Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 397 (GAU)

Fajar Ali (Md. ) & Anr. v. State of Tripura

2011-05-03

I.A.ANSARI, U.B.SAHA

body2011
I.A. Ansari, J. - This is an appeal against the judgment and order, dated 18.11.2003. passed, in Case No. (Sessions Trial) 104 (NT/K) of 2002, by the learned Additional Sessions Judge (Fast Track Court), North Tripura, Kailashahar, convicting the accused-appellants under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life. 2.The case of the prosecution may, in brief, be described as under:- (i) On 29.4.2001, at about 9'00 hrs., Soleman Mia (since deceased) went to a field near Indo-Bangladesh Border with his cattle for grazing. While leaving his house, Soleman told his younger brother. Mainul Haque (P.W. 13), to meet him (Soleman) after some time. P.W. 13 accordingly left his house, at about 10.30 A.M., on 29.4.2001, to join his brother, Soleman. When PW13 (Mainul Haque) was proceeding to wards Indo-Bangladesh Border, he, suddenly, heard his brother Soleman's cries raised from the other side of aplace known as Chankala. On hearing Soleman's cries, P.W. 13 rushed towards the spot and found Fajar Ali (accused-appellant No. 1 herein) giving a blow with a dao on Soleman and. at that time. Md. Masuk Ali (accused-appellant No.2), armed with a lathi like weapon, was also present there. As P.W. 13 proceeded towards the accused-appellant, Fajar Ali threatened P.W. 13 and chased him (P W13) holding the dao in his hand. To save his life. P.W. 13 started running and entered into Bangladesh, he took shelter at the house of one Bangladeshi inside Bangladesh and he had to remain there for that day. On the following day, i.e., 30.04.2001, some people from Bangladesh took P.W.13 to the Post No. 1842 of Indo-Bangladesh Border to facilitate his entry back to India. P.W. 13 accordingly reached his house via a tea estate known as Hira Cherra Tea Garden. (ii) On 29.04.2011, as Solemon had not returned home, the members of his family became worried and went on a search for Soleman, but failing to trace out his whereabouts, they, verbally, informed the officials of the BSF Camp about the fact that Soleman had become untraceable. On the following day, i.e. on 30.4.2001, at about 12.30/1.00 p.m.. Solemaifs dead body was found lying in the jungle near Indo-Bangladesh Border with cut injuries on his neck. On the following day, i.e. on 30.4.2001, at about 12.30/1.00 p.m.. Solemaifs dead body was found lying in the jungle near Indo-Bangladesh Border with cut injuries on his neck. On 30.4.2001, at about 4-5 p.m., one Manzir Ali informed police, over telephone, at Irani Police Outpost, which falls under Kailashahar Police Station, that one dead body had been found lying in Kalaigiri area. An entry was accordingly made, in this regard, in the General Diary of the said Outpost, the GD Entry being 695, dated 30.4.2001. (iii)On the day of the occurrence, i.e.. 29.04.2001, at about 10-00 a.m., when PW-11, Jatua Darlong. was gra/ing his buffaloes near 1841 No. Border Post at Indo-Bangladesh Border, he heard somebody crying out "Mago, Mago" (i.e., '-Mother, Mother") and, out of curiosity, when PW-11 looked to the place from where the cries were being raised, he noticed accused Fajar Ali, accompanied by another man, who was of short height and who has been identified by P W 11 as accused Masuk Ali. Both the accused threatened PW-11 and asked him to go away, but before PW-11 left, he had seen Soleman being given blow, by Fajar Ali and his associate, with dao. Out of fear, PW-11 returned home and did not even come out to see Soleman's dead body when he came to learn that Soleman's dead body had been found. (iv) P.W.14 (In-Charge of the said Police Outpost) came to the place, where the said dead body was found lying, a sketch map was accordingly prepared by him and inquest over the dead body was held and the same was sent for post mortem examination. On reaching the place, where the said dead body was found lying, PW 14 received oral information from Soleman's elder brother, Firkan Ali (P. W. 1), to the effect that on the previous day. i.e., 29.04.2001, at about 9-00 a.m., his elder brother (Soleman) had to the said area, taking his cows for grazing, but. since then, he did not return home, they looked for him and also informed the BSF camp about the same and that, on 30.04.2001, at about 2-30 p.m., they found Soleman's dead body with his throat cut, lying at the jungle near Indo-Bangladesh border. The said oral information was reduced into writing by P. W. 14. since then, he did not return home, they looked for him and also informed the BSF camp about the same and that, on 30.04.2001, at about 2-30 p.m., they found Soleman's dead body with his throat cut, lying at the jungle near Indo-Bangladesh border. The said oral information was reduced into writing by P. W. 14. Treating the said oral information as the First Information Report, Kailashahar P.S. Case No.42/2001, under Section 302IPC, was registered. (v) During investigation, both the accused-appellants, Md. Fajar Ali and Md. Masuk Ali, were arrested on 8.5.2001. During interrogation of accused Masuk Ali, he told the investigating officer (P. W. 14) that he had kept the dao in his house. The investigating officer, then, accompanied by accused Masuk. went to the house of accused Masuk, where Masuk Ali brought out a dao from a concealed place inside his bed room. The dao was accordingly seized in the presence of witnesses and a seizure list (Exbt. 13) was also prepared. On completion of the investigation, police laid charge sheet, under Section 302/34 IPC, against the two accused-appellants aforementioned. 3.On a charge being framed under Section 302 read with Section 34 IPC at the trial, both the accused-appellants pleaded not guilty thereto. 4. In support of their case, prosecution examined as many as 14 witnesses. The two accused-appellants were, then, examined under Section 313 Cr.P.C. and, in their examination aforementioned, they denied to have committed the offence, which they were alleged to have committed, their case being that of total denial. No evidence was, however, adduced by the defence. 5. Having found the two accused-appellants guilty of the offence charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence passed against them, the two convicted persons have preferred this appeal. 6. We have heard Mr. R.Dutta, learned counsel, appearing for the accused-appellants, and Mr. RC Debnath, learned Special Public Prosecutor, appearing on behalf of the respondent State. 7. While considering the present appeal, it needs to be noted that the prosecution has examined two persons, namely. P. W. 11 (Jarua Darlong) and P. W. 13 (Mainul Haque) as eye witnesses to the alleged occurrence of assault on, and killing of, Soleman by the present two appellants. 8. Let us. 7. While considering the present appeal, it needs to be noted that the prosecution has examined two persons, namely. P. W. 11 (Jarua Darlong) and P. W. 13 (Mainul Haque) as eye witnesses to the alleged occurrence of assault on, and killing of, Soleman by the present two appellants. 8. Let us. therefore, examine, first, the evidence of P. W. 11 and P. W. 13 in order to ascertain as to how far their evidence is believable and trustworthy. 9. According to the evidence of P. W. 11, on 29.4.2001, at about 10.00 A.M., when he was grazing his buffaloes near Indo-Bangladesh Border, he heard some sound. Describing the place, where his buffaloes were grazing. P. W. 11 deposed that some of the said area was covered by jungle and some was plain land near 1841 Border Post. Narrating the occurrence. P.W. 11 has deposed that he also heard somebody crying out "Mago, Mago", (i.e. "Mother, Mother") and found accused Fajar Ali and another man, who was short in height. 10. It is in the evidence of P.W.I 1 that Fajar Ali and his associate threatened him (P.W. 11) and asked him to go away. It is also in the evidence of P.W. 11 that he saw Soleman being given a blow by Fajar Ali and his associate with dao. It is the further evidence of P.W. 11 that both the said assailants were armed with dao. P.W. 11 has identified accused Masuk Ali as the associate of accused Fajar Ali. Curiously enough, the defence did not cross-examine PW-11 with regard to his evidence, given in the Court, that it was accused Masuk Ali, whom he had seen in the company of accused Fajar Ali. The identification of accused Masuk Ali by PW-11, thus, remained undisputed by the defence. It needs to be borne in mind that, at this stage, that a test-identification parade is a step during investigation and, while identification of an accused, at a test-identification parade, during the course of investigation, is not substantive evidence, his identification by a witness in the Court is substantive evidence. In the case at hand, the veracity of the substantive evidence of identification of accused Masuk Ali, by PW-11. remain undisputed, uncontested and unchallenged by the defence. 11. Describing further the occurrence, P.W.I 1 has deposed that out of fear, he returned home. PW 11. In the case at hand, the veracity of the substantive evidence of identification of accused Masuk Ali, by PW-11. remain undisputed, uncontested and unchallenged by the defence. 11. Describing further the occurrence, P.W.I 1 has deposed that out of fear, he returned home. PW 11. however, asserted that he had seen the moment, when the accused persons were striking blow on Soleman with dao and it was at that time that they had told him (P.W.I 1) to go away. P.W. 11 has also deposed that he saw Soleman falling on the ground. 12. In his cross-examination. P.W. 11 has clarified that he was alone with his buffaloes at the relevant time and his house would be about 150 meters away from the place, where buffaloes were grazing and that the occurrence had taken place at a distance of around 50 meters away from the place, where his buffaloes were grazing. 13. What is, however, extremely important to note is that P.W.11 has clearly deposed that out of fear, he had not seen the dead body of Soleman on the same day, but he saw his dead body on the following day. P. W. 11 has also deposed that there is a BSF Camp near his house. 14. Though P. W. 11 has been put to cross-examination by die defence, nothing was really elicited from his cross-examination to show that what he had deposed was untrue or false. 15. Close on the heels of the evidence of P.W.11, P.W.13 has deposed that on 29.4.2001, at about 9.30 A.M., his elder brother, Soleman, left their house for the purpose of making their cows graze. While leaving their house, Soleman asked him (P.W.13) to meet him (Soleman) after some time and he (P. W. 13) accordingly left home to join his brother, Soleman, near Indo-Bangladesh Border No. 1841, but he, suddenly, heard a cry raised by his brother from the other side of a place called Chankala and, on hearing the cries of his brother, Soleman, he rushed to the spot and found Fajar Ali, (i.e. the accused-appellant No. 1) giving a blow with his dao on Soleman and Masuk Ali was present there armed with a weapon like lathi. P. W. 13 has deposed that as he proceeded towards accused Fajar Ali, Fajar Ali threatened him and chased him, whereupon he (P. W. 13) started running to save his life and entered into Bangladesh Border and took shelter in the house of one Bangladeshi and kept crying a lot for his brother. P. W. 13 has also deposed that on the following day, about 12 people from the house, where he had taken shelter, put him near 1842 post to facilitate his entry into India. P. W. 13 has further deposed that he came to his house via Hira Cherra Tea Estate. P. W. 13 identified both the accused persons, Fajar Ali and Masuk Ali, as his brother's assailants. 16. In his cross-examination, P. W. 13 has clarified that the place, where Soleman had taken his cattle to, is at a distance of about 3 miles from his house. P. W. 13 has also clarified that he had not seen anyone at the place of occurrence except Fajar Ali and Masuk Ali. P. W. 13 has further clarified that Chankala is a place, which is covered by jungle and that there are houses at a distance of 1 -11/2 k.m. away from the place of occurrence. What is also important to note, in the cross-examination of P. W. 13, is that he has clarified that he reached Indo-Bangladesh Border No. 1842 at about 12 noon, but by the time, he could reach his house, it was dusk and that he had not found his brother's dead body near 1842 Post. Though cross-examined by the defence, nothing could be elicited specifically from the cross-examination of PW 13 by the defence to show that his evidence is unbelievable or unsafe to rely upon. 17. It is, now, necessary to note that it has been contended by Mr. R.Dutta, learned counsel, appearing for the accused-appellants, that P. W. 13 had deposed, in his examination-in-chief, that on the way to the place, where Soleman had taken his cows for grazing, he (P.W.13) met one Babul Mia, but the said Babul Mia has not been examined as a witness. Babul Mia's non-examination is, therefore, according to Mr. Dutta, a serious lacuna in the prosecution's case and, in the absence of Babul Mia's evidence, the evidence of P. W. 13 is unsafe to rely upon. 18. Babul Mia's non-examination is, therefore, according to Mr. Dutta, a serious lacuna in the prosecution's case and, in the absence of Babul Mia's evidence, the evidence of P. W. 13 is unsafe to rely upon. 18. While considering the above aspect of the submission of Mr. Dutta, it needs to be noted that the clear and unchallenged evidence of P. W. 13 is that the whereabouts of said Babul Miah are not known to anyone at present. This assertion having not been denied, the fact, that Babul Miah has not been examined as a witness, cannot be assigned as a reason for disbelieving P. W. 13. 19. It has been next contended by Mr. Dutta that P. W. 13 being a brother of the said deceased Soleman, he is an interested witness and his evidence ought not to have been relied upon. While considering this aspect of the submission of Mr. Dutta, it needs to be noted that P.W.13, being brother of deceased Soleman, may be an interested witness, but his interest would be to secure conviction of the person, who had caused his brother's death and, hence, merely on the ground that P. W. 13 is the younger brother of deceased Soleman, the evidence of P. W. 13 cannot be discarded as unsafe, particularly, when his evidence has, otherwise, remained unshaken; more so, when there is no allegation of animosity existing between P. W. 13 and/or deceased Soleman, on the one hand, and the present appellants, on the other. There being no animosity, in the past, between deceased Suleman and the present appellants, there is no reason for P. W. 13 to falsely implicate the present appellants. This apart, the evidence of P. W. 13 is natural, consistent, coherent and inspires great confidence. Except suggesting to P. W. 13 that his deposition is false, there is really nothing, as already indicated above, in the cross-examination of P. W. 13, to hold his evidence unreliable or unsafe. Far from this, what needs to be noted is that the assertions of P. W. 13 that he had gone, on the day of the occurrence, to Indo-Bangladesh Border and remained there for the day and on the next day, he reached home by dusk is not even disputed by the defence. 20. What has, however, been pointed out by Mr. 20. What has, however, been pointed out by Mr. Dutta, learned counsel for the appellants, is that the FIR does not disclose the name of either of the appellants, though the FIR was lodged, according to the evidence of investigating officer, at the place of occurrence, on 30.4.2001, at about 5 p.m. While considering the submission so made on behalf of the appellants, it is important to bear in mind that the evidence, coming from the informant, Firkan Ali (P.W.I), whose evidence we would discuss, gives absolutely no indication that he (PW 1) had met P. W. 13 before Soleman's dead body had been found or before the oral information, as regards his brother's disappearance, had been lodged by PW 1 withPW 14 (Investigating Officer), at the place of recovery of the said dead body by PW1. As this oral information was given to the police after the police machinery had already set into motion on the basis of the telephonic information received, at Irani Police Outpost, from one Manjir Ali that a dead body had been found lying near Indo-Bangladesh Border and the police investigation had already started to determine the identity of the deceased and the cause of his death, the said oral information, given to P. W. 14, by PW 1 at the place, where the said dead body was found, cannot really be treated, in law, as the First Information Report and the said information must be treated as a statement made by PW1 during investigation of the case. 21. Be that as it may, it is neither in the evidence of P. W. 1 nor in the evidence of P. 13 or in the evidence of anyone else that before the oral information was given, at the place of recovery of the said dead body, by P. W. 1 to the police as regards the fact that Soleman had disappeared on the previous day, P. W. 1 and P. W. 13 had met and/or that P. W. 13 had informed P. W. 1 about what had happened on the previous day. In such a situation, the fact that the names of the appellants had not appeared in the oral information, which P. W. 1 gave, at the place of recovery of Soleman's dead body to the investigating officer (P. W. 14) and was reduced into writing by PW 14, can be of no avail to the defence. 22. Reverting to the evidence of P. W. 11, it needs to be noted that there is nothing in the evidence on record nor was it even suggested to this witness (PW 11) by the defence that there is animosity between this witness (P. W. 11) and the appellants and/or that P.W.I 1 was a friend of Soleman or a close friend of his family. In the face of these facts, P.W. 11 has to be regarded as an independent witness. His evidence, though subjected to cross-examination, has, as already indicated above, remained unshaken. 23. It has, however, been pointed out by Mr. Dutta, learned counsel, that P.W. 11 has also deposed that he (PW 11) informed Soleman's elder brother, Firkan Ali (P.W. 1), about the occurrence, but Firkan Ali does not state that he had been informed by P.W. 11 about the occurrence. On this aspect of the submission made on behalf of the appellants, what needs to be noted is that though P.W. 11 has claimed that he informed Firkan (PW 1) about the occurrence, there is nothing in the evidence of P.W. 11 to show that P.W. 11 had informed P W 1, about the occurrence, before P.W. 1 lodged the said oral information with P.W. 14. which we have already discussed above. In the absence of anything showing that Firkan (P.W. 1) stood informed by P.W. 11 about the occurrence before the dead body of Soleman had been found or before the police had arrived there, the evidence of P.W. 11. that he (PW 11) had informed P W 1 (Firkan) about his having seen the occurrence, cannot be taken to have dented the otherwise unshaken and credible evidence of P.W. 11. In fact, the assertion of P.W. 11. in the cross-examination, that out of fear, he had not even gone and seen the dead body of Soleman on the day of occurrence remained unchallenged by the defence. In fact, the assertion of P.W. 11. in the cross-examination, that out of fear, he had not even gone and seen the dead body of Soleman on the day of occurrence remained unchallenged by the defence. In the presence of this piece of unshaken evidence, one has no option, but to hold that the evidence of P.W. 11 that he was frightened as a result of his having witnessed the occurrence of assault, on Soleman. by the appellants, must be treated as truthful and believable piece of evidence. 24. What is, now, of utmost importance to note is that P.W. 11 has deposed that both the appellants, Fajar Ali and his associate, were armed with dao, whereas P.W. 13 has claimed that while Fajar Ali had a dao in his hand, Masuk Ali was armed with a lathi like weapon. There is no doubt that some discrepancy in describing the weapon, which Masuk was holding in his hand, exists; but this discrepancy, in itself, is not sufficient to throw away the evidence of either P.W. 11 or PW 13. It is quite possible that P.W. 13, being younger brother of deceased Soleman. became tense, when he heard his brother's crying and in such tension-ridden moment, when he rushed to the spot and he found Fajar Ali giving blow with dao on Soleman. he was nervous and, on witnessing such a ghastly unexpected scene, it was not unnatural that when accused Fajar Ali chased him (P.W. 13) with dao after threatening him, P.W. 13 might not have clearly noticed as to what weapon Masuk Ali was holding in his hand. No wonder, therefore, that he has not described clearly as to what weapon accused Masuk was holding in his hand; rather, what P. W. 13 has deposed, in this regard, is that it was a lathi like weapon. In such a situation, it is not impossible for P.W.13 not to have clearly noticed the kind of weapon, which accused Masuk was holding, and it is for this reason that he could not clearly describe as to what weapon the accused-appellant, Masuk Ali, was wielding. 25. In such a situation, it is not impossible for P.W.13 not to have clearly noticed the kind of weapon, which accused Masuk was holding, and it is for this reason that he could not clearly describe as to what weapon the accused-appellant, Masuk Ali, was wielding. 25. Similarly, as far as P.W. 11 is concerned, he might have committed the error in describing the weapon in the hand of Masuk inasmuch as he had obviously become curious and concerned on hearing the sound of somebody saying, "Mago, Mago" (i.e. '"mother, mother") and, in such a situation, when he was threatened by Fajar and his associate to go away, it is quite possible that P.W. 11, as deposed to him, got frightened and he might have also committed error in describing the weapon in the hand of Masuk. At the same time, it is quite possible that P.W. 11 has correctly described the weapon, which Fajar Ali's associate was holding in his hand. On the ground, therefore, that there is a discrepancy in describing the weapon in the hand of accused Masuk, we do not see that we shall treat the evidence of P.W. 11 and/or P.W. 13 as unbelievable or unreliable. 26. Mr. Dutta, learned counsel for the appellants, has contended before us that there is nothing in the evidence of P.W. 11 and P.W 13 to show that they had seen each other at the place of occurrence, though both of them have claimed to be eye witnesses. We have examined this aspect of the prosecution's case too. What we notice is that as per the evidence on record, the place of occurrence is ajungle and there are paddy land as well. There is nothing in the evidence on record that both, P.W. 11 and P.W. 13. had seen the occurrence from the same direction. In an area, therefore, where the occurrence took place, it is not impossible to visualize a situation, whether P.W. 11 and P.W. 13 had not seen each other, because the possibility that they had witnessed the occurrence from different directions, covered by jungle, cannot be wholly ruled out. This aspect of the defence case assumes greater importance, when we notice that the defence made no effort to elicit, while examining PW 11 and/or PWE 13. that they had witnessed the occurrence from one and the same place or from one and the same direction. This aspect of the defence case assumes greater importance, when we notice that the defence made no effort to elicit, while examining PW 11 and/or PWE 13. that they had witnessed the occurrence from one and the same place or from one and the same direction. 27. Even if, for a moment, we exclude the evidence of P.W. 13 as unsafe to believe in, or rely upon, on the ground that P.W.13 is younger brother of deceased Soleman. the fact remains that P.W. 11 is an independent witness, his evidence is wholly natural, consistent, coherent and his evidence, having remained unshaken, inspires great confidence. In such a situation, there is no reason really for us not to believe this witness. 28. As far as P.W.I is concerned, his evidence is that his younger brother, Soleman, had gone with cattle to the nearby field for making his cattle graze and till dusk, Soleman had not returned, although some cattle did return home, they looked for Soleman, but their search for Soleman did not yield any favourable result and they informed the BSF personnel, at BSF camp, about Soleman's disappearance. It is also in the evidence of P.W.I that they continued the search for Soleman and, on the following day, Soleman's dead body was found lying near Kalai Giri with cut injuries on his person and he (P W 1) accordingly informed the BSF personnel, at the Camp, who, in turn, advised him (P W 1) to report to the police and he, eventually, reported the matter to the police and the police reduced his information into writing. 29. Close on the heels of the evidence of P.W.I, P.W.14 (Investigating Officer) has deposed that on 29.4.2001, at about 4-5 P.M., one Manjir Ali telephonically informed him that a dead body had been found lying in Kalai Giri area, whereupon he made an entry, in this regard, in the general diary, GD Entry No. 695, dated 30.4.2001, being the said entry and went to the place, where the dead body had been found, held inquest over the dead body and also received oral information, at the place of occurrence, from P. W. 1, the oral information was reduced by him (P. W. 14) into writing and was treated as F.I.R. Thus, the evidence of P.W.I stands substantially corroborated by P. W. 14. 30. 30. What is, now, important to note is that P.W.14 has deposed that on 8.5.2001, he arrested both the accused and interrogated them. It is in the evidence of P.W.14 that during his interrogation, accused Masuk Ali told him that he had kept the dao in his house. While considering this piece of evidence, it is necessary to note that the learned Addl. Sessions Judge has recorded the evidence of P.W. 14, in this regard, as under : - "During interrogation, accused Masuk Ali confessed before me that he kept the dao in his house by which victim Soleman Ali was murdered by them." 31. While considering the above piece of evidence, it needs to be noted it has been contended by Mr. R Datta, learned counsel, that the above statement, alleged to have been made to PW 14 by accused-appellant, Masuk, having not been reduced into writing (and merely deposed to by P W14), could not have been considered against the accused-appellants. While considering this aspect of the case, it needs to be pointed out that a Full Bench of this Court, in Rajiv Phukan&Anr. Vs. State of Assam, reported in 2009 (2) GLT 414 (FB), has dealt with, on a 'reference' being made, the question as to whether a statement leading to discovery can be admitted into evidence, under Section 27 of the Evidence Act, if the same has not been reduced into writing. In Rajiv Phukan & anr (supra), the Full Bench pithily put the question thus: "22. The question, however, which stares at us is, whether the law makes it mandatory to have a written record of the disclosure statement, which an accused, facing a trial, may be claimed by the prosecution to have made ?" [Emphasis added] 32. Dealing with the question, posed above, the Full Bench, in Rajiv Phukan (supra), pointed out thus: "23. Leaving aside, for a moment, as to what the expression 'the fact thereby discovered' means, what is imperative to note is that neither in the Evidence Act nor in the Code of Criminal Procedure, there is any specific provision with regard to the examination of an accused by a police officer. As far as examination of witnesses is concerned, the provisions have been made under Section 161 CrPC. As far as examination of witnesses is concerned, the provisions have been made under Section 161 CrPC. This Section shows that a police officer may examine orally any person suspected to be acquainted with the facts and circumstances of the case. Undoubtedly, the heading of the Section, (i.e., Section 161) reads, "Examination of witnesses by police". However, the provisions, contained in Section 161, give no such indication_thaj examination of a person, by the police, as contemplated under Section 161, is limited to witnesses alone and will not include an accused. Though, ordinarily, the heading of a section, in a statute, may help in the interpretation of the provisions contained in the section, the heading is not always determinative of the power, duty or function, which the section may seek to convey. Section 161(1) makes it clear that any police officer may examine orally any person, who is supposed to be acquainted with the facts and circumstances of the given case. Sub-Section (2) of Section 161 binds the person, who is so interrogated, to answer truly all the questions put to him by the police officer, except, of course, those questions, which, if answered, would have a tendency to expose the person interrogated to a criminal charge or to a penalty or forfeiture. Section 161 (3) permits the police officer to reduce into writing any statement, made to him, in the course of the examination under Section 161 and. if he does so, he shall make a separate and true record of the statement of each such person, whose statement he records. 24. Thus, the recording of a statement of a person, under Section 161, in writing, is optional for the police officer, who investigates a case. It is not, therefore, statutorily mandatory for a police officer to reduce into writing the statement made to him by a person, who may be acquainted with the facts and circumstances of a given case. Such a person may be a witness to an offence; such a person, may also be the one, who has committed the offence. 25. What must, however, be remembered is that sub-Section (1) of Section 162 debars a police officer from obtaining signature of the person, whose statement, he may have reduced into writing. Such a person may be a witness to an offence; such a person, may also be the one, who has committed the offence. 25. What must, however, be remembered is that sub-Section (1) of Section 162 debars a police officer from obtaining signature of the person, whose statement, he may have reduced into writing. Sub-Section (1) of Section 162 also bars such statement, or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, from being used for any purpose, at any inquiry or trial, in respect of any offence under investigation at the time, when such statement was made, provided that when any witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing, as aforesaid, any part of his statement, if duly proved, may be used by the accused, and, with the permission of the Court, by the prosecution, to contradict such witness in the manner as provided by Section 145 of the Evidence Act; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. 26. When none of the provisions of the Code of Criminal Procedure or of the Evidence Act makes it mandatory for a police officer to reduce into writing the statement, which an accused may have made, it is not only difficult, but also impossible to hold that a 'disclosure statement' cannot be proved at all if the 'disclosure statement' has not been recorded, or when the written record of the 'disclosure statement' has not been introduced into evidence. 27. What needs to be noted is that in the case of a judicial confession, what an accused might have stated before a Magistrate is provable by the written record. In the case of an extra-judicial confession, no such written record may be available. In such circumstances, the extra-judicial confession cannot be treated to be wholly inadmissible in evidence merely because of the fact that the extra-judicial confession does not stand reduced into writing. In the case of an extra-judicial confession, no such written record may be available. In such circumstances, the extra-judicial confession cannot be treated to be wholly inadmissible in evidence merely because of the fact that the extra-judicial confession does not stand reduced into writing. Though prudence demands that a Court, before acting upon an extra-judicial confession, knows as to what exactly the accused person had stated, the fact remains that a Court cannot refuse to bring, on record, an extra-judicial confession on the ground that no written record, as regards the exact words used by the accused in his extra-judicial confession, is available. However, the probative value of such a confessional statement will be a question of fact. If, on the basis of the deposition of the witness or witnesses, the Court is in a position to determine as to what exactly the accused had stated or confessed to, and, if the Court believes that the evidence, given as regards the fact that an extra-judicial confession had been made by the accused is true, it would not be impermissible for the Court to make use of such a statement even if such a statement has not been reduced into writing. Similar is the situation with regard to a 'disclosure statement'. A 'disclosure statement' is not, as noticed above, statutorily required to be reduced into writing; but prudence demands that when a statement has been made by an accused person, while in the custody of a police officer, and the investigating officer intends to act upon the statement, then, the Investigating Officer should record, at least, that part of the statement, which is likely to lead to the discovery of a fact so that a contemporaneous record remains available to prove that the statement, as claimed by the Investigating officer, had, in fact, been made, and the Court knows as to what the accused had actually stated and what part or portion of his statement had, or can be said to have, in fact, led to the discovery of the fact. 28. There is yet another reason why a Court cannot refuse to bring on record a disclosure statement on the ground that it has not been reduced into writing. 28. There is yet another reason why a Court cannot refuse to bring on record a disclosure statement on the ground that it has not been reduced into writing. In a given case, it may so happen that a police officer, upon being informed that an offence, say, for instance, a murder, has been committed, goes to the village, where the dead body was found, all the villagers gather there, when the police officer arrives. If the deceased happens to be. in such a case, a woman, there may be suspicion in the mind of the co-villagers of the husband of the deceased that he was, perhaps, the one. who had killed the woman. In such circumstances, it would not be unreasonable to expect that the police officer takes into custody the husband for the purpose of interrogating him on the ground that his relation with his wife was inimical and none other than the husband (i.e., the accused) and the wife (i.e., the deceased) were present, at the relevant point of time, at the house, where the dead body was found lying. In such circumstances, having taken the accused into custody, the police officer may, though he should not, interrogate the accused in presence of the co-villagers of the accused. In such a case, if the accused makes a statement that he had stabbed his wife to death and, on a query made by the police officer, if the accused states that he has thrown the dagger at the backyard of his house and expresses, on further query made by the police officer, that he would be able to show the place, where he has hidden the dagger, the police officer may, in such circumstances, accompanied by the co-villagers of the accused, go to the place, where the accused leads them to, and the accused, on reaching the place, picks up the dagger and produces, before the police, the dagger, which may be seized in the presence of witnesses, seizure list may be prepared and serological test may reveal that the blood stains, found on the dagger, were of the deceased wife of the accused. In such circumstances, let us assume, for a moment, that the police officer did not record the statement of the accused before the accused had-Jed them to the place, where the accused had picked up and handed over the dagger to the police. In such circumstances, let us assume, for a moment, that the police officer did not record the statement of the accused before the accused had-Jed them to the place, where the accused had picked up and handed over the dagger to the police. Would it serve the interest of justice by insisting, when the statute does not so require, that since the police officer has not reduced into writing the accused person's statement, it must be treated as inadmissible, though the co-villagers may have given evidence as to what the accused had stated and how the accused happened to hand over the dagger to the police, and the Court finds no reason to disbelieve their evidence. When the statute has not made it mandatory for a police officer to reduce into writing the disclosure statement of an accused person, it would be impossible to treat the evidence of the co-villagers as inadmissible and thereby reject the same. The written record of the disclosure statement is really required for the purpose of inspiring confidence of the Court that the statement, as deposed to, had, indeed, been made and such a written record would further help the Court know as to what exactly the accused had stated to the police and what statement, or which part of a given statement of the accused, had really led to the discovery of the fact. 29. It is quite possible that, in a given case, no written record of disclosure statement has been produced, but the investigating officer's deposition, in the Court, that the accused had made the statement, which had led to the discovery of a fact, is found believable or is not even disputed, would it be possible to discard such statement of the investigating officer only on the ground that he had not reduced into writing the said disclosure statement. Such an approach to a piece of evidence is not possible to be accepted as correct, particularly, when the statute has, in the language used therein, given no such mandatory indication. 30. It is also worth noticing that the disclosure statement has to be recorded, if it is recorded by a police officer, before the fact is discovered or before the accused leads the police to the discovery of a fact. It is meaningless to record a disclosure statement after the disclosure statement has already been acted upon. 31. 30. It is also worth noticing that the disclosure statement has to be recorded, if it is recorded by a police officer, before the fact is discovered or before the accused leads the police to the discovery of a fact. It is meaningless to record a disclosure statement after the disclosure statement has already been acted upon. 31. It is also necessary to point out that it is not always necessary that an accused must, after having made a disclosure statement, lead the police to the place where, say, for instance, the weapon of offence is lying or the stolen property has been kept. It is quite possible that, having recorded the statement of an accused person and having known from the statement, so made, as to where the stolen article would be found, the police officer, acting upon the information, so received, goes to the place, where the accused has claimed to have kept the stolen article, and the police officer finds the stolen article at the place, where the accused had claimed to have kept. In such circumstances, too, the disclosure statement would be admissible and can be relied upon, though the accused might not have personally led the police to the place, where the stolen article was found. 32. Addressing itself to the question as to whether an accused must lead the police to the discovery of some material object, in order to apply Section 27, the Apex Court has replied that on receiving the information, it would be for the police officer to take or not to take the accused, who has given the information, to the spot, and if, in a given case, the police officer does not take the accused concerned to the spot, it will have no bearing on the question of admissibility of the information given and/or recovery of material object within the ambit of Section 27. The relevant observations, made on this aspect of law, in Navjot Sandhu (supra), read as under: "There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. The relevant observations, made on this aspect of law, in Navjot Sandhu (supra), read as under: "There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place, where an object is concealed, and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence." 33. Coming closer home, the Full Bench, in Rajiv Phukan (supra), while answering the question whether a 'disclosure statement' is necessarily required to be reduced into writing for being admissible as a piece of evidence, observed: "54. In Bodhraj vs. State of J&K, reported in (2002) 8 SCC 45 , the Court, dealing with this subject, observed thus, "The statement which is admissible under Section 27 is the one, which the information leading to the discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused, while in custody, which led to the recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea, embedded in Section 27 of the Evidence Act, is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered on a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information, supplied by the prisoner, is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact, it becomes reliable information. 55. From the emphasized portion of the observations made above, in Bodhraj (supra), it becomes clear that though the information (which the prosecution relies upon to show that the accused gave the information, which led to the discovery of a fact), should be recorded and proved, but if it is not so recorded, 'the exact information must be adduced through evidence'. Obviously, such evidence would mean oral evidence or some other evidence in the form of audio visuals or tape. Nonetheless, what clearly transpires from the decision, in Bodhraj (supra), is that even when a statement, leading to discovery of a fact, has not been reduced into writing, such a statement is still admissible in evidence, though the probative value thereof would depend on the facts and circumstances of a given case. " [Emphasis added] 34. Speaking through one of us, Ansari, J, the Full Bench, in Rajiv Phukan (supra), while dealing with the question of admissibility of a 'disclosure statement', if the same has not been reduced into writing, finally, concluded, at paragraph 56, having referred to a number of decisions including the decisions, in State of Rajasthan Vs. Bhup Singh, reported in (1997) 10 SCC 675 , Mohd. Abdul Hafiz, AIR 1983 SC 3671, Bodhraj Vs. State of J&K, reported in (2002) 8 SCC 45 , and State (NCT) of Delhi Vs. Bhup Singh, reported in (1997) 10 SCC 675 , Mohd. Abdul Hafiz, AIR 1983 SC 3671, Bodhraj Vs. State of J&K, reported in (2002) 8 SCC 45 , and State (NCT) of Delhi Vs. Navjot Sandhu, reported in (2005; 11 SCC 600, thus: "Because of what have been discussed and pointed out above, we conclude that a 'disclosure statement', to be admissible under Section 27 of the Evidence Act, is not statutorily required to be reduced into writing, though prudence demands that such an information should be reduced into writing in order to enable the Court to know exactly as to what the accused is allegedly to have stated and the extent to which the information given by him is admissible. The reference shall stand answered accordingly'' [Emphasis added] 35. Bearing in mind the position of law that it is not inadmissible to rely on a 'disclosure statement' if the same has not been reduced into writing provided that the Court finds the evidence, given in this regard, trustworthy, safe and reliable, when we come back to the statement, which the accused-appellant, Masuk Ali, is claimed to have made to the Investigating Officer (PW14), we notice that the said statement of Masuk Ali can be broken into two components in the sense that the accused-appellant, Masuk Ali, is claimed to have confessed to two facts, namely, that "he kept the dao in his house" and "by which victim Soleman Ali was murdered by them". If the Court believes that a dao had been recovered from the house of the accused appellant, Masuk Ali, on the basis of the said precious statement, which the accused-appellant, Masuk Ali, is claimed to have made to the Investigating Officer (PW 14), then, the said statement of accused-appellant, Masuk Ali, to the extent that he states "he kept the dao in his house", would be, undoubtedly, admissible in evidence. 36. The question, now, is whether the second part of the above statement of accused-appellant, Masuk Ali, namely, "by which victim Soleman Ali was murdered by them", is, in law, admissible at all? While considering this aspect of the case, it needs to be noted that the first condition, which is necessary, in order to apply Section 27, is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. While considering this aspect of the case, it needs to be noted that the first condition, which is necessary, in order to apply Section 27, is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. The second condition for application of Section 27 is that the discovery must be deposed to. This, in turn, means that the factum of discovery has to come on record by way of evidence and not otherwise. The third condition is that at the time of receiving the information, the accused must have been in police custody. The fourth, but, perhaps, the most important condition is that only "so much of the information", as relaters 'distinctly' to the 'fact thereby discovered', is admissible. The rest of the information, which an accused person might have given, must be kept excluded. The meaning of the expressions, 'so much of the information', and 'distinctly', have been the subject of interpretation of a number of judicial pronouncements. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. 37. The idea behind the partial lifting of the. ban against the use of a confessional statement made by a person accused of any offence to the police is that if a fact is actually discovered in consequence of the information given by the accused, it provides some guarantee of the truth to that part of the information, which was the clear, immediate and approximate cause of discovery. 38. In other words, the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that the information was true and, consequently, the information can safely be allowed to be given in evidence, because if such an information is further fortified and confirmed by the discovery of articles or the weapon of crime would lead to the belief that the information, about the confession made as to the articles of crime, cannot be false (See Suresh Chandra Bahri Vs. State of Bihar, reported in AIR 1994 SC 2420 ). 39. The word 'distinctly', appearing in Section 27, means 'directly', 'indubitably', 'strictly' and 'unmistakably'. State of Bihar, reported in AIR 1994 SC 2420 ). 39. The word 'distinctly', appearing in Section 27, means 'directly', 'indubitably', 'strictly' and 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates 'to the fact thereby discovered' and is the linchpin of the provision. This phrase refers to that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement, which may, indirectly or remotely, relate to the fact discovered. (See Mohd. Inayatulla Vs. State of Maharashtra, reported in AIR 197 6 SC 483). 40. Let us, now, turn to the question as to how one should determine which part of the statement of an accused person would be admissible in evidence by taking resort to Section 27. In the case of Mohmed Inayatulla (supra), the Supreme Court has pointed out that the first step, in the process of determination as to what fact has been discovered in consequence of a statement made by an accused person, is to pinpoint that fact, which can be said to have been discovered in consequence of the statement of the accused person. In Mohd. Inayatulla (supra), the statement of the accused read thus, "I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August". In the statement so made by accused Inayatulla, the facts discovered, as pointed out by the Supreme Court, in Mohd. Inayatulla (supra), were three fold, namely, (a) chemical drums, (b) the place, where the chemical drums lay deposited; and (c) the knowledge of the accused as regards the fact that such chemical drums lay deposited at the said place. The next step, according to the Supreme Court, in the case of Mohd. Inayatulla (supra), ought to have been to split the said statement into its various components and to separate the admissible component from the inadmissible ones and, thereafter, only that component or portion, which was the immediate cause of discovery, ought to have been recorded as the legal evidence and not the rest of the statement, for, the rest of the statement ought to have been excised and rejected. Thus, on splitting up the said statement of accused Inayatulla, the Supreme Court found that only the first part of the said statement, namely, "I will tell the place of deposit of the three chemical drums", was the immediate and direct cause of the fact discovered and, hence, out of the whole statement of the said accused person, only that portion, namely, "I will tell the place of deposit of the three chemical drums", was held admissible in evidence under Section 27. The rest of the statement, namely, "which 1 took out from the Haji Bunder of first August", constituted only the past history of the drums or their theft by the accused and since this part of the statement of accused Inayatulla was not the distinct and proximate cause of the discovery, the same was ruled out of evidence altogether. 41. In the case at hand too, while the statement of accused, Masuk Ali, is claimed to have been made to the Investigating Officer (PW-4), namely, "he kept the dao in his house", is admissible evidence, the subsequent component of his statement, namely, "by which victim Soleman Ali was murdered by them", is inadmissible inasmuch as the same amounts to the past use of the dao and cannot be treated in law, and could not have been treated in law, as the immediate and proximate cause of the recovery of the dao. In short, thus, the statement, "by which victim Soleman Ali was murdered by them", claimed to have been made by the accused-appellant, Masuk Ali, was inadmissible and remains inadmissible in evidence and, we, therefore, keep the said piece of evidence whooly excluded from the purview of our consideration. 42. Coupled with the above, the learned Addl. Sessions Judge, in the impugned judgment, has mentioned that P. W.2 and P. W.3 are witnesses to the seizure of the dao, which the appellant, Masuk Ali, was alleged to have handed over to P. W. 14 (Investigating Officer). The learned Addl. Sessions Judge has noted that both these witnesses have stated to the effect that the dao was the one by which Soleman had been murdered. The learned Addl. Sessions Judge has noted that both these witnesses have stated to the effect that the dao was the one by which Soleman had been murdered. These statements of P. W.2 and P. W.3 were not admissible in law inasmuch as what was admissible was the fact that accused Masuk Ali had told P. W. 14, while in custody, that he had kept the dao in his house and as the dao had been produced by Masuk and seized, the said statement was admissible; but nothing more. 43. What is, however, of utmost importance to note, now, is that the dao was not serologically examined. There is nothing really showing that the dao, in question, was the weapon of offence. In such a situation, it is not only difficult but well-neigh impossible to hold that the said dao was the weapon of offence. Since the said dao has not been proved to be the weapon of offence, it, as a corollary, follows that even if it is believed that the accused-appellant, Masuk Ali, had made a statement to PW14 (Investigating Officer) that he had kept the dao in his house and that the said dao (MO 1) was recovered, this recovery of the dao does not help the prosecution in proving that the said dao was the weapon of offence. Consequently, the evidence, which the prosecution has adduced, showing that the dao had been recovered from the house of accused-appellant, Masuk Ali, and the same being pointed out by the accused-appellant, Masuk Ali, pales into insignificance when the said dao is not proved to be the weapon of offence. No discovery of fact can, in such circumstances, be, strictly speaking, said to have been made. 44. What, thus, the material evidence, which the prosecution is left with, is the evidence given by PW11 (Jarua Darlong) and PW13 (Mainul Haque). 45. Coupled with the above evidence of the two eye witnesses, namely, PW11 (Jatua Darlong) and PW13 (Mainul Haque), what is also relevant is the undisputed medical evidence given by PW9, namely, Dr. 44. What, thus, the material evidence, which the prosecution is left with, is the evidence given by PW11 (Jarua Darlong) and PW13 (Mainul Haque). 45. Coupled with the above evidence of the two eye witnesses, namely, PW11 (Jatua Darlong) and PW13 (Mainul Haque), what is also relevant is the undisputed medical evidence given by PW9, namely, Dr. Mrinmay Das, whose evidence is to the effect that on 01-05-2001, he conducted post mortem examination over the dead body of Soleman Ali, he found cut injuries on the said dead body on its neck, which were ante mortem in nature and that the death was caused due to shock and hemorrhage resulting from the injuries sustained by the said deceased. PW9 has proved the Ext. 3 as the post mortem report. 46.Referring to the dao (MO 1), the doctor (P W9) has deposed that in his opinion, the injuries on the said deceased could have been caused by the said dao. Though, as already indicated above, prosecution has not been able to prove, chiefly due to lack of serological examination, that the dao (MO 1) was the weapon of offence, the fact of the matter remains that the evidence of P W9 goes to the extent of showing that Soleman Ali did die, because of the cut injuries sustained by him, particularly, on his neck, and the said injuries could have been caused by a dao. Thus, the medical evidence on record corroborates and supports the evidence of PW11 and PW13 inasmuch as both these witnesses, namely, PW 11 and PW 13, have claimed in their evidence that the accused-appellant, Fajar Ali, in the company of accused-appellant, Masuk Ali, was seen by them giving blow with dao on deceased Soleman Ali. 47. Referring to the evidence of PW9, Mr. R Datta, learned counsel, submits that the evidence given by P W° was never put to the accused-appellants, while they were being examined under Section 313 Cr.P.C. and, hence, the medical evidence, on record, cannot be considered against the accused. Reference, in support of his submission, is made by Sri Dutta to the case of Ranvir Yadav Vs. State of Bihar, reported in 2009 Cri.LJ. 2962. 48. Referring to the decision in Ranvir Yadav (supra), Mr. Datta has submitted that this case clearly shows that when an incriminating piece of evidence has not been put to an accused, his conviction cannot be sustained. State of Bihar, reported in 2009 Cri.LJ. 2962. 48. Referring to the decision in Ranvir Yadav (supra), Mr. Datta has submitted that this case clearly shows that when an incriminating piece of evidence has not been put to an accused, his conviction cannot be sustained. In dealing with the case of Ranvir Yadav (supra), it needs to be noted that the case of Ranvir Yadav (supra) i s a case, where no incriminating material was specifically put to the accused, while he was examined under Section 313 Cr.P.C., and since no specific incriminating evidence was put to the accused, the evidence, which had been relied upon, was held to be a piece of evidence, which could not have been relied upon. While considering the case of Ranvir Yadav (supra), which Mr. Dutta relies upon, it needs to be borne in mind that the fundamental and basic requirement of law is that if the attention of an accused is not drawn to a piece of inculpatory evidence and his response thereto is not sought for, such a piece of evidence cannot be relied upon. What is, however, more important to note is that a mere omission to put such evidence does not ipso facto vitiate the trial unless prejudice is shown to have been caused to the accused. A reference, in this regard, may be made to the case of State (Delhi Admn.) Vs. Dharampal, AIR 2001SC 2924 wherein the Supreme Court, referring to its earlier decisions, in Shivaji Sahabrao Bobade Vs. State of Maharashtra, reported in (1973) 2 SCC 793 , and Basavaraj R. Patil Vs. State of Karnataka, reported in (2000) 8 SCC 740 , pointed out as follows: "11. Dealing with the first question first. This Court has, in the case of Shivaji Sahabrao Bobade v. State of Maharashtra held as follows: (SCC p. 806, para 16) "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342 CrPC, the omission has not been shown to have caused prejudice to the accused." (emphasis supplied) 12. The same view has been reiterated by this Court in the case of Basavaraj R. Patil v. State of Karnataka. 13. Thus it is to be seen that where an omission, to bring the attention of the accused to an in'culpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him. [Emphasis added] 14. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. [Emphasis added] 14. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the counsel for the accused and get the answers of the accused. If the accused could not give any plausible or reasonable explanation it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused. 15. We further find that in all these cases, the copy of the certificate of the Director, Central Food Laboratory had been supplied to the accused. They were thus aware of the contents of the certificate. It has to be seen that under the Prevention of Food Adulteration Act the prosecution is based upon the contents of either the report of the Public Analyst or the certificate of the Director of Central Food Laboratory. During their examination, under Section 313 CrPC questions pertaining to the certificate were put to the accused. The explanation of the accused, in respect of the certificate, had been called for. In our view in such cases it is enough if the attention of the accused is brought to the report or the certificate, as the case may be. It is not necessary that the contents of the report be also put to the accused." [Emphasis added] 49. We may pause here to point out that since the perusal of the records revealed that the evidence, which the doctor (P W 9) gave in his evidence as regard the nature of injuries, which were caused, the cause of death, and the nature of weapon, which had been used in causing Soleman's death, had not been put to the appellants, when they were being examined under Section 313 Cr. P. C., we have, irr keeping with the guidelines issued by the Supreme Court in State (Delhi Administration) Vs. P. C., we have, irr keeping with the guidelines issued by the Supreme Court in State (Delhi Administration) Vs. Dharampal, AIR 2001 SC 2924 , have called upon the learned counsel for the appellants to say if the appellants had any comments/explanation to offer on the evidence so given by the doctor (PW-9). Mr. Dutta, learned counsel for the appellants, has clearly submitted that the appellants have no comments/explanation to offer regarding the evidence so given by P W-9. Thus, though the medical evidence on record had not been put to the appellants by the learned trial Court as aforesaid, it clearly transpires that the appellants had no explanation/comments to offer in this regard. 50. It, therefore, logically follows that the omission to put the medical evidence on record to the appellants by the learned trial Court had not caused any prejudice to them. It may also be noted that neither in the trial Court nor in this appellate Court, any grievance of prejudice has been expressed by the appellants for not giving them specific opportunity to offer their comments on, or explanation to, the evidence given by PW 9. The omission to put the relevant question, in this regard, to the appellants by the learned trial Court can, therefore, be safely ignored. 51. Thus, the mere omission, on the part of the learned trial Court, to put to the accused-appellants the evidence given by the doctor (PW9) did not, we find, cause any prejudice to the accused-appellants inasmuch as even when opportunity is given in the present appeal, nothing could be submitted, on behalf of the accused-appellants, to show as to why medical evidence on record cannot be relied upon. This apart, the clear evidence of PW11 and PW13 is that the accused-appellant, Fajar Ali, was seen, in the company of the accused-appellant No. 2, namely, Masuk Ali, giving blow with dao on Soleman. There is nothing in the evidence on record to show that after the accused-appellants were seen assaulting Soleman, Soleman remained alive. In such circumstances, there can be no escape from the conclusion that the accused-appellants were the ones, who had assaulted Soleman, caused injuries on him resulting into death. There is nothing in the evidence on record to show that after the accused-appellants were seen assaulting Soleman, Soleman remained alive. In such circumstances, there can be no escape from the conclusion that the accused-appellants were the ones, who had assaulted Soleman, caused injuries on him resulting into death. As the evidence on record clearly shows multiple injuries having been caused to the said deceased on vital parts of body, such as, neck, the force with which the blow was given and the nature of weapons, which were used, the conclusion, which is irresistible to arrive at, is that the accused-appellants had, in furtherance of their common intention, caused the death of Soleman and, hence, they are guilty of having committed the offence of murder punishable under Section 302 read with Section 34IPC. 52. Situated thus, we do not find that the conviction of the accused-appellant and the sentence passed against them call for any interference by this Court. Situated thus, we hold the appeal without merit and upheld the conviction of the accused-appellant and the sentence passed against them. 53. In the result and for the reasons discussed above, this appeal fails and shall accordingly stand dismissed. 54.Send back the LCR.