JUDGMENT : Rakesh Kumar, J. 1. The sole appellant was tried in Sessions Trial No. 44 of 2014/270 of 2010 by Sri Dharmendra Kumar Jaiswal, learned VIth Additional Sessions Judge, Gaya (hereinafter referred to as the “trial judge”). The appellant was held guilty for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”). Since the learned trial judge has imposed death sentence, for its confirmation the case was referred to this Court under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”), and as such, it was numbered as Death Reference No. 5 of 2017. Simultaneously, the convict filed Appeal under Section 374(2) and 389 (1) of the Cr.P.C. against the judgment of his conviction and sentence, which has been numbered as CR. APP (DB) No. 668 of 2017 and both the matters were taken up together and are being disposed of by this common judgment. 2. The appellant by judgment dated: 16.03.2017 passed in Sessions Trial No. 44 of 2014/270 of 2010 was convicted for commission of offence under Section 302 of the I.P.C. and by order dated 17.03.2017 was sentenced to death for offence under Section 302 of the I.P.C. He was directed to be hanged by neck till his death. 3. Short fact of the case is that on 07.08.2009 at about 15.45 Hours (3.45 P.M.) one Sri Jai Shankar Singh, S.H.O., Mohanpur Police Station recorded fardbyan of Kailloo Mandal, Son of Latan Mandal, resident of village : Randwa Tad Par, Police Station:- Mohanpur, District – Gaya. The fardbyan was recorded in the house of the informant. The informant in his fardbyan stated that on the same day i.e. 07.08.2009 at 14.00 Hours (2.00 P.M.) his co-villager: Ram Prit Mandal (appellant) carrying Tangari (Axe) reached near the house of informant and started abusing him. He was asked as to why he was abusing. In the meanwhile, informant’s two children namely: son- Sintu Kumar, aged about 8- 10 years and daughter- Putul Kumari, aged about 12-14 years came in between informant and the appellant. Thereafter, Ram Prit Mandal (appellant) gave blow on his son’s head by tangari (Axe) which he was carrying in his hand and blood from his head started coming out and his son fell down and he died. Thereafter, Ram Prit Mandal (appellant) gave blow on his son’s head by tangari (Axe) which he was carrying in his hand and blood from his head started coming out and his son fell down and he died. The appellant subsequently gave tangari blow on the head of his daughter - Putul Kumari. Due to said assault her head was smashed and she fell down and blood started oozing out and she also become unconscious. Thereafter, Ram Prit Mandal (appellant) with intent to kill informant gave tangari blow on his head, however, the appellant caught hold of the tangari. In the meanwhile, he received injury on his head and blood started oozing out. The informant claimed that Ram Prit Mandal (appellant) had killed his son by giving blow from tangari and intended to kill his daughter-Putul Kumari and him also by giving blow from tangari. The fardbyan was read over to him and finding it correct the informant put his L.T.I. The father of the informant Latan Mandal also put his L.T.I. as witness to the fardbyan. On the basis of the said fardbyan on 08.08.2009 at about 7.45 A.M. a formal F.I.R. vide Barachati (Mohanpur) P.S. Case No. 207 of 2009 was drawn up under Section 302, 307, 324 of the I.P.C. against the sole appellant. Subsequently, the injured daughter of the informant also died. 4. During investigation, accusation against the appellant was found true, and as such, on 30.09.2009 charge- sheet was submitted against the appellant. On 03.03.2010 learned Sub Divisional Judicial Magistrate, Sherghati took cognizance of the offences. The case was committed to the court of Sessions on 06.04.2010 and thereafter, on 22.06.2010 charge under Section 302 & 307 of the I.P.C. was framed against the sole appellant. It is pertinent to mention here that in the charge-sheet about fourteen persons were cited as witness, however, during trial to prove its case total six witnesses were examined on behalf of the prosecution. During trial the informant was also not examined. Besides informant, other two important witnesses i.e. investigating officer and doctor who conducted postmortem examination on the dead body of two children of informant were not examined. During trial the informant was also not examined. Besides informant, other two important witnesses i.e. investigating officer and doctor who conducted postmortem examination on the dead body of two children of informant were not examined. However, learned trial judge on the basis of evidence of six witnesses has held the appellant guilty for commission of offence under Section 302 of the I.P.C. Though the appellant was charged under Section 307 of the I.P.C. also, the learned trial judge assigning reason that neither investigating officer nor the informant was examined, has passed judgment of acquittal in favour of appellant in respect of offence under Section 307 of the I.P.C. The witnesses who were examined are mostly co-villager of the informant. P.W. 1 (Bishu Yadav), P.W. 2 (Jagdeo Mandal). P.W. 1 and P.W. 2 were cross-examined by the appellant himself, whereas the appellant declined to cross- examine P.W. 3 (Kalo Devi), P.W. 4 (Sonamati Devi ) & P.W. 5 (Nagina Devi) whereas, P.W. 6 (Yuvraj Yadav) was formal witness and he had come forward to prove fardbyan, formal F.I.R., postmortem report of Sintu Kumar and postmortem report of Putul Kumari . This witness was cross-examined by the defence counsel. After completion of prosecution evidence, statement of appellant was recorded under Section 313 of the Cr.P.C. 5. Sri Arvind Kumar Mouar, learned counsel for the appellant after referring to entire evidence has argued that the learned trial judge in absence of informant, investigating officer and doctor who conducted postmortem examination on two dead bodies has convicted the appellant under Section 302 of the I.P.C. and imposed death sentence. Learned counsel for the appellant by way of referring to lower court record particularly order dated 23.02.2017 passed by learned trial judge submits that the whole trial has virtually vitiated in view of non-compliance of provision contained in Section 304 of the Cr.P.C. He submits that due to poverty appellant was not in a position to get assistance of his Advocate regularly and this was the reason that out of six witnesses five witnesses could not be cross-examined by any defence counsel. Anyhow, the appellant himself tried to defend his case and this was the reason that he tried to cross-examine P.W. 1 and P.W. 2, however, he was not in a position to cross-examine rest of the witnesses except P.W. 6 at whose cross-examination the appellant could get assistance of his counsel. Anyhow, the appellant himself tried to defend his case and this was the reason that he tried to cross-examine P.W. 1 and P.W. 2, however, he was not in a position to cross-examine rest of the witnesses except P.W. 6 at whose cross-examination the appellant could get assistance of his counsel. Learned counsel for the appellant has further argued that besides absence of any admissible evidence, prosecution has further failed to establish even the place of occurrence. He submits that the best person to disclose about the place of occurrence was either informant himself or the investigating officer, but in the case investigating officer or informant were not examined. It has also been argued that though in the charge -sheet fourteen witnesses were cited as witness, to the reasons best known to prosecution out of fourteen charge-sheeted witnesses only five witnesses have come forward to depose. Regarding P.W. 6, who to the reasons best known to the prosecution, has proved fardbyan, formal F.I.R. and postmortem examination report, it was argued that this witness was not cited as a witness in the charge -sheet. Learned counsel for the appellant submits that in absence of informant who was the best person to explain regarding the occurrence, the learned trial judge was not required to place such heavy reliance on other witnesses. He submits that even the witnesses who have come forward have not categorically stated that how and in which manner appellant had assaulted two children of the informant as well as informant himself. According to learned counsel for the appellant on vague evidence learned trial judge was not required to proceed and pass judgment of conviction and sentence. In any event, it has been argued that since the appellant was not provided adequate legal aid, the whole trial has vitiated. He further submits that statement of appellant which was recorded under Section 313 of the Cr.P.C. was also not in accordance with law. He submits that after conclusion of prosecution evidence, evidences and circumstances were not explained to the appellant for clarification. Only formality was done. Accordingly, it was in violation of the law laid down by the Hon’ble Supreme Court particularly in a judgment reported in AIR 1984 SC 1622 Sharad Birdhichand Sarda v. State of Maharashtra. Accordingly, it has been argued that impugned judgment of conviction and sentence is liable to be set aside. 6. Only formality was done. Accordingly, it was in violation of the law laid down by the Hon’ble Supreme Court particularly in a judgment reported in AIR 1984 SC 1622 Sharad Birdhichand Sarda v. State of Maharashtra. Accordingly, it has been argued that impugned judgment of conviction and sentence is liable to be set aside. 6. Sri Mayanand Jha, learned Additional Public Prosecutor submits that on the basis of the order- sheet of the court below it appears that the appellant in a calculated manner had declined to get assistance of any counsel at the time of cross-examination. He submits that from perusal of the lower court record it is evident that first of all “Vakalatnama” on behalf of the appellant was filed on 02.08.2010 and in the case at much belated stage on 30.01.2017 an another “Vakalatnama” was filed on behalf of the appellant. Accordingly, he submits that since the appellant himself in a well designed manner has not cross-examined either of the witnesses, no such benefit can be given to the appellant that it was violation of provision contained in Section 304 of the Cr.P.C. He further submits, by way of referring to order dated 23.02.2017, that ill motive of appellant is corroborated from the order sheet of the court below itself. He submits that after the evidence was closed and case was fixed for argument and argument was advanced, a petition was filed on behalf of the appellant under Section 304 of the Cr.P.C. He submits that the said petition was filed by an Advocate of the appellant himself. He submits that once the appellant was in a position to engage a counsel for filing petition, it cannot be a case that due to poverty he was not in a position to engage any counsel. He further submits that even before this Court the appellant has engaged two counsel. One is appearing in Death Reference Case on his behalf namely Sri M.P. Bhartee, learned Advocate and in Criminal Appeal which has been filed by the convict, Sri Arvind Kumar Mouar, learned counsel is appearing. However, learned Additional Public Prosecutor was not in a position to explain as to why without examination of informant, investigating officer and doctor who conducted post -mortem examination on two dead bodies the case had proceeded. 7. However, learned Additional Public Prosecutor was not in a position to explain as to why without examination of informant, investigating officer and doctor who conducted post -mortem examination on two dead bodies the case had proceeded. 7. Besides hearing learned counsel for the parties, we have examined entire evidence and lower court record and after going through the materials available on record prima facie we are of the opinion that the impugned judgment of trial court is required to be interfered with. While interfering it would be necessary to remit back the matter to the court below, so that, in the case prosecution may ensure examination of informant, investigating officer as well as doctor, who conducted postmortem examination. Besides this, the appellant may be allowed to recall witnesses who were already examined by the trial court for their cross -examination. 8. P.W. 1 (Bishu Yadav) in his evidence has deposed that son and daughter of Kailu Bhuiyan were killed. Ram Prit Bhuiyan (appellant) had killed. He was not in a position to explain as to in which year occurrence had taken place. However, he states that occurrence had taken place in between 12.00-1.00 P.M. He has also stated that he was not knowing the reason for murder and he was not knowing as to whether there was any animosity or not. However, in dock he identified the appellant. He was cross-examined by the appellant himself and in his cross-examination he stated that he was not knowing as to why murder had taken place. 9. P.W. 2 (Jagdeo Mandal) in his evidence has said that son and daughter namely: Sintu Kumar and Putul Kumari of Kailu Mandal were killed. Ram Prit Mandal (appellant) had murdered. Murder was done by side wood of cot ( [kfV;k okyk ikVh ). He further stated that occurrence had taken place near the door and it occurred in between 3.00 - 4.00 P.M. He too identified the appellant in dock. This witness was cross-examined by appellant. In cross-examination he stated that there were number of persons in Devi Mandap where Panchayati was going on. While children reached there running they were killed. He was cross-examined by the court also and he stated that he had not seen any one dying. He had seen appellant while apprehended with danda. 10. P.W. 3 (Kalo Devi ) is also co-villager. While children reached there running they were killed. He was cross-examined by the court also and he stated that he had not seen any one dying. He had seen appellant while apprehended with danda. 10. P.W. 3 (Kalo Devi ) is also co-villager. In her evidence she stated that at the time of occurrence she was sitting in temple. Two children of Kaila were done to death. Son and daughter were murdered by use of tangi. She too identified the appellant in dock. However, the appellant who was produced from custody declined to cross-examine this witness. 11. P.W. 4 (Sonamati Devi) too is the co-villager. She deposed that she had seen that two children of Kaila were done to death by assaulting by tangi. The name of boy was Pintu and girl was Putul. Ram Prit (appellant) had murdered both the children. She also identified the appellant in dock and claimed that she had seen the appellant while he was murdering. The appellant who was produced from custody declined to cross-examine her. 12. P.W. 5 (Nagia Devi) is also co-villager and she deposed that occurrence had taken place at about 1 ½ -1 ¾ years earlier. In Devi Asthan Panchayati was going on where she had gone. Then she saw Ram Prit (appellant) assaulting by lathi and tangi. Again she stated that by tangi and pati (side wood of cot) he had killed both children. Both children of Kailu were done to death. In paragraph no. 2 she identified the appellant and she claimed that Ram Prit had killed. This witness was declined by the appellant to be cross-examined while appellant was produced from custody. 13. P.W. 6 (Yuvraj Yadav) who was an Advocate’s Clerk has proved fardbyan, which was marked as Exhibit-1, formal F.I.R. regarding which he claimed that it was prepared by the then Officer-In-Charge of Barachati Police Station and same was marked as Exhibit-2 and he also proved post-mortem examination report in respect of two post -mortem which were prepared by one Dr. Rajiv Ranjan Das, who at the relevant time was posted in Magadh Medical College & Hospital. The two post-mortem examination reports were marked as Exhibit-3 and Exhibit-3/1. However, on cross- examination he admitted that he was not hand writing expert. He admitted that he was not knowing about the occurrence. Rajiv Ranjan Das, who at the relevant time was posted in Magadh Medical College & Hospital. The two post-mortem examination reports were marked as Exhibit-3 and Exhibit-3/1. However, on cross- examination he admitted that he was not hand writing expert. He admitted that he was not knowing about the occurrence. He said that he was not knowing as to post- mortem examination report was in relation to whom. He also accepted that there was no occasion for him to stay with either Officer-In-Charge or doctor, even then those documents were accepted on behalf of the prosecution. 14. After prosecution evidence, statement of appellant under Section 313 of the Cr.P.C. was recorded. Since prima facie we are of the opinion that it is not true compliance, it would be necessary to re-produce the same, which is as follows:- ^^1- vkius xokgksa dk C;ku lquk gS mRrj%& th gkAa 2- vkids fo:) ;g Hkh lk{; gS fd vkius fnukad 07-08-2009 dks xzke & jkSa/kok VkaM] Fkkuk eksguiqj ftyk x;k esa iqrqy dqekjh ,oa flUVq dqekj dks Vkaxh ls ekjdj gR;k dj fn;k mRrj%& th ughAa 3- iz'u& vkids fo:) lk{; gS fd vkius dSyq e.My dh gR;k dk Hkh iz;kl fd;k mRrj%& th ughAa 4- iz'u& vkidks lQkbZ esa D;k dguk gSA mRrj%& funksZ’k gwWA 15. On examination of statement of appellant recorded under Section 313 of the Cr.P.C. it is evident that nothing was explained as to at which place occurrence had taken place as well as the manner in which occurrence took place. We are of the considered opinion that this is not true compliance of Section 313 of the Cr.P.C. Considering entire evidence one thing is evident that relevant witnesses have not come forward to depose. The informant whose two children were done to death, to the reasons best known to prosecution, has not come forward even to claim as to whether fardbyan contains his own disclosure or not. In absence of scribe of fardbyan it would also be difficult to place reliance on such fact. It has been noticed that the appellant was not provided adequate legal aid. At the time of cross- examination of P.W. 1 to P.W. 5 there was none to defend the appellant and this was the reason that he himself had either cross -examined some of the witnesses or declined to cross -examine some witnesses. It has been noticed that the appellant was not provided adequate legal aid. At the time of cross- examination of P.W. 1 to P.W. 5 there was none to defend the appellant and this was the reason that he himself had either cross -examined some of the witnesses or declined to cross -examine some witnesses. In such situation it was mandatorily required on the part of the trial court to take steps for providing any counsel from Legal Aid Committee or at the expense of the Government. Accordingly, we are of the opinion that it was not true compliance of Section 304 of the Cr.P.C. Moreover, examination of doctor, investigating officer as well as informant in the facts and circumstances of the present case was necessary. In absence of evidence of investigating officer or evidence of informant the prosecution has not been able to establish exactly the place of occurrence. Similarly, in absence of doctor who conducted postmortem examination on the dead body of two deceased the appellant’s case has seriously been prejudiced. In absence of evidence of investigating officer also the appellant’s case has seriously been prejudiced otherwise appellant would have occasion to draw attention of the witnesses to their previous statement recorded under Section 161 of the Cr.P.C. 16. In sum and substance after examining entire material available on record and evidences, we are of the opinion that the judgment impugned is required to be interfered with. Accordingly, judgment of conviction and sentence dated 16.03.2017 & 17.03.2017 passed by Sri Dharmendra Kumar Jaiswal, learned VIth Additional Sessions Judge, Gaya is hereby set aside and order of death sentence is not confirmed and Death Reference No. 5 of 2017 is dismissed. 17. Since in the case two minor children of informant were done to death as alleged, it would not be the end of the matter, rather it would be necessary to remit back the matter to the court below with a direction to proceed from the stage prior to closure of prosecution evidence. The prosecution thereafter will take all steps to secure attendance of informant, investigating officer as well as doctor who conducted post- mortem examination on the dead body of two deceased. The prosecution would be entitled to examine left over witnesses. 18. The prosecution thereafter will take all steps to secure attendance of informant, investigating officer as well as doctor who conducted post- mortem examination on the dead body of two deceased. The prosecution would be entitled to examine left over witnesses. 18. It is made clear that after receipt of the record in the court below the learned trial judge is required to proceed with the case from the stage of prosecution evidence. While proceeding it would be necessary for the learned trial judge to take up the matter at least twice in a week so that trial may come to its logical end without unnecessary delay. It is further directed that as and when required by the trial judge the concerned Superintendent Of Police i.e. Superintendent of Police, Gaya shall ensure production of witnesses, so that, the case may come to its logical end without unnecessary delay. 19. With above observation and direction, CR. APP (DB) No. 668 of 2017 is allowed and Death Reference No. 5 of 2017 stands rejected. 20. Let a copy of this order be sent to the Superintendent of Police, Gaya for its true compliance. 21. Since the appellant is in custody and judgment of conviction and sentence has been set aside, he is directed to be provisionally released on bail on furnishing bail bond of Rs. 10,000/- (rupees ten thousand) with two sureties of the like amount each to the satisfaction of Sri Dharmendra Kumar Jaiswal, learned VIth Additional Sessions Judge, Gaya/concerned trial court in connection with Sessions Trial No. 44 of 2014/270 of 2010 [arising out of Barachati (Mohanpur) P.S. Case No. 207 of 2009, corresponding to G.R. No. 701 of 2009] with further condition that one of the bailors must be blood relation of the appellant.