JUDGMENT Kochar, J. -- 1. Since both the aforesaid appeals arise out of a common judgment, they are being decided and disposed of by this common judgment. Both these appeals have been directed by the appellants against their conviction and sentence passed by 18th Additional Sessions Judge (Fast Track), Indore in Sessions Trial No.329/06 on 24.4.2008, thereby convicting the appellants under sections 302 read with S.34 of the IPC and sentencing them to undergo imprisonment for life with fine of Rs.5,000/ in case of default of payment of fine, an additional rigorous imprisonment of six months. 2. Brief facts of the prosecution case as unfolded before the trial Court are that on 22.6.2006 in the evening at 6 p.m., complainant Mohd. Taj and his brother Mohd. Arif were collecting broken liquor bottles and other garbages in trenching ground of Nagar Nigam, Indore. At that moment, appellants reached there and objected taking of garbage, waste material and broken glasses. Deceased Arif told them that he was permitted by the officials; at that juncture, all the appellants bounced upon having knifes and caused him number of injuries resulting into an instantaneous death. Police of Khudel Police Station received information about this incident through wireless, on which PWl9 Inspector C.K. Bhamre reached on the spot and recorded Dehati Nalish vide Ex.P-15 as narrated by eye-witness PW10 Mohd. Taj, brother of the deceased. Shri Bhamre prepared inquest report vide Ex.P-3 as well as spot map vide Ex.P-ll and sent the dead body for post-mortem examination, which was conducted by PW15 Dr. N.M. Unda, who gave post-mortem report vide Ex.P-24. The accused persons were arrested and on their disclosure statements as per section 27 of the Evidence Act, knives were seized. Seized knives were sent to Dr. Unda with questionnaires and Dr. Unda gave reply vide Ex.P-26. From the spot, blood-stained and controlled earth were seized along with the clothes of the deceased and were sent to FSL for its examination and its report is Ex.P-28. On due investigation, concerned police filed charge-sheet against the appellants for commission of offence under section 302/ 34 of the IPC and under section 25(1- B)(b) of the Arms Act. 3. Accused persons-appellants abjured their guilt, therefore, put to trial. Appellant Ramesh examined defence witness Ritesh DW1 to show that brother of deceased Mohd. On due investigation, concerned police filed charge-sheet against the appellants for commission of offence under section 302/ 34 of the IPC and under section 25(1- B)(b) of the Arms Act. 3. Accused persons-appellants abjured their guilt, therefore, put to trial. Appellant Ramesh examined defence witness Ritesh DW1 to show that brother of deceased Mohd. Taj demanded money for not giving statement in Court against Ramesh and he lodged the report to this effect in the police station. Defence witness has also stated that Ramesh who committed the offence was another Ramesh and not the present Ramesh, who was arrested and put for trial by the police. The prosecution has examined as many as 19 witnesses and adduced so many documents to prove its case. Learned trial Court finding the appellants guilty, convicted and sentenced them as described herein above. 4. Having heard the learned counsel for the parties and after perusing the entire record carefully, we are of the considered opinion that conviction and sentence of the appellants are not substantiable. 5. The prosecution has examined four eye-witnesses, i.e., PW6 Babu Khan, PW7 Ayoob Pathan, PW10 Mohd. Taj, brother of deceased and PW12 Mohd. Anwar. The whole prosecution case is based on the testimony of these four eye-witnesses. 6. PW6 Babu Khan in examination-in-chief identified all the appellants and also stated that they assaulted deceased Arif by knives, but in cross-examination, he has changed his entire version and stated in paragraph 7 that he was not knowing appellants Deepu and Veeru and also stated in paragraph 8 that at the time of incident, so many persons were present and he was informed by those persons about the incident and on that basis, he gave statements. According to this witness, not only few persons were present, but crowd was present. Again in paragraph 9, he has given serious jolt to the prosecution case by giving contradictory statement that he came to know prior to the date of incident names of the appellants Deepu and Veeru, but he had no occasion to meet them and he was also not knowing them. Again in paragraph 9, he has given serious jolt to the prosecution case by giving contradictory statement that he came to know prior to the date of incident names of the appellants Deepu and Veeru, but he had no occasion to meet them and he was also not knowing them. It is well settled legal position that normally when witness is not knowing the assailants by name and by face from prior to the date of incident, the police must arrange test identification parade of the said assailants by Executing Magistrate or any other independent agency, but in this case police has not followed this procedure. In paragraph 10, he has deposed that against him there were 22 to 23 criminal cases were pending in Court, but all were withdrawn and he was not knowing appellant Ramesh. In paragraph 11, he has stated that he was only knowing Arif and not knowing any member of his family. The further say of this witness in paragraph 12 is that after witnessing the proceedings of destroying liquor bottles on trenching ground near by-pass road, he went back to his house situated in Azad Nagar, where he came to know about the incident and he reached to M.Y. Hospital, Indore. This shows that he was not present on the spot at the time of incident. He has also stated that he stayed there for 2 to 3 hours i.e. upto 11:00 or 11:30 in M.Y. Hospital, Indore, thereafter he returned back to his house. During this period, he had no talk with any police officials though in M.Y. Hospital, Indore, police personnel were doing investigation and writing papers in police outpost. Further say of this witness is that in M.Y. Hospital, police was doing inquiry and saying that FIR would not be written on that day and same would be recorded after going to police station. In paragraph 13, it is stated by this witness that they did not lodge any report in the police station and police recorded temporary report (dPph fjiksVZ) after interrogating him and in that report, he did not disclose the name of appellant Ramesh. According to this witness, name of the appellants was disclosed to him by one Sabir. After giving all these contradictory and divergent statements about witnessing the incident, again he has stated that he saw the incident from some distance. 7. According to this witness, name of the appellants was disclosed to him by one Sabir. After giving all these contradictory and divergent statements about witnessing the incident, again he has stated that he saw the incident from some distance. 7. Next witness Ayoob Pathan PW7 has turned hostile and not supported the prosecution case. He was confronted with his case diary statement vide Ex.P-13 and he denied giving of such statement to the police. In this view of the matter, the trial Court has not relied upon this witness. 8. Mohd. Taj PW10, who is the brother of deceased has declined to identify appellants Veeru and Deepu in the Court and in examination-inchief, he stated against the appellant Ramesh. He was declared hostile for appellant Veeru and Deepu and confronted by A.G.P. with his case diary statement vide Ex.P-15 and he denied the statement A to A portion about the appellants Veeru and Deepu in cross-examination. He deposed that he was not called for attending any test identification parade of appellant Deepu and Veeru and he was not knowing them by name and by face prior to the date of incident. He also admitted that he did not mention the name of both these appellants in report as well as in police statement and could not explain as to how the police wrote their names. In cross-examination para 10, he stated that on trenching ground, there was a security guard appointed by Nagar Nigam, Indore. By the side of the way, a room of watchman was situated and watchman remained there on duty from 10 a.m. to 8 p.m. In paragraph 12, the say of this witness is that he was not knowing appellant Ramesh prior to the date of incident and also not saw him. This witness has given contradictory statement in paragraph 13 about lodging of the report. This witness has given contradictory statement in paragraph 13 about lodging of the report. He says that he lodged report of the incident in M.Y. Hospital in the night at 10 p.m. to 11 p.m. or between 8:30 to 9:00 p.m. The report was recorded after preparation of inquest report of dead body and he received the dead body in the night at 8 p.m. In paragraph 14, he was confronted with his case diary statement and he failed to explain the material omission which amounts to contradiction about the presence of appellant Ramesh and deliberation with him regarding collection of garbage and waste materials. There were other contradictions and omissions, but we do not feel to mention it here in detail, especially when this witness has declined to identify all the appellants as assailants of his brother. In view of his statement, the recording of Dehati Nalish vide Ex.P-15 on the spot at 6:45 p.m. becomes doubtful. 9. Last eye-witness PW12 Mohd. Anwar identified appellant Ramesh in examination-in-chief and denied to identify appellants Veeru and Deepu, therefore, he was declared hostile for these two appellants by A.G.P. The A.G.P. confronted Mohd. Anwar with his case diary statement vide Ex.P20, in which he refused to mention the name of appellants Veeru and Deepu as assailants of Arif. In paragraph 4, he deposed that he came to know about murder of his brother in the evening at 6 or 6:30 p.m. from his brother Mohd. Taj and he was taken to M.Y. Hospital but the police did not interrogate him. He failed to identify appellant Ramesh among three accused persons standing in dock during the course of trial before the trial Court. He has also specifically stated that he did not disclose the name of appellant Ramesh to the police and since last 5 to 6 years, he lost his sight and was not able to identify even a person standing nearby. Further say of this witness is that during the course of police inquiry, one Sabir disclosed the name of appellant Ramesh because of which he came to know his name. 10. It is as clear as day light that all the three eye-witnesses PW6 Babu Khan, PW10 Mohd. Taj and PW12 Mohd. Anwar have not given any statement in Court against the appellants Veeru and Deepu. 10. It is as clear as day light that all the three eye-witnesses PW6 Babu Khan, PW10 Mohd. Taj and PW12 Mohd. Anwar have not given any statement in Court against the appellants Veeru and Deepu. They were declared hostile by the prosecution and in cross-examination by the Assistant Public Prosecutor, nothing substantial has come to establish the guilt of the appellants. Out of these three witnesses, two witnesses, i.e., Mohd. Taj and Mohd. Anwar are real brothers of the deceased and in cross-examination relied from the their statement given in examination-in-chief about presence and participation of appellant Ramesh in the incident, but prosecution has not declared hostile these three witnesses for appellant Ramesh and there was also no re-examination by the prosecutor from these three witnesses regarding contradictory statement given in examination-in-chief, thereafter, in cross-examination about presence and participation of appellant Ramesh. Learned trial Court has also failed to exercise its valuable power under section 165 of the Evidence Act to fix the witness on a particular fact, whether their statements given in examination-in-chief were correct or contradictory to statements given in cross- examination. The apex Court as well as this Court has categorically pointed out in plethora of judgments that duty of the trial Court/Judge is not only to act as an umpire, but to take effective part in the trial during the course of whole proceedings to dig out the truth, in the interest of justice and for just decision of the case. But in the instance case, it is crystal clear that the learned trial Court has failed to exercise its power under section 165 of the Evidence Act. Learned trial Court even before pronouncement of judgment must have gone through the entire record and must have found the aforesaid contradictory statement and non-performance of duty by the prosecutor to re-examine above witnesses, especially when they had given contradictory statements in crossexamination, yet did not exercise power under section 311 of the CrPC to re-call the above mentioned three eye-witnesses for further examination on limited point to settle the ambiguity. In the Supreme Court's judgments Mukhtiar Ahmed Ansari v. State of Delhi [2005)5 SCC 258]; Raja Ram v. State of Rajasthan [(2005)5 SCC 278]; Kunju Muhammed alias Khumani and another v. State of Kerala [(2004)9 SCC 193, para 16, 19]; Baldev Singh v. State of Punjab [ AIR 1991 SC 31 ]; Sukhram v. State of M.P. [1989 JLl 121], the Supreme Court has propounded two principles. One .is that when prosecution witness gives two kinds of statements; one is in favour of the prosecution and another in defence, then looking to the facts and circumstances of the case, normally statement given in favour of the accused has to be relied upon and second is that when prosecution witness has not been declared hostile, then the prosecution is bound by his statement and the same cannot be ignored, if it is in favour of the accused. Relying on these Supreme Court's pronouncements and legal principles as well as above mentioned statements of the prosecution eye-witnesses, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and the appellants are entitled to be acquitted. 11. Thus, these two appeals are allowed; conviction and sentence of the appellants are hereby set aside. Appellants Deepu and Veeru are on bail, their bail bonds and surety bonds stand discharged. Appellant Ramesh is in jail; concerned learned trial Court is directed to release him forthwith, if not wanted in any other criminal case. 12. A copy of this judgment be retained in connected Criminal Appeal No.634/08.