U. L. Bhat, C.J.— Two accused in Sessions Case No. 120 of 1987 on the file of the Additional Sessions Judge, Cachar, Silchar, who have been convicted under section 302 IPC read with section 34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- and in default to undergo rigorous imprisonment for one month, are the appellants herein. The case arose on the murder of PW 1's second daughter Mini Roy, aged 16 years at about 9 PM on 26.6.85 at a place behind the house of PW 3 by the side of the river in Barnerpur Garden. 2. The first information (Ejahar Ext. 1) in the case was lodged by PW 1 admittedly at 5.30 AM on 27.6.85. According to Ext. 1, at about 4 PM on 26.6.85, Saraswati, mother of first appellant, went to PW 1's house and took Mini Roy to her own house. At about 10 PM or 11 PM, PW 2 came to PW 1's house and told him that Mini Roy was lying seriously injured on the road in front of the house of Basua Rabidas at Barnerpur Garden. PW 1 rushed to the place. He came to know from Mini Roy that the two appellants cajoled her from the house of Saraswati to the road, held her and att empted to out­rage her modesty and when she shouted, second appellant took out a sharp dagger and hacked her on the neck causing severe bleeding injury and there­after the two appellants left her on the road. PW 1 and others took the injured girl for the purpose of getting her to the hospital. She died on the way. Therefore, they took her to Lala Police Station. PW 1 gave Ext. 1 ejahar, on the basis of which PW 8, Officer-in-charge registered a case. At his instance, PW 1 and others took the dead body to Hailakandi Hospital. PW 8 proceeded to Hailakandi and held inquest over the body under Ext. 5 report. He went to the village, prepared a sketch map, questioned witnesses, seized Exts. 7 and 8 samples of soil, seized a torch from Syed Ali under Ext. 2 and a lamp from PW 6 under Ext. 3. Thereafter PW 8 seized the clothes found on the dead body under Ext. 9. 5 report. He went to the village, prepared a sketch map, questioned witnesses, seized Exts. 7 and 8 samples of soil, seized a torch from Syed Ali under Ext. 2 and a lamp from PW 6 under Ext. 3. Thereafter PW 8 seized the clothes found on the dead body under Ext. 9. PW 8 arrested the two appellants and seized a white pant with blood stains from first appellant. The clothes were sent to the Forensic Science Laboratory. On the transfer of PW 8, his successor PW 9, completed the investigation and filed charge sheet. 3. On the two appellants pleading not guilty, prosecution examined nine witnesses. Defence did not tender any evidence. Learned Sessions Judge, in the guise of questioning the appellants under section 313, CrPC practi­cally cross-examined them and they denied the truth of the evidence. Learned Sessions Judge acted on the evidence of PW 4 that first appellant's mother Saraswati had taken Mini Roy to her house in the evening and she did not return home and on the evidence of PWs 1, 2, 5 and 6 regarding dying decla­ration said to have been made by the deceased and convicted and sentenced the appellants as indicated above. 4. From the evidence of PW 7, who conducted post mortem examination it is seen that the deceased had one external injury, namely, gaping transverse wound, 2 cm x 1 cm, over the level of cricoid (cartilage of larynx) on the right side penetrating through larynx. Internally clotted blood was present in larynx and trachea, haemorrhage was present in thyroid gland. Internal corotid artery was injured. The post mortem report further shows that the wound entered the laryax and injured the right lobe of the roid causing haemorrhage and "causing obstruction in the larynx". PW 7 opined that death was caused by shock, haemorrhage and asphyxia caused by injury to the thyroid gland and larynx and internal carotid artery on right side. 5. PW 4, the eldest daughter of PW 1 and eldest sister of the deceased, deposed that at about 4 PM first appellant's mother Saraswati came to her house and took the deceased to her house saying that Saraswati's married daughter had come home and wanted to see Mini Roy and thereafter Mini Roy did not return. There does not seem to be any reason to disbelieve this witness in this regard. 6. There does not seem to be any reason to disbelieve this witness in this regard. 6. The only other evidence adduced by the prosecution relates to dying declarations spoken to by PWs 1, 2, 5 and 6. This evidence was challenged by the defence as untrue and also on the ground that the injured was not in a condition to speak at all. Learned Sessions Judge rejected the defence contention and acted on the dying declarations as true being made volunt­arily. This finding is challenged by learned counsel of the appellants. 7. The occurrence is said to have taken place behind the house of PW 5 and Syed AH by the river side. They are the closet neighbours to the scene of occurrence. They heard groaning noise at about 10 or 10.30 PM. PW 5 heard groaning noise from the vegetable garden adjacent to the river. She took a lamp and went out. She saw Syed Ali, a neighbour, coming out with a torch. They approached the place from where they heard the noise asking "who was there''. Mini Roy said "Masi Amare Bachao" entreating that she should be saved. PWS raised an outcry and other people came. Syed Ali went and gave information to PW 6, who came there. Thereupon Syed Ali was sent to inform PW 1 and thereafter PWs 1, 2 and others came there. PW 5 asked Mini Roy as to how she was injured and the girl said that Sishu and Subhash injured her. Subsequently PW 2, Ramdas, Syed Ali and others questioned the girl and she said the same thing. In cross-examination she stated that the girl was in semi-conscious state and could recognise people and talk. It is seen that she did not tell the police that the girl said ''Masi Amare Bacuao''. She did not ask the girl why she was injured and the girl did not say any­thing in that behalf. 8. PW 6 deposed that he was informed by Syed AH and he came to the place by the river side. He alongwith Syed Ali and Ramdas carried the injured to the road.PW 2, 5, Basudev and Ramdas asked Mini Roy as to how she was injured and she said that Sishu and Subhash injured her. 8. PW 6 deposed that he was informed by Syed AH and he came to the place by the river side. He alongwith Syed Ali and Ramdas carried the injured to the road.PW 2, 5, Basudev and Ramdas asked Mini Roy as to how she was injured and she said that Sishu and Subhash injured her. Thereupon the wit­ness alongwith Syed Ali went to the Manager of the Estate and informed him and the latter asked them to inform PW 1 to take the injured to the hospital. Thereupon Syed Ali went to PW 1 and brought him. In cross-examination he deposed that Mini Roy was restless. It took 30 to 45 minutes for the witness to return from the Manager's house. PW 1 deposed that PW 2 came to his house and gave information at about 10 or 10.30 PM that her daughter was lying injured on the road. He proceeded to the place and found her lying there and when asked she said that Sishu and Subhash caused injury to her.PW 5, 6, Ramdas and others were present. In cross examination he deposed that when he went to the road where his daughter was lying, 30 to 40 persons were present and Mini Roy was finding difficulty in breathing and she was profusely bleeding. 9. PW 2, the uncle of Syed Ali, deposed that during the relevant night Syed Ali came and informed him and both of them went to PW 1's house to give information that his daughter was lying injured and unconscious. There­after all of them went to the place. According to him, he questioned Mini Roy and she said that she was injured by Sishu and Subhash. At that time PW 1 was present. In cross examination he stated that when he came there Mini Roy was gasping. 10. First information statement in this case is important since it was given by PW 1, who claims to have heard the dying declaration. Though in bis evidence he and the other witnesses stated that the dying declaration consisted only of the words "Sishu and Subhash injured me", the version of the dying statement given in the first information statement is long and exhaustive. Though in bis evidence he and the other witnesses stated that the dying declaration consisted only of the words "Sishu and Subhash injured me", the version of the dying statement given in the first information statement is long and exhaustive. First information statement shows that Mini Roy told PW 1 that from the house of Saraswati the two appellants had cajoled Mini Roy to the road, that on the road held they her, attempted to outrage her modesty and when she shouted, second appellant took a sharp dagger and hacked her on her neck causing severe bleeding injury and they left her on the road in front of the house of Ramdas. It is not explained by the prosecution why none of the witnesses, who spoke about the dying declaration, deposed to these details. Even PW 1, the author of the first information statement, did not stand by this version. The version is inaccurate sinee going by the evidence in the case, PW 6 and others carried Mini Roy from near the river side to the road. While the version in the alleged dying declaration referred to in Ext. 1 is that the appellants left Mini Roy on the road. 11. The occurrence took place at about 9 or 10 PM on 26.6.85. First in­formation statement purports to have come into existence within a few hours, namely, 5.30 AM of 27.6.85. It is seen to have been despatched only at 10 AM on 28.6.85. We are told that the Court is situated 21 KMs away from the Police Station. Prosecution made no attempt to explain the delay in the des­patch of the first information report to the Court. The suspicion on this account is strengthened by certain aspects of the evidence given by PW 1, the author of the first information statement. In chief examination he stated that his daughter died on the way and then they took the dead body to the police station and he reported the occurrence to PW 8 who directed him to take the body to Hailakandi. He returned to the police station only after he performed the Just rites. At the fag end of the chief examination he stated that he lodged the first information statement only after he came back to the police station. This answer would completely destroy the efficacy of the first information statement as well as the first information report. He returned to the police station only after he performed the Just rites. At the fag end of the chief examination he stated that he lodged the first information statement only after he came back to the police station. This answer would completely destroy the efficacy of the first information statement as well as the first information report. In cross examination he stated that when he reported the matter at the police station, PW 8 did not record it. He left the police station with the body at 8 or 8.30 AM and went back to the police station only in the evening after performing the last rites. He also stated at one stage that he gave Ext.l ejahar in the morning at another stage he stated that when he went back to the police station after the last rites, he told the police about the occurrence and that was recorded in a red book. PW 3 deposed that he wrote Ext.l as requested by PW 1 and gave it to PW 1. He has no case that he handed it over to PW 8. In spite of all these contradictory aspects of the evidence, PW 8 in chief examination did not care to state at what time he received Ext.l, though in cross examina­tion he asserted that he received it at 5.30 in the morning. The circumstances referred to above and the contradictions in the evidence would render it extremely doubtful if the first information statement was given by PW 1 at the police station at 5.30 AM as claimed. There is every probability of the document having come into existence much later. That must be the reason why it could be despatched to the Court only at 10 AM on 28.6.85. This conclusion practically destroys the value of the dying declaration spoken to by PW 1. To that extent this casts doubt on the evidence of other witnesses, who spoke about the dying declaration. 12. It is argued by the learned Prosecutor that PWs 2, 5 and 6 are inde­pendent witnesses who have no grudge against the appellants and therefore dying declaration spoken to by them can be safely accepted to be true. Whe­ther their evidence can be believed, woul i depend upon the condition of Mini Roy at the time and her capacity to understand things and to speak. Whe­ther their evidence can be believed, woul i depend upon the condition of Mini Roy at the time and her capacity to understand things and to speak. No doubt the witnesses deposed that she spoke a few words implicating Sishu and Subhash. PW 7, who conducted post mortem examination, was not asked anything about this aspect in chief examination. In cross examination he deposed that there was profuse bleeding from the injury and ordinarily the conviction would get confused. In an answer to the question by the Court he said that Mini Roy with the injuries she sustained, could not have talked as the vocal chords could not function because of the damage in the larynx. Learned Public Prosecutor in the Sessions Court made no attempt to get this answer clarified. 13. Being dissatisfied with the evidence of PW 7, learned Sessions Judge directed the constitution of a Medical Board to study the post mortem certificate and give its opinion. It appears that the Medical Board gave its opinion which is not seen marked or proved. A member of the Medical Board was examined as CW 1. He deposed that the description of the injury in the post mortem report was insufficient, that is, depth and direction of the injuries were not detailed and, therefore, 'ideal comments' could not be provided. He further stated that Mini Roy might have been in a position to speak after sustaining the injury since the post mortem report does not mention of injury to vocal chords. According to him, Mini Roy would have succumed to the injury "within a couple of minutes not exceeding half an hour at the maximum" and initially for few minutes she could have continued to speak. For a few moments after sustaining the injury there might have been a state of mental confusion which, however, could not have persisted. In cross-examination he deposed that he was not an expert in ENT and PW 7 was in a better position to give opinion about the injuries and their effect. 14. There is an apparent contradiction between the evidence of the two medical witnesses. PW 7 is positive that Mini Roy could not have talked as the vocal chords could not function. CW 1 deposed that for a few a minutes she could have talked because there was no mention of injury of vocal chords. 14. There is an apparent contradiction between the evidence of the two medical witnesses. PW 7 is positive that Mini Roy could not have talked as the vocal chords could not function. CW 1 deposed that for a few a minutes she could have talked because there was no mention of injury of vocal chords. We have been referred to the post mortem certificate which indicates injury penetrating through larynx, injury to the internal corolid artery, presence of clotted blood in larynx and trachea and haemorrhage in thyroid gland causing obstruction in the larynx. In the light of these features noted during post mortem examination, the evidence of PW 7 is certainly preferrable to the evidence of CW 1. This is further supported by the evidence of some of the witnesses, who deposed that either she was unconscious or that she was gasping etc. In these circumstances, learned Sessions Judge was in error in accepting the evidence of PWs 1,2, 5 and 6 that Mini Roy told them that Sishu and Subhash caused injury to her. Subhash, being the son of Saraswati, probably, could be identified as the second appellant. Prosecution has not attempted to explain by what process the person referred to in the alleged dying declaration as Sishu was identified as first appellant. If the alleged dying declaration cannot be relied upon, there is no other evidence connecting the appellants with the crime. We may also refer in this connection to the report of the Forensic Science Laboratory, Ext. 10, which shows that the pant seized did not contain any stain of human blood. 15. We also notice that the evidence of PWs. 1, 2, 5 and 6 relating to the dying declaration was not put to either of the appellants by the learned Sessions Judge. Appellants, therefore, had no opportunity to have their say regarding this evidence. This, however, does not confront us with any difficulty since we have already held the evidence relating to dying declaration cannot be accepted. 16. We are distressed to read the questions put by learned Sessions Judge to the two appellants under section 313 (1) (b) of the Criminal Procedure Code at the end of prosecution evidence. This, however, does not confront us with any difficulty since we have already held the evidence relating to dying declaration cannot be accepted. 16. We are distressed to read the questions put by learned Sessions Judge to the two appellants under section 313 (1) (b) of the Criminal Procedure Code at the end of prosecution evidence. The only question put to second appellant and the first question put to first appellant was - "It has been alleged as adduced in evidence against you that on 26.6.1985 at about 9 PM you along with other accused Subhash Rabidas killed Srimati Mini Roy by hacking her in the neck with dagger or the weapon like a dagger at Bernarpur Garden. What have you to say in this regard ?"What was indicated in the question was what was alleged in the Court charge and there was no direct evidence in that behalf. Even the general question "Do you want to say anything else ? " was not put to either of the appellants. The only evidence against second appellant consisted of alleged dying declarations. This incriminating circumstance was not put to second appellant. There were three items of evidence against the first appellant i.e. Mini Roy going to the house of Saraswati (first appellant's mother) at 4.00 PM and not returning home, alleged dying declarations and seizure of pants with alleged blood stains. The two latter circumstances were not put to him. Instead, question in the nature of cross examination was put to him, eg "Where were you that day between 4 PM and 9 PM ?", "How is Mitra Rabidas (daughter of Saraswati) related to you ?" "Where was she that day?","What was the relation between Mitra and Mini ?","Is Sishu JfCarmakar your relation ?" and "Did Sishu go to your house between 4 PM to 9 PM on the day of occurrence or did you go to Sishu's house or did both of you meet each othere between this period ?" Neither of the appellants was asked if he desires to examine any witness. 17. It is obligatory, under section 313 (1) (b) of CrPC that the Court should question accused generally on the case for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him. 17. It is obligatory, under section 313 (1) (b) of CrPC that the Court should question accused generally on the case for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him. By enabling accused to explain incriminating circumstances appearing against him it is intended to further justice and to enable the Court to decide question of guilt of accused. The procedure helps Court since though the answer given by accused is not evidence, it has to be taken into consideration. No question can be put when there is no evidence at all against the accused. Question cannot be put on the basis of views, observations and inferences of Court. The object of the questioning is not to build the case against the accused from his answers and absence of answers or to fill up lacuna in the prosecution evidence. Questions in the nature of cross examination or of inquisitional nature cannot be put. No question can be put with a view to trap accused on compel him to make incriminating admissions. Questioning "generally on the ease" does not mean general questions. It means questions must relate to the whole case and not limited only to a few aspects. Salient points appearing in the evidence against accused must be pointed out. Complicated questions, questions involving a number of matters or long string of questions or composite questions must be avoided. Separate question must be put on each material circumstance. At the end of recital of each circumstance he must be asked "Do you want to say thing about it". Where more than one accused is tried, each of them must be questioned separately. The Court has a difficult duty to perform and it has to be performed with caution, fairly and properly, for questioning is not an empty formality. See - AIR 1951 SC 441 , Tara Singh vs. The State; AIR 1955 SC 792 , Machander vs. State of Hyderabad; AIR 1963 SC 612 , Jai Dev & another vs. State of Punjab; AIR 1963 SC 1850 , State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao & another, AIR 1972 SC 535 , Parichhat & others vs. State of Madhya Pradesh; AIR 1975 SC175, Shri Ram & another vs. State of UP; AIR 1978 SC 315 , State of Himachal Pradesh vs. Wazir Chand & others. Effect of lack of proper quest­ioning of accused has been dealt with in Rameswar Rathi vs. State of Assam, (1993) 1 GLR 136 [ 1993 (1) GLJ 369 ] at para 16. 18. Learned Sessions Judge totally failed to appreciate his duty under section 313 (1) (b), CrPC. He treated prosecution and accused unfairly by not questioning accused regarding dying declaration and other incriminating circumstances He treated accused unfairly by cross examining (them, apparen­tly bent on a fishing expedition. He failed to hold the scales even and to discharge his judicial responsibility fairly and properly. A copy of the judg­ment may be placed before the Chief Justice on administrative side. Copy of the judgment may be brought to the notice of all Judicial Officers. 19. In the result, we set aside the conviction and sentence entered against the appellants and acquit them of the charge against them. They will be set at liberty if their continued detention is not warranted in connection with any other case. The appeal is thus allowed.