JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 13.9.99, passed, in Sessions Case No. 73(S)/98, the learned Sessions Judge, Sonitpur, has convicted the accused-Appellant under Section 304A IPC and sentenced him to suffer rigorous imprisonment for one year and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months. 2. The case against the accused-Appellant, as projected at the trial, may, in brief, be described thus: On 27.01.98, Samsul Haque (since deceased) along with his son, namely, Salimuddin Islam (P.W. 2) and four others went to jungle near river Jia Bharali to collect firewood. On the same day, a group of persons also went to the bank of the said river for picnic. The accused was one of the picnickers. Some of the picnickers forcibly took away some pieces of firewood from the boat of the said deceased. This taking away of the firewood led to a quarrel between the two groups. While the deceased and his companions including the said son of the said deceased were in their boats, the picnickers started pelting stones on them. Few of the stones, so pelted in the directions of the deceased and his party, hit the deceased. On being hit by the stones so pelted, the deceased fell into the river and succumbed to the injuries sustained by him. Out of fear, the companions of the said deceased ran away and informed Nurul Haque (P.W. 1), brother of the said deceased, about the occurrence. On the following day of the occurrence, some co-villagers and relatives of the said deceased Samsul Haque went to the said riverbank and recovered Samsul Haque's dead body. Nurul Haque, brother of the said deceased, then, lodged a written Ejahar (Exhibit 2) with the police, on 28.1.98, about the said occurrence. This F.I.R. did not disclose name of any of the picnickers. The police registered a case under Section 302/34 IPC. During the course of investigation, two persons, namely, Jiten Bora and Promod Bhuyan (i.e., the present accused-Appellant) were taken into custody; but the police, on completion of investigation, laid charge-sheet against the accused-Appellant, Promod Bhuyan, under Section 302 / 34 IPC. 3. To the charge framed, at the trial, under Section 302 (Part I) read with Section 34 of the IPC, the accused pleaded not guilty. 4. 3. To the charge framed, at the trial, under Section 302 (Part I) read with Section 34 of the IPC, the accused pleaded not guilty. 4. In support of their case, the prosecution examined 7 witnesses. The accused was, then, examined under Section 313 Code of Criminal Procedure, wherein, while he admitted that he was one of the picnickers and had gone to the said bank of the river, he expressed his ignorance about the incident of pelting of stones. The plea of the defence was, thus, a plea of denial. No evidence was, however, adduced by the defence. 5. Having found the accused guilty of the offence under Section 304A IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned hereinabove. Aggrieved by his conviction and the sentence passed against him, the accused has preferred the present appeal. 6. I have heard Mr. J.C. Barman, learned Counsel for the accused-Appellant and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, what may be noted is that P.W. 6 is the doctor, who had performed postmortem examination on the dead body of the said deceased. The doctor found one lacerated wound on the left lower eyelid and blood stains on the nose. The doctor also noticed that the membranes had bruises with sub-dural haematoma on the left fronto-parietal region. The injuries were, according to the doctor, ante mortem in nature. In the opinion of the doctor, i.e. P.W. 6, subdural haematoma in the fronto parietal region was the cause of the death of the said deceased. It is also in the evidence of the doctor (P.W. 6) that in his opinion, the subdural haemtoma in the parietal region was sufficient to cause death in the ordinary course of nature and that the injuries, found on the said dead body, could have been caused by a blunt weapon. In his cross-examination, the doctor (P.W. 6) has admitted that the injuries found on the said dead body can be caused if a person suddenly falls on a hard substance like wooden plank of a boat or on a stone in the river. 8. In his cross-examination, the doctor (P.W. 6) has admitted that the injuries found on the said dead body can be caused if a person suddenly falls on a hard substance like wooden plank of a boat or on a stone in the river. 8. Bearing in mind the medical evidence on record, when I come to the remaining evidence on record, what I notice is that as far as P.W. 1 (informant) is concerned, he was, admittedly, not an eye witness to the alleged occurrence. The prosecution has examined P.W. 2, P.W. 3 and P.W. 4 as eye witnesses to the alleged occurrence. P.W. 3 and P.W. 4 were members of the picnic party and it is in the evidence of P.W. 3 that the accused was also a member of their picnic party. It is also in the evidence of P.W. 3 that a quarrel took place near the place, where the picnic had been organized. P.W. 3 has, however, claimed that he did not go near the place, where the quarrel had taken place. To the same effect is the evidence of P.W. 4, for, P.W. 4 had deposed that a quarrel took place at a little distance away from the place, where the picnic was held, and that he saw people chasing each other, but he expressed ignorance with regard to the pelting of stones, etc. Both these witnesses were declared hostile by the prosecution and cross-examined. From their cross examination, nothing could be elicited by the prosecution to show that the accused was the one or that the accused was, amongst those, who had a quarrel with the said deceased and/or that the accused was the one, who had pelted stones on the said deceased and/or that the accused was, amongst those, who had pelted stones on the deceased. 9. Keeping in view what have been indicated above, when I turn to the evidence of P.W. 2, who is son of the said deceased, his evidence, I notice, is that on the day of occurrence, he, accompanied by his father and some others, went to collect firewood near river Jia Bharali and they collected there some firewood. 9. Keeping in view what have been indicated above, when I turn to the evidence of P.W. 2, who is son of the said deceased, his evidence, I notice, is that on the day of occurrence, he, accompanied by his father and some others, went to collect firewood near river Jia Bharali and they collected there some firewood. It is in the evidence of P.W. 2 that soon after they had collected firewood, some persons from a picnic party started throwing stones on them, one of such stones hit his father on the head and, on being so hit, his father fell into the river. It is also in the evidence of P.W. 2 that out of fear, he (P.W. 2) along with others returned to safer place and reported the incident to his uncle, Nurul Haque (P.W. 1), and on the next morning, they recovered his father's dead body from the river bed. This witness (P.W. 2) identified the accused, at the trial, as one of those persons, who had pelted stones on the said deceased. 10. Though it was pointed out, at the trial by the defence that the identification of the accused, for the first time, at the trial, by P.W. 2 was unsafe to rely upon, for the said identification had not been preceded by any test identification parade (i.e. T.I.P.), the learned trial Court, relying upon the decision, in George and Ors. v. State of Kerala and Anr. AIR 1998 SC 1376 held to the effect that the identification of an accused, at the trial, by a witness is a substantial piece of evidence and in the present case, there is no reasoning why this piece of evidence shall not be relied upon. With the reason so assigned, the learned trial Court held, relying on the evidence of the identification of the accused, at the trial, by P.W. 2, guilty of the offence under Section 304A IPC. 11. Before I venture into the question as to whether the evidence of identification made, for the first time, at the trial, could have been legally relied upon by the learned trial Court or not, what is of immense importance to note is that it was in response to a question put by the learned trial Court that P.W. 2 had identified the accused as one of the persons, who had pelted stones on his father. The question put to P.W. 2 by the learned trial Court and the answer to the question so put quoted is herein below: To the Court: The witness was asked to identify whether the accused standing in the dock was also a member of the picnic party and whether he had also pelted stones on his father. The witness replied in the affirmative. The witness repeatedly and assertively deposed that the accused standing in the dock had also pelted stones on his father. 12. While a trial judge is not supposed to act as a mere recording machine of the evidence, which is adduced in the court, nor is he a mere spectator, umpire or a referee and though he is required to be an effective instrument in the dispensation of justice and cannot keep himself confined to, and depended on, the happenings of the trial, he must be cautious, while discharging his role as a judge, that he does not act either on behalf of the prosecution or on behalf of the defence, while holding the trial. 13. In the case at hand, the learned trial Court's question put to the P.W. 2 was to the effect if the accused was a member of the picnic party and if he had also pelted stones on his father. Both these questions were, undoubtedly, leading questions, which could not have been put by the learned trial Court, for, a leading question can be put only in the cross-examination of a witness in terms of Section of the evidence. Since P.W. 2 was not under cross-examination by the learned trial Court, the putting of leading questions to P.W. 2 so as to elicit incriminating evidence against the accused-Appellant was wholly impermissible in law. Though under Section 165 of the Evidence Act, the judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, of the parties about any of act relevant or irrelevant, the fact remains that the judge, conducting a trial, can neither act on behalf of the prosecution nor can he act on behalf of the defence. A leading question can be put in cross-examination of a witness and not while he is under examination-in-chief. A leading question can be put in cross-examination of a witness and not while he is under examination-in-chief. Though there is no limitation on the power of a trial Judge to put, under Section 165, any question, which the Judge may deem fit, the fact remains that the Judge cannot put such a question, which is leading in nature and thereby lead a witness to give evidence incriminating the accused. Such an approach is wholly impermissible in law. [See Ram Chander Appellant v. The State of Haryana AIR 1981 SC 1036 ]. 14. What the learned trial Court could have, at best, asked P.W. 2 was as to who all were present amongst the picnickers and if P.W. 2, in response to such a question, deposed that the accused was present amongst the picnickers, the learned trial Court could have, at the most, asked as to what role, if any, the accused had played in the incidence of quarrel and pelting of stones. The learned trial Court transgressed the limits of its powers and led the witness to state that the accused was one of the persons, who had pelted stones on the said deceased. Hence, it is impossible to treat the evidence so given by P.W. 2 a legal and admissible pieces of evidence. 15. Be that as it may, the question that still stares at us is this: Is the identification of the accused-Appellant, for the first time at the trial, was sufficient, in the present case, to base conviction of the accused-Appellant thereon? 16. While considering the question, posed above, it is of utmost importance to note that the identification of an accused inside the court-room, at a trial, is an admissible piece of evidence and because such identification of an accused is admissible in evidence, such evidence of identification is a substantive piece of evidence. It is, therefore, permissible to rely on such piece of evidence as a rule of law; but the rule of prudence demands that in the absence of any other corroborative evidence, the conviction of an accused must not be based entirely on his being identified, at the trial, by a witness. The learned trial Court has, as has already indicated hereinabove, placed reliance on the observations made in George's case (supra), which run thus: 25. The learned trial Court has, as has already indicated hereinabove, placed reliance on the observations made in George's case (supra), which run thus: 25. That brings us to the question whether the ground canvassed by the trial Court for rejection of her evidence regarding identification of the Appellants, whom she, admittedly did not know from before, as the assailants are improper or not. So far as the first ground is concerned, law is well settled that identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in Court. 17. While considering the above observations made in George (supra), it is of utmost importance to note that what the Apex Court has held, in George (supra), is that identification of an accused, at the trial, even if the same had not been tested by a TIP, is an admissible piece of evidence. Nowhere in the observations, which I have quoted hereinabove, the Apex Court has held that because of the fact that identification of ail accused, at the trial, is a substantive piece of evidence, conviction of the accused can also be freely founded on such evidence without having regard to the fact as to whether such evidence is or is not safe to rely upon. 18. In Kanta Prasad v. Delhi Administration AIR 1958 SC 350 , the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prasad (supra) run as follows: It would no doubt have been prudent to hold test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course. 19. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course. 19. Having taken into account the decisions in Kanta Prasad (supra), Harbhajan Singh v. State of Jammu and Kashmir AIR 1975 SC 1814 , Jadunath Singh v. State of U.P. AIR 1971 SC 363 and some other authorities, the Apex Court, in George (supra), held as follows: It cannot be denied however that though not fatal, absence of the corroborate evidence of prior identification in a T.I. parade makes the substantive evidence of identification in Court alter a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence. 20. From what have been observed in George (supra), it is clear that though absence of identification parade does not make the evidence of identification, at the trial inadmissible, the court has to ascertain how far the evidence of identification of the accused, at the trial, can be safely relied upon. In short, while the evidence of identification of an accused, at a trial, is admissible and substantive piece of evidence, it will depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. The rule of prudence may urge a court, in a given case, that the court should look for some corroborative piece of evidence. 21. Keeping in view what have been indicated above, when I turn to the factual matrix of the present case, what I notice is that P.W. 2 is the only witness, who has identified the accused as one of the persons, who had pelted stones on the said deceased. Whether this piece of evidence was safe enough to rely upon is the question raised in this appeal. While considering this aspect of the matter, what cannot be ignored is that the evidence of P.W. 2 is that he was accompanied by Sukra, Kalia, Moijul, Najar and Sangur. However, none of those persons, who had accompanied P.W. 2 and the said deceased, to the said bank of the river and were eye witness to the alleged occurrence, has been examined by the prosecution. However, none of those persons, who had accompanied P.W. 2 and the said deceased, to the said bank of the river and were eye witness to the alleged occurrence, has been examined by the prosecution. The present one is, thus, not a case, wherein none other than P.W. 2 was available to the prosecution as an eye witness to the alleged occurrence. Heavy burden, therefore, rested on the prosecution to explain as to why the other persons, who were present at the alleged scene of occurrence, have not been examined. Though there was no limitation, on the power of the learned trial Court, to convict the accused-Appellant on the sole testimony of P.W. 2, the fact remains that the conviction of the accused was not possible unless the identification of the accused by P.W. 2 was held to be safe to be believe in or rely upon. Nothing was, however, elicited from P.W. 2 to show as to why and how he happened to remember the accused as a person, who had pelted stones on his father. When the eye witnesses were available, but were not examined, the solitary testimony of P.W. 2 was unsafe to rely upon for even a genuine error on the part of P.W. 2 was sufficient to ruin the life and career of an innocent person and, particularly, when no plausible and convincing evidence exists on record as to why and how P.W. 2 happens to remember the accused-Appellant by face as a person, who had pelted stone on the said deceased. Duty, it was, therefore, of the learned trial Court to seek some corroboration for the evidence of P.W. 2. 22. In a case of present nature, there is no impediment, on the part of the court, to call for and examine those persons, whose names emerged from the evidence of P.W. 2 as eye-witnesses to the alleged occurrence. No such effort was made either by the learned trial Court or by the prosecution. In the circumstances, such as, the present one, I am firmly of the view that basing of the conviction of the accused-Appellant on the sole testimony of P.W. 2 was wholly unsafe and, more so, when P.W. 2, as I have already indicated hereinabove, was led, by putting leading questions, which were impermissible in law, to name the accused-Appellant as a person, who had pelted stone on the said deceased. At any rate, in the face of the evidence on record, as discussed above, the accused-Appellant could not have been held to have been proved, beyond reasonable doubt, to have pelted stones on the said deceased and he (i.e., the accused-Appellant), in the facts and attending circumstances of the present ease, ought to have been accorded, at least, benefit of doubt. 23. Because of what have been discussed and pointed out above, I hold that the conviction of the accused-Appellant under Section 304A IPC cannot be sustained and must be interfered with. 24. In the result and the reasons discussed hereinabove, this appeal succeeds. The impugned judgment and order, dated 13.9.99, passed, in Sessions Case No. 73(S)/98, shall accordingly stand set aside. The accused-Appellant is held not guilty of the offence under Section 304A IPC and is hereby acquitted of the same under benefit of doubt. 25. The bail bond of the accused-Appellant is cancelled and his sureties shall stand discharged. 26. With the above observations and directions, this appeal shall stand disposed of. 27. Send back the LCR. Appeal allowed