JUDGMENT Hon’ble S. N. H. Zaidi, J.—This criminal appeal has been filed by Mehi Lal against the judgment and order dated 30.1.2006 passed by Shri G. K. Pandey, Additional Sessions Judge/F.T.C No. 1 Gonda, in Sessions Trial No. 47 of 2004, State v. Mehi Lal, convicting and sentencing him to life imprisonment and a fine of Rs. 5000/- under Section 304 of the Indian Penal Code, for short IPC, and in default of payment of fine, for further imprisonment of five months. 2. The prosecution case, in brief, is that one Sahej Ram of village Naresh Lonian Purwa, a hamlet of village Rukmangadpur, Police Station Kauria, District Gonda, was having illicit relations with appellant’s wife Nankoon PW-3, who was residing in village Jangey Lonian Purwa, another hamlet of the same village. During the intervening night of 11/12.5.2002, at about 2.30 a.m., Sahej Ram woke up from the sleep and said to his wife Phoolpata PW-1 that he was going to cut sugarcane and proceeded towards his field with a Banka. She also accompanied him up to some distance but returned home when asked by her husband and went to sleep, but woke up on the uproar in the village that thieves had arrived and went to the sugarcane field but when she did not find her husband there, she went to the house of the appellant, where she found him lying dead inside the house and the appellant’s wife was sitting there holding her injured fingers. She got the report of the incident, Ext. Ka-1, scribed stating therein that from the sugarcane field her husband had gone to appellant’s house as he knew that appellant had gone in a marriage party and established physical relations with his wife, but the appellant was present in the house and on seeing Sahej Ram in compromising position with his wife, attacked him with sharp edged weapons in a fit of rage as a result thereof Sahej Ram died on the spot. She gave the written report at the concerned police station at 10.25 a.m on 12.5.2002, on the basis of which a case under Section 304 IPC was registered against the appellant. 3. Inspector Vijay Shanker Singh Yadav, PW-8, the then S.H.O. of the police station, took the investigation of the case in his hand and proceeded to the place of occurrence and got the inquest report, Ext. 3. Inspector Vijay Shanker Singh Yadav, PW-8, the then S.H.O. of the police station, took the investigation of the case in his hand and proceeded to the place of occurrence and got the inquest report, Ext. Ka-9, of the dead body of deceased Sahej Ram prepared by Sub-Inspector Raj Mangal Maurya. He inspected the place of occurrence and prepared it’s site plan Ext. Ka-8. He recovered a blood stained Hansia (sickle), Mat. Ext.1, Gandasa, Mat. Ext.2, and Bugda, Mat. Ext.3, a blood stained sari, Mat. Ext.5, a pair of Chappal, Mat. Ext.6, a full pant, Mat. Ext.7 and a Gamchha, Mat. Ext.8 of the deceased which were smeared with blood from near the dead body and also took samples of the blood stained earth, Mat. Ext.9, and plain earth, Mat. Ext.10, from there and after preparing it’s memos Ext. Ka-15 to Ka-18 sent the dead body for post mortem examination. 4. Dr. Ram Gopal, PW-4, examined the injuries of the appellant’s wife and found incised wounds on her left ring finger and right index finger and prepared its report Ext. Ka-3. She was also examined internally by Dr. Sadhna Saxena, PW-5, who prepared the examination report Ext. Ka-4. 5. The post mortem examination of deceased Sahej Ram was conducted on 13.5.2002 at 3 p.m. by Dr. Nitin Kumar, PW-9. According to his report Ext. Ka-22, following ante mortem injuries were found on his body : 1. incised wound, 2x 0.2 cm x bone deep, on the forehead, 1/2 cm above left eye brow, 2. Ka-4. 5. The post mortem examination of deceased Sahej Ram was conducted on 13.5.2002 at 3 p.m. by Dr. Nitin Kumar, PW-9. According to his report Ext. Ka-22, following ante mortem injuries were found on his body : 1. incised wound, 2x 0.2 cm x bone deep, on the forehead, 1/2 cm above left eye brow, 2. incised wound, 3.5 x 1 cm x muscle deep, on the left side of face, 1.5 cm from the left ear, (3) incised wound, 11 x 2 cm x bone deep, on the left side of face, 1cm below left ear pinna, (4) incised wound, 12 x 2 cm x bone deep, 1 cm below injury No. 3, (5) incised wound, 3 x 0.2 cm x muscle deep, 2 cm lateral to right eye, (6) punctured wound, 2 x 1.5 cm x bone deep, in the right side of face, 4 cm lateral to right corner of mouth, (7) punctured wound, 2 x 1.5 cm x bone deep, on the right side of neck, 0.5 cm below right ear pinna, (8) incised wound, 3 x 1cm x muscle deep, 4 cm below right shoulder joint, (9) incised wound, 4 x 1.5cm on the right arm, 9 cm above right elbow joint, (10) multiple incised wounds, in an area of 12 x 4 cm from right wrist to right hand, (11) punctured wound, 3 x 2 cm x cavity deep, on the right side of chest, 3.5 cm lateral to right nipple, (12) punctured wound, 3 x 1 cm on the right side of abdomen, 17 cm below left nipple, (13) 4 x 1cm x bone deep on left hand, (14) multiple lacerated wounds, in an area of 10 x 9 cm on the right palm, (15) incised wound, 4 x 3 cm on the left forearm on left wrist joint, (16) abraded contusion, 7 x 1 cm, 0.3 cm above the left knee joint, (17) punctured wound, 1 x 0.5 cm on the left leg, 13 cm above the left ankle joint, (18) on opening, right lung was punctured through and through. 6. On 15.5.2003, the Investigating Officer (I.O.), arrested the appellant and at his instance recovered from his Madha (hut), in the presence of Janki Prasad, PW-2, his blood stained underwear, Mat. Ext.-4, which was worn by him at the time of incident and prepared it’s recovery memo, Ext. 6. On 15.5.2003, the Investigating Officer (I.O.), arrested the appellant and at his instance recovered from his Madha (hut), in the presence of Janki Prasad, PW-2, his blood stained underwear, Mat. Ext.-4, which was worn by him at the time of incident and prepared it’s recovery memo, Ext. Ka-2, and the site plan of it’s place of recovery, Ext. Ka-19. 7. Subsequent investigation of the case was conducted by Sub-Inspector Ram Nagina Prasad, PW-6, after the transfer of PW-8. He sent the recovered articles for examination to the Forensic Science Laboratory (FSL) and, after completing the investigation, submitted the charge sheet against the appellant under Section 304 IPC. On committal of the case, the trial Court framed the charge of the said Section against the appellant, who did not plead guilty to it and claimed the trial. 8. The prosecution examined Phoolpata, Janki Prasad, Nankoon, Dr. Ram Gopal, Dr. Sadhna Saxena, Sub-Inspector Ram Nagina Prasad, Constable Arvind Kumar Gupta, Inspector Vijay Shanker Singh Yadav and Dr. Nitin Kumar as PW-1 to PW-9 respectively and produced documentary evidence Exts. Ka-1 to Ka-22 and Material Exts. 1 to 12, in support of its case. 9. Phoolpata PW-1, the wife of the deceased and complainant of the case, has affirmed the version of her report Ext. Ka-1. Janki Prasad PW-2, the brother of the deceased and a witness of recovery of blood stained underwear of the appellant at his instance, has supported the prosecution case. Nankoon PW 3, the wife of the appellant and sole eye-witness of the occurrence, has not supported the prosecution case and has been declared hostile by the prosecution. PW-4 to PW-9 are formal witnesses and have proved police papers, Exts. Ka-2 to Ka-22 and Mat. Exts. 1 to 12. 10. The case of the defence is that the appellant was not present in his house at the time of occurrence and had gone in a marriage party to another village where he got the information of the incident and when he returned home, his wife told him about the incident and he immediately went to inform the police at the police station but he was detained there and remained confined in the lockup for four days and on 16.5.2003 he was sent to the Court and during these four days he was not taken anywhere by the police. The appellant has denied the recovery of the underwear as alleged. He has examined one Badkau, DW-1, a resident of his village, in his defence, who has said that the appellant had gone with him in the marriage party of Nanke to village Anegi where he remained present with him during the whole night. According to him, when in the next morning the news of the murder of Sahej Ram in the house of appellant had come, then he and several other persons had accompanied the appellant to his house where Sahej Ram was seen lying dead and, on inquiry, the appellant’s wife had told about the incident and thereafter appellant had gone to inform the police station but when he did not return on that day, then he had gone there and found him confined in the lockup. He has also said that appellant’s wife was a woman of easy virtues and several persons, including Sahej Ram and certain high caste street romeos, were having illicit relations with her. 11. The learned trial Court, on appreciation of evidence, found the charge against the appellant proved and sentenced him as aforesaid. 12. We heard Pt. D. R. Shukla, learned counsel for the appellant, learned Additional Government Advocate for the State, perused the impugned judgment and gone through the record of the trial Court. 13. Shri Shukla submitted that the trial Court committed error in appreciating the prosecution evidence and failing to consider the defence evidence at all. He further submitted that Phoolpata PW-1, is not an eye-witness of the incident but in her cross examination she has stated, for the first time, that she had seen the appellant assaulting her husband with Gandasa and the learned trial Court has erroneously accepted her testimony as an eye-witness account of the incident. He also submitted that Nankoon PW-3, who has been examined by the prosecution as the sole eye-witness of the incident, has not said a word about the involvement of the appellant in the occurrence and has specifically denied about his presence and as such there is no evidence on record showing the presence of the appellant at the scene of occurrence but the trial Court on erroneous appreciation of evidence has held that the deceased was attacked by the appellant. He also submitted that even according to the prosecution case, the appellant had attacked the deceased in a fit of rage on seeing him committing sexual intercourse with his wife and as such the appellant has committed no offence as he had acted in exercise of the right of private defence and the case falls under third clause of Section 100 IPC. 14. Per contra, learned Additional Government Advocate submitted that the circumstances of the case establish beyond doubt that none other than the appellant had caused the death of Sahej Ram. He further submitted that the judgment of the trial Court cannot be assailed on the ground of right of private defence as this plea was neither raised before the trial Court nor the appellant had stated about exercising his right of private defence in his statement under Section 313 of the Code of Criminal Procedure, for short, Cr.P.C. 15. We have given our thoughtful consideration to the submissions of the learned counsels for the parties. 16. It is indisputable that appellant’s wife (PW-3) was having adulterous relations with deceased Sahej Ram and in the night of occurrence Sahej Ram had visited the house of the appellant where he was assaulted with weapons and he had died in that house. According to prosecution case, the deceased was assaulted by the appellant in a fit of rage when he saw him engaged in sexual relations with his wife. PW-3, besides admitting her illicit relations with Sahej Ram, has also stated about her relations with other persons of the locality. She has said that after her marriage with the appellant, she found him impotent and since Sahej Ram, who was one of their relatives, was visiting her house, she gradually developed relations with him and whenever her husband happened to be away from the house, Sahej Ram, on getting the chance, used to come and make love with her to which she never objected. She has further stated that when the people of the locality came to know about her relations with Sahej Ram, two-three persons also started visiting her and since they belonged to high castes, therefore, she could not resist them. DW-1 Barkau has also said about the illicit relations of PW-3 with other persons of the locality, besides Sahej Ram. 17. She has further stated that when the people of the locality came to know about her relations with Sahej Ram, two-three persons also started visiting her and since they belonged to high castes, therefore, she could not resist them. DW-1 Barkau has also said about the illicit relations of PW-3 with other persons of the locality, besides Sahej Ram. 17. PW-3, who is the sole eye-witness of the incident and whose presence at the time and place of occurrence is not disputed, has said that in the night of occurrence she was alone in her house with the children as her husband had gone in a marriage party when at 2 a.m. Sahej Ram came and intended to have sexual relations with her, to which she declined by saying that her children were having smallpox and in the meanwhile two unknown persons came over there and started quarrelling with Sahej Ram and when Sahej Ram tried to assault them with Banka, which was brought by him, he was caught and assaulted by those persons with Mugri, Gandasa and Hansia and when she tried to save him, she also got injured and on her raising the alarm, the assailants ran away. She has further said that the assailants were amongst those two-three persons with whom she was having illicit relations, but she could not tell their names as, according to her, they belonged to the respectable families of the locality, therefore, she could not muster courage to ask their names. 18. Three situations thus emerge from her statements. Firstly, that she did not have sexual relations with Sahej Ram in that night; secondly, that appellant was not present in the house in that night and; thirdly, that Sahej Ram was attacked by two persons of the locality with whom she was having adulterous relations but whose names she did not know. She does not appear to be telling the truth in respect of the first situation, as the inquest report, Ext. Ka-9, reveals that there was only an underwear on the dead body of Sahej Ram and, according to PW-8, the I.O., the pant of the deceased and a saree were found lying near the dead body and these circumstances clearly suggest that the deceased and PW-3 did establish sexual relations in that night. Ka-9, reveals that there was only an underwear on the dead body of Sahej Ram and, according to PW-8, the I.O., the pant of the deceased and a saree were found lying near the dead body and these circumstances clearly suggest that the deceased and PW-3 did establish sexual relations in that night. Nothing contrary to her statement has, however, come in her testimony in respect of the second situation as she has fully withstood the test of cross examination of the Public Prosecutor in this regard and since there is no evidence or circumstance on record which can show the presence of the appellant in the house at the time of occurrence, therefore, her evidence cannot be disbelieved. Nevertheless, she does not appear to be truthful in her denial to know the names of the persons with whom she was having amorous relations, because if she was having such relations with certain persons of the locality for about 4-5 years, as stated by her, then in all probability she must be knowing their names and even accepting her statement that she could not dare to ask their names as they belonged to the respectable families, but since they were the residents of the locality and were having illicit relations with her for several years, therefore, she would have known their names without directly asking from them. PW-3 has thus, either deliberately withheld to disclose the names of such persons or there was no such person. 19. Barkau DW-1 has also said that, besides Sahej Ram, certain high caste persons of the locality were having illicit relations with appellant’s wife but he too did not disclose the names of those persons on the ground that he was afraid of them as he might also be killed. The fear of the witness cannot be brushed aside lightly in view of the statement of PW-3 that Sahej Ram was killed by those persons. As this witness has also fully withstood the test of cross examination and the learned A.G.A. could not show any circumstance which could make him unworthy of credit, therefore, his testimony cannot be discarded merely on the ground that he is the resident of the appellant’s village. The learned Court below has thus committed serious error by failing to consider/appreciate the evidence of DW-1 at all. 20. The learned Court below has thus committed serious error by failing to consider/appreciate the evidence of DW-1 at all. 20. The statement of the complainant PW-1, in her cross examination, that when she reached at the house of the appellant she had seen the appellant attacking her husband with Gandasa, is not tenable; as firstly, it is contrary to her statement given in the examination-in-chief as well as in her statement recorded under Section 161 Cr.P.C., and secondly, it is not corroborated by her report of the incident, Ext. Ka-1. At all the earlier occasions, she has said that when she reached at the house of appellant, she had seen her husband lying dead and has nowhere said that she had herself seen any occurrence. Her explanation that she could not tell the I.O. or said in her examination-in-chief about seeing the occurrence as she was not feeling well is an afterthought and unacceptable. The observation of the trial Court that this witness has been examined as an eye-witness of the occurrence and her statement in cross examination is corroborated by the First Information Report is fallacious being contrary to the evidence. Her further statement that the appellant was hiding inside his house at the time of occurrence, can also not be accepted, because had he been present in the house then his wife would have also known about it and in such a circumstance she would not have indulged in establishing physical relations with the deceased. No reliance can, therefore, be placed upon the testimony of PW-1 in determining the guilt of the appellant. 21. It is not disputed to the parties that on the day of occurrence a marriage party had gone to another village. PW-3 has said that in the night of occurrence she was alone in the house as the appellant had gone in the marriage party. Barkau DW-1 has corroborated her by saying that the appellant had gone with him in the marriage party to village Anegi where he remained present with him through out the night. Both PW-3 and DW-1 have also withstood the test of cross examination in respect of the appellant’s absence from the village in the night of occurrence. Barkau DW-1 has corroborated her by saying that the appellant had gone with him in the marriage party to village Anegi where he remained present with him through out the night. Both PW-3 and DW-1 have also withstood the test of cross examination in respect of the appellant’s absence from the village in the night of occurrence. As there is no evidence on record showing the presence of appellant at the time and place of occurrence, therefore, his presence at the scene of occurrence, in the absence of any evidence, is not proved. 22. So far as the alleged recovery of blood stained underwear, Mat. Ext.4, at the instance of the appellant from his Madha (hut) is concerned, though Janki Prasad PW-2 and I.O. PW-8 have supported the prosecution case, but since the said circumstance was not put to the appellant under Section 313 Cr.P.C., therefore, it cannot be used against the appellant. In questions Nos. 8 and 9, the appellant was only asked about the preparation, by the I.O, of the site plan of the place of recovery Ext. Ka-19 and memo of arrest and recovery Ext. Ka-2 of the bloodstained underwear, to which the appellant pleaded ignorance. No question about the alleged incriminating circumstance of the recovery of blood-stained underwear at his instance was put to the appellant. It is obligatory, under Section 313 Cr.P.C., for the trial Court to examine the accused in respect of any circumstance appearing in evidence against him for the purpose of enabling him personally to explain of that circumstance. If such opportunity is not afforded, then the incriminating piece of evidence cannot be used against the accused. The Supreme Court, while considering the effect of omission of putting the incriminating circumstance to the accused under Section 313 Cr.P.C., has held in Nirmal Pasi v. State of Bihar, 2003 (1) Crimes 244 (SC) that the circumstances not put to the accused have to be completely excluded from consideration. Thus, excluding the circumstance of the recovery of blood-stained underwear from his Madha, at the instance of the appellant, from consideration, there remains no other circumstance/evidence against him which could inculpate the appellant with the occurrence. 23. Thus, excluding the circumstance of the recovery of blood-stained underwear from his Madha, at the instance of the appellant, from consideration, there remains no other circumstance/evidence against him which could inculpate the appellant with the occurrence. 23. In our opinion, a very important circumstance creating serious doubt about the genuineness of the prosecution case is the presence of different nature of ante-mortem injuries on the person of the deceased showing the use of several weapons and thereby suggesting the involvement of more than one person in the occurrence. According to the post mortem report Ext. Ka-22, there were as many as 17 ante-mortem injuries, including 9 incised wounds, 5 punctured wounds, multiple lacerated wounds and an abraded contusion, on all over the body. Indisputably these injuries were caused by three types of weapons. If incised wounds were inflicted by any sharp edged weapon, then the punctured wounds were the result of attack by any pointed and sharp weapon, whereas the lacerated wounds and abraded contusions were caused by any hard and blunt weapon. The I.O. PW-8, has stated that a blood-stained Hansia (sickle), Mat. Ext.1, a Gandasa, Mat. Ext.2, and a Bugda, Mat. Ext.3, were recovered from near the dead body of the deceased. Gandasa and Bugda are sharp edged weapons whereas Hansia is also a sharp weapon with pointed head and assuming that Gandasa and Bugda were used in inflicting incised wounds and Hansia for punctured wounds, then it is not clear as to how the multiple lacerated wounds and abraded contusions were caused. Although PW-3 has said in her cross examination of the Public Prosecutor that Mugri was used in the occurrence, but no Mugri has been recovered from the place of occurrence. Besides that, in all probability, the recovered weapons, which were stained with blood, must have been used by not less than three persons, otherwise there appears no apparent reason for using the recovered weapons by one person. This circumstance makes the prosecution case highly doubtful. The finding of the learned lower Court that the appellant alone had caused those injuries is, therefore, fallacious and cannot be accepted. 24. This circumstance makes the prosecution case highly doubtful. The finding of the learned lower Court that the appellant alone had caused those injuries is, therefore, fallacious and cannot be accepted. 24. Though the plea of exercise of the right of private defence was admittedly not taken by the appellant before the trial Court, yet it is permissible for him to raise that plea at the stage of appeal as the settled legal position is that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. (Darshan Singh v. State of Punjab and another, AIR 2010 SC 1212 ). However, since there is no evidence on record showing the involvement of the appellant in the murder of deceased Sahej Ram and the presence of the appellant at the scene of occurrence is not sufficiently established, therefore, we are not inclined to consider the plea of private defence raised by the appellant’s counsel. 25. Thus, in view of all the aforesaid, we have come to the conclusion that the charge of Section 304 IPC is not proved against the accused-appellant and the finding of the trial Court holding him guilty of the said Section is erroneous and not based on proper appreciation of evidence and as such the same cannot be accepted 26. Consequently, the appeal is allowed. The impugned judgment and order of the Court below are set aside and the appellant is acquitted of the charge levelled against him. Let the record of the lower Court be transmitted to it forthwith with the copy of judgment for immediate issuance of the release order. —————