MUKHERJEE, J. ( 1 ) THIS appeal is directed against the judgment and order dated August 25, 1986 passed by the learned Additional Sessions Judge, 2nd Court, Burdwan convicting and sentencing the eleven appellants under sections 148 and 302 read with section 149 of the Indian Penal Code. The case for the prosecution, briefly stated, was as under. ( 2 ) ON 4th of Falgoon 1388 B. S. corresponding to February 16, 1982 some residents of village Ajaharnagar including Hukum Sikdar (the deceased) were thrashing paddy, which belonged to the village mosque and was lying in the khamar of one Rahu Bibi. Rahu Bibi came there and demanded 10 kgs. of paddy and 2 pans of straw. On their refusal to comply with her demands Rahu Bibi asked them to remove the paddy from her khamar. Those villagers then removed the paddy to the nearby public pathway for thrashing. Rahu Bibi then started using abusive language against the Imam of the mosque to which Hukum Sikdar protested. Rahu Bibi then left the place to call her men. Some time after the appellant Niyamat Sk. (since deceased) came there armed with deadly weapons and started assaulting Hukum Sikdar and the other villagers who were thrashing the p3ddy. Being so attacked they ran away but Hukum Sikdar who was lagging behind could not. Niyamat Sk. first assaulted Hukum Sikdar with a ramdao and thereafter all the appellants started assaulting him. On being so assaulted when Hukum Sikdar fell down the appellants and Niyamat Sk. left the place. Hukum Sikdar was taken to Monteswar Primary Health Centre for treatment and from there to Burdwan Hospital where he succumbed to his injuries on the following night. ( 3 ) AFTER removing Hukum Sikdar to Monteswar Health Centre, Bhadat Sikdar, one of brothers, went to Monteswar Police Station and lodged an information about the incident. On that information a case was registered and on completion of investigation police submitted charge sheet against the eleven appellants and Niyamat Sk. ( 4 ) BEFORE the trial commenced Niyamat Sk. died and therefore the eleven appellants only faced the trial. On that information a case was registered and on completion of investigation police submitted charge sheet against the eleven appellants and Niyamat Sk. ( 4 ) BEFORE the trial commenced Niyamat Sk. died and therefore the eleven appellants only faced the trial. After the examination of the witnesses of the parties was complete and their arguments were heard the learned trial Judge entertained and allowed a prayer of the prosecution to summon Rahu Bibi as an accused in exercise of his powers under section 319 (1) of the Code of Criminal Procedure (TCode for short ). After Rahu Bibi entered appearance the learned Judge framed a charge under section 302/109 of the Indian Penal Code against Rahu Bibi and ordered a fresh trial and summoned the prosecution witnesses afresh by his order dated June 26, 1986. Pursuant to the said direction eleven out of the twelve witnesses examined by the prosecution were examined afresh and a new witness was examined by the prosecution. On conclusion of the trial the learned Judge, while recording an order of acquittal in favour of Rahu Bibi, passed the impugned order of conviction and sentence. ( 5 ) AT the healing of the appeal a threshold question as to whether the evidence earlier adduced by the prosecution witnesses when the eleven appellants were only facing trial could be treated as substantive evidence against them was raised. The appellants contended that the evidence that was laid by the prosecution after Rahu Bibi appeared on the scene was to be treated as the substantive evidence adduced during the trial and the evidence earlier given by the prosecution witnesses could be used only for the purpose of corroboration or contradiction in accordance with section 157 or 145 of the Evidence Act, as the case might be. In repelling the above contention of the appellants the learned Advocate for the State submitted that in view of the provision of section 319 (4) (a) of the Code the proceedings which commenced after Rahu Bibi was arraigned was to be treated as a fresh one so far as she was concerned and consequently the evidence adduced thereafter was to be treated as substantive evidence as against her whereas against the appellants the evidence earlier adduced was the substantive evidence and the Court could legally record an order of conviction on the basis thereof all was done by the trial Judge. ( 6 ) HAVING given our anxious consideration to the respective contentions of the parties we are unable to accede to the view expressed by the learned Advocate for the State. After Rahu Bibi was summoned in accordance with sub-section (1) of section 319 of the Code all the witnesses earlier examined were to be reheard under sub-section (4) (a) thereof and consequently the evidence that was adduced after appearance of Rahu Bibi was to be treated as the evidence during trial in which twelve persons namely the eleven appellants and Rahu Bibi figured as accused. The emphasis laid on the words the proceedings in respect of such person shall be commenced afresh appearing in sub-section (4) (a) of section 319 of the Code by the learned Advocate for the State to bring home his contention is misplaced as inclusion of those words were necessary to comply with the legal formalities which are required to be gone into in respect of persons freshly arraigned. In a case imitated on a police report and triable by the Court of Sessions-as the present one-a person can be summoned as an accused under section 319 of the Code only at a point of time when charges have already been framed against the accused who were facing the trial and some witnesses for the prosecution have been examined. Consequent upon the appearance of the person newly summoned the proceeding cannot commence in respect of him unless he is furnished with the documents referred to in section 207 of the Code to enable him to effectively cross-examine the witnesses to be examined by the prosecution and without framing a charge against him and taking his plea thereto, but no such formalities are required to be gone afresh so far as the persons already on trial are concerned. In our view in the context of these requirements of law that the words proceedings in respect of such person shall be commenced afresh have been incorporated in sub-section (4) (a) of section 319. So far as the examination of the witnesses are concerned that sub-section clearly states that the witnesses are to be reheard and that necessarily means all the witnesses, be it of the prosecution or the defence, who have already been examined. So far as the examination of the witnesses are concerned that sub-section clearly states that the witnesses are to be reheard and that necessarily means all the witnesses, be it of the prosecution or the defence, who have already been examined. Since there can not be two sets of evidence in one and the same trial in respect of the accused arraigned therein the only conclusion that can be drawn is that the evidence laid afresh will be the substantive evidence and the evidence earlier given be used as previous statement. It is of course true that in a given case it may so happen that one of the witnesses who was examined earlier was not available or was dead. In such an eventuality the evidence of the witness earlier given could be used as substantive evidence only because a special and exceptional provision for it reception under section 33 of the Evidence Act has been made. ( 7 ) HAVING perused the record in the light of the above position of law we are left with no other alternative but to set aside the impugned order of conviction and sentence. All the eyewitnesses who were examined afresh categorically stated that they saw an assault only between Niyamat SIC. and Hukum Sikdar and all of them denied that any of the appellants were present far less, took part in the assault, even though in their earlier statements they fully supported the case of the prosecution. In other words, there is no legal evidence on record to connect any of the appellants with the offences alleged against them. The appeal, is therefore, allowed and the order of conviction and sentence passed against the eleven appellants is hereby set aside and they are acquitted of the said charge. Let them be released forth with. ( 8 ) AS the statements of the eye witnesses namely, Samsul Sk. (P. W. 1), Iarjit SIC. (P. W. 2) and Laltu Sk. (P. W. 3) recorded before and after Rahu Bibi was summoned to stand trial are diametrically opposite to each other and as both were made on oath one of them must be false; We therefore direct the learned trial Judge to initiate appropriate proceedings against those three witnesses in accordance with law. .