JUDGMENT Per: Hon. Rajiv Sharma, J. Since the common questions of law and facts are involved in all these appeals, the same have been taken up together and decided by this common judgment. 2. These appeals are directed against the judgment and order dated 30/31.8.2012 passed by the First Additional Sessions Judge, Udham Singh Nagar in S.T. No.306 of 2006, whereby the appellants/accused were charged with and tried for the offences u/s 364/302/201 IPC. At the end of trial, accused Ganga Singh, Phool Singh and Jaswant Singh were convicted and sentenced to undergo life imprisonment u/s 302/34 IPC with fine of Rs.10,000/- and in default of payment of fine, to undergo one year additional rigorous imprisonment. 3. Accused Ganga Singh, Phool Singh and Jaswant Singh were further convicted and sentenced to undergo three years' R.I. with fine of Rs.3,000/- for the offence u/s 201 IPC and in default of payment of fine, three months' additional rigorous imprisonment was awarded. 4. Accused Ganga Singh, Phool Singh, Jaswant Singh and Chet Ram were further convicted and sentenced to undergo ten years' R.I. with fine of Rs.5,000/- for the offence u/s 364 IPC and in default of payment of fine, six months' additional rigorous imprisonment was awarded. 5. However, accused Chet Ram was acquitted from the offence of Section 302/34 and 201 IPC. 6. Case of the prosecution, in a nutshell, is that PW1 Amar Singh has lodged the FIR on 6.9.2006 to the effect that the marriage of his son Jaswant Singh was arranged by accused Ganga Singh with his sister in law PW2 Kamla Devi. The father in law of his son had no male issue. His son started living in the house of his in-laws. Ganga Singh did not like it. He used to threaten Jaswant Singh that he would not permit him to grab the land of his father in law. On 31.8.2006, accused Ganga Singh, Jaswant, Phool Singh and Chait Ram came at the field at 3 PM. His son and daughter in law were also in the field. On the pretext of some work at Bazpur, they took Jaswant with them. Thereafter, his son did not come back. In the FIR, he has raised the suspicion that Ganga Singh along with his companions has killed his son to grab the land of his father in law. 7. Investigation was started. Accused were arrested. On the pretext of some work at Bazpur, they took Jaswant with them. Thereafter, his son did not come back. In the FIR, he has raised the suspicion that Ganga Singh along with his companions has killed his son to grab the land of his father in law. 7. Investigation was started. Accused were arrested. Accused confessed that they had killed Jaswant Singh by strangulating him. They also made a disclosure statement on the basis of which the dead body and the rope used in strangulation of Jaswant Singh was recovered. Body was sent for post-mortem. Cause of death as per the post-mortem examination was asphyxia due to ante-mortem strangulation. 8. Investigation was carried out and Challan was put up after completing all the codal formalities. 9. Prosecution has examined as many as eleven witnesses. Statements of the accused were recorded u/s 313 Cr.P.C. They denied the case of prosecution. The accused/appellants were convicted and sentenced, as noticed hereinabove. Hence these appeals. 10. Learned counsel for the appellants has argued that the prosecution failed to prove its case against the accused beyond reasonable doubt. He further argued that the material facts were not put to the accused during examination u/s 313 Cr.P.C. 11. Learned State Counsel supported the judgment dated 30/31.8.2012. 12. We have heard learned counsel for the parties and perused the judgment and record very carefully. 13. PW1 Amar Singh deposed that the marriage of his son Jaswant Singh was solemnized/arranged by accused Ganga Singh with his sister in law Kamla Devi 10 years back. Kamla Devi had no brothers. They were eight sisters. His son went and started living with his father in law. His father in law owned 5½ acres of land. On 31.8.2006, he along with his son and daughter in law were in the field. Accused came on the spot and took Jaswant Singh on the pretext that there was some work at Bazpur. His son accompanied them. This incident happened in their presence. Accused were arrested and the body was recovered at their instance. In his cross-examination, he admitted that he has not seen the accused killing his son. 14. PW2 Kamla is the wife of deceased Jaswant. She corroborated the statement of PW1 Amar Singh. According to her also, 3½ years back, accused came to their field. They took away Jaswant Singh. Her husband did not come back. They searched for him. In his cross-examination, he admitted that he has not seen the accused killing his son. 14. PW2 Kamla is the wife of deceased Jaswant. She corroborated the statement of PW1 Amar Singh. According to her also, 3½ years back, accused came to their field. They took away Jaswant Singh. Her husband did not come back. They searched for him. In cross-examination, she admitted that she has not seen the accused killing her husband. She also admitted that the accused had not got the dead body recovered in her presence. In her cross-examination towards the end, she has categorically admitted that there was no enmity between her husband and accused Jaswant Singh. 15. PW3 Gopal Singh deposed that on 6.9.2006, he was taken by the S.H.O. for the recovery of dead body and rope. According to him, the accused had got the dead body and rope recovered from the bushes and they also made extra judicial confession that they had killed the accused with the rope and hid his body in the water body. In his cross-examination, he admitted that the dead body was infested with maggots. It was not possible to recognize the dead body. It was smelling. He stood at a distance. 16. PW4 Inder Singh also deposed that the accused have got the dead body recovered along with the rope and they have made extrajudicial confession that they have killed Jaswant Singh with a rope. In his cross-examination, he deposed that the dead body was disfigured. It had rotten. It was smelling. It was difficult to identify the body of Jaswant Singh. It was difficult to stand near the dead body. 17. PW5 Dr. Tarun Kumar Pant has conducted the post-mortem examination. He has proved the post-mortem report. According to him, the deceased died due to suffocation by strangulation. He also did not notice any ligature mark on the neck. Deceased had died between 6-10 days of the post-mortem examination. 18. PW6 S.I. Jaswant Singh deposed that the accused were interrogated and they have made extrajudicial confession that they have killed the deceased with rope and have dumped the body in the water body. 19. PW7 Roop Singh is also the witness of recovery of dead body and rope. 20. PW8 S.I. Diwan Singh deposed that the accused were arrested. 18. PW6 S.I. Jaswant Singh deposed that the accused were interrogated and they have made extrajudicial confession that they have killed the deceased with rope and have dumped the body in the water body. 19. PW7 Roop Singh is also the witness of recovery of dead body and rope. 20. PW8 S.I. Diwan Singh deposed that the accused were arrested. They were interrogated and told that they killed the deceased to grab 5½ of land and hid his dead body in the water body. 21. PW9 ASI Girish Chand is the formal witness. 22. PW10 S.I. Ganga Sahai deposed that he along with police party had gone towards the spot pointed out by accused Jaswant Singh. Dead body was taken into possession. There were six personnel along with him. 23. PW11 Inspector Uttam Singh also deposed that the accused were interrogated and they made an extrajudicial confession that they had killed the deceased by throttling with the rope and dumped his body into the water body. 24. According to PW1 Amar Singh as well as PW2 Kamla Devi, the incident has happened on 31.8.2006. However, surprisingly, no missing report was lodged between 31.8.2006 till the date of registration of FIR on 6.9.2006. According to PW1 Amar Singh and PW2 Kamla Devi, they have seen the accused taking away the deceased Jaswant Singh with them. If that was so, it was expected from them to lodge the missing report or the first information report immediately. Neither PW1 Amar Singh nor PW2 Kamla Devi has seen the accused killing the deceased Jaswant Singh. 25. The motive of killing the deceased by the accused is that accused Ganga Singh wanted to grab 5½ of land of his father in law. It has come on record that it was Ganga Singh who had arranged the marriage of his brother in law Jaswant Singh with his sister in law Kamla Devi (PW2) 10 years back. In case Ganga Singh had any intention to grab the land, he could have also started living with his father in law ten years back or he would not have married the deceased with PW2 Kamla Devi. PW2 Kamla Devi towards the end of her cross-examination has admitted that there was no enmity between her husband and the accused Jaswant Singh. There is inordinate delay in lodging the FIR which has not been explained by the prosecution. 26. PW2 Kamla Devi towards the end of her cross-examination has admitted that there was no enmity between her husband and the accused Jaswant Singh. There is inordinate delay in lodging the FIR which has not been explained by the prosecution. 26. PW3 Gopal Singh and PW4 Inder Singh have deposed that an extrajudicial confession was made by the accused that they have killed the deceased with the rope and dumped his body in the water body. Similarly, PW8 S.I. Diwan Singh and PW11 Inspector Uttam Singh have deposed that the accused had made a confession their crime by making extrajudicial confession. Later on, the extrajudicial confession was made before PW3 Gopal Singh and PW4 Inder Singh in presence of police personnel. Thus, the extrajudicial confession made before the police officers was also hit by Section 26 of the Indian Evidence Act. The alleged extrajudicial confession was made by the accused in the custody of police officers. Even when the extrajudicial confession was made before PW3 Gopal Singh and PW4 Inder Singh, the accused were in the custody of police. Thus, this extrajudicial confession cannot be read into evidence as per Section 26 of the Indian Evidence Act. 27. There is yet another glaring illegality in the judgment passed by the Trial Court. The case of the prosecution is that the deceased was ‘last seen' in the company of accused on 31.8.2006 at about 3 PM. Accused asked the deceased to accompany them to Bazpur. However, this question was not put to the accused while recording their statements u/s 313 Cr.P.C. The case of the prosecution is also that the accused had made the extrajudicial confession which led to the recovery of dead body as well as rope used in the crime. However, this question was not put to the accused u/s 313 Cr.P.C. The statements u/s 313 Cr.P.C. have been recorded in a very summary manner. The statement u/s 313 Cr.P.C. is very important. The entire case set up by the prosecution against the accused is required to be put to the accused to enable him to explain the position. 28. Their Lordships of Hon. Apex Court in (2009) 3 SCC (Cri.) 92 in the matter of ‘Ranvir Yadav v. State of Bihar' have held that Section 313 Cr.P.C. is not an empty formality. There is a purpose behind examination u/s 313 of the Code of Criminal Procedure. 28. Their Lordships of Hon. Apex Court in (2009) 3 SCC (Cri.) 92 in the matter of ‘Ranvir Yadav v. State of Bihar' have held that Section 313 Cr.P.C. is not an empty formality. There is a purpose behind examination u/s 313 of the Code of Criminal Procedure. In paragraph nos.9 and 11, their Lordships have held as under: - 9. “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 Bharat1 it has been laid down by Bose, J. 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 object 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 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 has to say about them. He must be questioned separately about each material substance which is intended to be used against him. … The questioning must therefore be fair and 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.'*"** 11. Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial court did not indicate the incriminating material to the accused. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8-1-2002 shall stand cancelled because of the acquittal. The appeal is allowed to the aforesaid extent." 29. For the aforesaid reasons, we are of the considered view that the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt. The appeals are thus, allowed. Judgment, under challenge, in these appeals, is set aside. Appellants are already on bail. They need not to surrender. Their bail bonds and sureties are discharged. 30. LCR along with a copy of this judgment be sent back to the Court concerned.