JUDGMENT 1. Ajay Sao who has been found guilty for an offence punishable under Sections 324, 307, 452 of the IPC vide judgment dated 22.06.2013 and directed to undergo R.I. for 7 years as well as also fined Rs.2000/- in default thereof, undergo S.I. of one month additionally under Section 307 IPC, R.I. for 2 years under Section 324 IPC and R.I. for 3 years as well as also fined of Rs.1000/- in default thereof to undergo S.I. for one month additionally under Section 452 IPC with a further direction to run the sentences concurrently vide order dated 27.06.2013 by Additional Sessions Judge, Xth, Patna in Sessions Trial No.597/2012 has challenged the same under present appeal. 2. Sujeet Kumar @ Raju (PW-2) gave his fardbeyan (Ext.-2) on 17.11.2011 at about 08:00 A.M. at PMCH Emergency Ward alleging inter alia that at the preceding night while they were sleeping, at about 02:00 A.M. he rushed to his mother, Lalti Devi after hearing her cry who was sleeping at upper floor of the house and had seen copious blood coming out from her mouth, face and ear. Ajay Sao, his neighbour was standing by her side armed with “Dab”. Seeing him, Ajay Sao dragged him to open sphere and began to assault with “Dab” on account of which he sustained injury over his left chick as well as left side of head. Blood had also oozen out. While he was assaulting him, his other companions escaped there from with the stair. During midst thereof, his wife Renu Devi arrived and raised alarm on account of which other family members arrived out of whom Ranjeet Kumar caught hold Ajay Sao as well as also snatched away the “Dab” from him. He had further stated that he had not identified other companions of Ajay Sao but he could identify them. He had further stated that they have come to cause murder. Chandan Rai and Satendra Kumar (not examined) happens to be the attesting witness. 3. Phulwarisarif P.S. Case No. 481 of 2011 was drawn on the basis of fardbeyan followed with investigation as well as submission of charge sheet on account of which appellant/accused had faced trial and met with ultimate result, the subject matter of instant appeal. 4. Chandan Rai and Satendra Kumar (not examined) happens to be the attesting witness. 3. Phulwarisarif P.S. Case No. 481 of 2011 was drawn on the basis of fardbeyan followed with investigation as well as submission of charge sheet on account of which appellant/accused had faced trial and met with ultimate result, the subject matter of instant appeal. 4. The defence as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. However, neither any DW nor any exhibit has been made on behalf of appellant/convict. 5. It has been submitted on behalf of appellant that learned lower court during course of passing of judgment had acted in mechanical manner and by such way, had over looked the substantial piece of evidence as well as the probability showing innocence of appellant coming out from the evidence of the PWs. In this regard, first of all evidence of PW-11, Investigating Officer has been taken up. It has been submitted that from the evidence of PW-11, it is apparent that just after arrival of PW-11 at the place of occurrence, he had inspected the place of occurrence prepared seizure list but, neither at that very time had recorded First Information Report/fardbeyan/written report nor had perceived presence of appellant at the place of occurrence. Moreover, preparation of seizure list indicates that at that very moment the investigation was already taken up therefore, the present FIR is found hit by Section 162 of the Cr.P.C. It has also been submitted that at the time of inspection of P.O. by PW-11 at first occasion and having none presence of appellant is another circumstance which could be perceived in the background of evidence of PW-8, Ranjeet Kumar in para-3 of his cross-examination wherein he had categorically stated that his father along with Ajay Sao was not on good rapport and probability of aforesaid event is further visualizing from para-5 of his cross-examination wherein he had accepted that wife of Ajay Sao was Ward Member at previous occasion. Not only this, from the evidence of PW-7, it is evident from para-7 of his cross-examination she had admitted that Ajay Sao often taken care of her cow. Therefore, there happens to be presence of ample material which could have shown probability of false implication. 6. Not only this, from the evidence of PW-7, it is evident from para-7 of his cross-examination she had admitted that Ajay Sao often taken care of her cow. Therefore, there happens to be presence of ample material which could have shown probability of false implication. 6. The other circumstances as has been pleaded by learned counsel for the appellant is also apparent from evidence of PW-11, the Investigating Officer who had admitted under para-18 of his deposition that Ajay Sao before his arrest was assaulted but he is unable to say by whom. He was subjected to medical treatment but those documents are not with the case diary and the conduct of PW-11 in the aforesaid background appears to be in collusion with the prosecution in the background of the fact that none of the PWs have disclosed that any outsider have access at the time of occurrence, have an opportunity to assault. Apart from this, none of the PW have claimed to have assaulted Ajay Sao nor they have even stated that they have seen Ajay Sao in an injured condition. Here, the learned counsel fairly concedes that on account of lapses on the part of defence neither the witnesses have been pinpointed on that very score nay the injury report found an exhibit of the record. 7. Then coming to veracity of the evidence of the witnesses, it has been submitted that from their conduct, the false implication of appellant is evident. To test the veracity, it has been submitted that from the evidence of PW-10, it is evident that he had gone over roof after hearing alarm of Renu Devi. He had further stated that he had seen Ajay Sao armed with “Dab” who was proceeding towards Renu Devi but was apprehended by him and during midst thereof his father Ranjeet @ Pappu, mother Santi Devi snatched away “Dab” from his possession. After going over roof he had found his aunty as well as grandmother in injured condition lying in pool of blood while during cross-examination at para-2, he had stated that he had seen appellant assaulting uncle as well as grandmother. When this witness was at lower floor then how he had witnessed the occurrence of upper floor is a matter of surprise apart from the fact that his wife PW-9 had not supported his version to the extent of being an eye witness. When this witness was at lower floor then how he had witnessed the occurrence of upper floor is a matter of surprise apart from the fact that his wife PW-9 had not supported his version to the extent of being an eye witness. In likewise manner his father PW-8 has ruled out his presence who stated that he had caught hold Ajay Sao, snatched away “Dab” from his possession and then had taken away at second floor and that happens to be also statement of Shanti Devi, PW-7. It has further been submitted that none of the witnesses have stated that any one of them was sleeping on the same floor where PW-1 Lalti Devi was sleeping and then in that event it looks improbable that after assaulting Lalti Devi, presence of appellant would continue for getting him exposed and apprehended. There was ample opportunity before him to escape like his other companion than staying and getting himself apprehended is the manner as suggested. 8. It has also been submitted that after taking into account the totality of the event, it appears that on account of commission of aforesaid occurrence, after arrival as well as departure of police appellant, on account of next door neighbour, had gone to make query and during course thereof, was apprehended in the background of acrimonious affair amongst the parties and subsequently been implicated in this case showing to be the sole assailant otherwise at the first instance itself when there was appearance of PW-11 at the place of occurrence, not only there would have been apprehension of appellant rather the FIR should have also been registered. Furthermore, appearance of appellant Ajay Sao over the seizure list Ext.-3 makes the issue more complex taking into account the evidence of PW-11. 9. It has also been submitted that the action of the trial court during course of recording of statement of the appellant under Section 313 of the Cr.P.C. is found another infirmity persisting on the record which, if taken in its right perspective will de-notify the judgment of conviction and sentence. So submitted that the judgment impugned suffers from inherent deficiency and is accordingly, fit to be set aside. 10. So submitted that the judgment impugned suffers from inherent deficiency and is accordingly, fit to be set aside. 10. At the other hand, it has been submitted on behalf of learned Additional Public Prosecutor that on account of some sort of slackness on the part of Investigating Officer, the prosecution case can not be disbelieved when there happens to be consistent evidence of the prosecution witnesses, more particularly, when both the injured PW-1 and PW-2 have stated presence of appellant along with “Dab” by which he had assaulted PW-1 as well as PW-2. Presence of appellant at the upper floor of the house of prosecution was facilitated through a wooden stair and same is found fully proved on account of having been seized during course of investigation. Then it has been submitted that examination of PW-1 and PW-2 at PMCH as well as recording of fardbeyan of PW-2 at PMCH is out of controversy along with the nature of injury so found by the doctor, PW-12 who, over the person of the PW-1, had found grievous injury. Non-transmission of blood from the P.O. to the Forensic Science Laboratory is not going to dent upon the prosecution case because of the fact that P.O. happens to be inside the house of the prosecution and from there, the appellant was handed over to the police by the prosecution witnesses along with a “Dab”, the instrument of assault. Then it has been submitted that on account of lapse of time, the many individual perception, capacity of expression vary from individual to individual which ultimately guided the witnesses during course of deposition and that happens to be reason behind that version of two individual are not found alike and that happens to be reason regarding presence of some sort of variance amongst the evidence of the PWs. Therefore, the consistent evidence of the prosecution witnesses should not be brushed aside on superficial minor contradictions as well as inconsistency. 11. From the record, it transpires that altogether twelve PWs have been examined out of whom PW-1 is Lalita Devi, one of the injured, PW-2 is Sujeet Kumar @ Raju another injured as well as informant, PW-3 is Jawahar Rai, PW-4 Ashok Prasad, PW-5 Lal Babu Prasad, PW-6 Renu Devi, PW-7 Shanti Devi, PW-8 is Ranjeet Kumar, PW-9 is Priyanka Kumari, PW-10 is Chandra Prakash, PW-11 is Fhahim Azad Kha and PW-12 is Dr. Shashi Kapoor as well as also exhibited documents. However, no DW has been examined at the end of appellants. 12. Instead of discussing the evidence available on the record so adduced on behalf of prosecution, some sort of major fault is found persisting on the lower court record bearing an adverse impact, therefore the same is taken at the first count. From the format of the charge, it is evident that appellant Ajay Sao has been charged for an offence punishable under Section 324/34, 307/34, 452 of the IPC. The conviction, as is found from the judgment impugned also co-relates with the aforesaid sections that means to say the house trespass was with an intention to commit murder and during course thereof injured were assaulted one by one is found supported with the finding of the doctor PW-12 whereupon the learned trial court also gave nod. Contrary to it, when the statement so recorded under Section 313 of the Cr.P.C. is gone through, it did not support or happens to be in the background of version of the prosecution. For better appreciation the questionnaire so formulated during course thereof is reproduced verbatim. 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From the questionnaire, it is apparent that learned lower court did not framed it in consonance with the evidence so adduced during trial in consonance with charge because of the fact that same relates with murderous attack upon PW-1 and PW-2 inside the house, that means to say after making house trespass, while the questionnaire suggest the theme of intruding inside house for the purpose of robbery during course of which PW-1 & PW-2 were assaulted and thus, being less than five in number attracts application of Section 394 IPC, which neither is found minor offence nor is found inter connected with the prosecution version nor justify conviction and sentence so recorded under Section 324/34, 307/34, 452 IPC because of the fact that by such mechanical approach of the lower court, the interest of accused is found prejudiced as the occurrence was forged and by such action the learned lower court had violated mandate of Section 313 Cr.P.C. 14. In Man Singh Vs. State of U.P. reported in 2011(8) SCALE, it has been observed:- “6. We have considered the argument and find merit in it. Section 313 postulates that all incriminating circumstances must be put to an accused so that he is in a position to explain the circumstances against him”. 15. Consequent thereupon, the judgment of conviction and sentence so recorded by the learned trial court is set aside. Appeal is allowed. The matter is remitted back to the learned lower court to proceed afresh from the stage of Section 313 of the Cr.P.C. and onward in accordance with law.