JUDGMENT Arun Kumar Goel, J. 1. Appellant alongwith four other persons, namely Dayal Singh son of Bhangu Ram, Rakesh Kumar son of Dev Raj, Santosh Kumar son of Lekh Ram and Anil Kumar son of Tara Chand, was tried by the learned Sessions Judge below in Sessions Trial No. 8 of 2000. 2. Appellant was charge sheeted for having intentionally caused the death of Chander Sen on the intervening night of 25th and 26th October, 1999 in the area of bridge Pungh Nullah, Sundernagar. In addition to this charge, he was also charged under Sections 120B and 147 of the Indian Penal Code. As according to the prosecution, with a view to cause murder of Chander Sen in pursuance of the agreement between him and his other co-accused, all of them conspired to commit the offence. All of them were further alleged to have been the members of unlawful assembly. Common object of this assembly was to commit the offence of rioting. 3. The other four accused tried alongwith the Appellant were charged under Section 302 I.P.C. read with Section 149 as well, and separately also under Sections 120B and 147 I.P.C. All the five accused pleaded not guilty and claimed trial to the charges framed against them. 4. After conclusion of the trial, Appellant was found guilty of having committed offences under Sections 302 and 147 I.P.C. As such he was sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. and to undergo one year's rigorous imprisoment under Section 147 I.P.C. Fine of Rs. 5,000/- was also imposed on him under Section 302 I.P.C. In default of payment of fine, he was directed to undergo imprisonment for six months. 5. After conclusion of trial, the other four alleged co-accused have been acquitted. So far their acquittal is concerned, it has attained finality as no appeal has been filed against them. This factual position was not disputed on behalf of the State. What is the effect of it, particularly in view of the charges against all of them, will be seen hereinafter. 6. Brief reference to the prosecution case as well as material evidence is being made hereinafter. 7. Case set up during trial against all the five accused was, that on 25th October, 1999, deceased Chander Sen, Pawan Thakur (PW-3) and Pawan Kumar (PW-4) were together. Deceased was known to PW-3. 6. Brief reference to the prosecution case as well as material evidence is being made hereinafter. 7. Case set up during trial against all the five accused was, that on 25th October, 1999, deceased Chander Sen, Pawan Thakur (PW-3) and Pawan Kumar (PW-4) were together. Deceased was known to PW-3. He was running a P.C.O. at Chatrokhari, Sundernagar. On the late evening of 25.10.1999, PW-3 accompanied by deceased and PW-4 were sitting in a tea snop at Sundernagar. Deceased suggested to consume alcohol. A bottle of alcohol was bought, and all of them proceeded towards chicken corner where all of them consumed liquor and also enjoyed chicken. 8. At about 11 p.m. they left the shop. On having reached near the bridge on the crossing, Vijay Kumar Appellant and his co-accused Anu (since acquitted), were coming from the opposite direction. Deceased asked as to from where both of them were coming. He gave slap to the Appellant. Anu accused also started quarreling with him, when PW-3 separated them. Both Vijay and Anu ran towards Pungh. When all three of them were moving, Raju met them and enquired as to from where they were coming. Raju was informed in that behalf. 8-9 persons appeared at the scene. Appellant was one of them. He (Appellant) and boys were also having Nainchalku (an instrument used while undergoing material Arts exercise/training). 9. Further case of the prosecution as emerged from the statement of PW-3 is, that the deceased was beaten by the Appellant, and other 3 or 4 boys with Nainchalku.This witness fell on the ground due to beatings. Deceased also fell on the road. Assailants fled away from the spot. PW-3 found that the deceased was holding his head in his hands. Raju asked Chander Sen whether his parents be informed. He replied in the negative. PW-3 also asked him whether he had any serious injury. To this also Chander Sen replied in the negative. 10. All of them had walked some distance, when deceased fell unconscious. He was picked up by PWs 3 and 4 and taken to hospital at Sundernagar by them. 11. In the context of PW-3, as well as PW-4 it may be observed that both of them were declared hostile during the course of trial in the Court below. Public Prosecutor was permitted to cross examine both of them. He was picked up by PWs 3 and 4 and taken to hospital at Sundernagar by them. 11. In the context of PW-3, as well as PW-4 it may be observed that both of them were declared hostile during the course of trial in the Court below. Public Prosecutor was permitted to cross examine both of them. Learned trial Judge had made certain observations when both of them were in the witness box. PW3 per the trial Court was observed to be suppressing the truth. Whereas PW-4 was observed to be not able to raise his eyes, as such he was reeling under some pressure or was suppressing the truth. In this connection it may be observed that even Jatinder Kumar (PW-17), the Investigating Officer was also declared hostile in this case and was cross examined by the Public Prosecutor. 12. PW-3 in his cross examination by the Public Prosecutor stated that he could not say whether the Appellant inflicted injuries with Nainchalku. In his cross examination on behalf of the defence, he stated that there were 8-9 persons, who came to the spot and they wre armed. Occurrence took place within five minutes at 11.30/12 (midnight). 13. Since the witness was scared, Chander Sen was left in the hospital without getting him admitted. From there he went to his house. He did not disclose anything about the occurrence to anyone at his house. Because of injuries, he did not leave the house early in the morning. When he went during noon hours, it transpired that Chander Sen was not in the hospital as he had been referred to P.G.I., Chandigarh. Witness did not go to the Police Station for lodging the report. Per this witness, when parents of Chander Sen returned from Chandigarh, he disclosed the material facts to them. He claims that they had met him on 29.10.1999. He further stated that all the facts were told to the police when he was summoned. He denied the suggestion of the defence that three of them i.e. PWs 3 and 4 as well as the deceased being under the influence of intoxication or they had quarrelled resulting in Chander Sen sustaining injuries. In his further cross examination, PW-3 admitted the he was summoned by the police on 30.10.1999. He was also medically examined on 30.10.1999 by Dr. Devinder Kumar (PW-1). Medico-Legal Certificate issued by him is Ext. PC. 14. In his further cross examination, PW-3 admitted the he was summoned by the police on 30.10.1999. He was also medically examined on 30.10.1999 by Dr. Devinder Kumar (PW-1). Medico-Legal Certificate issued by him is Ext. PC. 14. It may be noted here that in case of deceased, PW-1 had conducted the post mortem and post mortem report submitted by him was Ext. PA. 15. In addition to PW-3 Pawan Kumar, the other material and relevant witness is PW-4. He is also an eye witness of the occurrence as per prosecution version. As such on material facts/aspects, it is expected that the statements of PWs 3 and 4 should co-incide with each other. 16. As per version given by this PW-4 which is material and relevant for the purpose of this appeal that it was Vijay i.e. the Appellant who was carrying nuinstick and others were armed with Dandas (sticks). Their number was 7-8. Vijay inflicted injury with Nainchalku on the head of Chander Sen. Others also started assaulting. Being scared he ran away from the spot. Since he had kept standing nearby, he saw Chander Sen sitting on the road. Further according to this witness, PW-3 might have received some injuries. Raju was also there. After dispersal of the accused persons, he came near Chander Sen, who got up and said that he was alright. However, he fell unconscious on the footpath. He and PW-3 took Chander Sen to the hospital. He was also allowed to be cross-examined by the Public Prosecutor. 17. In his cross examination, he stated that except Appellant, the other accused were not known to him. Attack was opened when he (PW-4) heard "MARO MARO", again stated "IS KO MARO". On the opening of the attack, he felt scared and ran away. He categorically stated that except the Appellant, other accused persons were not known to him. Per him, the Appellant was seen by him for the first time on the day of occurrence. This witness was not a college student, nor he ever had altercation with the Appellant in the past. Chander Sen was taken to the hospital at midnight and was left there. From hospital, the witness left for his place after crossing the Police Station. Because of large number of assailants, as also apprehending an attack on himself, he went home. This witness was not a college student, nor he ever had altercation with the Appellant in the past. Chander Sen was taken to the hospital at midnight and was left there. From hospital, the witness left for his place after crossing the Police Station. Because of large number of assailants, as also apprehending an attack on himself, he went home. Next morning he went to the hospital to enquire about Chander Sen's health. He came across his (Chander Sen's) parents. He gave the facts of the incident to Chander Sen's father, who has not been examined in this case as a witness. PW-5 Kartar Singh, is the real paternal uncle of the deceased was also there at the hospital. 18. It may be noted here, that after the deceased had been dropped by PWs 3 and 4 in the hospital, he was attended upon by Dr. Y.K. Sood (PW-2), the Medical Officer present then at the Sundernagar hospital. According to him, he examined the deceased, gave him first aid, then on the arrival of the attendants of the patient in the morning, referred him to PGI, Chandigarh. He issued the Medico-Legal Certificate on the application of police, vide Ext. PD. This was on the application of SHO, Police Station, Sundernagar. On such application he proved his endorsement encircled in red pencil, Ext. PE. In his cross examination, PW-2 stated that it was also disclosed to him that the injured was found lying on the bridge. According to this witness, immediately after examining the injured person, local police was informed on telephone. PW-2 has further stated that Chowkidar who was on duty had called him. In the opinion of PW-2 Dr. Y.K. Sood, injured had consumed alcohol and he was in deep coma, possibly due to brain injury. 19. Kartar Singh (PW-5) is the real paternal uncle of deceased. He lodged the F.I.R. Ext. PF on 26.10.1999 at about 4.30 p.m. Although he had learnt that the deceased was taken to hospital at Chandigarh, as he had been beaten up by some college students. He had come to know of the incident from his sister Rajni Devi, at about 9.30 a.m. on 26.10.1999, when she came to the house of this witness. 20. PW-6 is Rashid Mohammad. Looking to his statement, we are at a loss to understand why prosecution took the risk of producing him. He had come to know of the incident from his sister Rajni Devi, at about 9.30 a.m. on 26.10.1999, when she came to the house of this witness. 20. PW-6 is Rashid Mohammad. Looking to his statement, we are at a loss to understand why prosecution took the risk of producing him. Per this witness, when on 26.10.1999 he was present at the site of the house of Junior Engineer near the bridge, Rakesh and Yashpal met him, who stated that both of them had a quarrel with Chander Sen on the previous night. Then they ran away. Chander Sen was also known as "Situ". Both of them however did not disclose the number of persons involved in the incident. In cross examination he stated, that both Rakesh and Yashpal had informed the witness to have given severe beatings to Situ. These two persons were from Rohru area and were students in Polytechnic College at Sundernagar. Rakesh who was accused person in this case, was not of the two persons who had met this witness. 21. Nainchalku Ext. P-l was recovered, rather was produced by the Appellant while he was in custody when he disclosed that he had hidden the same as per PW-9 Rattan Lal. According to him, Ext. P-l was recovered/ produced by the Appellant as narrated herein this para by the Appellant after picking it up from a side underneath a bush near the curve of bridge. Ext. P-l/A was the broken piece of the handle of Ext. P-l. Both were taken into possession vide Exts. PH and PJ, respectively. 22. PW-17 is Jatinder Kumar, Investigating Officer. According to him on 27.10.1999, Inspector Yogesh Guleria handed over investigation of the case to him. Information was received from Chandi Mandir Hospital regarding the death of Chander Sen. Witness went there. Death certificate was issued by the hospital authorities. It was brought alongwith the dead body of Chander Sen. Post mortem was conducted at Sundernagar. He prepared the inquest report at Sundernagar. He also took photographs and sent the viscera of the deceased to F.S.L. Junga. This witness has categorically stated that there is no mention in the case diaries about the information having been received in the Police Station from the hospital after the examination of the injured (Chander Sen) during the intervening night of 25th and 26th October, 1999. He also took photographs and sent the viscera of the deceased to F.S.L. Junga. This witness has categorically stated that there is no mention in the case diaries about the information having been received in the Police Station from the hospital after the examination of the injured (Chander Sen) during the intervening night of 25th and 26th October, 1999. According to him as and when such information is received, it is entered in the rough register, known as "Roz-Namcha". Further per this witness, it is deducible from the case diaries, that information was received through Kartar Chand, paternal uncle of the deceased. Whereas PW-5, Kartar Chand had categorically stated that he lodged the report on 26.10.1999 at Police Station, Sundernagar as noted hereinabove. This information had resulted in lodging the FIR at about 4/4.30 p.m. According to him, he had not obtained preliminary evidence regarding the injuries found on the person of the injured. 23. PW-20 is Hari Ram Head Constable. He was posted as M.H.C. at Police Station, Sundernagar from December, 1998 to April, 2000. According to him PW-5 Kartar Chand, lodged the FIR, Ext. PF on 26.10.1999, at about 4.50 p.m. In reply to the Court question he stated that he was on duty during night of 25/26.10.1999. No information was received either in person, or telephonically that a person in an injured condition had been brought to the hospital. He further stated that on the intervening night of 25/26.10.1999 Hoshiar Singh had been attending to the telephone installed in the Police Station and entry to that effect is there in the "Roz-Namcha" at Sr. No. 22. 24. It may be appropriate to notice that father of the deceased instead of taking his son to PGI Chandigarh, had taken him to Command Hospital at Chandi Mandir. He was admitted there and history sheet was prepared at Chandi Mandir Hospital. Its copy is placed and proved on record as Ext. PX by the prosecution, through PW-21 Ajay Raj Gupta, Medical Officer, Command Hospital, Chandi Mandir. He has stated that on 26.10.1999 around 16.40 hours Chander Singh (Sen?), was brought to the hospital. This witness had examined the patient in his capacity as Incharge of Intensive Care Unit of that hospital at 5.00 p.m. He was a member of the team who had undertaken the treatment. He has stated that on 26.10.1999 around 16.40 hours Chander Singh (Sen?), was brought to the hospital. This witness had examined the patient in his capacity as Incharge of Intensive Care Unit of that hospital at 5.00 p.m. He was a member of the team who had undertaken the treatment. Chander Sen was under treatment of this witness till he died on 28.10.1999 at 11.50 a.m. He had mentioned the details of the treatment given to the deceased from time to time by different doctors/specialists till he was alive and was under treatment. He proved on record copy of death certificate and the authenticated xerox copy of the medical treatment is Ext. PX administered to Chander Sen from the time he was admitted in the hospital till he breathed his last. 25. Trial Court had summoned Court witnesses, namely Hem Raj, Head Constable and Gurmit Singh, Dy. S.P., the then S.D.P.O., Sundernagar. 26. At the time of hearing of this case, learned Counsel for the Appellant submitted that assuming every thing stated against his client by all the prosecution witnesses including the so called eye witnesses and also looking to the documentary evidence on the file, impugned judgment cannot stand the test of judicial scrutiny in this case. Per him, there is no reliable, cogent, muchless disinterested as well as legally acceptable evidence having been produced by the prosecution on record to sustain the charge against the Appellant. By laying special emphasis on improbable and unnatural conduct of PWs-3 and 4 and of the PW-17, the Investigating Officer, he submitted that this appeal deserves to be allowed. Ext. PX was also pressed into service by him. He submitted further that there is no evidence produced by the prosecution to show, that the so called fatal blow with Nainchalku was inflicted by the Appellant, to the exclusion of other assailants. Further according to him, on the basis of materials on record this is either a case of the deceased having sustained injuries in a vehicular accident or PWs-3 and 4 having, quarrelled with him (deceased). Both of them having found that his conditions was precarious as a result of such quarrel, they not only left the deceased in the hospital unattended by not getting him admitted in the hospital, but PW-3 kept mum till 30.10.1999. Both of them having found that his conditions was precarious as a result of such quarrel, they not only left the deceased in the hospital unattended by not getting him admitted in the hospital, but PW-3 kept mum till 30.10.1999. Similarly, the version of PW-4 that he informed the police about the fact of occurrence on the next day i.e. 26.10.1999 is nothing but a cock and bull story. If that was so, it is not understood why this version was not given to the doctor when the deceased was referred to PGI on 26.10.1999 and this PW-4 had accompanied father of Chander Sen to Chandi Mandir hospital. 27. All these pleas have been controverted by Mr. Nainta, learned Deputy Advocate General, who submitted that minor variations/omissions here and there in the statements of PWs-3 and 4 will not improbablise the prosecution case, so as to compel this Court to throw it out in its entirety. Further according to him, these are natural with the passage of time. Rather these statements inspire confidence, thus need to be accepted, per Mr. Nainta. He laid great emphasis on Ext. PL, the disclosure statement made by the Appellant while in custody about his having concealed the weapon of offence i.e. Nainchalku, Ext. P.l and P.l/A. Not only this but pursuant to the disclosure statement Ext. PL made by the Appellant regarding concealment of weapon of offence, Appellant got it recovered including its broken piece Ext. P/ 1/A. Per him, this is enough to bring home the guilt against the Appellant, and thus according to him, the trial Court has rightly convicted the Appellant. He prayed for dismissal of the appeal by upholding the conviction and sentence imposed upon the Appellant. 28. After having-considered the respective contentions, as well as having taken note of the evidence to which a brief reference has been made hereinabove and for the reasons to be recoreded hereinafter, in our considered view, the prosecution has miserably failed to prove the case against the Appellant, muchless beyond reasonable doubt : (a) At the risk of repetition it may be noted that the entire prosecution case primarily hinges around the statements of the eye witnesses PW-3 Pawan Thakur and PW-4 Pawan Kumar. Both of whom in our view are un-trustworthy. Both of whom in our view are un-trustworthy. (b) How the incident took place, what has been stated by PW-3, relevant version from his statement is extracted hereinbelow: There were 8 or 9 boys, one of them was accused Vijay, who was having Nainchalku, the boys were also having Nainchalku, 3 or 4 boys started beating me. Vijay was, again said, Chancier Sen was also beaten, by Vijay accused and other 3 or 4 boys with Nainchalku. (Emphasis supplied) (c) Here it may be .appropriate to notice that charge under Section 120B I.PC. has not been established either against the Appellant or his other alleged co-accused. And all of them have been acquitted of this charge. Similarly, other four accused have also been acquitted of charges under Sections 302/149, as well as under Section 147 I.PC. Whereas the Appellant has been convicted for the offence under Section 302 I.PC, as well as under Section 147 I.PC. When the other alleged co-accused have admittedly been acquitted and the judgment having attained finality qua them, it is not understood as what kind of unlawful assembly was there for convicting the Appellant under Section 147 I.PC. Therefore, there is no question of Appellant being convicted under Section 147 I.PC. (d) Now charge under Section 302 I.PC. survives against the Appellant. With a view to sustain this charge and also to prove the same, again it was necessary for the prosecution to have established beyond any shadow of doubt, that the fatal blow is exclusively attributable to none else, but to the Appellant alone. No doubt, PW-4 Pawan Kumar has stated that a Nainchalku blow was administered by the Appellant on the head of Chander Sen and others also started assaulting him, (Chander Sen). But PW-3 has stated that Chander Sen was beaten by the Appellant and other 3 or 4 boys with Nainchalku. Injury given by whom proved fatal there is no clear, muchless legal evidence on record. Statements of PW-3 and 4 are contradictory on this material aspect, and those cannot be accepted for holding that the fatal injury with Ext. P1 was caused by the Appellant alone and by none of the other acquitted accused. (e) Another reason to take this view is, that according to PW-3 Appellant was having a Nainchalku and other boys were also having Nainchalku. P1 was caused by the Appellant alone and by none of the other acquitted accused. (e) Another reason to take this view is, that according to PW-3 Appellant was having a Nainchalku and other boys were also having Nainchalku. 3 or 4 boys had started beating PW-3, when per him, Appellant had given a single blow with Ext. P-1. In the melee, it was highly improbable for this witness to have observed as to which of the accused including, the Appellant, administered fatal blow on the person of the deceased and on which part of the body. Reason being that conviction under Section 147 I.P.C., as already observed is not sustainable on account of acquittal of the other alleged co-accused. And to be successful to prove the charge under Section 302 I.P.C., there is no legally acceptable evidence either. PW-4 on the other hand, had stated that besides the Appellant, other accused were armed with Dandas, who also started assaulting Chander Sen. This is in direct conflict as well in contradiction with the statement of PW-3. Because he has categorically stated that the Appellant and 3 or 4 boys had beaten up Chander Sen with Nainchalku. (f) Even the conduct of PW-3 and PW-4 is not free from doubt. PW-4 accompanied the father of the deceased to Command Hospital Chandi Mandir. What PW-3 was doing till 30.10.1999. He kept mum till this date. Explanation of being scared cannot be accepted. Reason being that scare was there even on 30.10.1999, because Chander Sen had died. And all the five accused had not been arrested till then. As such, there was no change of situation, so far his being scared is concerned on 30.10.1999. He thus appears to have tried to give an unacceptable explanation for not telling the facts to the police from the night of 25/26.10.1999 to 30.10.1999. How could PW-3 hide his injuries from his family members (found by PW-1 even on 30.10.1999), there is nothing stated by this witness. (g) Here another submission of the defence, that deceased might have either received the fatal blow and other injuries, as a result of quarrel between him and PWs. How could PW-3 hide his injuries from his family members (found by PW-1 even on 30.10.1999), there is nothing stated by this witness. (g) Here another submission of the defence, that deceased might have either received the fatal blow and other injuries, as a result of quarrel between him and PWs. 3 and 4, as all of them had admittedly consumed alcohol and/or injuries having been caused to the deceased because of some road traffic accident in the early hours of 26.10.1999 while under the influence of alcohol, cannot be completely brushed aside, much-less overlooked. In this behalf, great emphasis was laid by Mr. Chandel on Ext. P-X as well as on the statement of PW-4, to exclude the commission of offence being attributed to his client. He submitted that when prosecution produced PW-6 to support and prove its case, it was well aware that two persons named by this witness had a serious Jhagda (fight) with the deceased, who was also known as Situ. Per this witness, severe beatings were given by these two persons to Situ. Consequence of production of this witness had to be borne by the prosecution and none-else. Similarly, when prosecution produced PW-21, Medical Officer Incharge from the Command Hospital Chandimandir, again the consequence of his statement as well as of the history sheet Ext.P-X is also to borne by the prosecution. (h) In our considered view, prosecution cannot be allowed to say after having produced the witnesses like PW-6 and document like Ext. P-X proved, it should be allowed to wash its hands off from its consequence. That being the position, it further makes the case of the prosecution attributing the fatal blow to the Appellant, so as to uphold the conviction under Section 302 of the Indian Penal Code highly improbable and doubtful. Reason being that possibility of the deceased having sustained fatal injury either as a result of road traffic accident and/or on account of some quarrel having taken place between the deceased and PWs. 3 and 4, cannot be completely ruled out. (i) Prosecution has not examined father of the deceased to whom PW-4 claims to have narrated the facts on 26.10.1999 before deceased was taken after reference to PGI, by PW-2 doctor who had at the first instance attended at Sundernagar hospital. 3 and 4, cannot be completely ruled out. (i) Prosecution has not examined father of the deceased to whom PW-4 claims to have narrated the facts on 26.10.1999 before deceased was taken after reference to PGI, by PW-2 doctor who had at the first instance attended at Sundernagar hospital. In case this was the factual and true state, we see no reason that the father of the deceased having not immediately informed either the doctor in the hospital at Sundernagar, or at Chandimandir where the deceased was taken, instead of being taken to PGI on 16.10.1999. Thus, ipse-dixit of PW-4 on this aspect of the case cannot be accepted. (j) Raju was admittedly the person who had met PW-3, PW-4 and the deceased as per version of PW-3 and PW-4. He was given up as per the statement made on behalf ofthe prosecution on 4.10.2000. It was also submitted by Mr. Chandel that statements of two persons were got recorded under Section 164 Code of Criminal Procedure. These are Gagandeep and Pradeep. However prosecution closed its evidence on 22.11.2000, when Public Prosecutor made a statement to that effect. What happened to those statements, there is nothing on record. (k) Looking to the overall circumstances of this case, and keeping in view the hour of the night, when this incident is alleged to have taken place, identification of the Appellant was highly improbable. Per PW-4, he saw the Appellant for the first time on the date of occurrence. He stated nothing else, so as to enable this Court to accept his statement regarding the Appellant having been identified by this witness. Similarly, how could PW-3 could identify the Appellant, we find no good reason to accept his version on this aspect of the case. Incident is stated to have taken place on the National Highway. Volume of movement of traffic is very high on this road. May be movement of vehicles was less because of night time. As such, we find that the identification of the Appellant by PW-3 and PW-4 was not at all possible. Therefore, this part of their statements has to be excluded. Volume of movement of traffic is very high on this road. May be movement of vehicles was less because of night time. As such, we find that the identification of the Appellant by PW-3 and PW-4 was not at all possible. Therefore, this part of their statements has to be excluded. (l) With a view to support the charge under Section 302 of the Indian Penal Code against the Appellant, it was necessary for the prosecution to have put the entire incriminating material under Section 313 Code of Criminal Procedure to the Appellant, it is not a mere formality or a ritual. In fact, it is very vital. Because the person charged gets an opportunity to offer his explanation and can say whatever he has to say on the entire case against him. In this behalf when a reference is made to the statement of the Appellant under Section 313 Code of Criminal Procedure, there is nothing on record to show that the vital injury which led to the death of Chander Sen having been put to the Appellant. For ready reference, Question NO. 5 of the statement under Section 313 Code of Criminal Procedure is extracted hereinbelow:- Q. 5. It is further in evidence that Chander Sen was beaten by you as well as other 3 or 4 boys with Nainchalkus. Pawan Thakur was also given beating and he fell flat on the road. Thereafter Chander Sen also fell down. What have you to say about ? Ans. It do not know. (m) We feel specific injury was rightly not put to the Appellant, as there was no evidence to that effect on record. And nothing was pointed out even at the time of hearing of this appeal on behalf of the prosecution. (n) Inflicting of fatal blow was the most vital and incriminating circumstance required to be put to the Appellant with a view to support and establish the charge under Section 302 of the Indian Penal Code against the Appellant. This was not put to the Appellant. Therefore, in our view, he was materially prejudiced as he was deprived of his valuable right to give his version. This was not put to the Appellant. Therefore, in our view, he was materially prejudiced as he was deprived of his valuable right to give his version. That being so, Appellant is entitled to the benefit of such omission, particularly when we have taken the view that he was materially prejudiced [See Machander v. The State of Hyderabad AIR 1955 SC 792; Bhagwan Dass v. State of Himachal Pradesh 2002(2) Shim. L.C. 305; Kanhai Mishra alias Kanhaiya Misar v. State of Bihar 2001(2) Crimes 313 (SC). 29. What follows from the aforesaid discussion is that there is no evidence to show that it was because of fatal blow given by the Appellant, that Chander Sen died. Disclosure statement alleged to have been made by the Appellant, vide Ext. P-L in the presence of PW-13 Tara Singh and consequent recovery of Nainchalku Ext. P-l as well as its wooden portion Ext. P-l/A, cannot be accepted to be sole ground for upholding the impugned judgment. Assuming, not conceding that this was recovered at the instance of the Appellant, still in the absence of there being any evidence to establish that by whom fatal blow was given, recovery and/or causing of inury with Ext. P-l cant be accepted. 30. Learned Deputy Advocate General persisted after referring to evidence that impugned judgment calls for no interference in this appeal. This plea in the face of the above discussion, in our considered view, has been raised simply to be rejected. 31. No other point is urged. 32. In view of the aforesaid discussion, impugned judgment is set aside and this appeal is allowed. Appellant is in custody. He is ordered to be set at liberty forthwith unless required in any other case.