JUDGMENT Shyam Kishore Sharma, J.:- Cr. Appeal (DB) No. 459 of 1989 filed by Vinod Tiwary, Cr. Appeal (DB) No.469 of 1989 filed by Badri Narain Pandey and Jitendra Singh, Cr. Appeal (DB) No. 476 of 1989 filed by Raghunath Tiwary and Cr. Appeal (DB) No. 486 of 1989 filed by Awadhesh Singh have arisen out of a judgment of conviction and order of sentence dated 18.09.1989 passed by learned Sessions Judge, Sitamarhi in Sessions Trial No. 9 of 1987, they have been heard together and are being disposed of by this common judgment. By the aforesaid impugned judgment,the appellants have been convicted under Sections 302/34 and 148 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and two years under Section 148 of the Indian Penal Code. The sentences were ordered to run concurrently. 2. The prosecution case has sprang up on the basis of the fardbeyan (Ext.3) of Reena Kumari (P.W.8), according to which in the morning of 8th September, 1986 at 5.00 A.M. her grand father Ramadhar Singh (deceased) proceeded for Sheohar along with informant and her younger sister Veena Kumari (P.W.9) to get unwell Veena Kumari treated. When they reached at the spot where road was damaged and water has accumulated, they waited for boat for going one side to another side. In the meanwhile, five villagers namely, Raghunath Tiwary, Badri Narain Pandey, Awadhesh Singh, Jitendra Singh and Vinod Tiwary having dagger, garasa and country made fire arm arrived. Raghunath Tiwary and Badri Narain Pandey were armed with daggers whereas Awadhesh Singh and Jitendra Singh were armed with garasa. Vinod Tiwary was armed with country made gun. The informant’s grand father was caught by Vinod Tiwary and Raghunath Tiwary gave a dagger blow upon the head of informant’s grand father, as a result thereof, he became unconscious and fell down. Meanwhile, the informant’s sister Veena Kumari (P.W.9) cried but the accused persons asked her to keep mum. Badri Narain Pandey gave another blow of dagger upon the arm of informant’s grand father. Jitendra Singh and Awadhesh Singh twisted the leg of Ramadhar Singh. Meanwhile, the informant’s sister Veena Kumari (P.W.9) cried but the accused persons asked her to keep mum. Badri Narain Pandey gave another blow of dagger upon the arm of informant’s grand father. Jitendra Singh and Awadhesh Singh twisted the leg of Ramadhar Singh. On cry, when the informant’s brother Chandra Mohan Singh (P.W.6), uncle Birendra Singh and her grand mother Radha Devi (not examined as she was reported to be dead) came, the accused persons decamped with the bag which the deceased was having with him. The injured was being brought to Sheohar Hospital for treatment but died in the way, still he was carried to hospital. On account of enmity, the offence was committed. The fardbeyan was witnessed by Birendra Singh (P.W.7) and it resulted into Sheohar P.S.Case No. 0058 of 1986 under Sections 147, 148, 149, 341, 323, 324, 325, 379 and 302 of the Indian Penal Code and 27 of the Arms Act. Formal F.I.R. (Ext.5) was drawn. Investigation was taken up and in course of investigation, inquest report (Ext.4) was prepared upon which signatures of Birendra Singh (P.W.7) and Chandra Mohan Singh (P.W.6) were taken which have been marked as Exts.1/2 and 1/3. The post mortem report (Ext.2) was obtained. After completion of investigation, chargesheet was submitted. Cognizance was taken and the case was committed to the court of sessions where charges under Sections 302, 302 read with Section 34, 302/149 and 148 of the Indian Penal Code were framed and explained to the accused persons to which they pleaded innocence. So the trial proceeded. 3. The defence of the accused persons was of false implication on account of enmity which has been noted in the fardbeyan itself. The motive of false implication was that in April, 1981 one Lal Babu Pandey son of Achawar Pandey of village Madhopur Anant, P.S.Sheohar, District Sitamarhi, a Karpardaz of Sitamarhi Court was killed at his residence at Dumra which was situated near the residence of the District Magistrate, Sitamarhi. In that case, Chandra Bhushan Singh son of deceased Ramadhar Singh was made an accused for which Sessions Trial No. 164 of 1982 was going on. In that case, Chandra Bhushan Singh son of deceased Ramadhar Singh was made an accused for which Sessions Trial No. 164 of 1982 was going on. Further on 25.06.1985 another persons Vishwanath Tiwary son of Ram Kishore Tiwary of village Madhopur Anant, P.S.Sheohar, District Sitamarhi was murdered which led to registration of Sheohar P.S.Case No. 53 of 1985 and in that case Chandra Bhushan Singh son of deceased Ramadhar Singh, deceased Ramadhar Singh and three others were made accused for which Sessions Trial No. 69 of 1986 proceeded in which all the accused persons were convicted. When the aforesaid cases were at the verge of hearing, Malti Devi wife of Chandra Bhushan Singh and daughter-in-law of the deceased Ramadhar Singh lodged a case under Sections 342,448, 307 and 380 of the Indian Penal Code and 27 of the Arms Act against three accused of this case namely, Raghunath Tiwary, Badri Narain Pandey and Jitendra Singh and in that case final form was submitted. Badri Narain Pandey is brother of deceased Lal Babu Pandey of Dumra P.S.Case No. 121 dated 16.04.1981. The accused Raghunath Tiwary and Vinod Tiwary are cousins of deceased Vishwanath Tiwary of Sheohar P.S.case No. 53 of 1985. Chandra Bhushan Singh was detained in custody since the date of inception of the case and with a view to put pressure on the prosecution side of the aforesaid cases and to yield to their tactics in two murder cases, the present case was lodged against them. The contention of the accused persons was that they were falsely implicated because the doctor who had conducted post mortem of the deceased had found the time of occurrence to be different as detailed by the eye witnesses. 4. In order to prove its case, the prosecution examined altogether 11 witnesses namely, P.W.1 Madan Mohan Singh, P.W.2 Mangal Paswan, P.W.3 Hari Shankar Paswan, P.W.4 Ram Vijay Paswan, P.W.5 Sudhu Paswan, P.W.6 Chandra Mohan Singh, P.W.7 Veerendra Singh, P.W.8 Reena Kumari, the informant of the case, P.W.9 Veena Kumari, P.W.10 Dr.Jagdish Prasad Gupta who held post mortem over the dead body of the deceased and P.W.11 Satya Narayan Yadav, the Investigating Officer of the case. 5. P.W.2 Mangal Paswan has not supported the prosecution case. Later on he was declared hostile. He is non-F.I.R. witness. P.Ws. 1,3, 4, 5 and 6 are also non-F.I.R. witnesses. 5. P.W.2 Mangal Paswan has not supported the prosecution case. Later on he was declared hostile. He is non-F.I.R. witness. P.Ws. 1,3, 4, 5 and 6 are also non-F.I.R. witnesses. P.Ws 3, 4 and 5 were tendered by the prosecution. P.W.6 Chandra Mohan Singh is F.I.R. named witness. P.W.10 has conducted the post mortem over the dead body of the deceased. P.W.11 is the Investigating Officer of the case who has investigated into the occurrence. No defence witness was examined. 6. The trial court after considering the evidences on record and after hearing learned counsel for the parties came to the conclusion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and hence convicted and sentenced them, as stated above. 7. This Court is required to reappraise the evidences on record and to see whether the materials available on record are enough to justify the conviction and sentence of the appellants or not. 8. The evidence of P.Ws. 2 to 5 does not require any discussion because either they were hostile or have been tendered by the prosecution and nothing has come in their evidence. P.Ws. 8 and 9 are eye witnesses of the occurrence, whereas P.Ws.1, 6 and 7 are another set of witness who had gone to the place of occurrence after hearing cry and they were narrated the names of the assailants by none-else, the injured Ramadhar Singh who later on died. Therefore, these evidences are required to be discussed. 9. P.W.6 Chandra Mohan Singh is an accused in the case of murder of Lal Babu Pandey. That murder was occurred prior to the present case. It has been stated that in an another case of 307 of the Indian Penal Code he was convicted and conviction was maintained up the level of High Court. This witness has stated that at about 5 to 6 A.M. on Monday he went to the place of occurrence after hearing screaming. Reena Kumari and Veena Kumari, P.Ws. 8 and 9 respectively, were weeping and Ramadhar Singh was lying injured. Ramadhar Singh told that he has been assaulted by Raghunath Tiwary, Vinod Tiwary, Awadhesh Singh, Jitendra Singh and Badri Narain Pandy. Reena Kumari P.W.8 also stated this fact. Injured Ramadhar Singh was being carried to Sheohar hospital but in the way he succumbed to the injuries. 8 and 9 respectively, were weeping and Ramadhar Singh was lying injured. Ramadhar Singh told that he has been assaulted by Raghunath Tiwary, Vinod Tiwary, Awadhesh Singh, Jitendra Singh and Badri Narain Pandy. Reena Kumari P.W.8 also stated this fact. Injured Ramadhar Singh was being carried to Sheohar hospital but in the way he succumbed to the injuries. The inquest report was prepared in presence of this witness as well as P.W.7 Veerendra Singh. This witness is not a witness of the occurrence rather he has come to the place of occurrence after hearing weeping sound of P.Ws.8 and 9. Similar is the evidence of P.w.7 who had come to the place of occurrence and he was told by Ramadhar Singh about the assailants. P.W.1 has also gone to the place of occurrence and he was told by Ramadhar Singh that the accused persons who are here have assaulted him which ultimately led to his death. Therefore, P.Ws.1, 6 and 7 are hearsay witnesses and their evidence has to be considered in that respect. 10. P.W.8 Reena Kumari is the informant of this case. She was going along with her grand father for getting her younger sister Veena Kumari treated at Sheohar. Her grand father Ramadhar Singh was going for her treatment and thereafter he had to proceed to Sitamarhi court. All the three left house at 5.00 A.M. and as soon as they reached at a distance of one and half kilometer, then road was found broken. The road was to be crossed through small boat. When the informant, her sister and Ramadhar Singh were waiting for boat, Raghunath Tiwary, Badri Narain Pandey, Awadhesh Singh, Jitendra Singh and Vinod Tiwary came. They were having daggers, garasa and country made gun. Vinod Tiwary caught Ramadhar Singh and Raghunath Tiwary pierced a dagger on the head of Ramadhar Singh who fell down. On cry of the informant and her sister, Vinod Tiwary threatened of their dire consequences. Accused Badri Narain Pandey gave a dagger blow on the arm of Ramadhar Singh whereas Jitendra Singh and Awadhesh Singh gave garasa blow upon the leg of Ramadhar Singh and thereafter both the legs were twisted and broken. After this offence was committed the accused persons decamped with a bag of Ramadhar Singh which was carrying papers of litigation. Accused Badri Narain Pandey gave a dagger blow on the arm of Ramadhar Singh whereas Jitendra Singh and Awadhesh Singh gave garasa blow upon the leg of Ramadhar Singh and thereafter both the legs were twisted and broken. After this offence was committed the accused persons decamped with a bag of Ramadhar Singh which was carrying papers of litigation. On cry, her brother Madan Mohan Singh, P.W.1, her uncle Veerendra Singh P.W.7, her grand mother Radha Devi (not examined due to her death) came and she told them about the occurrence. She has stated that in the case of murder of Lal Babu Pandey, her uncle Chandra Mohan Singh (P.W.6) had gone to jail. Her father was convicted in another case relating to murder of Vishwanath Tiwary. The manner of assault has been more or less supported by P.W.9 Veena Kumari when she has described the occurrence. Therefore, the oral evidences of P.Ws.8 and 9 are intact. The death of Ramadhar Singh was caused by use of dagger and twisting of legs. 11. Now the evidence of doctor is to be discussed. The doctor has been examined as P.W 10 who has stated that on 09.09.1986 at 9.00 A.M. he held post mortem over the dead body of the deceased Ramadhar Singh and has found following ante-mortem injuries on his person: (i) Incised wound on head above right side of forehead 1”x1/6”x skin deep. (ii) Incised wound on the right side of occipital bone ¾”x1/6”x skin deep. (iii)Compound fracture of lower end of right radius and ulna. (iv) Three piercing injuries on right hand medial aspect of the size (a) 1”x1”x1/4” (b) 1”x1/2”x1/2” and (c) 1”x1”x1/2”. (v) Fracture of right arm at the level of upper end and lower end of right hemerus. (vi) Piercing wound waist right side 1”x1”x3/4”. (vii) Compound fracture of both tibia and fibula of left leg at lower end. (viii) Piercing injury on left leg 1”x3/4”x1” on lateral aspect. (ix) Incised wound over left ankle 2”x1/4”. (x) Piercing wound on lower end of thigh lateral aspect 1 ½”x ½”x1”. (xi) Compound fracture of lower end of left radius and ulna. (xii) Incised wound on left arm 1”x1/2”x1/2”. (xiii) Fracture of right left below knee both tibia and fibula. On opening the abdomen it was found that it was containing semi digested food article. In the opinion of the doctor, Injury nos. (xi) Compound fracture of lower end of left radius and ulna. (xii) Incised wound on left arm 1”x1/2”x1/2”. (xiii) Fracture of right left below knee both tibia and fibula. On opening the abdomen it was found that it was containing semi digested food article. In the opinion of the doctor, Injury nos. (i),(ii),(ix) and (xi) were caused by sharp cutting weapon may be by garasa or dagger and injury nos. (iv),(vi),(viii) and (x) were caused by sharp cutting and pointed weapon may be by dagger and other injuries were caused by hard and blunt substance. Injury no.(iii) may be caused by fall. Injury no.(v) may be by lathi. According to opinion of the doctor, injury nos. (v),(vii),(xi) and (xiii) were not possible by single fall. Injury nos. (iii),(v),(vii),(xi) and (xiii) could be caused by blunt portion of garasa. The death was within 36 hours. None of the injury can cause death independently in ordinary course of nature. Injury no.(i) was not possible by piercing dagger. Fracture found on leg is not possible by twisting leg because it is a compound fracture. The deceased must have taken meal at least two hours before the occurrence due to the fact that urinary bladder was found full which indicates that the death was about after two hours of taking meal. 12. Learned counsel for the appellants have drawn our attention towards the contradictions between the oral and medical evidence and it has also been submitted that there are other inconsistencies which have not been explained. The police station was in the way but information was not given and dead body was carried to the hospital. 13. P.W.8 in her evidence has stated that she had given food to her grand father Ramadhar Singh in the night on 07.09.1986. She has also stated that she retires to bed at 9.00 P.M. There is no evidence on the record that the deceased had taken meal in the morning or in the evening of 7th September, 1986 in late night, rather on this fact, the evidence is only of P.W.8 who has stated that dinner was taken before her retiring to bed namely at 9.00 P.M. on 7th September, 1986. If the evidence of taking meal before 2 to 3 hours of death is not brought on the record, then on the basis of presumption it cannot be presumed that the deceased might have taken meal in the early morning. It was for the prosecution to come with a definite stand that some food was taken prior to departure by Ramadhar Singh from his house but the evidence is completely lacking, rather the evidence is that the dinner was taken in the early part of the night of 7th September, 1986. Another fact which can be looked into in the post mortem report is that injury nos. (iii),(v),(vii),(xi) and (xiii) were compound fractures but there is no evidence that any of the accused gave blow with hard and blunt object which may cast suspicion. The only evidence which has come in the evidence that two of the accused had twisted the legs causing fracture but the nature of fracture injury in the legs is not possible by twisting the legs and this fact has been stated none-else but by the doctor itself who has conducted post mortem. Other injuries have also remained unexplained. Therefore, there are major inconsistencies between the ocular evidence as well as medical evidence. 14. Learned counsel for the appellants has submitted that if there is vital contradiction between the medical and oral evidence, then third case can be made out and the defence would be entitled to get the benefit of doubt. In this connection, he has relied upon a decision of the Hon’ble Supreme Court in the case of Moti etc. Vrs. State of U.P. reported in 2003 CRI.L.J. 1694 wherein the accused persons were held not guilty considering the incompatibility of time given by the doctor and the eye witnesses. Reliance has been placed upon paragraphs 10 to 13 of the said judgment which are being reproduced hereinbelow: “Having heard learned counsel for the parties and perused the material on record, we notice that there is a serious flaw in the prosecution case as to the time of the incident. According to the prosecution, the incident in question has occurred around 9.30 p.m. on 18.6.1979 when deceased and his father-in-law were sitting on a cot outside their house after finishing their dinner. According to the prosecution, the incident in question has occurred around 9.30 p.m. on 18.6.1979 when deceased and his father-in-law were sitting on a cot outside their house after finishing their dinner. PW-5 Tara, the wife of the deceased in her evidence has stated thus: “Ram Briksha used to look after it in day time and he used to return back in the evening. He was sitting after taking his meal. First of all, male member of family took their meal then female member of the family took meal. Rice, roti and vegetable were prepared in food. Amongst the male members my father and husband were there at my home. We had taken meal half an hour before the murder. As my father and husband sat outside the house after taking food then accused armed with bhalla and lathi came there I had prepared food. Today my mother has accompanied me.” It is clear from the said evidence of the wife of the deceased that on the date of incident her husband after coming back from working in the evening along with his father-in-law took his meal which was cooked by PW-5. She also says that for the said meal she had cooked rice, roti and vegetables and the said meal was served to her father and husband about half an hour before the incident in question. This evidence has not been clarified in any manner by the prosecution. Though PW-2 Parvati, the mother-in-law of the deceased at one place in her evidence says that the dinner was not cooked when the incident had taken place. We find it difficult to reject the evidence of PW-5 when she states that the dinner was cooked and the deceased and her father had eaten by the time the incident had taken place. It is common knowledge that in a village, more so, in a place where there is no electricity, the villagers after finishing their work normally have their meals early. Therefore, the evidence of PW-5, in our opinion, fits into the normal conduct of a villager and hence is worthy of acceptance. If this be the evidence that is adduced by the prosecution then the post mortem report should clearly show at least semi-digested food, if not undigested food in the stomach of the deceased, but the evidence of the doctor in this regard is quite the contrary. If this be the evidence that is adduced by the prosecution then the post mortem report should clearly show at least semi-digested food, if not undigested food in the stomach of the deceased, but the evidence of the doctor in this regard is quite the contrary. Both the post mortem report and the medical evidence adduced by the prosecution clearly show that the entire stomach of the deceased including both the intestines were empty which would indicate that at the time of the murder the deceased had not taken his meals and his murder must have taken place at least 3 to 4 hours after he had his last meal. PW-5 at one place in her evidences states that her husband had his lunch in the afternoon and was resting because he was not feeling well. Therefore, it is possible that the deceased was done to death much after his afternoon meal and much before his night meal. If this be the fact then there is a serious dispute as to the actual time of incident which is a very much important factor in finding out whether the case as presented by the prosecution is true or not. This discrepancy also affects the credibility of evidence of eye witnesses because if really the incident had occurred much before the dinner time, a doubt is created in our minds whether these eye witnesses could have noticed the incident at all and if they noticed the incident why they are stating the time of incident as 9.30 in the night. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed: “In our opinion the stomach contents are not very material to determine the time of incident”. We are of the considered opinion this view of the High Court is wholly erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased has his last meal, to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased has his last meal, to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eye witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye witnesses at the time of incident and their narration of the incident also becomes doubtful. Incidentally, we may also notice that even according to the prosecution, appellant Moti had no motive to commit the crime in question. The incident as narrated by the eye witnesses having taken place in a place where there was no proper light to identify the actual accused who dealt the fatal blow also contributes to the factum of doubt in the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case against the appellant Moti.” 15. Similar situation has arisen in the present case wherein eye witnesses account giving time of taking meal is prior to 9.p.m. and the doctor is giving another time. There is serious dispute as to actual time of occurrence in view of the inconsistencies and this has remained unexplained. 16. Another fact which has come in the evidences is with regard to statement of the deceased prior to his death in which he has named five accused persons. PWs.1,6 and 7 have stated that when they went to the place of occurrence after hearing screaming sound then Ramadhar Singh told that he has been assaulted by the named accused persons. The evidence is consistent but this evidence was not put before any of the accused when substance of evidence was narrated to them mandated under Section 313 of the Code of Criminal Procedure. Section 313 of the Code of Criminal Procedure is the power given to the court and it is enabling provision which enables the accused to know from the court directly about the circumstance which has come during evidence before him. Section 313 of the Code of Criminal Procedure is the power given to the court and it is enabling provision which enables the accused to know from the court directly about the circumstance which has come during evidence before him. The mandatory duty upon the court was to explain the circumstance which has come against him. The solitary provision cannot be slur nor the evidence which have not been explained to the accused can be utilized against him and the order of conviction cannot be passed on that evidence which has not been explained to the accused persons. This was the important evidence which has not been explained to any of the accused. Therefore the alleged statement of Ramadhar Singh before P.Ws.1,6 and 7 cannot be utilized in passing order of conviction relying upon that statement that the same was stated by the deceased prior to his death. 17. Considering the facts that there is violation of provision of Section 313 of the Code of Criminal Procedure, there is contradictions between the medical evidence and oral evidence and also the facts and circumstances of the case, as discussed above, it is apparent that the prosecution has not been able to prove the charges against any of the appellants beyond shadow of all reasonable doubts. The contradiction between oral and medical evidence creates doubt upon the prosecution version of the occurrence. Thus, there is no material on record to justify the judgment of conviction and order of sentence of any of the appellants. Hence, they deserve to be acquitted. In the result, the judgment of conviction and order of sentence is set aside. The above four appeals are allowed. The appellants of all the four appeals are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. Appeal allowed.