JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) 1. This appeal has been filed by the appellants Narayan Mandal and his son Suresh Mandal against the judgment of conviction dated 12.5.2005 and sentence dated 18.5.2005 passed by the learned Additional Sessions Judge, F. T. C. –I, Madhubani in Sessions Trial No. 114 of 1999/ 292 of 2002 by which both of them have been sentenced to rigorous imprisonment for life under Section 302/34 IPC. 2. According to the Fard Beyan (Ext. 2) of the informant Rampuri Devi (P.W. 7) is that on 11.6.1998 at 7 p.m. her husband Jagdish Mandal (deceased) returned to his house from duty and asked whose child has made stool. His younger child Pankaj Kumar Mandal informed that the son of Suresh Mandal has made stool there. The deceased uttered that the place should be cleaned, in the meantime Suresh Mandal came out from his house and made altercation. Thereafter, Suresh Mandal took out Chhura from his waist and assaulted her husband Jagdish Mandal (deceased) who fell down in severe condition. The occurrence was facilitated by Narayan Mandal and his son Suresh Mandal. On raising alarm by the informant, her Debar Hiralal Mandal (P.W. 3), Dular Mandal (P.W. 4), her daughter Parmila Devi (P.W. 5), Urmila Devi (P.W. 1), Dhanraj Mandal (P.W. 2). Rijhan Mandal (P.W. 6) and others came there and witnessed the occurrence. Her husband was taken to Rahika hospital for treatment where he succumbed to his injuries. 3. Fard beyan was recorded by A S I, P Rai (P.W. 10) on 12.6.1998 at 12.30 P.M. at Primary Health Centre, Rahika. On the basis of fard beyan Town (Rahika) P. S. Case No. 169/98 dated 12.6.1998 was instituted against both the appellants for the offence punishable under Section 302/34 IPC. After investigation charge-sheet was submitted, cognizance was taken; the case was committed to the Court of Sessions. The charge was framed under Section 302/34 IPC to which they denied and claimed to be tried. After trial both of them have been convicted and sentenced as aforesaid. 4. This appeal has been registered on the basis of an application filed by the appellants before the Jail Superintendent, Madhubani. No advocate has been engaged by both of them. The amicus curiae has assisted the Court in hearing of this appeal. 5. The defence of the appellants is that they have been falsely implicated in this case. 4. This appeal has been registered on the basis of an application filed by the appellants before the Jail Superintendent, Madhubani. No advocate has been engaged by both of them. The amicus curiae has assisted the Court in hearing of this appeal. 5. The defence of the appellants is that they have been falsely implicated in this case. 6. This Court is required to reappraise the prosecution evidence and to consider as to whether the prosecution has been able to substantiate its charge beyond shadow of all reasonable doubts. 7. The prosecution has examined altogether 11 witnesses; P. W. 1 Urmila Devi, daughter of the informant, P. W. 2 Danraj Mandal, P. W. 3 Hiralal Mandal, P. W. 4 Dular Mandal, P. W. 5 Pramila Devi, another daughter of the informant, P. W. 6 Rijhan Mandal, P. W. 7 Ram Pari Devi, the informant of this case, P. W. 8 Mahadeo Panjiyar, P. W. 9 Ram Lochan Mandal, P. W. 10 Pitambar Rai, the Investigating Officer and P. W. 11, the doctor Raishul Azam who has conducted the autopsy on the deceased. No defence witness has been examined in this case. P. W. 8 and P. W. 9 are only the formal witnesses, who have proved the signature of the Officer-in-Charge of the Town Police Station Madhubani on formal FIR as Ext. 1. P. W. 9 is a seizure-list witness. 8. P. W. 7 is the informant and the wife of the deceased. She has stated that on the date of occurrence her husband returned to his house from SDO Office where he was working as a peon. Her husband asked as to why latrine made on the way to the courtyard was not removed. Eldest grandson of Narayan Mandal had made stool there. Narayan Mandal instigated his son Suresh Mandal to assault the deceased. Suresh Mandal gave a chhura blow to her husband Jagdish Mandal who fell down after receiving injury. He was taken to Rahika hospital where he died during treatment. Her statement was recorded by the office-in-charge in the hospital. She has identified both the appellants in the Court. In her cross-examination, she has stated that Narayan Mandal is the elder brother of her husband and Suresh Mandal is his son. Both of them live in the same courtyard. No altercation was made between Narayan and her husband. Her statement was recorded by the office-in-charge in the hospital. She has identified both the appellants in the Court. In her cross-examination, she has stated that Narayan Mandal is the elder brother of her husband and Suresh Mandal is his son. Both of them live in the same courtyard. No altercation was made between Narayan and her husband. At the time of occurrence 10 persons were in the courtyard. She has further stated that the appellants have one and a half bighas of land. The partition had been made between the accused and the deceased. The courtyard and the house were also partitioned. Northern side of courtyard was allotted to Suresh, western side was allotted to the deceased and western side was allotted to Hira and eastern side was allotted to Dular Mandal. Stool was made in the share of her land. She has further stated that she has made statement before the Officer-in-Charge that her husband returned from his duty at 6 pm. and put bicycle on Darwaja. There was altercation. Suresh Mandal assaulted the deceased with Chhura. The informant and her daughters raised alarm. In the meantime, witnesses came there. She has further stated that the Investigating officer seized the blood stained soil. It is not the fact that the appellants have been falsely implicated in this case. 9. P. W. 1 is the daughter of the deceased. She has supported the prosecution case stating that her father returned to his house at 6 p.m. and asked as to who had made stool there. Narayan (the appellant) came there and asked the deceased as to why he was making nuisance. Thereafter, Suresh came there. Narayan asked Suresh to assault with Chhura. Thereafter, Suresh assaulted the deceased with Chhura who fell down. He was taken to the hospital and during treatment her father succumbed to his injuries. In her cross-examination, she has admitted that accused Narayan is her uncle and Suresh is her cousin brother. The houses of both the parties are in the same courtyard. It appears that her evidence is quite natural and convincing. 10. P. W. 2 has also supported the prosecution case as P. W. 1. He has denied the suggestion of the defence that Suresh Mandal was suffering from mental problem for three years prior to the occurrence. The houses of both the parties are in the same courtyard. It appears that her evidence is quite natural and convincing. 10. P. W. 2 has also supported the prosecution case as P. W. 1. He has denied the suggestion of the defence that Suresh Mandal was suffering from mental problem for three years prior to the occurrence. He has made statement before the Court that Suresh was neither suffering from mental illness prior to the occurrence nor he is suffering at present. P. W. 3 has also supported the prosecution case as P. W. 2. P. W. 4 has also supported the prosecution case as P. W. 3. P. W. 5 Pramila Devi is the daughter of the deceased. She has supported the prosecution case as P. W. 1. P. W. 6 has also supported the prosecution case as P. W. 4. 11. P.W. 11 is the doctor who had performed the autopsy on the dead body of the deceased and has found the following ante-mortem injury on his person; (i) One bruise on left lower chest laternal aspect of manbarium sterni 1” x ¼”. (ii) One stitched wound on right lower chest 2” below right nipple 3” in length. On desection, the Doctor found-one penetrating wound on right lower chest 2” below nipple, penetrating right lung and liver. 12. P. W. 10 Pitambar Roy is the Investigating Officer of this case who has also found blood in the courtyard during investigation. He has also stated that he had collected the blood stained soil but he did not send it for forensic examination. 13. After hearing learned counsel for both the parties, perusing the record, and after considering the evidence adduced on behalf of the prosecution, it appears that prosecution has been able to substantiate its charge against the appellants, but on perusal of charge it appears that both the appellants have been asked as to whether they have committed murder of Jagdish Mandal, the husband of the informant on or about 30th June 1998, whereas, the constant case of the prosecution is that the occurrence took place on 11.6.1998 at 6 PM. The second demerit of the prosecution case is that both the appellants have been examined under Section 313 Cr.P.C. It has been asked by the prosecution as to whether they have heard the statement of the witnesses. The second demerit of the prosecution case is that both the appellants have been examined under Section 313 Cr.P.C. It has been asked by the prosecution as to whether they have heard the statement of the witnesses. Both of them have accepted that they have heard the statement of prosecution witnesses. The second question has been asked that there is evidence against both of them that they have committed the murder of Jagdish Mandal, the husband of the informant on 30.6.1998 and the reply has been made in negative. Under Section 313 Cr.P.C. the accused have been given right to explain any circumstance appearing in the evidence against him and after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case. It has been held in several cases by the Hon’ble Supreme Court that the circumstances which were not put to the appellants in their explanation under Section 313 of the Code of Criminal Procedure have to be completely ignored from consideration. In this connection, a reference may be made to a decision of Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 . It is better to quote paragraphs 142 and 144 of the aforesaid judgment; “142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438 : ( AIR 1976 SC 557 ) this Court held thus : "The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him." 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.” 14. In this view of the matter, it can be concluded that charge is not according to the prosecution case nor examination under Section 313 Cr.P.C. of the appellants has been made according to the evidence, as such the evidence not explained to the appellants cannot be used and relied upon against them. In that view of the matter, it can be held that the prosecution has not been able to substantiate its case in accordance with law. The appellants are entitled to get the benefit of doubt. 15. Considering the facts and circumstances stated above, in our opinion the impugned judgment of conviction and order of sentence is fit to be set aside and the appellants are entitled to get the benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted by giving them the benefit of doubt on technical ground. The appellants have already remained in custody since 12.6.1998. Both the appellants are directed to be released, if not wanted in any other case. 16. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted by giving them the benefit of doubt on technical ground. The appellants have already remained in custody since 12.6.1998. Both the appellants are directed to be released, if not wanted in any other case. 16. In the result, this appeal is allowed. 17. Let a copy of the first and last page of the judgment be handed over to the appointed Amicus Curiae Ms. Nitu Sinha, Advocate who has assisted the Court satisfactorily and she will get the prescribed fees from the High Court Legal Services Committee, Patna.