JUDGMENT R.B. Misra, J. 1. The present criminal reference has been preferred under Rule 9 of the Rules for the Regulation of the Procedure of Officers Appointed to Administer Justice in the Lushai Hills, 1937 in connection with judgment and order dated 30.08.2006 passed by the District Magistrate, Kolasib in CRL TR. No. 198 of 2003 in reference of the offence Under Section 302/384/34 of I.P.C. read with Section 25(1-B(a)of the Arms Act, whereby, for the murder of K.K. Nath, two accused-persons, namely, Monir Ali Laskar and Anwar Hussain Laskar have been found guilty Under Section.302/384/34 of I.P.C. read with Section 25(1-B)(a) of the Arms Act and accused Monir Ali Laskar has been convicted and sentenced for life imprisonment and to pay a fine of Rs. 10,000/ -, in default of payment of fine, simple imprisonment for another 2(two) years and accused Anwar Hussain Laskar has been convicted and sentenced for life imprisonment and to pay fine of Rs. 5,000/-, in default of payment of fine, simple imprisonment for another 1 (one) year. 2. In order to deal with the present criminal reference, it is necessary to give details of the prosecution story in a nutshell as below. On 20.08.2003 at 03:30 p.m., a written ejahar was submitted by Hav. Rualdosanga of 1st IR Bn. Zophai Post to Officer-in-Charge, Bairabi Police Station stating that on 20.08.2003 at 1 p.m. when Hav. K.K. Nath of Zophai Post went out on confidential duty in full uniform carrying his service carbine, he was brutally murdered by 5 (five) assailants, namely, (1) Abdul Jalil, (2) Anwaruddin S/O Abdul Jalil, (3) Amiruddin S/O Abdul Jalil, (4) Monir Ali S/O Mosaid Ali and (5) Nabibur Rahman S/O Monir Ali, all of Zophai working in paddy field and the said accused also snatched away his service carbine and its ammunition. As such, a BBI P.S. Case No. 16 of 2003 Under Section 302/384/34 of I.P.C. read with Section 25(1-B)(a) of the Arms Act was registered and duly investigated into against them. 3. Inquest over the dead body was conducted and the Medical Officer, SHC Kawnpui conducted post mortem examination on the body of the deceased, search and seizure were also made. The confessional statements of Monir Ali Laskar and Anwar Hussain Laskar were recorded Under Section164 of Cr. PC. During the course of investigation, it was learnt that one Ajmot Ali was also involved in the case. The confessional statements of Monir Ali Laskar and Anwar Hussain Laskar were recorded Under Section164 of Cr. PC. During the course of investigation, it was learnt that one Ajmot Ali was also involved in the case. After commission of the offence, accused Monir Ali Laskar surrendered before the Officer-in-Charge, Jamira Police Petrol Post with carbine and ammunition which snatched away from Hav. K.K. Nath (deceased). The Investigating Officer of Katlicherra Police Station arrested 4 accused-persons, namely, (1) Amir Hussain, (2) Hasibur Rahman, (3) Monir Ali and (4) Anwar Hussain. Amir Hussain and Habibur Rahman were said to be minor, therefore, they were forwarded to Juvenile Home at Silchar. However, Abdul Jalil and Ajmot Ali were still absconding and their whereabouts were not known. 4. A prima Facie case Under Section 302/384/34 of I.P.C. read with Section 25(1-B)(a) of the Arms Act was found established after investigation against accused (1) Abdul Jalil S/O Monohar Ali, (2) Monir Ali Laskar S/O Mosaid Ali Laskar, (3) Anwar Hussain Laskar S/O Abdul Jalil Laskar, (4) Amir Hussain Laskar S/o Monir Ali Laskar and (5) Ajnoid Ali S/O Jojonnath, all of Kachurthol Police Station, Katlichera District Hailakandi. Accused Monir Ali Laskar and Anwar Hussain Laskar were arrested and forwarded in judicial custody and rest four are still absconding. 5. The charge Under Section 302/384/34 of I.P.C. read with Section 25(1-B)(a) of the Arms Act was submitted against accused Anwar Hussain Laskar and Monir Ali Laskar. 6. The confessional statement of accused Monir Ali Laskar was taken on 11.11.2003 before the Magistrate, 1st Class at Kolasib where he confessed that on 20.08.2003 when he was at field harvesting his paddy, all of a sudden one stranger holding a gun directed him to hand over 5 kgs of paddy along with Rs. 2,000/-. Since he was a poor farmer and had nothing to give, the said accused started fighting for the gun which was procured from stranger and handed it over to Jamira Police Out Post, thereafter, he was detained at Hailakandi Jail. 7. The confessional statement of Anwar Hussain Laskar taken on 11.11.2003 before the Magistrate, 2nd Class indicated that on 20.08.2003 at 6 a.m. he was called by his parents at Gahabad Village in reference to his elder brother's ailments but and he did not know anything about the murder in question and when he returned home on Friday he was arrested by the police. 8. Prosecution witness Sh. Saidul Hoque revealed that on 20.08.2003 between 1 p.m. and 2 p.m. after hearing gun shot when he reached to the spot, he observed that the deceased was assaulted by a knife and Huja by Monir Ali, Anwaruddin, Amiruddin and Hobibur Rahman. When the said witness reached the spot, Monir Ali threatened him not to reach there otherwise they will also killed him. He also observed that Nasiruddin was running towards IR Camp from the spot. 9. Prosecution witness Nasiruddin stated that on 20.08.2003 when he finished his meal around 11 a.m. he heard a gun shot for three times and when he went out, he observed that Mr. Major/(Hav. K.K. Nath) had been surrounded by some persons holding knife while were beating him with Huja. He also heard shouting by Mr. Major. Thereafter he went towards the I.R. (Indian Reserve Battalion) Camp and after reaching there he informed the deceased's wife about the incidence. 10. The inquest of the dead body was prepared by Sub-Inspector of Police Mr. Lalniliana Sailo, who stated that the dead body was found in footpath at Zophai about 2 k.m. from Zophai Post near the paddy field of Nghaksanga, Forest Ranger. The dead body was found in a bend position. His head was towards north side and left side & arm was toward northern side. His right arm was on "L" position on the ground. His right side leg was towards eastern side and left leg was bent on his knee "L" position to ground. His cloth camouflaged long pant. He checked the body and found cut mark on his backside neck and also cut marks on his right side shoulder. He turned the dead body on the ground and laid up side down facing towards sky. Cut mark was found on his right side eyebrow. Blood was found on the ground. 11. Dr. Lalchhuanawma conducted the Post Mortem examination on the dead body of deceased Hav. Kiran Kumar Nath and the report of the said post mortem examination indicates that the deceased was identified by H.C. Ralkapzauva of Bairabi Police Station. The doctor deposed as per report of the post mortem examination. As (a) External appearance, cut injuries : back of neck, left and right shoulders 4 cms., cut of right hand, right eye brow, cut in the dorsum of right hand (b) Detailed description of injury of deceased. The doctor deposed as per report of the post mortem examination. As (a) External appearance, cut injuries : back of neck, left and right shoulders 4 cms., cut of right hand, right eye brow, cut in the dorsum of right hand (b) Detailed description of injury of deceased. Cut injury back of neck at just above C4. The cut was so deep that reached up to spinal cord which cut completely at that level. Cut injuries right and left shoulders both about 4 cms up to the underlying bone. There was cut injury on right eyebrow and right check and also 'cut injury upright hand dorsally about 4 cm. This was also up to the bone the muscles were also cut apart. Cause of death according to the examination is shock due to spinal cord injury which was completely cut in between C3 and C4. 12. The District Magistrate, Kolasib District has taken into consideration the materials on record and since the defence could not bring any material despite indications made by the District Magistrate, the accused persons were also said to have been examined Under Section 313 of Cr.P.C. where they denied the said incidence and they stated that they had no knowledge about the murder of the deceased. On the testimony and the materials on records, learned District Magistrate by the impugned order dated 30.08.2006 has indicated that it has been proved beyond a reasonable doubt that deceased Monir Ali Laskar had cut the back side of the neck of the deceased K.K. Nath and keeping in view the evidences and role of Anwar Hussain Laskar, learned District Magistrate has found them guilty Under Section 302/384/34 of I.P.C. read with Section 25(1-B)(a) of Arms Act and convicted them for life imprisonment with fine as mentioned above. 13. Mr. C. Lalramzauva, learned amicus Curiae for the respondents has submitted that the impugned order dated 30.08.2003 passed by the learned District Magistrate, Kolasib District suffers from major legal infirmities. According to him, the FIR, search list, seizure list, inquest report, medical report, post mortem report etc. have not even been exhibited and considered during trial as required under law. 14. In AIR 2004 SC 175 (Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr.) Hon'ble Supreme Court has held that mere production and marking of a document as exhibit is not enough. have not even been exhibited and considered during trial as required under law. 14. In AIR 2004 SC 175 (Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr.) Hon'ble Supreme Court has held that mere production and marking of a document as exhibit is not enough. The execution has to be proved by admissible evidence. In AIR 2003 SC 4548 (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr.) the Supreme Court has elaborated the scope of admissibility of evidences and documents which are to be exhibited and to be dealt with. The scope of admissibility of exhibits and evidences in civil and criminal cases has also, been elaborated. The objection as to the admissibility of evidence and document can be raised even after the document has been marked as exhibit, even in appeal or revision. But the objection in respect of the admissibility of document on the ground of irregularity or insufficiency could be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit. According to Mr. C. Lalramzauva, in the present case in hand, the relevant documents referred above and relied upon have not even been exhibited in the trial proceedings. 15. In 2005 CriLJ 2161 (Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr.) the Constitution Bench of the Supreme Court has held that civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt. Findings recorded in one proceeding may not be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidences adduced therein. In the said case the Hon'ble Supreme Court has elaborated the standard of proof required in civil and criminal proceedings. 16. In 2006 CriLJ 4607 (M.S. Narayana Menon @ Mani v. State of Kerala and Anr) it was held by the Supreme Court that onus of proof on accused, held, is not as heavy as that of the prosecution. It was also held in M.S. Narayana Menon @ Mani (supra) that it is necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. It was also held in M.S. Narayana Menon @ Mani (supra) that it is necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the accused relies. The accused need not disprove the prosecution case in its entirety. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with that on defendant in a civil proceeding. 17. Mr. C. Lalramzauva, learned Amicus Curiae has submitted that though the impugned order indicates that the statement of the accused was recorded Under Section 313 of Cr.P.C. but there is nothing on the record to that effect, whereas, the accused was necessary to be recorded. As argued by him, it was held in 2004 CriLJ 583 (K. Anbazhagan v. Superintendent of Police and Ors.) by the Supreme Court in reference to Section 313 of Cr.P.C. that presence of accused in court while examination Under Section 313 of Cr.P.C. is necessary and it was further observed by the Hon'ble Court that as a general rule the accused must answer the questions by being personally present in Court. Only in exceptional circumstances the said rule can be departed from/dispensed with. 18. In 2005 CriLJ 3445 (State of Punjab v. Swaran Singh) it was observed by Hon'ble Supreme Court in reference to Section 313 of Cr.P.C. that the purpose of questioning the accused is to give an opportunity to accused to explain the circumstances adverse to him in the evidence adduced by prosecution. It was also held that generally composite questions should not be asked bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give a rational explanation to the questions as had been asked. 19. It was also held that generally composite questions should not be asked bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give a rational explanation to the questions as had been asked. 19. Learned counsel for the State, though on the other hand has submitted that the verdict and view taken by the learned District Magistrate in the impugned order dated 30.08.2003 is correct and the learned District magistrate has rightly held the accused guilty of the offence and has rightly sentenced them to undergo life imprisonment with fine, but he could not fully explain the consequential affects when and the above referred necessary documents had not been exhibited and the accused had not been examined Under Section 313 of Cr.P.C. during trial. 20. The impugned order dated 30.08.2003 has come before this Court by way of reference. On perusal of the case records we find that the documents, namely, FIR, search list, seizure list, inquest report, medical report, post mortem examination report etc. have not been even exhibited. The prosecution witnesses have also not been serialized. The statements of 313 Cr.P.C. are also not available on the record so much so, the injury report and the post mortem examination report have not been placed on record. 21. We have heard the learned Counsel for the State as well as learned Amicus Curiae. We have also pursued the documents. We find that from the Stage of framing of charge Under Section 228 of Cr.P.C. the prosecution and the trial court was to take proper evidence Under Section 231 of Cr.P.C. and the accused-persons were called upon to enter on defence and were specifically to be asked to adduce evidence in support of their case. The examination of the accused was also to be recorded Under Section 281 of Cr.P.C. Examination of witnesses, if any, for the defence was complete and when the prosecution was to sum up its case and the accused or his defence counsel was entitled to reply under Section 233 of Cr.P.C. However, during trial important formalities to examine the accused Under Section 313 of Cr.P.C. by the trial court cannot be brushed aside. 22. 22. In the present case in hand we are of the considered view that serious legal infirmities and lapses have been made in not properly recording the statement of the accused and not providing opportunity Under Section.313 of Cr.P.C. to the accused to explain circumstances adverse to them in the evidence adduced by prosecution. More so, the relevant and necessary documents have neither been exhibited nor been considered properly. 23. Therefore, the impugned order dated 30.08.2003 and the findings arrived at by the learned District Magistrate while holding the accused-persons guilty of the offences in question are not legally sustainable. 24. In view of the above analysis and observations, we are of the considered view that the present Criminal Reference under Rule 9 of the Rules for the Regulation of the Procedure of Officers Appointed to Administer Justice is not liable to be affirmed, accordingly the impugned judgment and order dated 30.08.2006 passed by the District Magistrate, Kolasib District in connection with Crl. TR No. 198/2003 Under Section 302/384/34 of IPC read with Section 25(1-B)(a) of Arms Act is hereby set aside and the case is remanded back to the learned District Magistrate, Kolasib District for adjudicating the same afresh from the stage of Section 313 Cr.P.C. onwards, taking into consideration the statements of the accused--persons, thereby, offering the accused—persons to explain their part. All the documents including the FIR, Charge-sheet, Post Mortem Examination Report, Seizure List, Inquest Report Etc. which are relevant and necessary for the prosecution case are to be exhibited and considered, accordingly, Criminal Tr. No. 198 of 2003 arising out of Bairabi PS Case No. 16 of 2005 is to be disposed of expeditiously.