JUDGMENT Per: Hon’ble Sudhanshu Dhulia, J. (Oral) These two criminal appeals arising out of a common judgment and order passed by learned Additional Sessions Judge/Ist FTC, Roorkee (Haridwar) in S.T. No.22 of 1998, State Vs. Jatti and others, whereby out of three accused Jatti, Sudhir Sharma and Prem, first two accused Jatti and Sudhir Sharma have been convicted. Appellant/accused Jatti has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, in default of which, further six months’ simple imprisonment has been awarded. He was further convicted u/s 25/4 of the Arms Act and sentenced to undergo six months’ R.I. with fine of Rs. 500/-, in default of which, he was directed to undergo further imprisonment of two weeks. Appellant/accused Sudhir Sharma was convicted by the same judgment u/s 302/120-B IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, in default of which, he was directed to undergo six months’ additional simple imprisonment. However, co-accused Prem was acquitted from all the charges levelled against him. 2. Feeling aggrieved, two accused Jatti and Sudhir Sharma have filed the separate appeals before this Court, which are being heard together. 3. According to the first information report lodged by PW1 Rajpal at P.S. Manglore, Roorkee, District Haridwar on 1.6.1997 at about 7 AM, a day before on 31.5.1997, the nephew of complainant Dhani Ram S/o Satpal, was cutting grass in his house at about 6:30 PM in the evening when he was approached by one Prem who said that he is being called by one Sudhir Sharma S/o Hari Ram Sharma, who wants to settle his accounts and pay him the money which are due against him. On this, Dhani Ram stopped the work and accompanied Prem to the place where Sudhir Sharma and one Jatti (accused) were waiting which was near the shop of one doctor. As soon as Dhani Ram reached that place, he was caught by Jatti who started stabbing him with a knife he was carrying, however Sudhir Sharma remained standing on the spot. Dhani Ram shouted and ultimately fell on the ground unconscious. The FIR further states that this incident has also been witnessed by Charan Singh, Neki Ram and Shyam Lal. After committing this crime, accused Jatti escaped in the scooter of Sudhir Sharma riding on its pillion, which was driven by Sudhir Sharma. Dhani Ram shouted and ultimately fell on the ground unconscious. The FIR further states that this incident has also been witnessed by Charan Singh, Neki Ram and Shyam Lal. After committing this crime, accused Jatti escaped in the scooter of Sudhir Sharma riding on its pillion, which was driven by Sudhir Sharma. The FIR further narrates that Dhani Ram used to work as a labourer with Sudhir Sharma and he (Sudhir Sharma) had not given him the wages for the last six months. This money was urgently required by Dhani Ram for the marriage of his sister which was to take place on 22.6.1997, i.e. barely three weeks thereafter. The FIR further states that in order not to give money to Dhani Ram, Sudhir Sharma conspired with Jatti and killed him. Complainant further states Dhani Ram was taken to Pal Nursing Home, Roorkee where he was given some initial first aid, but ultimately he passed away. 4. The inquest commenced the same day at about 7 AM and concluded after two hours i.e. at 9 AM. Inquest report (Ex.A.10) indicates the injuries of knife on the body of the deceased and the members of inquest opined that there were stab wounds on the neck, chest and other places of the body of deceased and he has died because of those injuries and they further recommended that the body be sent for the post-mortem. The post-mortem was conducted on the body of the deceased on the same day at about 4 PM by one Dr. O.P. Sharma. There were about seven ante-mortem injuries on the body of deceased, which are as under: - 1. “Stitched wound 11 cm x 15 stiches on front and right side of neck, transversely placed. On removing stitches, there was an incised wound 11 cm x 1.5 cm, tailing backwards. 2. Stitched wound 3.5 cm x 5 stiches left side neck, 4.0 cm below left mandible angle. On removing stiches, wound there was 3.5 cm x 1.0 cm x muscle deep. Wound placed transversely, tailing forward. 3. Stitched wound 6 cm x 7 stitches, on removing stitches, wound is 6 cm x 1 cm x muscle deep, vertically placed, there was tailing downward. 4. Stitched wound 2 cm x 3 stitches at the top of right shoulder. On removing stitches, wound transversely placed 2 cm x 1.2 cm x bone deep tailing downward. 5. 3. Stitched wound 6 cm x 7 stitches, on removing stitches, wound is 6 cm x 1 cm x muscle deep, vertically placed, there was tailing downward. 4. Stitched wound 2 cm x 3 stitches at the top of right shoulder. On removing stitches, wound transversely placed 2 cm x 1.2 cm x bone deep tailing downward. 5. Stitched wound 1.0 cm x 2 stitches on right side neck, 6 cm away and at 4 o’clock position of right nipple. On removing stitches, wound was 1.0 x 1.0 cm x bone deep, vertically placed, tailing downward. 6. Stitched wound 3 cm x 4 stitches, vertically plaed on the front of chest. 6 cm below left nipple. On removing stitches, wound 3 cm x 1 cm x bone deep. 7. Stitched wound 6 cm x 6 stitches. On removing stitches, 6 cm x 2 cm on chest, cavity deep, vertically placed and left axillary iliac 9.0 cm behind injury no.6. The post-mortem shows that the cause of death was shock due to haemorrhage as a result of ante-mortem injuries.” 5. The matter was thereafter committed by the court of sessions on 21.1.1998. The charges were framed against all the accused namely Jatti, Sudhir Sharma and Prem by learned II Additional Sessions Judge, Haridwar on 25.9.1998. 6. The prosecution, in support of its case, examined as many as thirteen witnesses. 7. PW1 is the complainant Rajpal, though not an eyewitness, took the injured Dhani Ram to the private nursing home at Roorkee and subsequently, lodged the FIR the next morning. The two eyewitnesses of the prosecution are PW2 and PW3 i.e. Charan Singh and Shyam Lal respectively. In his examination in chief, PW2 Charan Singh states that he was standing at the “Tiraha” of the village at about 6:30 in the evening when he saw Prem and Dhani Ram coming from the village at the shop of the doctor where Sudhir Sharma and Jatti were standing. This witness could identify both Sudhir Sharma and Jatti as well as Prem who were present in the court. In his examination-in-chief, he further states that as soon as Dhani Ram reached at the spot, accused Jatti started stabbing him with the knife which he was carrying. Dhani Ram shouted and then fell on the ground unconscious. This witness could identify both Sudhir Sharma and Jatti as well as Prem who were present in the court. In his examination-in-chief, he further states that as soon as Dhani Ram reached at the spot, accused Jatti started stabbing him with the knife which he was carrying. Dhani Ram shouted and then fell on the ground unconscious. Thereafter Jatti rode on the pillion of the scooter which was being driven by Sudhir and escaped from the scene. Subsequently thereafter, Dhani Rami was taken to Pal Nursing Home at Roorkee where efforts were made by the doctor to save him but he could not be saved and ultimately passed away. He states in his examination-in-chief further that he was informed by Rajpal that Dhani Ram, while cutting grass in his house, was called by Sudhir Sharma. The reason for calling Dhani Ram was that Sudhir Sharma wanted to settle the accounts with him regarding the payment of money which were due. This examination-in-chief took place on 15.10.1999. Subsequently the cross-examination was deferred and the same took place on 21.1.2000. In his cross examination, this witness states that it takes about only two minutes to come from the house of Dhani Ram at the spot where he was ultimately killed and that he was present at the spot prior to 5-6 minutes of the said incident. After the assailants had fled from the spot, they remained with the injured on the spot for about 15 minutes till a vehicle was arranged in which the injured was carried to the hospital. He states that Jatti Ram stabbed Dhani Ram about 8 to 10 times. The injuries were caused in his chest, stomach and neck. This witness was put to heavy cross-examination, but remained stuck to his earlier deposition and nothing has come in his cross-examination which could cause any doubt either about his presence on the spot or which may help the case of the defence or may shake the credibility of this witness. 8. PW3 is another eyewitness of the incident namely Shyam Lal. His deposition in examination-in-chief as well as cross-examination corroborates entirely with that of PW2 with some minor discrepancies. 9. PW6 is the Dr. Rajendra Pal, who attended the injured at the private nursing home of Roorkee. 8. PW3 is another eyewitness of the incident namely Shyam Lal. His deposition in examination-in-chief as well as cross-examination corroborates entirely with that of PW2 with some minor discrepancies. 9. PW6 is the Dr. Rajendra Pal, who attended the injured at the private nursing home of Roorkee. He states that he was in the hospital at about 7 PM in the evening of 31.5.1997 when Dhani Ram, in an injured state, was brought to the hospital. He noticed about 11 injuries on his body. The injured was unconscious while his blood pressure was 90/60 per minute. All the injuries in his body were fresh and caused by some sharp edged weapon. According to this doctor, an operation was performed at about 8 PM on the person of injured but the injuries on the body of deceased were of such nature that enough blood had already been lost and the injured could not be saved, although all efforts were made to save him. 10. Rest of the witnesses examined are all formal witnesses to the incident. 11. One of the principal grounds raised by learned amicus curiae for appellant/accused Jatti is that both the eyewitnesses PW2 Charain Singh and PW3 Shyam Lal are close relatives of the deceased, therefore, their presence is doubtful. The second submission was that the FIR is highly belated, as the incident had occurred at about 6:30 PM while the FIR was lodged on the next day at about 7 AM. Third submission was that the injury was caused to the deceased where admittedly there was a shop of a doctor but no effort was made either by PW2 or PW3 to give any first aid to the deceased at that spot itself which had some medical facilities. He has also pointed out certain discrepancies in the statements of PW2 and PW3 and has placed heavy reliance on statement of PW3 wherein it has been stated that the assailant had almost hugged the deceased from the front and, therefore, it was impossible for him to cause injuries on the neck and in the stomach of the deceased, as have evidently been caused. 12. We are not inclined to agree with the submissions put forth by learned amicus curiae for the simple reason that the incident has occurred in a small village. 12. We are not inclined to agree with the submissions put forth by learned amicus curiae for the simple reason that the incident has occurred in a small village. The time of occurrence is 6:30 in the evening and the presence of two villagers PW2 and PW3 at the spot, which is a sort of market of the village, cannot be doubted. Merely because the fact that PW2 and PW3 are related to the deceased, the same shall not discredit their evidence, which is otherwise proved to be trustworthy. They both have been consistent in their statements as to the assault being made and the manner in which it was made. They both have further been consistent in their statements that it was only Jatti who made the assault and that the accused/appellant Sudhir Sharma did not make any assault. 13. Regarding the delay in the FIR, the delay is perfectly explainable for the simple reason that initially, the efforts were made to save the life of the injured Dhani Ram but when all efforts went in vain and the injured finally passed way, immediately thereafter the FIR was lodged. This delay is thus, explained and therefore, the truthfulness or the veracity of the FIR cannot be doubted. The minor discrepancies in the statements of PW2 and PW3 are also of no avail which may help the defence. That apart, there is another additional fact i.e. the point of culpability of appellant Jatti in the matter. Appellant Jatti had surrendered on 4.6.1997, his remand was taken on 14.6.1997 and on the pointing out of this accused, a knife, used in the commission of crime, was recovered. This blood stained knife was also sent for forensic examination. The report of forensic examination is also available on record, which confirms that the knife was blood stained. All these accumulating circumstances point out that appellant/accused Jatti actually committed the assault by knife on the deceased which is further evident from the deposition of Dr. Rajendra Pal and Dr. O.P. Sharma as well as from the post-mortem report. It is thus, clear that the deceased was killed by appellant/ accused Jatti. 14. We have now to examine the role of other accused, i.e. appellant Sudhir Sharma. The role assigned to this accused is of conspiracy, as in this case, Section 120-B IPC read with Section 302 IPC. O.P. Sharma as well as from the post-mortem report. It is thus, clear that the deceased was killed by appellant/ accused Jatti. 14. We have now to examine the role of other accused, i.e. appellant Sudhir Sharma. The role assigned to this accused is of conspiracy, as in this case, Section 120-B IPC read with Section 302 IPC. Conspiracy has been defined defined u/s 120-A IPC, the penal provision whereof is contained under Section 120-B IPC. The essential ingredient of the criminal conspiracy is an agreement between two or more persons to commit an illegal act. Now, the evidence of this ingredient may be direct or indirect or may also be inferred from the circumstances or the evidence, so placed before the court. From the evidence which has come before the Court in the shape of statements of PW2 Charan Singh and PW3 Shyam Lal is that Sudhir Sharma had to pay some money to the deceased for which the he was called from his house by Sudhir Sharma. It has also come in evidence that ultimately, after committing the murder of Dhani Ram, the assailants finally escaped in the scooter of Sudhir Sharma, which was being driven by Sudhir Sharma. Therefore, the prosecution has been able to fairly establish the ingredients of criminal conspiracy as contained u/s 120-A and 120-B of IPC r/w Section 10 of the Evidence act. 15. Yet this Court is of firm belief that the conviction of Sudhir Sharma could not have been made and the reason is a fatal flaw in the case of the prosecution. The important evidence against the appellant/ accused Sudhir Sharma was that he made good the escape of assailant Jatti by driving him away in his scooter, which has come clearly in the evidence of PW2 and PW3. This was the real and material evidence against the accused Sudhir Sharma, yet no such question on this aspect was put to this accused u/s 313 Cr.P.C. 16. Learned counsel for the State, though has argued that the language of Section 313(1)(b) Cr.P.C. only stipulates that the questions, ‘generally related to the case’ shall be asked to the accused and it was not necessary to put before him all the nitty-gritty detail of the evidence produced by the prosecution. 17. Learned counsel for the State, though has argued that the language of Section 313(1)(b) Cr.P.C. only stipulates that the questions, ‘generally related to the case’ shall be asked to the accused and it was not necessary to put before him all the nitty-gritty detail of the evidence produced by the prosecution. 17. It is necessary to understand the clear purport of the language used in Section 313 Cr.P.C. which provides that the Court “shall, after the witness for the prosecution have been examined and before he is called on for his defence question him generally on the case”, yet it would not mean that only questions of ‘general nature’ must be placed before the accused otherwise the meaning, which can be derived from the language used in section 313(b) Cr.P.C., would be that sufficient compliance of the provisions of Section 313 Cr.P.C. would be made if the Court, after the prosecution has finished his evidence, has to put only two or three questions of ‘general nature’ to the accused. It is however, not the true meaning of what is contained u/s 313 Cr.P.C. In cases after cases, Hon’ble Apex Court has elaborated the mandatory conditions, as contained under Section 313 Cr.P.C. The provisions contained in the said section are necessary for a fair and impartial trial. The specific question, which has come against the accused, must be put to him in order to enable him to give reply to those. 18. Hon’ble Apex Court in the case of “Lallu Manjhi and another Vs. State of Jharkhand reported in (2003) 2 SCC 401 ” had set aside the conviction and sentence of both the trial court as well as of the High Court, inter alia, on the ground that questions put to the accused u/s 313 Cr.P.C. were far from satisfactory. The Apex Court in the above case has held that: - “It is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording the conviction of the accused persons” 19. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording the conviction of the accused persons” 19. In the present case, there is no specific question which was put to the accused regarding the fact which came in evidence from the side of prosecution as to why he made good the escape of the assailant on his scooter. This is a fatal flaw in the prosecution. This being the admitted position, we are of clear view that the evidence regarding the escape of the assailant in the scooter of Sudhir Sharma cannot be read against him for the simple reason that this was not a question put to him u/s 313 Cr.P.C. We are, therefore, giving him the benefit of doubt and acquit him from the charges levelled against him. 20. Therefore, we allow the criminal appeal no.5 of 2004, preferred by Sudhir Sharma. He is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 21. At the same time, the criminal appeal no.31 of 2004 preferred by accused/appellant Jatti is hereby dismissed. The conviction and sentenced, recorded by the trial court against him, is perfect and justified as per law. He is on bail. His bail bonds are cancelled. Let he be taken into custody forthwith to serve out the sentence, as awarded against him by the trial court.