A statement recorded under Section 161 of the Code of Criminal Procedure, 1973 cannot be used for any purpose other than to contradict a witness if he is examined as a witness for the prosecution.

Bimalendu Narayan Sinha, J.

1. These appellants were tried in Sessions Trial No. 79 1978 by 2nd Additional Sessions Judge, Motihari, for an occurrence which allegedly took place on the night between 23rd and 24th of January, 1977 at village Goriyaowa Jagir tola, P. S. Sugiuli, district East Champaran in which it is said that the deceased Ram Ji Raut was murdered and all the appellants have been found guilty under Section 302 read with 34 I. P. C, and convicted to undergo rigorous imprisonment for life. Appellants Bindeshwar Raut, Birja Raut, Adaiat Sahni and Chandrika Raut have been also found guilty under Sec.302 and 148 of the I.P.C., but no sentence have been passed under these two heads, The remaining appellants have been also found guilty under Sec.147 I.P.C. but, no separate sentence has been passed against under section.

2. The prosecution case, in brief, is that on the alleged night of occurrence, deceased Ramji Raut was sleeping in his house with his children including Fulena Rai (P. W. 1) and his wife (P. W. 2) ; and his another son Shree Rai (P. W. 8) was sleeping in another room of the house. At about midnight these appellants along with some others entered into the room where the deceased was sleeping and Fulena Rai (P. W. 1) woke up on hearing the sound of their feet and the groaning sound of his father. Shrea Rai (P. W. 8) also by that time woke up hearing the groaning sound of his father. The prosecution case further is that (P. W. 1) (Fulena Rai) saw that the appellant Birja Raut and persons with him had tied the legs and hands of his father and were dragging his father (deceased) out of his room to the courtyard and from there to the Sahan. In the meantime Shree Rai (P. W. 8) also came out from his room, but, he was wrongfully confined by the appellants Bhikhari Raut and Chhabila Raut, who were armed with Lathi and they threatened him to remain silent and keep quite, otherwise he would be cut into pieces, and, therefore, he did not raise any alarm. The further case of the prosecution is that the appellant Bindeshwar Raut was armed with gun, one accused Jaigovind Raut (now dead), appellants Birja Raut and Adaiat Sahani had Pharsa in their hands and that appellant Bindeshwar Raut fired two shots on the person of the deceased, as a result of which he sustained injuries on his face and abdomen; and that appellant Adaiat Sahani, appellant Birj Raut and accused Jaigovind Raut (now dead) assaulted the deceased with Pharsa and the remaining accused persons assaulted him with Lathi, as a result of which the deceased Ramji Rai died then and there.

3. Fardbeyan (Ext. 2) regarding the occurrence was recorded at 5 A.M. on the next day, i.e., on 24th of January, 1977 at the spot on the statement of Shree Rai (P. W. 8) on the basis of which formal F. I. R. was drawn and after usual investigation charge sheet was submitted in the case and after commitment trial proceeded.

4. At the trial altogether 8 witnesses were examined by the prosecution to prove Us case, out of them P. W. 2 Lal Pan Devi, P. W. 3 Langatu Raut, P. W. 4 Lal Bahadur Raut and P. W. 5 Joti Raut did not support the prosecution, and, therefore, they were declared hostile and with the permission of the court. Their attention was drawn to the statements said to have been made by them during the course of investigation. Dr. H. K. P. Verma (P. W. 6) held Post-mortem Examination on the dead body of the deceased on 25th January, 1977 at about 12 noon. Md. Sibli (P. W. 7) is the Investigating officer of the case. Fulena Rai (P. W. 1) is the sole eyewitness on the point of assault on the deceased by the accused. Shree Rai (P. W. 8) claimed to have learnt about the assault on the deceased by the accused from P. W. 1 and claimed to have seen the accused in his house at the alleged time of occurrence.

5. The learned trial court has accepted in part the evidence of P. Ws. 1 and 8 and based his verdict of guilt of these accused-appellants on the basis thereof.

6. I