JUDGMENT Iqbal Ahmed Ansari, J. 1. By judgment and order, dated 05.06.2009, passed, in Sessions Case No. 178(M) of 2008, by the learned Additional Sessions Judge No. 2, FTC, Tinsukia, the accused-appellant, Bircha Kurmi, stands convicted under Section 302 IPC and sentenced to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of three months. The case of the prosecution may, in brief, be described as under: (i) Over the land of accused, Bircha Kurmi, there are as many as three shops. One of these shops is a shop for selling clothes, which is run by the accused; whereas another shop, which used to sell hardware materials, was, at the relevant point of time, being run by the deceased Tralokya Saikia in partnership with Bircha Kurmi's wife, Sabitri Kurmi (PW5), and Anjana Saikia, elder sister of the said deceased. Though there was apparently no discord and dispute between accused Bircha Kurmi, on the one hand, and Tralokya, on the other, the accused, on 02.08.2008, at about 8 am, came to the said hardware shop holding an axe in his hand and assaulted Tralokya, by means of the said axe, over the head and other parts of his body. When Tralokya's elder sister, Anjana Saikia (PW2), tried to stop the accused, the accused chased her by holding the axe in his hand with a view to assault her. The accused reacted in the similar manner, when others tried to stop him. On coming to know from Apurba Saikia, a co-villager, on phone, that Bircha Kurmi was moving around with an axe in his hand and had already killed Tralokya Saikia, Krishna Mahato, the village headman, informed, over telephone, the Officer-in-Charge, Digboi Police Station, and police accordingly came to the place of occurrence and, having found Tralokya Saikia's dead body lying near his said hardware shop, held inquest over the said dead body, which was also subjected to post mortem examination. (ii) During investigation, police apprehended the accused, while he was still carrying the axe in his hand and the said axe was seized by Seizure List (Ext. 4), Mat. Ext. 1 being the seized axe. (ii) During investigation, police apprehended the accused, while he was still carrying the axe in his hand and the said axe was seized by Seizure List (Ext. 4), Mat. Ext. 1 being the seized axe. Later on, an Ejahar was formally lodged by Anjan Saikia (PW1), brother of the said deceased Tralokya, at Digboi Police Station and, treating the said Ejahar as First Information Report (in short, FIR), Digboi Police Station Case No. 107/2008, under Section 302 IPC, was registered against the accused. On completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused. 2. At the trial, when a charge, under Section 302, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 12 (fourteen) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, his case being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mr. R. Adhikary, learned counsel, as amicus curiae, and Mr. H. Sharma, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it may be noted, at the very outset, that it has not been in dispute that the doctor (PW10) was the one, who had, on 02.08.2008, performed post mortem examination on the dead body of Tralokya Saikia and found as follows: External appearance: Male dead body, average built, wearing pink gray sporting, black track suit and blue underwear. Rigor mortis present. Injuries: (1) Deep sharp cut injury over right upper part of the neck 6" in length and deep cutting muscles, vessels and part of 3rd cervical vertebrae. (2) Deep cut above the right ear over temporal region 4" in length cutting bone, meninges and brain matter. (3) Deep sharp cut injury over occipital region fracturing bone and lacerating brain matters with subdural haemotoma. 7. (2) Deep cut above the right ear over temporal region 4" in length cutting bone, meninges and brain matter. (3) Deep sharp cut injury over occipital region fracturing bone and lacerating brain matters with subdural haemotoma. 7. It is in the evidence of the doctor (PW10) that the wounds were sharp, lacerated and homicidal in nature and, in his opinion, death was caused by coma as result of the head and neck injuries sustained by the said deceased. The doctor has also opined that all the injuries, described above, were sufficient to cause death of a person in the ordinary course of nature. 8. In his cross-examination, PW10 has clarified that the injuries were caused by multiple blows. 9. The above findings of the doctor and his opinion, with regard to the cause of death, were not disputed by the defence. This apart, even we, too, do not notice anything inherently incorrect or improbable in the evidence so given by the doctor. We are, therefore, of the view that Tralokya Saikia suffered injuries, as have been described above, and that his death was caused due to coma as a result of the head and neck injuries sustained by him. 10. Bearing in mind the above undisputed medical evidence on record, let us, first, come to the evidence of PW2, Anjana Saikia, elder sister of the said deceased. According to her evidence, accused Bircha Kurmi lives in front of her house. 11. Describing the occurrence, PW2 has deposed that on 02.08.2008, at about 8 am, when her younger brother, Tralokya Saikia, was at his hardware shop, she went to call Tralokya, but when she reached near the shop, she saw accused Bircha Kurmi coming with an axe in his hand and striking Tralokya Saikia on his head at the said shop and, asking as to why he had been assaulting Tralokya, when she (PW2) tried to offer resistance by holding the hands of the accused, she sustained injuries on her left hand and, as a result thereof, she started screaming. It is in the evidence of PW2 that the accused charged at her in order to assault her and she ran away and that hearing her scream, her elder brother, Ranjan Saikia (PW3), younger brother, Anjan Saikia, and mother, Kiranbala Saikia, came out and she (PW2) fell unconscious. It is in the evidence of PW2 that the accused charged at her in order to assault her and she ran away and that hearing her scream, her elder brother, Ranjan Saikia (PW3), younger brother, Anjan Saikia, and mother, Kiranbala Saikia, came out and she (PW2) fell unconscious. It is also in the evidence of PW2 that later on, she learnt that the accused had also gone charging at her brothers, Anjan Saikia and Ranjan Saikia, in order to assault them and that Tralokya Saikia had succumbed to the injuries sustained by him. 12. In her cross-examination, PW2 has clarified that though it had been raining on the previous night, there was no rain on the day of the occurrence and, at the time of the occurrence, people were catching fish on the nearby paddy field and she had also gone to see people catching fish there. PW2 has also clarified, in her cross-examination, that the said shop was located at Bircha Kurmi's land, which they had been running with Bircha Kurmi's wife and, out of the three shops located there, the cloth shop belonged to the accused. 13. It is significant to note that according to PW2, even the wife of the accused was present near the place of occurrence watching people catching fish. This witness has denied the suggestions of the defence that in order to capture the said hardware shop, they have falsely implicated the accused and/or that the accused had not killed her younger brother. 14. While considering the present appeal, what attracts the attention, most prominently, is that though in the case at hand, Ext. 1, which was the Ejahar lodged by Anjan Saikia (PW1), at Digboi Police Station, has been treated by the prosecution and by the learned trial Court as the First Information Report of the case, what cannot be ignored is that it is in the evidence of PW1 that at first, Apurba Saikia informed, over phone, about the occurrence to their village headman, Krishna Mahato (PW11), and after about 45 minutes, police from Digboi Police Station arrived at the place of occurrence along with Apurba Saikia and found Tralokya Saikia's dead body lying on the back side of the hardware shop and he (PW1), thereafter, went with the police to Digboi Police Station and he lodged there the Ejahar (Ext. 1). 15. 1). 15. Close on the heels of the evidence of PW1, Krishna Mahato (PW11) has deposed that on 02.08.2008, on being informed by their Ward Member, Apurba Saikia, over phone, that Bircha Kurmi was moving around with an axe in his hand and that Bircha Kurmi had already killed one Tralokya Saikia, he, immediately, informed, over phone, Officer-in-Charge, Digboi Police Station, about the incident and, thereafter, Officer-in-Charge, Digboi Police Station, came to his residence, he (PW11) accompanied the police to the place of occurrence and saw the dead body of Tralokya Saikia lying at the backside of his hardware shop in a pool of blood with injury on his head and neck. It is also in the evidence of PW11 that police conducted inquest over the said dead body and prepared inquest report, where he signed as a witness, and, thereafter, police went out in search of the accused, police caught hold of the accused along with the axe and seized the same by a Seizure List and he (PW11) signed the said Seizure List, too, as a witness, Mat. Ext. 1 being the said axe. 16. In his cross-examination, PW11 has clarified that he received a call from Apurba Saikia on his mobile and informed Md. Abdul Hannan, Officer-in-Charge, Digboi Police Station, on the latter's mobile and, within 40 minutes, police, from Digboi Police Station, arrived there. 17. From a bare reading of the above evidence, what becomes transparent is that before Ext. 1 was lodged, at Digboi Police Station, by PW1, younger brother of the said deceased, police investigation had already commenced on the basis of the oral information, which had been received, at the said Police Station, from PW11, headman of the village concerned. 18. In the circumstances indicated above, it was incumbent, on the part of the prosecution, and so was incumbent on the part of the learned trial Court, to examine Md. Abdul Hannan, Officer-in-Charge, Digboi Police Station, and also bring on record as to whether any General Diary Entry had been made, on the basis of the information, so received, by the Officer-in-Charge, Digboi Police Station, from PW11, headman of the village concerned, inasmuch as the oral information, so received by police, had been acted upon and the contents of Ext. 1 would, in law, be nothing, but a statement made, in writing, by PW11 to the police during investigation. 19. 1 would, in law, be nothing, but a statement made, in writing, by PW11 to the police during investigation. 19. Situated thus, it is clear that Ext. 1 could not have been treated as the First Information Report. There was, thus, serious lapse, on the part of the prosecution as well as the learned trial Judge, in not examining Apurba Saikia, who had, according to the evidence of PW11, informed their village headman, Krishna Mahato (PW11), and also the Officer-in-Charge, Digboi Police Station, namely, Md. Abdul Hannan, and also bring on record the General Diary Entry, if any, which might have been made, at Digboi Police Station, before the police personnel had moved out of the said Police Station to visit the place of occurrence and investigate the offence, which had been reported to them. Non-examination of Apurba Saikia and Abdul Hannan as witnesses and the omission to bring on record the General Diary Entry, if any, which might have been made before the police personnel had moved out of the said Police Station, are serious lapses, on the part of the prosecution and the learned trial Judge and for these omissions, cause of justice cannot be allowed to suffer. 20. What is, now, of utmost importance to note is that a trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time -- be it during the course of examination-in-chief or cross-examination or at the end of any such examination or re-examination -- which, to the Judge, appears to be necessary for a just decision of the case and in order to discover or obtain proof of relevant fact. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfold complete truth, it is not only right for the Judge, but his duty to intervene and put such questions as may be warranted and permissible within the ambit of Section 165. A Judge cannot behave like a passive agent, when a case is tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials. A case cannot be allowed to suffer for failure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165. It is with this object in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo moto or at the instance of any of the parties if it becomes necessary for a just decision of the case. If the prosecution omits to bring out any relevant fact or the defence elicits from a witness, in the cross-examination, a statement, which is obscure or incomplete, the defence does not acquire (the Judge must bear in mind) a vested right in such limited cross-examination. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question. In such a case, it is, rather, the duty of the Judge, conducting the trial, to elicit from the witness complete information so that the evidence given by him or her becomes clear and intelligible, though his putting of questions cannot be in a manner as if the witness is under cross-examination nor can such examination be aimed at destroying or diluting the effect of the cross-examination of the witness by the defence. It is for this reason that a Court shall not put, in exercise of its powers under Section 165, leading question or put words into the mouth of the witness. 21. In the light of the law as discussed above, one cannot ignore the fact and we must point out that the conviction of the accused-appellant, without bringing the contents of General Diary Entry as well as the evidence of Officer-in-Charge, Digboi Police Station, and Apurba Saikia, were serious infirmities in the trial and, in the face of such infirmities, the conviction of the accused-appellant cannot be sustained and the present case needs to be remanded back to the learned trial Court for disposal in accordance with law. 22. Because of what have been discussed and pointed out above, the impugned judgment and order, convicting the accused-appellant and the sentence passed against him, are hereby set aside and the case is remanded to the learned trial Court for disposal in accordance with law, preferably within a period of three months from the date of receiving a copy of this judgment and order, by bringing on record the contents of the General Diary Entry by calling Md. Abdul Hannan, the then Officer-in-Charge, Digboi Police Station, and/or by calling, if necessary, the present Officer-in-Charge, Digboi Police Station, and the said Apurba Saikia,. 23. Abdul Hannan, the then Officer-in-Charge, Digboi Police Station, and/or by calling, if necessary, the present Officer-in-Charge, Digboi Police Station, and the said Apurba Saikia,. 23. Before parting with this appeal, we place it on record that we have consciously refrained ourselves from commenting on merit or otherwise of the conviction of the accused-appellant so that the learned trial Court remains free to come to its own independent finding after having brought on record the omitted materials and, in the light of additional evidence, which may come on record, and after, of course, having allowed the defence to adduce, if they so seek, such evidence in support of their defence, as may be permissible in law. 24. During the pendency of the trial, the accused-appellant shall be kept detained in the police custody and he shall not be allowed to go on bail and, depending upon the conclusion, which the learned trial Court may, eventually, reach as regards the guilt or otherwise of the accused-appellant, the question of enlarging the accused, on bail, or otherwise, or setting him at liberty, shall be decided. 25. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court. With the above observations and directions, this appeal shall stand disposed of. Disposed off