JUDGMENT Smt. Sadhana S. Jadhav, J. 1. The appellant herein is convicted for offence punishable under Section 302 of Indian Penal Code and is sentenced to suffer R.I. for life and to pay fine of Rs. 1,000/-i.d. to suffer R.I. for one month by the learned Sessions Judge, Daman, in Sessions Case No. 9 of 2005 by Judgment and Order dated 28th November, 2006. 2. The case of the prosecution in nutshell is as follows: (I) Ganpat Halpati was residing at Bhandarwad, Ambawadi, Moti Daman alongwith his sons Rajesh and Mahesh and other family members. The present appellant was also residing at Ambawadi since 2001. He was previously residing at Raotalav but he had quarreled with his brother and had left the said house. The accused/appellant owned a motor cycle which he used to park in front of the house of Ganpat. Mahesh had objected said parking and therefore, there used to be frequent bickering between the accused and Mahesh. (ii) It is alleged that one month prior to the incident somebody had put sugar in the petrol tank of the motor cycle of the accused. He had to incur heavy expenses to get the motor cycle repairs. It is alleged that he suspected Mahesh to have played the said mischief and therefore, used to demand money from Mahesh to compensate in the expenditure incurred by him. It is also alleged by the prosecution that Mahesh was threatened by the accused by saying that he would kill him like his brother, if he did not give money. (iii) It is alleged by the prosecution that on 15/5/2005 Ganpat had slept inside his house whereas Rajesh and Mahesh, Davlu, Manu and others had slept in the open space opposite to the house. In the early hours i.e. at about 2 a.m. Ganpat woke up to answer the nature's call and suddenly noticed that Mahesh had sustained a cut injury on his neck and blood was oozing from the said injury. Ganpat woke up Rajesh, Davlu and others. Mahesh had died. Ganpat immediately rushed to outpost at Moti Daman and informed the incident to PSI Chavan. On the basis of the statement of Ganpat, Crime No. 19 of 2005 was registered against the accused for offence punishable under Section 302 of Indian Penal Code. On 18/5/2005 the accused was arrested. On 19/5/2005 the accused had made a voluntary statement. Ganpat immediately rushed to outpost at Moti Daman and informed the incident to PSI Chavan. On the basis of the statement of Ganpat, Crime No. 19 of 2005 was registered against the accused for offence punishable under Section 302 of Indian Penal Code. On 18/5/2005 the accused was arrested. On 19/5/2005 the accused had made a voluntary statement. On the basis of which a memorandum was recorded on Exh. 20. The memorandum of the accused led to the recovery of an axe (Article 8) which was concealed in the bushes near the village Ambawadi. The recovery panchanama was drawn which is at Exh. 21. On 30/5/2005 the articles were sent to the forensic science laboratory. The report of the chemical analyser was received and it revealed that the blood group of the deceased was “A”. Blood-Talwalkar stained axe which was sent for analysis also had the bloodstains of blood group “A”. (iv) After completion of investigation, the charge-sheet was filed on 1/8/2005. The case was committed to the Court of Sessions and registered as Sessions Case No. 9 of 2005. The prosecution examined 8 witnesses to bring home the guilt to the accused. 3. P.W.1 Ganesh is father of the deceased Mahesh. He has deposed before the Court that on 15/5/2005 he returned home from pilgrimage at about 5 p.m. At that time Mahesh was at home. In the evening he had been to purchase grocery and when he returned, he saw Champak quarreling with Mahesh. He pacified the quarrel. Thereafter, accused went home. At about 9 pm. the accused came to the house of P.W. 1 with a bottle of toddy. P.W. 1 consumed toddy. The accused and P.W. 1 chitchatted for some time. Thereafter, the accused went home. He has further stated that he slept inside the house whereas Mahesh slept in front of his house. In the early hours, P.W. 1 woke up for answering nature's call and saw that Mahesh had sustained a cut injury on his neck and blood was oozing and he therefore, woke up Rajesh, Davlu and others who were sleeping near Mahesh. Then he went to the police station alongwith neighbours and informed the police about death of his son Mahesh. He has proved the contents of the report lodged by him, which is at Exh. 11. Investigation was set in motion. Then he went to the police station alongwith neighbours and informed the police about death of his son Mahesh. He has proved the contents of the report lodged by him, which is at Exh. 11. Investigation was set in motion. He has further stated that he suspected Champak to be the perpetrator of crime as there were bickering between Mahesh and Champak on account of parking of the motor cycle in front of the house of Ganpat. 4. In the cross-examination of P.W. 1 an omission is elicited in respect of P.W. 1 having seen the accused and deceased quarreling in front of the house when he returned home. The suspicion against the accused is fortified in the cross-examination. 5. P.W. 2 Babli Halpati is the sister-in-law of P.W. 1. She resides near the house of P.W. 1. She has deposed before the Court that she knows the accused who has come to reside in Ambawadi since 4 to 5 years. He was residing in the field of Kalanbhai which was about 500 ft away from the house of Ganpat. According to her, people had enquired with accused Champak as to why he has left his parents at Gavtala. The accused had replied that he had quarreled with his brother and had killed one of his brother and injured another. According to her, the accused used to park his motor cycle opposite the house of Ganpat and therefore, Mahesh used to raise quarrel with him. She has further deposed that on 15/5/2005 at about 6.30 pm. she was at home. At that time, a quarrel had ensued between Mahesh and the accused. The accused was demanding money from deceased to compensate for the damages caused to his motorcycle. The accused had further threatened that if Mahesh had not paid money towards damages, he would kill him just as he had killed his brother. According to her, Ganpat and other neighbours had separated the quarrel. At about 2.30 a.m. in the intervening night Ramesh had informed that somebody had cut the neck of Mahesh. The accused had further threatened that if Mahesh had not paid money towards damages, he would kill him just as he had killed his brother. According to her, Ganpat and other neighbours had separated the quarrel. At about 2.30 a.m. in the intervening night Ramesh had informed that somebody had cut the neck of Mahesh. It is elicited in the cross-examination to the extent that she has not stated in the previous statement given to police that on that day the accused was demanding money from Mahesh towards damages to his motor-cycle and thereupon the accused had threatened Mahesh that if money was not paid, he would kill him as he had done previously. The omission pertains to the prelude to the death of Mahesh and the same is not established. 6. P.W.3 Bhagu Patel is also the resident of Ambawadi. He has also deposed on the same lines as that of P.W. 2. 7. P.W. 4 Hareshbhai Kamli is the owner of a garage and he is a mechanic. He has repaired the motor-cycle of the accused. 8. P.W. 5 Rohidas Mangela is a panch of scene of offence panchanama and has proved the contents of the scene of offence panchanama which is at Exh. 18. 9. P.W. 6 Pravinbhai Halpati is the panch to the memorandum of the accused which led to the recovery of an axe (Article 8). The recovery panchanama is at Exh. 20. The witness has not been seriously challenged in the cross-examination. 10. P.W.7 Dr. Shaista Multani was the medical officer attached to Daman Hospital. She had performed autopsy on the dead body of Mahesh. She has noticed an injury on the neck of Mahesh. The injury was horizontal wound 4 ½ inches long, 1 ½ inches broad at back and ½ inches broad in front. The said injury was fatal. 11. P.W. 8 Harilal Chauhan is the investigating officer who had conducted investigation and filed the charge-sheet. He has deposed before the Court that he had search for the accused on 16th and 17th May, 2005 and had arrested him on 18th May, 2005. There is no arrest panchanama on record. There is nothing on record to show as to whether P.W. 8 had searched for the accused. Hence, the Court cannot draw the conclusion that the accused was absconding. There is no arrest panchanama on record. There is nothing on record to show as to whether P.W. 8 had searched for the accused. Hence, the Court cannot draw the conclusion that the accused was absconding. P.W. 8 has deposed before the Court that the recovery of the axe under Section 27 of Indian Evidence Act was caused on the basis of the memorandum of the accused. P.W.8 has admitted in the cross-examination that he had arrested the accused only on suspicion. The axe (Article 8) seized at the instance of the accused was sent to the forensic science laboratory alongwith seized clothes of the deceased. The report revealed that the blood group of the deceased was of “A” group and the bloodstains on the axe were also of “A” group. 12. The learned Counsel appearing for the State has submitted that the prosecution has proved beyond reasonable doubt that the accused is the author of the injury sustained by the deceased and that the said injury was fatal and therefore, conviction recorded by the Sessions Judge does not warrant any interference. He has further submitted that the accused had a grudge against Mahesh and therefore, he had executed the grudge by assaulting Mahesh with an axe. It is pertinent to note that four other persons were sleeping near Mahesh on that unfateful night and it cannot be believed that any person much less the accused would silently go and cause such a grievous injury and yet people would not know. The prosecution has not examined any of the persons who were sleeping near Mahesh. The case rests upon the circumstantial evidence and it is incumbent upon the prosecution to prove the guilty of the accused beyond reasonable doubt. 13. Upon perusal of evidence, it is pertinent to note that under Section 313 of the Code of Criminal Procedure while exercising powers, attention of the accused was not drawn to the fact that blood-stains on the axe were of the group “A”, which was that of the deceased. The Apex Court in the case of State of U.P. v/s. Mohd. Iqram & anr. 2011 All MR (Cri) 2344 has laid down as follows: “Section 313 Cr.P.C. is based on the fundamental principle of fairness. The Apex Court in the case of State of U.P. v/s. Mohd. Iqram & anr. 2011 All MR (Cri) 2344 has laid down as follows: “Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration.” The Apex Court in the case of ShaikhMaqsood v/s. State of Maharashtra (2009) 3 SCC (Cri.) 82 has observed as under: “8. “12. The purpose of Section 313 of the Code is set out in its opening words ' for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him,. In Hate Singh Bhagat Singh v. State of Madhya Bharat it has been laid down by Bose, J. (AIR p. 469, para 8) that the statements of the accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that :(AIR p. 470, para 8) '8. .... The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that they] have to be received in evidence and treated as evidence and be duly considered at the trial....” This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 13. The objection of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. 13. The objection of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed: '30. …. it is not sufficient compliance to string together a long series of facts and ask the accused what he was to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. …. The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. …. The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. … Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.'” 14. In view of the above observations of the Apex Court, this Court cannot be oblivious of the fact that the attention of the accused was not drawn to the alleged incriminating material that the blood group on the axe matched with blood group of the deceased and hence, it ought to be excluded from consideration. In fact, the only incriminating material against the accused in the present case is the recovery of a blood-stained axe. Recovery by itself would not be sufficient for convicting an accused of a serious offence such as 302 of Indian Penal Code. The allegation that there was a prelude in the form of a quarrel between the deceased and the accused is a material omission and in such circumstance, the accused would be entitled to the benefit of doubt. The findings recorded by the learned Sessions Judge and the conviction and sentence awarded to the accused deserves to be quashed and set aside. 15. Before parting with the Judgment, we must record our appreciation for Mr. A.K. Molly, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellant. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2500/-. The said fees be paid to Advocate Mr. Molly within three months from today. 16. Hence, we pass following order: ORDER (i) The appeal is allowed. (ii) The conviction and sentence passed by the learned Sessions Judge, Daman by Judgment and Order dated 28/11/2006 is hereby quashed and set aside. (iii) Accused be released forthwith, if not required in any other case. (iv) Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant-original accused. (v) Writ of Order be expedited.