JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 17-6-2004, passed in Sessions Case No. 271(N)/2002, by the learned Sessions Judge, Nagaon, the accused-appellant stands convicted under Section 302, I. P. C. and sentenced to suffer imprisonment for life and pay fine of Rs. 2,000/- and, in default, to suffer rigorous imprisonment for a period of six months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 25-8-2002, at about 7.30 p.m., the accused-appellant had, following a quarrel with his father, Aziruddin, stabbed him by a knife and caused his death. At Kathiatoli Police Outpost, on receiving, on 25-8-2002, at 9.30 p.m., verbal information, in this regard, from one Anil Bora, VDP Secretary, General Diary Entry No. 48, dated 25-8-2002, was made. On 25-8-2002 itself, at 9.40 p.m., the accused-appellant appeared at the said police outpost and, on being shown by him, a knife (Material Exhibit 1) was recovered by police and the same was seized by seizure list (exhibit 2). An information, in writing, was formally submitted to the i/c, Kathiatoli Police Outpost by Mafizuddin, elder brother of the accused-appellant. Based on this written information and treating the same as First Information Report (in short, 'the FIR'), a case was registered against the accused-appellant under Section 302, I. P. C. During the course of investigation, the police visited the house of the deceased, where he was allegedly killed, held inquest over the dead body and, on completion of investigation, laid charge-sheet against accused-appellant under Section 302, I. P. C. 3. To the charge, framed under Section 302, I. P. C, the accused-appellant pleaded not guilty. In support of their case, prosecution examined five witnesses. The accused was, then, examined under Section 313, Cr. P. C. In his examination aforementioned, the accused-appellant denied that he had committed the offence, which is alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence. Having found the accused-appellant guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Hence, this appeal. 4. We have heard Mr. R. M. Choudhury, learned Counsel, who has appeared as amicus curiae, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 5. No evidence was adduced by the defence. Having found the accused-appellant guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Hence, this appeal. 4. We have heard Mr. R. M. Choudhury, learned Counsel, who has appeared as amicus curiae, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 5. While considering the present appeal, it needs to be pointed out, at the very outset, that according to the evidence of the Investigating Officer (PW 5), it was Anil Bora, who had informed him, at the said police outpost, on 25-8-2002, at 9.30 p.m., that a boy, namely, Noor Ahmed (i.e., the accused-appellant herein) had killed his father by knife and ran away and, on the basis of the oral information, so received from Anil Bora, PW 5 claims to have made the General Diary Entry No. 48, dated 25-8-2002. The said Anil Bora was, however, not examined as a witness. No explanation was either offered or is discernible from the evidence on record as to why he was not examined. The information, which Anil Bora is claimed by PW 5 to have given to PW5, has to be, therefore, treated as hearsay if this Court is required to determine as to whether the information, which PW 5 had received from the said Anil Bora, was or was not true. This apart, the relevant General Diary Entry was neither proved nor any explanation was offered for its non-production. The learned trial Court also made no effort to obtain the relevant General Diary Entry and bring the same on record. 6. Curiously enough, PW 5 has deposed that, on 25-8-2002, at 9.40 p.m., Noor Ahmed (i.e., the accused-appellant) appeared at the said police outpost and, on being shown by him, PW 5 recovered the knife, which is Material Exhibit 1. Here again, no entry is shown to have been made in respect of the information, which the accused-appellant is claimed to have given to PW 5 and on the basis of which the knife (i.e., Material Exhibit 1) was allegedly recovered. This part, PW 5 claims that the knife (Material Exhibit 1) was recovered on being shown by the accused, but he had not deposed as to what was the place from where, or what was the condition in which the said knife was recovered. This part, PW 5 claims that the knife (Material Exhibit 1) was recovered on being shown by the accused, but he had not deposed as to what was the place from where, or what was the condition in which the said knife was recovered. The learned trial Court, once again, made no effort to elicit from PW 5 as to where the said knife was recovered from, or as to what was the state of the knife, which PW 5 claims to have recovered on being shown by the accused-appellant. The prosecution, therefore, derives no strength from the evidence of the Investigating Officer (PW 5) in proving that it was the accused-appellant, who had killed his father, Aziruddin. Sadly enough, the learned trial Judge acted as a mere recording machine and kept recording deposition of the witnesses without applying, it appears, his mind as to what he had been recording was or was not intelligible and adequate. 7. What is, now, of utmost importance to note is that a trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time, be it during the course of examination-in-chief or cross-examination or at the end of any such examination or re-examination which, to the Judge, appears to be necessary for a just decision of the case and in order to discover or obtain proof of relevant fact. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfold complete truth, it is not only right for the Judge, but his duty to intervene and put such questions as may be warranted and permissible within the ambit of Section 165. A Judge cannot behave like a passive agent, when a case is tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials. A case cannot be allowed to suffer for failure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165. It is with this object in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo moto or at the instance of any of the parties if it becomes necessary for a just decision of the case. If the prosecution omits to bring out any relevant fact or the defence elicits from a witness, in the cross-examination, a statement, which is obscure or incomplete, the defence does not acquire (the Judge must bear in mind) a vested right in such limited cross-examination. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question. In such a case, it is, rather, the duty of the Judge, conducting the trial, to elicit from the witness complete information so that the evidence given by him or her becomes clear and intelligible, though his putting of questions cannot be in a manner as if the witness is under cross-examination nor can such examination be aimed at destroying or diluting the effect of the cross-examination of the witness by the defence. It is for this reason that a Court shall not put, in exercise of its powers under Section 165, leading question or put words into the mouth of the witness. 8. Coming to the evidence of PW 1, Mafizuddin, elder brother of the accused-appellant, it may be noted that his evidence is that on the day of the occurrence, when he had gone to catch fish, his father was killed and his family members could not say as to who had killed his father. PW 1, however, proves that Exhibit 1 is the Ejahar, which he had lodged with the police. At no stage, the prosecution drew the attention of the Investigating Officer to the Exhibit 1 and no police officer has proved as to when exactly the said Ejahar was lodged. This apart, the investigation, in the light of the evidence, given by PW 5, which we have already discussed above, had commenced, in the present case, on the basis of the oral information, which is claimed by PW 5 to have been received from one Anil Bora. Exhibit 1 could not have, therefore, been treated as First Information Report and the contents thereof could, at best, have been considered as a statement, made in writing, by PW 1 to the police during the course of investigation. 9. Close on the heels of the evidence of PW 1 is the evidence of PW 2, who is a member of the VDP of the village, which the said deceased belonged to. According to the evidence of PW 2, on hearing cries from the house of Aziruddin, he went there and found Aziruddin lying at his courtyard, with blood coming out from his mouth. What is, however, important to note is that PW 1 has deposed that though he had asked, none told him anything as to how the occurrence had taken place. PW 2 has also deposed that he informed the police on the very day of the occurrence and that at that time, Anil Bora, their VDP Secretary, was also with him. 10. PW 2 has also deposed that he informed the police on the very day of the occurrence and that at that time, Anil Bora, their VDP Secretary, was also with him. 10. What is, now, of great importance to note is that PW 2 has deposed, with regard to Exhibit 2, whereunder PW 5 (Investigating Officer) claims to have seized the said knife, that his signature was obtained on a blank sheet of paper inasmuch nothing was written there, that no article was seized in his presence and that he merely put his signature on the said paper. The evidence, given by PW 2, remained undisputed by the prosecution. 11. As far as PW 4 is concerned, she is the mother of the accused-appellant and she has deposed that on the night of the occurrence, she was inside the house, while her husband was outside the house and, on hearing his cries, she came out of the house and saw her husband lying on the ground, senseless, he regained his sense, while people poured water on him and thereafter, her husband died. From a microscopic scrutiny of the evidence given by PW 1, PW 2 and PW 4, it becomes more than abundantly clear that none of them had witnessed the occurrence, none of them had known or had been told as to who the assailant of Aziruddin was. Thus, the evidence of PW 1, PW 2 and PW 4 do not strengthen the case of the prosecution. 12. Before proceeding further, we may pause here to point out that PW 3 is a doctor, who, admittedly, performed post-mortem on Aziruddin's deadbody. His findings were as follows: A male dead body, aged about 55 years. Rigor mortis was developed. One incised wound over the left side of scalp at the level of the left parietal region. 1" length above the left ear. Size 1" x 1/2" x 1/4". Wound, if fresh. One stab wound detected over the left side of the anterior chest wall at the level of the 2nd and 3rd ribs. Margins were clean cut and sharp angles at the two extremities of the wound. Another wound measuring 1" x 1/2" depth to the chest cavity. Blood was coming out from the wound. On examination of thorax, I found that walls, ribs and cartilages are healthy. Pleaura was lacerated on the left side. AH other organs were healthy. Margins were clean cut and sharp angles at the two extremities of the wound. Another wound measuring 1" x 1/2" depth to the chest cavity. Blood was coming out from the wound. On examination of thorax, I found that walls, ribs and cartilages are healthy. Pleaura was lacerated on the left side. AH other organs were healthy. Cut injuries were detected on the left lung. Blood was present in the lung. Pericardium was lacerated. There was wound on the pericardium. Cut injury over the left chamber of the heart. Upper part blood with clot were present. Other vessels were healthy. Abdomen was healthy. On examination of cranium and spinal canal, I found that skull was healthy. Other organs were healthy. 13. P.W. 3 has also deposed that injuries were ante-mortem in nature and caused by sharp cutting long instrument. In the opinion of the doctor, death was due to shock and haemorrhage as a result of the injuries sustained by the said deceased. 14. The findings of the doctor (P.W.3) and his opinion with regard to nature of the injuries, found on the said dead body, and the cause of death have not been disputed. We, too, do not notice anything inherently incorrect or wrong in the deposition of P.W.3. We, therefore, hold that Aziruddin's death was homicidal and that the injuries, sustained by him, were caused by a sharp-edged long weapon. 15. Notwithstanding, however, the fact that we find that Aziruddin's death was homicidal, we do not find that prosecution has been able to adduce evidence of any such person, who had witnessed the alleged occurrence of stabbing of his father by the accused-appellant. Thus, there is no direct evidence fastening the accused-appellant with the death of his father. There is also, admittedly, no circumstantial evidence connecting the accused-appellant with the death of his father. As far as the evidence, given by P.W.5 (Investigating Officer) is concerned, the same, as we have already discussed and have held, does not show, far less prove, that it was the accused-appellant, who had killed his father. 16. The learned trial Court has noted some circumstances as a chain of events pointing to the guilt of the accused-appellant. These circumstances are: (i) Aziruddin died of assault. (ii) Medical evidence shows the use of sharp cutting weapon. (iii) A dagger was seized by police, which is a sharp cutting weapon. 16. The learned trial Court has noted some circumstances as a chain of events pointing to the guilt of the accused-appellant. These circumstances are: (i) Aziruddin died of assault. (ii) Medical evidence shows the use of sharp cutting weapon. (iii) A dagger was seized by police, which is a sharp cutting weapon. (iv) The dagger was recovered on being shown by the accused. (v) Seizure of the weapon is proved. (vi) The accused had surrendered before the police. 17. Even if the five circumstances, which the learned trial Court has taken note of, are treated to be completely believable, the fact remains that the knife, allegedly recovered on being shown by the accused-appellant, was not proved to be the weapon of offence. The learned trial Court failed to note that prosecution had not brought on record even the place from where the said knife had been recovered. Though the learned trial Court has noted that the seizure of the weapon has been proved, it has miserably failed to notice that the evidence of P.W. 5 (Investigating Officer), that he had made seizure of the said knife, has not been corroborated even by the person, who were claimed to be witnesses to the said seizure, namely P.W. 2. While the Investigating Officer claimed that the accused-appellant had surrendered at the said police outpost and the defence had denied the same, the only reasonable course, open to the prosecution, was to, at least, bring on record the relevant General Diary Entry, whereby, perhaps, the surrender of the accused-appellant could have been proved, as claimed by P.W. 5. However, as already indicated above, even the relevant General Diary Entry was also not proved by the prosecution. 18. What emerges from the above discussion is that there is neither any direct evidence against the accused-appellant nor any circumstantial evidence, which can be relied upon to hold the accused-appellant responsible for his father's death. The learned trial Court has not only recorded the evidence in a very slip-shod manner, but has also delivered the judgment without taking into account all the relevant materials available on record in their correct prospective. 19. Because of what have been discussed and pointed out above, we do not find that the conviction of the accused-appellant can be sustained. 20. In the result and for the foregoing reasons, this appeal is allowed. 19. Because of what have been discussed and pointed out above, we do not find that the conviction of the accused-appellant can be sustained. 20. In the result and for the foregoing reasons, this appeal is allowed. The conviction of the accused-appellant and the sentence, passed against him, shall accordingly stand set aside. The accused-appellant is held not guilty of the charge, framed against him, and is acquitted of the same. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. 21. Send back the LCR.