel with whom he had acquaintance at regular interval In course of such visit, one day he went to room No.4 and smoke cigarette there to which Rakesh Garnaik (P.W.1), an inmate of the room, made protest but accused Gobinda did not pay any heed to such protest. Next day, he came and abused the inmates who had made protest, the same was protested and some of the inmates of the hostel such as Rakesh, Debabrata and others detained him and brought the same to the notice of their Principal. The Principal came and before them the accused Govinda begged apology and made an undertaking not to visit the hostel again and commit such mistake. However, on 12.11.1997, the accused Govinda had threatened to see the deceased Debabrata and others. The Principal came and before them the accused Govinda begged apology and made an undertaking not to visit the hostel again and commit such mistake. However, on 12.11.1997, the accused Govinda had threatened to see the deceased Debabrata and others. On the day following to 12.11.1997, when the informant Bijay Kumar Naik (P.W.13) and the deceased were returning from Hatatota Market after purchasing grocery, to the hostel, on their way, both the accused said to have dealt the deceased fist blows, kicks and slaps. Accused Sisir Barik assaulted in a Badminton racket and when the racket was broken, he pierced the broken shaft of the racket in the belly of the deceased which caused a punctured wound. The deceased profusely bleed and became senseless. Seeing the incident, when some passerby rushed to the spot, both the accused took to their heels. Then the informant and others brought him to the hospital, but the doctor in the hospital declared him to be dead. The matter was reported to the Police at Talcher P.S. pursuant to which, the police registered the case as Talcher P.S. Case No.113 of 1997. The Police conducted investigation and on completion of the investigation, the Police found substance in the information lodged and placed charge-sheet under Section 302/34 of the I.P.C. against both the appellants. Basing on such charge-sheet, the learned S.D.J.M., Talcher took cognizance under Sections 302/34 of the I.P.C. and committed the case to the Court of Session to face their trial for commission of the aforesaid offences, hence, the accused be proceed with. 4. Placing reliance on such case of the prosecution which were also supported by the materials collected during the time of investigation, it appears that the Trial Court framed charge under Section 302/34 of the I.P.C. against both the accused. 5. Both the accused having not pleaded guilty to the charge, the prosecution examined as many as 14 witnesses and also exhibited certain documents and material object to bring home the charge. But the accused who had taken the plea of denial and false implication, did not adduce any evidence in support of their plea. 6. On conclusion of the trial, as it appears the trial court placing reliance on the prosecution evidence, repelling the defence plea, returned the judgment of conviction and order of sentence as stated earlier. 7. But the accused who had taken the plea of denial and false implication, did not adduce any evidence in support of their plea. 6. On conclusion of the trial, as it appears the trial court placing reliance on the prosecution evidence, repelling the defence plea, returned the judgment of conviction and order of sentence as stated earlier. 7. Assailing the judgment of conviction and order of sentence, it is contended by the learned Counsel for the accused that there is no legal evidence on record to hold both the accused guilty of the charge. According to him, since the witnesses to the alleged occurrence have turned hostile, the Trial Court erred in accepting their former statement recorded under Section 161 of the Cr.P.C. which can only be used for contradiction, to be the legal evidence to record the conviction. Therefore, it is submitted that the judgment of conviction and order of sentence are indefensible and as such are liable to be set aside. 8. Learned Counsel for the State supports the judgment of conviction and order of sentence. 9. Materials on record i.e. the evidence of the doctor (P.W.7) who conducted post-mortem examination of the deceased on police requisition would go to show that this witness said to have found the following injuries on the person of the deceased : (i) one hole of diameter I cm. Situated in apigastic region just right to middle line 3" below the lower end of the body of sternum on probing length of the hole is about 5"; (ii) Bruise 2" x 1" on left side chest 4" below the areola; (iii) Bruise 2" x 2" on chin: (iv) Burise on mid part of lower lip ; (v) Bruise 2" x 2" above the bind point; and (vi) Bruise on the left side of four head 1" left to the mid line of 2" and half inch size. His evidence further shows that on completion of post-mortem examination, he arrived into the opinion that the injuries sustained by the deceased were antemortem in nature and some could have caused death of the deceased in ordinary course of nature. His evidence further shows that on completion of post-mortem examination, he arrived into the opinion that the injuries sustained by the deceased were antemortem in nature and some could have caused death of the deceased in ordinary course of nature. Such evidence of the doctor in the cross-examination remained uncontroverted inasmuch as nothing has been elicited from him, during the course of cross-examination indicating the fact that the death of the deceased could not have been caused due to injuries sustained or such injuries could have been accidental or suicidal one. The doctor in this regard stands corroborated by his post-mortem examination (Ext.2) which is a contemporaneous document. Nothing has been brought to the record indicating the fact that the doctor had not bestowed required care and caution while conducting post-mortem examination. No other evidence has also been brought to the record, contradicting the version of the doctor. The injuries sustained contributing to the death of the deceased are consistent to homicidal injuries and inconsistent to suicidal or accidental. In such view of the matter, this Court is of the view that finding rendered by the Trial Court indicating the fact that the death of the deceased was homicidal in nature which is also not disputed in the appeal, as such needs no interference. 10. Now coming to the evidence on record with regard to the complicity of the accused persons in causing the homicidal death of the deceased, it appears to this Court that the Trial Court has recorded the judgment of conviction against the both the accused persons placing reliance on the evidence of Chaturbhuja Rout P.W. 6 as well as the evidence of Bijaya Kumar Naik P.W. 13 and the evidence of the I.O. P.W. 14. P.W. 6 in his evidence though did not specifically implicate the accused persons, but deposed that he had seen 3 to 4 boys were quarrelling among themselves and assaulted each other at I.I.T. Chhaka and on the next day he heard that one of the boys had died. The aforesaid evidence coupled with the evidence of the doctor who conducted in quest over the dead body of the deceased and the evidence of the Medical Officer conducting post mortem examination prove the fact of homicidal death of the deceased only. But the same does not incriminate the accused persons in any manner. The aforesaid evidence coupled with the evidence of the doctor who conducted in quest over the dead body of the deceased and the evidence of the Medical Officer conducting post mortem examination prove the fact of homicidal death of the deceased only. But the same does not incriminate the accused persons in any manner. However, the Trial Court taking into consideration the evidence of the hostile witness P.W. 13 and also the seizure of broken badminton shaft ( M.O.I.) from the possession of the accused Sisir Barik, held both the accused persons guilty. Such finding of the Trial Court has been assailed to have no sanction of law, particularly since there is nothing in the evidence of P.W. 13 incriminating both the accused persons. 11. For proper appreciation of such contention, it would be apposite to have a look to the finding recorded by the Trial Court accepting the version of the P.W. 13 as substantive evidence incriminating both the accused. The findings recorded are quoted hereinunder : “Even though the witness was declared hostile but during his cross-examination he has admitted the following fact that “however, thereafter, himself with Deba taking Rs.50/- from the Manager went to purchase Bhoga Souda in Hatatota market and at the time of return, I saw Tukuna coming in a cycle and by keeping his cycle, came near Deba and asked Sisir, “SALA SADANGI JAUCHHI, SALAKU AJI CHHADIBA NAHI EHA KAHI SADDANGIKU BIDHA CHAPUDA MARILE. TA SANGARE SISIRA DHARITHIBA BAD MINTOM BADIRE BADEIBARU TARA AGA BHANGI JIBARU SETHI BHANGA RACKETRE TARA PETAKU SISIRA BHUSI DEBARU DEBA MARIGALI KAHI PADI GALA and soon thereafter Tukuna and Sisir fled away from the spot with the cycle and the broken racket towards Hatatota”. The very admission of the informant on the material portion of the case on the point of occurrence substantiate the charges that it was none but the accused persons in course of assaulting to the deceased, pierced broken iron portion of the racket into the belly of the deceased as a result he died. The evidence of P.Ws. The very admission of the informant on the material portion of the case on the point of occurrence substantiate the charges that it was none but the accused persons in course of assaulting to the deceased, pierced broken iron portion of the racket into the belly of the deceased as a result he died. The evidence of P.Ws. 6 and 13 the so called eye witnesses to the occurrence when taken together for consideration, it is proved that P.W. 6 has seen the assault between the four young boys at the time of occurrence when P.W. 13 has seen accused Sisir giving the fatal blow to the deceased while Govinda was giving first blows and slap to the deceased.”. There is no re-approach that the version of the hostile witness cannot be effaced off the record completely and the version of the hostile witness can be relied upon by both the prosecution as well as by the defence if anything is in its favour. The aforesaid position of law is well settled in a line of decision of the Apex Court as well as different decision of High Court in India. But such version of the witness must be relevant and also an evidence in the eye of law besides being worthy of credence. As it appears in this case, the Trial Court misinterpreting and misreading the wrong recording, held the former statement of P.W. 13 recorded under Section 161 of the Cr.P.C. which was proved to have been made before the I.O. to be substantive evidence. Reading of the evidence of P.W. 13 coupled with the evidence of I.O. would go to show that when this witness become hostile, the public prosecutor confronted this witness in order to contradict him with the former statement made under Section 161 of the Cr.P.C. before the I.O. But this witness having denied the same, the same was proved in accordance with law through the investigating officer. The same can be clear from the fact that this witness while being confronted by the public prosecutor with his former statement stated as follows : “ However, thereafter, myself with Deba taking Rs.50/- from the Manager went to purchase the Bhoga sauda in Hatatota Market and at the time of our return, I saw Tukuna coming in a cycle and by keeping his cycle came near Deba and asked Sisir, “Sala Sadangi Jauchhi Salaku Aji Chhadibanahi EHA KAHI SADDANGIKU BIDHA CHAPUDA MARILE. TA SANGARE SISIRA DHARITHIBA BADMINTOM RACKET RE BADEI TARA UPPER ANTS BHANGI JIBARU, SEHI BHANGA RAKETRE TARA PETAKU BHUSIDEBARU, DEBA MARIGALI KAHI PADI GALA..... If the aforesaid was not a confrontation to this witness to prove his former statement to contradict him in his evidence in cross examination, his evidence could have been recorded otherwise and there would have been no necessity for putting the aforesaid statement of this witness to the investigating officer. The public prosecutor had also during the examination of the I.O. put the aforesaid statement of this witness made before him to prove the fact that he had stated so before the I.O. The evidence of the I.O. in this regard clearly reveals the same, which can be profitably quoted hereunder : “ He has further stated to me that he returned to the Hostel when Deba told him ‘SALA TUKUNA BESI PHUTANI DEKHEUCHHU AND thereafter he himself and Deba taking 50 rupees from the manager went to purchase ‘Bhoga Sauda’ in Hata Tota Market and at the time of their return, he saw tukuna coming in cycle and Tukuna suddenly kept his cycle near Deba and asked Sisira ‘SALA SARANGI JAUCHHI SALAKU AJI CHHADIBA NAHIN, EHA KAHI SARANGI KU BIDHA CHAPUDA MARILA TA SANGARE SISIRA DHARITHIBA BADMINTON RACKET RE BADEI TARA UPPER ANSA BHANGI JIBARU, SEHI BHANGA STEEL RACKET RE TARA PETAKU SISIRA BHUSI DEBA DWARA DEBA TALE PADIGALA....” 12. Therefore, from the aforesaid evidence on record there is no manner of doubt that the former statement recorded under Section 101 of the Cr.P.C. was confronted by this witness and proved in accordance with law, has been used as substantive evidence in spite of the prohibition contained under Section 162 of the Cr.P.C. not to use such statement for any other purpose except to contradict the witness when called as a prosecution witness by the accused and with the permission of the Court by the prosecution with the exception of non-application of such prohibition to a statement under Section 27 or under Section 32 (1) of the Indian Evidence Act, misreading a wrong recording. So, the contention advanced by the learned Counsel for the accused persons in this regard that evidence of P.W. 13 was not the evidence in the eye of law incriminating to the accused appears to have substance. 13. When the aforesaid evidence recorded by the Trial Court is effaced off the record being not a substantive evidence, the other evidence that is left out which has been taken into consideration is the production of the shaft of the Badminton racket ( M.O.I.) by the accused Sisira which was seized by the Police and whose nexus to the crime stated to have been established inasmuch as the doctor (P.W.7) in his evidence stated that examining the same, he could come to a conclusion that the same could have caused injuries sustained by the deceased, so also chemical examination of the said M.O. as revealed from the chemical examination (Ext.17) the blood quite to the blood group of the deceased was found thereon. In this regard, the Trial Court appears to have placed reliance on the decision of the Apex Court in the case of Giridhari Lal Gupta and another –vrs.- D.N. Mehta, Assistant Collector of Customs and another: reported in AIR 1971 SC 28 . There is no manner of doubt that evidence with regard to seizure made by the Police Officer can be accepted solely relying on the evidence of the I.O. even if the independent witness to the seizure have not supported the same, inasmuch as the Court is concerned with the quality of the evidence not the quantity of the evidence and Police Officers are also competent witnesses. But the same must be worthy of credence. But the same must be worthy of credence. The seizure of the aforesaid M.O.I. which was found to be weapon of offence which caused injuries inasmuch as the Doctor ( P.W.7) stated the same could have caused injuries found on the portion of the deceased and also human blood found on the same is quite to the blood group of the deceased, as revealed from the Chemical Examination Report (Ext.17). But there is no evidence on record indicating the fact that the aforesaid seizure could not have been made, but for the information given by the accused. As such the same is not relevant under Section 27 of the Indian Evidence Act. But the Trial Court wrongly held the same to be relevant under Section 27 of the Evidence Act. However, the evidence of I.O. indicating the fact that the aforesaid material object was seized on production of the accused Sisira is reliable and dependable and an incriminating one. 14. The Apex Court in the case of Hanumant Govind Naregundkar and another Vrs. State of Madhya Pradesh, reported in AIR 1952 SC 343 , have laid down the law for recording the conviction on the basis of circumstantial evidence which has been followed and relied upon in a line of decisions of the Apex Court as well as different High Courts of India. The Apex Court in the said decision have held as follows : “ In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established could be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” (quoted from placitum). 15. In the touchstone of the aforesaid law laid down by the Apex Court when the aforesaid circumstances are taken into consideration, this Court is of the view that the circumstances fully established do not form a chain evidence so complete as consistent only with the hypothesis of the guilt of the accused and completely inconsistent with the innocence of the accused. Hence, both the appeals are allowed. The judgment of conviction and order of sentence are set aside. 16. In disposal of one of the appeals since Mr. Abhilash Mishra, learned Advocate appointed as Amicus Curiae rendered able assistant to this Court, an amount of Rs.3,000/- (Rupees three thousands only) be paid to him by the High Court Legal Services Committee forthwith. With the aforesaid order, both the appeals are disposed of being allowed. Appeal allowed.