Judgment O.N.Asthana, J. 1. These two appeals are preferred against the judgment and order dated 14th February, 1994 passed in Sessions Trial No. 39 of 1993State v. Janak Yadav and twenty-four others passed by Sri Ghanshyam Prasad, Additional Sessions Judge II, Jahanabad. 2. Learned Additional Sessions Judge held all these twenty-one accused-appellants of these two appeals guilty for the offence punishable under Section 396, IPC and awarded the sentence of life imprisonment. The trial Judge acquitted the accused Ram Jiwan Thakur, Chandra Deo Chaudhary, Krishna Chand Kewat and Yogendra Kewat from the charge giving the benefit of doubt on the ground that their presence has not been satisfactorily proved to be there at the scene of occurrence. 3. Briefly the prosecution version is that on 23rd August, 1988 at about 7 p.m. Raj Keshwar Singly, Mukhia (deceased), his wife Sumitra Devi (deceased), his brothers Gaya, Prasad (PW 1) and Rajdeo Prasad (PW 2), his elder son Birja Prasad (PW 4) and his other son Nagendra Prasad (PW 12) (informant) were sitting on the roof of the house and were hearing: the evening State News on radio and a table lamp was giving light ; the young sons, daughter and brother-in-law, namely, Rajendra Prasad (PW 3), Binay Prasad (PW 5), Yogendra Prasad (PW 6), Pappu Prasad (PW 7), Usha Devi (PW 10) and Samar Kumar were reading in the room on the, roof. At about 7.30 p.m. miscreants about twenty in number armed with; rifles and gun climbed the stair-case of the house and came on the roof of the accused-appellant Janak Yadav ; Raj Keshwar Singh inquired why Janak Yadav had come up-stair armed along with his men ; Janak Yadav told his fellowmen that this Mukhia Raj Keshwar Singh was the root cause of the evils and resisted their efforts at progress of organisation I. P. F. and Raj Keshwar Singh Mukhia should be killed and thus on the saying of Janak Yadav his son Bijendra fired four or five rounds from his rifle killing Raj Keshwar Singh ; the wife Sumitra Devi cried and made efforts to save her husband Raj Keshwar Singh and the other son of Janak Yadav, namely, the accused Subeder Ram fired a couple of shots from his rifle and killed Sumitra Devi ; the other person sitting on the roof jumped on the thatched and Khaprail roof of the adjacent house to save their lives ; these accused persons broke open the door of the room which was bolted frorn inside by the boys who were studying in the room and they inquired from the boys where the gun of Raj Keshwar Singh was kept in the room and one of the accused ascertained about the gun searching gun-cover hanging on the wall to ascertain if the gun was there and as the gun was not there the accused persons could not take it away ; these accused persons committed the loot in the house and they looted and took away Rupees ten thousand cash, ornaments of gold, valuable clothes, the wrist watch, a radio, all worth Rupees fifty thousand or about. 4. The motive for these murders and dacoity was alleged from the side of the prosecution that these accused appellants were forming an unlawful association carrying the name I. P. F. and were indulging in wrongful and violent activities and Raj Keshwar Singh being the Mukhia of the village was bringing the activities of these accused-appellant to the notice of the higher authorities and was resisting the activities of the accused-appellants. 5. Nagendra Prasad son of the deceased came back to the house at about 3 e.m. in the night when these accused-appellants and their associates left the surroundings of the house of the Mukhia giving the slogans I. P. F., Zindabad. 5. Nagendra Prasad son of the deceased came back to the house at about 3 e.m. in the night when these accused-appellants and their associates left the surroundings of the house of the Mukhia giving the slogans I. P. F., Zindabad. This informant Nagendra Prasad saw a number of the accused-appellants and also came to know six or seven names (of the accused-appellants) from his family members, and he also came to know from the family members including the ladies of the house that the accused-appellants committed the loot and dacoity in the house. 6. After investigation the charge sheet was given in the case, under Sections 307, 324, 323, 142, IPC and under Section 27 of the Arms Act. 7. Charges were framed in this trial on 15th November, 1992 by 9th Additional Sessions Judge, Gaya under Section 396, IPC. The prosecution evidence was recorded. After the closure of the prosecution evidence Sri Md. Ziauddin 9th Additional Sessions Judge, Gaya prepared/got prepared/ typed questions for recording answer and interrogation of these accused-appellants and the other accused on trial on 26th February, 1992. The trial Court record shows that only the accused-appellant Janak Yadav was put the questions and the statement of Janak Yadav was recorded, and the other typed forms of the statements of the accused-appellants and the other accused are absolutely blank. It is evident that no questions were put to these accused-appellants, and they were not called by the Court to make the statement what they like to state. We find that this trial Judge Sri Md. Ziauddin has been too careless in his judicial work that ho signed these typed blank questions of these twenty appellants (only the answer of Janak yadav was recorded). 8. Lower Court record shows that district Jahanabad was created and it was notified a Sessions Division carving it out from the district of Gaya, and this Sessions trial was transferred to the Sessions Division, Jehanabad in January, 1993. The Sessions Judge, Jehanabad transferred it to the Court of Additional Sessions Judge II, Sri Ghanshyam Prasad for further hearing. After giving some dates for calling the prosecution witnesses for further cross-examination on the additional charge under Sections 302 and 302 read with 149, IPC framed by the 9th Additional Sessions Judge, Gaya on 11th August, 1992 while he was hearing arguments in the case, closed the case on 2nd December, 1993. After giving some dates for calling the prosecution witnesses for further cross-examination on the additional charge under Sections 302 and 302 read with 149, IPC framed by the 9th Additional Sessions Judge, Gaya on 11th August, 1992 while he was hearing arguments in the case, closed the case on 2nd December, 1993. In respect of these additional charges under Sections 302 and 302 read with 149, IPC the trial Judge observed in the judgment that in spite of sufficient opportunity given to the prosecution the prosecution failed to produce witnesses for further cross-examination on the additional charges (except PW 5), and as such there is genuine doubt to hold the accused-appellants guilty under the added charges under Sections 302 and 302 read with Section 149, IPC. 9. During the hearing of the appeals it came to the notice of the Court that the statement of the accused-appellants (except that of Janak Yadav) have not been recorded. The trial Judge Sri Ghanshyam Prasad, Additional Sessions Judge II, Jehanabad who finally examined the record for preparing and delivering the judgment in the case too did not care to look into the alleged statement of the accused persons, if any, on record. Equally it was the judicial duty of the trial Judge who was to deliver the judgment finally in the case to look into all the records including the statement of the accused-persons for taking them into consideration in the award of the judgment. This is the lapse on the part of Sri Ghanshyam Prasad, Additional Sessions Judge II, Jehanabad in his judicial work. 10. The mandate for the Courts contained in Section 313(1)(b) of the Code of Criminal Procedure is appendage to the Rule that no accused shall be condemned without being heard personally. This Section 313 incorporates basic procedural jurisprudence that the trial Judge/Magistrate shall furnish the opportunity to the accused-persons to explain the facts and circumstances appearing against him in the evidence and thus the opportunity to him to show his innocence.Thus the Court shall bring the substance of the accusation to the personal notice of the accused. Further this will be the opportunity for the accused to tell his judge what he may be desirous of stating. 11. Further this will be the opportunity for the accused to tell his judge what he may be desirous of stating. 11. The Apex Court has at times stressed that the Court shall examine the accused questioning him separately about the every inculpable material against him so as to enable him to explain it, and this is the integral part of the basic fairness of the criminal trial. 12. However, where one or two circumstances are not put to the accused, it does not ipso facto vitiates the proceedings unless prejudice has been caused to the accused. 13. Here in this trial there is total absence of the examination of the accused-appellants (twenty in number, and excluding Janak Yadav). Obviously this non-examination is the prejudice to the accused-appellants. 14. Learned Advocate for the State urged that these accused-appellants and their counsel had the opportunity to hear the evidence led by the prosecution, and the questions were put to the accused Janak Yadav in presence of other accused-appellants and thus the non-examination of other accused-appellants be taken to be an irregularity. The examination of the accused Janak Yadav by the trial Court cannot be taken to be the statement of the representative character on behalf of the other accused-appellants. Learned Advocate for the State suggested that a couple of direct question would have arisen for being put to the accused-appellants and in any cause the appellants counsel may offer explanation from the side of the accused appellants before this appellate Court and the reference has been made to the decision Shivaji v. State, reported in AIR 1973 SC 2623. In this reported case a question of prejudice for not putting certain questions to the accused was raised for the first time before the Supreme Court. Dismissing the appeal, the Supreme Court observed before the first Court of Appeal (High Court) the counsel for the accused could show what explanation the accused had/has as regards to the circumstances established against him but not put to him. Here the Advocate for the appellants are in much difficulty to explain the defence which might be taken by these twenty accused-appellants in their statements under Section 313, Cr. P. C. for consideration by the trial Court. 15. Here the Advocate for the appellants are in much difficulty to explain the defence which might be taken by these twenty accused-appellants in their statements under Section 313, Cr. P. C. for consideration by the trial Court. 15. Learned Advocate for the informant hinted that the lack of the examination of these accused persons by the trial Judge was not raised at the time of the final argument in the case and has also not been raised in the memo of appeal filed in the High Court ; and it appears that questions were put to all the accused-appellants but the answers were not written. In the first appeal where the facts are to be considered in full the facts that the statements of the accused-appellants were not recorded at all needs a consideration even if this vital defect was not pointed out at the time of final argument in the trial Court. Had any questions been put to any of the twenty appellants obviously the answer would have been written by the trial Judge. It is evident that not a single question was put to these twenty appellants at any stage in the trial Court. 16. The total absence of the statements of the twenty accused-appellants under Section 313, Cr. P. C. is a basic illegality in the trial, and obviously it has been an unfair trial. 17. Learned Advocate for the appellants has drawn attention to the decision in Mian Chandras case reported in AIR 1955 SC 792 and urged that this Court may consider that the occurrence is dated 23rd August, 1988 and the trial prolonged. Here the two murders took place in the evening in the village Aabadi and the dacoity too was committed. Because some years have elapsed, we do not think it fit to grant acquittal to the accused-appellants on the ground that the hearing of the case would be delayed if re-trial is ordered by this Court. 18. We set aside the judgment and order of conviction passed by the trial Judge dated 14th February, 1994 and order that the re-trial of the case shall take place. The Sessions Judge, Jehanabad shall himself be hearing this trial and shall be concluding the trial expeditiously preferably within one year from the date of receipt of the copy of this Judgment order. The Sessions Judge, Jehanabad shall himself be hearing this trial and shall be concluding the trial expeditiously preferably within one year from the date of receipt of the copy of this Judgment order. The Sessions Judge shall be examining the case diary and shall be framing appropriate charges afresh relating murder and dacoity, or murder or dacoity as the evidence collected by the investigation warrants in the case. 19. Lastly Advocate for the appellants urged that a direction may be given to the trial Court to grant bail to these accused-appellants as they were taken into custody by the trial Judge for undergoing the sentence and they were on bail all along during the trial, and that the hearing of the trial has become a long one. On the presentation of the bail application by the accused-appellants the learned Sessions Judge shall be considering the same as soon these accused-appellants appear in the Court and move their bail application and as these accused-appellants have been on bail in the trial Court, these accused-appellants shall be awarded bail by the Sessions Judge on such terms and conditions as he think, fit. Loknath Prasad, J. 20 I agree.