ORAL JUDGMENT ADITYA KUMAR TRIVEDI, J. Since Criminal Appeal (DB) Nos.50 and 52 of 1989 commonly originate against the judgment of conviction and sentence dated 27th January 1989 passed by 2nd Additional Sessions Judge, Bhojpur at Ara in connection with Sessions Trial No. 34/1980 as such both have been heard analogously and are being disposed of by a common judgment with the consent of the parties. 2. Initially, Mahabir Singh @ Ashok Kumar Singh and Lal Muni Singh were appellants of Cr.Appeal (DB) No. 50 of 1989 out of whom Lal Muni Singh had died while in Cr.Appeal (DB) No. 52 of 1989 Durbij Singh and Sahbir Singh were the appellants out of whom Durbij Singh had died, hence appeals against Lal Muni Singh (Cr.Appeal (DB) No. 50 of 1989) and Durbij Singh (Cr.Appeal (DB) No. 52 of 1989) abated as per order dated 19.03.2013. As such, now the Cr.Appeal (DB) No. 50 of 1989 survives only against Mahabir Singh @ Ashok Kumar Singh while Cr.Appeal (DB) No. 52 of 1989 is alive against Sahbir Singh. 3. These two appellants along with two others namely, Lal Muni Singh and Durbij Singh (since deceased) were convicted for an offence punishable under Sections 302/34 of the IPC and sentenced to undergo R.I. for life. 4. Prosecution case, in nut shell, as per Fardbeyan of Vakil Singh (PW-4) recorded on 16.02.1978 at P.S. is that on the same day at about 6:00 a.m., he along with his uncle Master Singh (deceased) were going to the field which they had taken on ‘money Batai’ from Sitaram Pandey for drainage of accumulated water on account of rain, and during said course his uncle Master Singh arrived at the field while he was one Bigha behind him. All of a sudden, Mahabir Singh, Lal Muni Singh, Durbij Singh and Sahbir Singh appeared from southern side out of whom Mahabir Singh and Lal Muni Singh were armed with Kanta while Durbij Singh and Sahbir Singh were armed with Farsa. As ordered by Mahabir Singh, all of them encircled his uncle. Durbij Singh gave Farsa blow on the head of his uncle on account of which he fell down followed by independent Farsa blow by Sahbir Singh on the neck of his uncle. Mahabir and Lal Muni repeatedly give Kanta blows on the neck of his uncle. As ordered by Mahabir Singh, all of them encircled his uncle. Durbij Singh gave Farsa blow on the head of his uncle on account of which he fell down followed by independent Farsa blow by Sahbir Singh on the neck of his uncle. Mahabir and Lal Muni repeatedly give Kanta blows on the neck of his uncle. During said course, he was raising alarm attracting so many persons including Harinandan Singh and Chandrama Singh along with others. Then thereafter, the accused persons left the scene. Land dispute has been shown the motive for commission of occurrence. 5. After registering a substantial case on the basis of the aforesaid Fardbeyan the police swung into action, took up investigation and after completing the same submitted charge-sheet against the appellant including the deceased appellants who faced the trial and ultimately were convicted, hence these appeals. 6. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of innocence as well as complete denial of the occurrence. It has further been pleaded that deceased Master Singh was a veteran thief and was murdered in the preceding night at some other place in a different manner by unknown persons. Because of the fact that both the parties were on constrained relationship in the background of land dispute, therefore, all the appellants were dragged in. With regard to appellant Mahabir Singh @ Ashok Kumar Singh a plea of alibi has also been taken and to support the same, apart from examination of witnesses, documents have also been exhibited. 7. Learned counsel for the appellants in course of challenging the finding recorded by the learned trial court submitted that none of the independent witness so named have been examined in this case. They were purposely withheld. Whoever examined are interested, inimical and on account thereof their evidences are subject to close and minute scrutiny and during said process, it is apparent that PWs-3 and 4 were not at all eyewitnesses to the occurrence. So far statement of witnesses Collector Singh (PW-1) and Jagarnath Singh (PW-2) are concerned they themselves are not eyewitnesses to the occurrence. So virtually, after discarding the evidence of PWs- 3 and 4 it happens to be a case of no evidence so far involvement of these appellants are concerned. So far statement of witnesses Collector Singh (PW-1) and Jagarnath Singh (PW-2) are concerned they themselves are not eyewitnesses to the occurrence. So virtually, after discarding the evidence of PWs- 3 and 4 it happens to be a case of no evidence so far involvement of these appellants are concerned. In order to demolish the evidence of PWs-3 and 4, it has been submitted that their evidences are at variance to each other in such a manner that on each and every material point they have belied the status of eyewitnesses to each other and having parallel scrutiny of their evidence in such a way rules out each of them to be eyewitnesses to occurrence. It has also been suggested that in the background of inquest report, the version as alleged by the prosecution with regard to manner of occurrence attracting these appellants became falsified. From column no.8 of the inquest report (Ext-3), it is evident that during course of preparation of inquest report the apparels on the body of deceased found were, one white vest, one white towel and one wrapper without blood stain over it as well as without any mark of violence. As per narration of the prosecution, the deceased was lifted to P.S. from the place of occurrence itself. In that circumstance, presence of unstained clothes rules out the occurrence as suggested by the prosecution. 8. It has also been submitted that after going through the evidence of PW-4, it is apparent that deceased was intercepted before arrival to the field of Sitaram Pandey which was taken on money Batai by them while the I.O. during course of inspection of the P.O. had found blood stain at the southern western corner of the field which was segmentised in four parts. Presence of PW-3 at the spot on account of his presence in his field at the time of commission of the occurrence has again been falsified from the evidence of I.O., PW-6. Therefore, it has been submitted that prosecution miserably failed to substantiate its case so far these appellants are concerned. 9. On the other hand, the learned APP while repelling the argument advanced on behalf of the appellants submitted that the evidence in its totality has to be considered. Picking up of certain lines in isolation from other parts is not at all permissible. 9. On the other hand, the learned APP while repelling the argument advanced on behalf of the appellants submitted that the evidence in its totality has to be considered. Picking up of certain lines in isolation from other parts is not at all permissible. In the background of aforesaid said principle of law when the evidence of PWs-3 and 4 is gone through, it is evident that they stood firmed and tested the stress of cross-examination supporting the case of the prosecution. As such, these appeals are fit to be dismissed. 10. In order to substantiate its case, prosecution had examined altogether 7 PWs out of whom PW-1 is Collector Singh, PW-2 is Jagarnath Singh, PW-3 is Chandrama Singh, PW-4 is Vakil Singh, PW-5 is Dr. Deepak Kanti Ghosh who conducted postmortem, PW-6 is Harendra Kumar and PW-7 is Murat Kumar. 11. Side by side also exhibited Ext-1 series, signature of informant over Fardbeyan as well as protest petition, Ext-2, postmortem report, Ext-3, inquest report, Ext-4, protest petition, Ext-5, C.C. of deposition, Ext-6, C.C. of Khatian. 12. At the present juncture, it is to be noted down that in spite of having effort on behalf of prosecution to get the Fardbeyan as well as formal FIR exhibited in proper way the learned trial court has surpassed the same under wrong notion that it was already exhibited since before as Ext-1. In the aforesaid background, we would like to take notice of relevancy of the aforesaid document which could not be brought on record on account of lapses of the learned trial court. 13. The defence had also examined five DWS out of whom DW-1 is Bir Bahadur Singh, DW-2 is Bhim Sen Pandey, DW-3 is Ram Dayal Mahto, DW-4 is Nathuni Chaudhary, DW-5 is Dinanath Singh as well as also exhibited Ext-A, page no. 96 of attendance register, Ext-B receipt of registration, Ext-C/A, Map. C.C. of registered Wadinama has been marked as ‘X’ for identification. 14. Now coming to the status of the witnesses, after going through the deposition, it is apparent that PWs-1 and 2 are not eyewitnesses to the occurrence. They stood within the category of hearsay evidence. 15. PW-7, Murat Ram is a formal witness having no relevance on material aspect. Therefore, now the case of the prosecution rests upon the evidence of PWs-3, 4, 5 and 6. 16. They stood within the category of hearsay evidence. 15. PW-7, Murat Ram is a formal witness having no relevance on material aspect. Therefore, now the case of the prosecution rests upon the evidence of PWs-3, 4, 5 and 6. 16. PW-5 is the doctor who had conducted postmortem over the dead body of Master Singh on 17.02.1978 at about 9.20 A.M. and found following ante-mortem injuries:- 1. Incised wound 6”x1”x deep to brain on the left side of scalp. 2. The neck was cut by a sharp cutting instrument at the level of fourth cervical vertebrae. 3. Incised wound 1 ½”x ½”x ½” in neck 2 ½” below the chin in front. On dissection of the above said No.1 injury, the tissue underlying the scalp was congested and the cranial bones i.e., left parietal, major part of left frontal and orbital region and some part of left occipital bone were cut by a sharp edged instrument. On opening the skull the left hemisphere of the brain including the meninges were found cut by a sharp edged weapon. The brain was congested and plenty of blood clots were present. On dissection of the second injury some skin fascia and a little muscle was attached posteriorily only. The thyroid cartilage, trachea, great vessels going up and down in the neck lower part of the fourth cervical vertebrae, spinal chord and posterior neck muscles were cut by a sharp edged instrument. In the opinion of the doctor the death was due to shock and haemorrhage from injury nos. 1 and 2 and time elapsed since death was within 48 hours. So, the time of occurrence is found supported with the finding recorded by the PW-5. During cross-examination, it is apparent that nothing substantial has been asked to challenged the veracity of the evidence of PW-5. 17. Now coming to the ocular evidence, PW-3 had stated that on the alleged date and time of occurrence he was in his field. After hearing cry of Vakil Singh, he rushed and went near Master Singh where he found Sahbir and Durbij indulged in inflicting Farsa blows on account of which Master Singh fell down and then thereafter, Mahabir and Lal Muni gave Kanta blows over his neck resulting his instantaneous death. Seeing assemblage of so many persons, the accused escaped from there. After hearing cry of Vakil Singh, he rushed and went near Master Singh where he found Sahbir and Durbij indulged in inflicting Farsa blows on account of which Master Singh fell down and then thereafter, Mahabir and Lal Muni gave Kanta blows over his neck resulting his instantaneous death. Seeing assemblage of so many persons, the accused escaped from there. Deceased was then lifted to P.S. In para-5 of his cross-examination, he had given the genealogical table of the accused. In para-8, he had admitted that he has got no land in the village. His house stood over Government land. In para-9, he had narrated that the field over which his presence was at the relevant time belongs to Mani Pandey which he had taken on money batai. In para-11, he had detailed and narrated the event whereunder accused persons had assaulted Master Singh. In para-16, he had disclosed that Master had fallen at the eastern flank of the field. At that very time Master was wearing Dhoti, Ganji as well as a wrapper. 18. PW-4 happens to be the informant. He had deposed that on relevant date and time they were going to see the water as on preceding night it was rain. Master Singh was a Bigha ahead to him. They were going to see the field belonging to Sitaram Pandey which they had taken on money batai. As soon as Master Singh reached near the field, Lal Muni, Mahabir, Durbij and Sahbir came out of whom Mahabir and Lal Muni were armed with Kanta while Sahbir and Durbij were armed with Farsa. Durbij had given Farsa blow over head of Master. Others also assaulted and on account thereof Master fell down. Thereafter, Sahbir gave Farsa blow over his neck followed by Mahabir and Lal Muni who began to cut the neck of Master with Kanta. At that very time, Harinandan and Chandrama Singh were present out of whom Harinandan had gone to the camp of accused. Then, thereafter accused persons slipped. He along with others lifted Master Singh to P.S. where his Fardbeyan was recorded. Then had stated the motive as Mahabir at one side and his uncle Master Singh at other quarreled over Nand Charan a day before the occurrence. Then, thereafter accused persons slipped. He along with others lifted Master Singh to P.S. where his Fardbeyan was recorded. Then had stated the motive as Mahabir at one side and his uncle Master Singh at other quarreled over Nand Charan a day before the occurrence. He had also filed protest petition against the police because of the fact that the then Chaukidar, Ram Janam who is uncle of accused Lal Muni had got some sort of influence over investigation. From his examination-in-chief, it is also evident that accused persons are his distant agnates. During cross-examination at the first count, he was elaborately cross-examined over motive which he fairly faced. In para-20, he had detailed how the occurrence took place and so there is no inconsistency on this very score. 19. With regard to status of the PW-3 as an eyewitness to occurrence it has been submitted by learned counsel for the appellants that at one occasion PW-3 had stated that he had seen the deceased in his field at western southern corner as is evident from para-11 while from para-16, he had controverted the same and stated that Master Singh fell down at eastern side of the field. PW-6, the I.O. had found copious blood at the southern western corner of the field and therefore, this inconsistency is bound to erase evidence of PW-3 to be eyewitness to occurrence. 20. With regard to PW-4, it has been submitted that his conduct is abnormal. He deflected himself from earlier version to justify his presence by way of following the deceased stating that he was going to see his own field which was away from the field belonging to Sitaram Pandey at northern side as is evident from para-17. So this witness should also be discarded. 21. Coming to the evidence of PW-6, the I.O., it is evident that his objective finding recorded under para-3 of his examination-in-chief with regard to place of occurrence happens to be unshaken during course of cross-examination. At para-10, the defence had brought the story which was perceived during course of investigation regarding uproar relating to ‘thief! thief!’ in the preceding night. However, no investigation had proceeded in that direction. At para-10, the defence had brought the story which was perceived during course of investigation regarding uproar relating to ‘thief! thief!’ in the preceding night. However, no investigation had proceeded in that direction. In para-11 of his cross-examination, he had deposed that during course of investigation, he had tested the plea of alibi by way of inspecting the relevant registers as well as taking statement of the headmaster along with other teachers of the concerned school. 22. So far plea of alibi is concerned, it is weak piece of foundation which could be found to be dismantled at any moment when there is an access to the accused to have his presence at the place of occurrence without any hindrance. The distance in between the school as well as the place of occurrence is not far away. Appellants have not been able to say that there was no direct linkage to arrive at the place of occurrence and return back from there to join at the school at its normal time schedule. 23. During course of investigation so many irrelevant materials are found which could not be the basis to challenge the conclusion arrived at after concluding the investigation. 24. Apart from having such kind of ocular as well as medical evidence supporting the case of the prosecution even at a glance, there appears severe illegality persisting on the record and that is bound to adversely affect upon the prospect of the trial and which could also influence the ultimate result of these two appellants. We have gone through the statement of the accused recorded under Section 313 of the Cr.P.C. by the learned trial court. For better appreciation the same is incorporated below in verbatim. We have gone through the statement of the accused recorded under Section 313 of the Cr.P.C. by the learned trial court. For better appreciation the same is incorporated below in verbatim. Examination of Sahbir Singh iz’u 1& D;k vkius xokgksa ds c;ku lqu vkSj le> fy;k gS \ mÙkj& th gkaA iz’u 2& D;k vki rkjh[k 16-2-1978 dks vU; vfHk;qDrksa ds lkFk feydj rFkk ,d jk; gksdj ekLVj dks Qjlk rFkk dkark ls ekjdj vkSj xyk dkVdj gR;k fd;k \ mÙkj& ughaA iz’u 3& D;k vkidks dqN vkSj dguk gS \ mÙkj& ughaA Examination of Mahabir Singh iz’u 1& D;k vkius xokgksa ds c;ku lqu vkSj le>k fy;k \ mÙkj& th gkaA iz’u 2& D;k vki rkjh[k 16-2-1978 dks vU; vfHk;qDrksa ds lkFk feydj rFkk ,d jk; gksdj ekLVj dks Qjlk rFkk dkark ls ekjdj vkSj xyk dkVdj gR;k fd;k \ mÙkj& ughaA iz’u 3& lk{kh odhy flag dk dguk gS fd mijksDr ?kVuk ds ,d fnu igys vkius oks ykyequh flag us ekLVj flag dk ukan pju mtkM+ vkSj ekLVj flag dks /kedh fn;kA bl lEcU/k esa D;k dguk gS \ mÙkj& ughaA ;g xyr gSA iz’u 4& D;k vkidks dqN vkSj dguk gS \ mÙkj& lQkbZ nsaxsA 25. The statement of other two accused have not been recorded on account of their death. 26. After going through the questionnaire formulated by the learned trial court it is apparent that it is an outcome of mechanical approach, in casual manner and sketchy form. Neither the place of occurrence nor the part played by the individual accused nay the weapon having in their hand have been shown though right from Fardbeyan as well as from the evidence of PW-3 as well as PW-4, Sahbir Singh has been shown to have been armed with Farsa who gave single blow on the neck of the deceased Master Singh while Mahabir Singh was armed with Kanta and gave its blow along with Lal Muni Singh on the neck of Master Singh. 27. As per Sub-section 1 of Section 313 of the Cr.P.C., it is obligatory on the part of the Court to place all kinds of incriminating materials adduced during course of examination of witnesses by the prosecution and ask for an explanation at the end of accused. 27. As per Sub-section 1 of Section 313 of the Cr.P.C., it is obligatory on the part of the Court to place all kinds of incriminating materials adduced during course of examination of witnesses by the prosecution and ask for an explanation at the end of accused. This part has to be complied with by the trial court with care and caution because of the fact that those incriminating materials which have not been placed and confronted, cannot be used against the accused. The same view appears to be repeatedly followed by the Hon’ble Apex Court and the recent one is in the case of U.P. v. Md. Iqram reported in 2011 Cr.L.J 3931, for better appreciation relevant para i.e., para-13 is quoted hereinbelow:- 13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. 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. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100 : (1992 AIR SCW 2486); and Paramjeet Singh alias Pamma v. State of Uttarakhand, AIR 2011 SC 200 ) : (2010 AIR SCW 6616). 28. Thus, on account of lapse on the part of the learned trial court, on this very score, forbids us to concur with the finding recorded by the learned trial court. As such the same is set aside. 29. Both the appeals are allowed. 28. Thus, on account of lapse on the part of the learned trial court, on this very score, forbids us to concur with the finding recorded by the learned trial court. As such the same is set aside. 29. Both the appeals are allowed. Since appellants Mahabir Singh @ Ashok Kumar Singh (Cr.Appeal (DB) No.50/1989) and Sahbir Singh (Cr.Appeal (DB) No.52/1989) are on bail, they are discharged from the liability of bail bond.