JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal preferred by Rajendra Prasad Xalxo (A-1) & Chamru Ram (A-2) under Section 374(2) of the Cr.P.C. is directed against the impugned judgment passed by the learned Additional Sessions Judge by which they have been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs. 500/- each, in default, to further undergo additional rigorous imprisonment for two months. 2. Case of the prosecution, in a nutshell, is that on 23-7-2012, the present appellants along with two acquitted accused persons, in furtherance of their common intention, assaulted Radheyshyam by lathi by which he suffered grievous injuries and died. Further case of the prosecution is that complainant Kishore Ram (PW-3) has given his motorcycle for repair to deceased Radheyshyam Mistri, which accused Rajendra Prasad Xalxo (A-1) has allegedly brought from his repair shop and sold at Village Rajpur on which Kishore Ram (PW-3) & deceased Radheyshyam Mistri enquired from A-1 by visiting his house as to why his motorcycle has been sold by him, then, it is also the case of the prosecution that A-1 behaved irresponsibly and entered into quarrel with Kishore Ram (PW-3) & Radheyshyam (deceased), whereupon Radheyshyam ran way upon which the two appellants herein chased him and ultimately, assaulted him in the field of Ramkeval and thereafter, the appellants absconded. Radheyshyam became unconscious and he was escorted to hospital at Shankargarh, District Balrampur-Ramanujganj and thereafter, on the complaint lodged by Kishore Ram (PW-3), offence punishable under Section 307 read with Section 34 of the IPC has been registered against the accused persons including the appellants herein. Thereafter, Radheyshyam was referred to District Hospital, Ambikapur from where he was shifted to Raipur for better treatment, but before he could reach Raipur, he succumbed to the injuries sustained by him and died on the way. Morgue intimation Ex.P-29 was registered on 26-7-2012, inquest proceeding was conducted vide Ex.P-5 and on the recommendation of panchas, dead body of the deceased was sent for postmortem to Community Health Centre, Shankargarh vide Ex.P-31 where postmortem was conducted by Dr. Shashikala Toppo (PW-12) vide Ex.P-20 and cause of death was stated to be cardio respiratory arrest due to coma as a result of head injury and death was homicidal in nature. Shashikala Toppo (PW-12) vide Ex.P-20 and cause of death was stated to be cardio respiratory arrest due to coma as a result of head injury and death was homicidal in nature. Upon the disclosure statement of accused/appellant Rajendra Prasad Xalxo (A-1) recorded vide Ex.P-11, wooden lathi was seized from him vide Ex.P-7. Similarly, upon the disclosure statement of accused/appellant Chamru Ram (A-2) recorded vide Ex.P-14, bamboo stick (lathi) was seized from him vide Ex.P-15. Seized articles were sent for chemical examination to the FSL, Raipur, but no FSL report has been brought on record. 3. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After due investigation, the accused/appellants herein and the two acquitted co-accused persons were chargesheeted for offence under Section 302 read with Section 34 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Balrampur and the case was committed to the Court of Sessions from where the learned Additional Sessions Judge, Ramanujganj received the case on transfer for conducting trial and for hearing and disposal in accordance with law. 4. The accused persons abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as fourteen witnesses and exhibited 42 documents. The defence has examined none and exhibited no document. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 5. The trial Court after appreciating oral and documentary evidence available on record, while acquitting the two co-accused persons namely, Maniyo (A-3) - daughter of Chamru (A-2) and Smt. Chinta Xalxo (A-4) - wife of Rajendra Prasad Xalxo (A-1), convicted and sentenced the appellants herein under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the Cr.P.C. has been preferred. 6. Mr. 6. Mr. K.K. Singh, learned counsel appearing for the appellants, would submit that the trial Court has committed grave legal error in holding the appellants guilty for the aforesaid offence relying upon the statement of Khakhnu Yadav (PW-7) who has clearly admitted and answered in his cross-examination before the Court that he could not see the incident and he has also confirmed the same on the question raised by the trial Court under Section 165 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’) therefore, the trial Court reading down the evidence as a whole could not have reached to a definite conclusion that he has seen the incident by which the appellants have assaulted the deceased, as such, conviction is based on the sole evidence of Khakhnu Yadav (PW-7), who has neither witnessed the incident nor was present at the time of incident. Therefore, conviction of the appellants based on the testimony of Khakhnu Yadav (PW-7) is absolutely contrary to law and liable to be set aside, as such, the appeal be allowed by acquitting the appellants herein. 7. Mr. Ali Asgar, learned State counsel, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellants and would submit that the trial Court has read into the statement of Khakhnu Yadav (PW-7) and thereafter, rightly reached to the conclusion that Khakhnu Yadav (PW-7) has seen the incident and rightly convicted the appellants herein for offence under Section 302 of the IPC and as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem report Ex.P-20, which has been proved by Dr. Shashikala Toppo (PW-12) in which cause of death of the deceased was stated to be cardio respiratory arrest due to coma as a result of head injury and death to be homicidal in nature, rightly held that nature of death of the deceased was homicidal. The finding recorded by the trial Court that death of deceased Radheyshyam was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. The finding recorded by the trial Court that death of deceased Radheyshyam was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Conviction of the appellants is mainly based on the oral evidence of Ram Kewal Mar (PW-5) & Khakhnu Yadav (PW-7). First of all we will consider the statement of Ram Kewal Mar (PW-5) in whose field the incident took place and at that time, he was cultivating his field by way of ropa (paddy transplantation) and he was along with Khakhnu Yadav (PW-7). He has stated in his evidence that on the fateful day, the appellants herein were chasing the deceased. He has further stated that he could not see the incident of assault, but after five minutes, on hearing the hue & cry, he along with the villagers assembled at the place where the appellants were chasing the deceased and found that Radheyshyam was lying in injured condition. As such, he has only proved that on the date of offence, the two appellants herein were chasing the deceased. According to Ram Kewal Mar (PW- 5), he and Khakhnu Yadav (PW-7), both have seen the two appellants chasing Radheyshyam - deceased. However, Khakhnu Yadav (PW-7) has stated before the Court that he & Ram Kewal Mar (PW-5) have seen the appellants assaulting the deceased, as Chamru (A-2) had caught hold of deceased Radheyshyam and Rajendra (A-1) has assaulted the deceased on his head by lathi by which he suffered grievous injuries and became unconscious, blood was oozing, and he (PW-7) & Ram Kewal Mar (PW-5) both have taken him to a covered area. However, in cross-examination, paragraph 10, Khakhnu Yadav (PW-7) has admitted the fact that he has not seen the incident of marpit by the appellants upon the deceased and since he has come to the Court for the first time, therefore, out of fear, he has informed that he has seen the incident and further stated that when he reached to the place of incident, number of persons had already assembled and upon hearing from others, he has stated that he has seen the incident, he has not seen the incident by his own eyes, no lathi was seized in his presence and no seizure and memorandum statement were recorded at his instance. However, he was put to questions by the trial Court in exercise of power under Section 165 of the Evidence Act, in respect of the statement made in paragraph 2 that he has seen the incident as well as that of paragraphs 10 and 11 that he has not seen the incident, on which he informed that his later statement that he has not seen the incident is the correct version. Questions put by the trial Court and the answers given by him are as under: U;k;ky; }kjk Á’u Á’u% eq[; ijh{k.k esa rqeus dgk fd esjs lkeus pe: o jktsUæ us jk/ks’;ke dks iVddj ykBh ls ekjk] Áfr ijh{k.k esa rqeus dgk fd eSaus ekjrs gq, ?kVuk dks ugha ns[kk gS] bu nksuksa esa ls ,d dFku lgh gS o ,d dFku >wBk gS] dkSu lk lgh gS o dkSu lk >wBk gS\ mRrj% vHkh tks eSa cksyk gwa og lp gS] igys tks cksyk Fkk og >wB gSA Á’u% bldk eryc igys rqeus vnkyr esa ’kiFk ij >wBk dFku fd;k gS\ mRrj% >wB gh cksy jgk FkkA xokg dks c;ku i ढ+dj lquk;k] lgh gksuk Lohdkj fd;kA 11. However, from the statement of Khakhnu Yadav (PW-7), it is quite vivid that he has clearly admitted in his cross-examination that he has not seen the incident by his own eyes, no memorandum and recovery were made in his presence, he has signed the memorandum statement on the dictation of the police authorities and even on the questions put to him by the Court, he has clearly stated that the later statement that he has not seen the incident assaulting the deceased by the appellants is the correct statement, but the trial Court considered the entire statement of Khakhnu Yadav (PW-7) and came to the conclusion that the later part of his statement that he has not seen the incident does not inspire confidence and he was influenced by some external factor and therefore the statement made by him in his examination-in-chief is the correct statement and he has seen the appellants by which they have caused injuries to the deceased and the deceased died while being escorted to the hospital. 12. 12. The question would be, whether the trial Court is justified in holding Khakhnu Yadav (PW-7) as eyewitness despite he has answered in his cross-examination that he has not seen the incident and on the questions put to him by the Court under Section 165 of the Evidence Act he has stated that he has not seen the incident, more particularly, when he has not been declared hostile by the prosecution? 13. In order to appreciate the dispute, it would be appropriate to notice Section 165 of the Evidence Act, which states as under: “165. Judge’s power to put questions or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 14. Section 165 of the Evidence Act is intended to arm the judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the court will be able to look at and enquire into every fact whatever and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. 15. The effect of this section is that in order to get to the bottom of the matter before it, the court will be able to look at and enquire into every fact whatever and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. 15. The Supreme Court in the matter of State of Rajasthan vs. Ani alias Hanif and Others, (1997) 6 SCC 162 has considered the issue with reference to Section 165 of the Evidence Act and held that the trial Judge acted within his powers in intervening a witness during cross-examination to get a confusion in his mind cleared and observed as under in paragraphs 11 and 12: “11. We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts. The said section was framed by lavishly studding it with the word “any” which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words “relevant or irrelevant” in Section 165. Neither of the parties has any right to raise objection to any such question. 12. Reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during re-examination to elicit truth. The corollary of it is that if a Judge felt that a witness has committed an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is a useful exercise for trial Judge to remain active and alert so that errors can be minimised.” 16. Furthermore, in the matter of Ritesh Tewari and Another vs. State of Uttar Pradesh and Others, (2010) 10 SCC 677 their Lordships of the Supreme Court have held that Section 165 of the Evidence Act gives a very wide power to a judge to ask a witness any question in any form. It has been explained by the Supreme Court in the following words: “37.........It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. “Every trial is a voyage of discovery in which truth is the quest.” Therefore, power is to be exercised with an object to sub-serve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself. [Vide Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 : 1968 Cri. L.J. 231 and Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999].” 17. [Vide Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 : 1968 Cri. L.J. 231 and Zahira Habibulla H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999].” 17. Similarly, in the matter of Krishnegowda and Others vs. State of Karnataka by Arkalgud Police, (2017) 13 SCC 98 the Supreme Court has held that the Court should always make an endeavour to find the truth. A criminal offence is not only an offence against an individual but also against the society. It has been observed in paragraph 44 as under: “44. The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs.” 18. Bearing in mind the principles of law laid down by Supreme Court qua Section 165 of the Evidence Act, it is quite vivid that in the instant case, Khakhnu Yadav (PW-7) in his statement before the Court, in examination-in-chief, has clearly stated that he has seen the incident by which the two appellants herein assaulted the deceased and caused injuries to him and thereafter, he [Khakhnu Yadav (PW-7)] and Ram Kewal have taken the injured/deceased to a covered place and ensured that he should be taken to the hospital, but surprisingly, in cross-examination, Khakhnu Yadav (PW-7) has totally taken a u-turn by stating that he has not seen the incident and on account of fear because of his first appearance in the court, he made such statement; what he has informed to the court is on the basis of what he heard from others; he has not seen the incident through his own eyes; and though he stood as witness to memorandum statement & seizure, but he has totally denied that any such memorandum statement was recorded in his presence. But, admittedly, when the court put question to him with regard to his two previous statements firstly, that he has seen the incident which he has made in examination-in-chief and secondly, that he has not seen the incident which he has made in cross-examination, as to which one is correct and which one is wrong, he has candidly replied that the second statement which he has made that he has not seen the incident by which the two appellants have caused injuries to the deceased, is the correct one and the previous/first statement is the wrong one, even he has admitted that previously he told lie before the court. The trial Court did not accept the statement of Khakhnu Yadav (PW-7) made by him in cross-examination by which he has stated that he has not seen the incident and relied upon the statement made in the examination-in-chief. Once the Court has put a question to Khakhnu Yadav (PW-7) as to which version of his two previous statements is correct and he has replied that the second version that he has not seen the incident of causing injuries by the appellants herein to the deceased is the correct one, by reading down the statement as a whole, the trial Court could not have reached to the conclusion that he has seen the incident and the second part of the statement that he has not seen the incident, is not acceptable, more particularly, when Ram Kewal Mar (PW-5), in whose field the incident took place, has confirmed the presence of the appellants, though he also did not support the case of the prosecution that the two appellants have assaulted the deceased by which he has suffered injuries and died. Furthermore, pursuant to the memorandum statements, from both the accused/appellants herein, lathis have been seized vide Exs.P-7 & P-15, which has not been supported by the panch witnesses and the statement of investigating officer M.L. Shukla (PW-14) has not been found reliable by the trial Court, which the trial Court has also not accepted as an incriminating piece of evidence. 19. Now, the only evidence available is that Ram Kewal Mar (PW-5), who has seen the two appellants herein chasing the deceased and after five minutes, he has seen deceased Radheyshyam lying injured. 19. Now, the only evidence available is that Ram Kewal Mar (PW-5), who has seen the two appellants herein chasing the deceased and after five minutes, he has seen deceased Radheyshyam lying injured. At the most, his statement will be admissible under Section 6 of the Evidence Act, but on that basis, no conviction can be rested for offence under Section 302 of the IPC. On similar set of facts and evidence, two co-accused persons namely Maniyo (A-3) & Smt. Chinta Xalxo (A-4) have already been acquitted by the trial Court. As such, the testimony of Ram Kewal Mar (PW-5) as eyewitness is not reliable and it does not inspire confidence. Memorandum statements and seizure of lathis have been held to be not found proved by the trial Court in accordance with law and Ram Kewal Mar (PW-5) is the only witness who has seen the appellants chasing the deceased, but on that basis, conviction cannot be recorded. Therefore, there is no direct or circumstantial evidence to conclude that it is only and only the appellants who are authors of the crime and on that basis, they are entitled for acquittal on the basis of benefit of doubt. 20. In that view of the matter, we hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellants vide the impugned judgment dated 30-6-2016. The appellants are acquitted of the charge under Section 302 of the IPC. They are in jail. They be released forthwith, if not required in any other case. 21. The criminal appeal is allowed. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.