JUDGMENT : Heard. 1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure 1973 is directed against the impugned judgment dated 05/11/2019 passed by the Sessions Judge, Surajpur, District Surajpur, C.G. in Sessions Trial No.66/2018 whereby the appellant has been convicted under Section 449 & 302 of IPC and sentenced to undergo R.I. for 10 Years & Life Imprisonment, respectively and to pay a fine of Rs.500/- for each offence and in default of payment of fine amount further R.I. for 2 months for each offence was ordered. 2. The prosecution case, in brief, is that Dhirsai (PW-1) made a report on 22/06/2018 at Police Station Premnagar that his mother-in-law Rameshwari Kotari went to field to work and while she was taking rest he went there to provide food wherein he saw that the appellant has assaulted his mother-in-law Rameshwari Kotari by an axe on his head in a hutment and thereafter after closing the hutment he was running away. When he went inside the hutment he saw that his mother-in-law was unconscious and injured. Having asked, she could not narrate anything subsequently she succumbed to such injuries. The motive was attributed that there was a land dispute in between them. The dead body was subjected to postmortem wherein the nature of death was reported to be homicidal. The appellant thereafter was caught and an axe was recovered at his instance and it was sent for FSL, however, the blood group in the axe could not be confirmed and on the basis of primary eye witness statement Dhirsai (PW-1) and the merg statement (Ex. P/1) the appellant was convicted. 3. Shri Gyan Prakash Shukla, learned counsel for the appellant, would submit that gross injustice has occurred in this case for the reason that the conviction which is based on the testimony of eye witness, he never disclosed this fact that he has seen the appellant assaulting his mother-in-law in his police statement recorded under Section 161 of Cr.P.C., however, in the Court statement he made such statement which made the basis of conviction. He would further submit that the person who ran away from the place of happening cannot be attributed to his crime which may be a strong circumstances but it cannot be replaced by evidence as proved. He would further submit that the person who ran away from the place of happening cannot be attributed to his crime which may be a strong circumstances but it cannot be replaced by evidence as proved. He would further submit that because of the fault of the advocate or the Court, the appellant cannot be made to suffer life imprisonment. He placed his reliance in the law laid down by the Supreme Court in the matter of Munna Pandey Vs. State of Bihar {Criminal Appeal No.1271-1272 of 2018, 2023 LiveLaw (SC) 744} and would submit that under the circumstances when the confrontation of the statement made to the police under Section 161 Cr.P.C. was not made it cannot be relied upon but the same would result into gross injustice and denial of fair trial. He would further submit that the trial Court Judge should also have seen this fact and cannot attribute a role of a mute spectator. Therefore, the case needs to be remanded back to the trial Court for fresh adjudication for giving opportunity to re- examine the witness Dhirsai (PW-1) to confront him with the statement made under Section 161 Cr.P.C. and the Merg as the different story was narrated and thereafter the afresh adjudication may be done as the circumstantial evidence though may exist but it has not been proved to the hilt. 4. Shri Ratan Pusty, learned Government Advocate for the State, after going through the statement made by Dhirsai (PW-1) under Section 161 Cr.P.C. and his Court statement, reference is made to the law laid down by the Supreme Court in the matter of V.K. Mishra and another v. State of Uttarakhand and another { AIR 2015 SC 3043 } to submit that the position of law has been made clear in this case that what would be the effect if the confrontation has not been made to the Court statement and the statement made under Section 161 Cr.P.C. 5. We have heard learned counsel for the parties and perused the evidence. 6. We have heard learned counsel for the parties and perused the evidence. 6. Dhirsai (PW-1) in the statement recorded before the Court stated that on the date of incident when he went to field to provide food to his mother- in-law, he saw that the accused Siyaram Sirdar was assaulting his mother-in-law by way of an axe and iron rod, thereafter the accused chased him and due to fear he fled away from the seen and the accused/appellant also left the seen of occurrence. The merg intimation was proved as Ex. P/1 and FIR was Ex. P/2. In the cross-examination he admits that there was certain dispute existed with respect to some land in between the parties i.e. the accused & witness. Since the submission has been made that in the police statement under Section 161 Cr.P.C. he did not make any statement that he was the eye witness to the incident and stated that when he went there and saw that the appellant was holding an axe in his hand and was standing outside the door and after the witness saw him, accused ran away. Thereafter, when he went inside the hutment he saw his mother-in-law was in a pool of blood. 7. We have examined the statement made under Section 161 Cr.P.C and the Court statement made by the witness Dhirsai (PW-1). He is the sole witness. In the merg, though he made a statement that after assaulting his mother-in-law the appellant was running away but there also a contradiction comes in the cross-examination about such statement. Over all examination of the Court statement and the statement made under Section 161 Cr.P.C. do not match with regard to eye witness as there is material improvement made by the witness before the Court. Apparently, it appears that the statement made to the police under Section 161 Cr.P.C. was not confronted to the witness while he was cross-examined before the Court. The Court was also not agile enough to point out this fact while the evidence were adduced. 8. At this juncture, it would be apt to refer to Section 145 of the Evidence Act and Sections 161 & 162 of the Cr.P.C. which are quoted below for the sake of brevity:- Evidence Act 145. The Court was also not agile enough to point out this fact while the evidence were adduced. 8. At this juncture, it would be apt to refer to Section 145 of the Evidence Act and Sections 161 & 162 of the Cr.P.C. which are quoted below for the sake of brevity:- Evidence Act 145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Cr.P.C. 161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records: [Provided that statement made under this sub-section may also be recorded by audio-video electronic means.] [Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.] 162. Statements to police not to be signed – use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act. Explanation - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 9. The Supreme Court in the matter of P. Sanjeeva Rao Vs. State of Andhra Pradesh { (2012) 7 SCC 56 } in a situation like that has laid down that because of any mistake committed on behalf of the prosecution or the defence the accused should not suffer a penalty which may disproportionate to the gravity of the error committed by his lawyer. State of Andhra Pradesh { (2012) 7 SCC 56 } in a situation like that has laid down that because of any mistake committed on behalf of the prosecution or the defence the accused should not suffer a penalty which may disproportionate to the gravity of the error committed by his lawyer. We cannot forget the fact that the appellant has suffered a life imprisonment, therefore, the statement under Section 162 Cr.P.C. was not confronted wherein the factum like that of eye witness was missing which might hold the sway to create a doubt or atleast a fair opportunity. 10. Further, the Supreme Court in the matter of Munna Pandey Vs. State of Bihar {Criminal Appeal No.1271-1272 of 2018, 2023 LiveLaw (SC) 744 = 2023 SCC OnLine SC 1103} has observed, though the language of Section 162 Criminal Procedure Code, is wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, to secure the ends of justice. It further held that statement recorded under Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. The Court further observed that the Judge cannot “drop the mantle of a Judge and assume the robe of an advocate. The Court further observed that 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. For the sake of reference para 52, 53, 54 & 55 of the judgment are reproduced hereunder:- “52. This Court in Dandu Lakshmi Reddy v. State of A.P., (1999) 7 SCC 69 , it was held:- “20. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by Parliament indirect terms cannot be obviated in any indirect manner.” (Emphasis supplied) 53. Sarkar (1999, 15th pp.2319 etc.)says that a Judge is entitled to take a proactive role inputting questions to ascertain the truth and to fill up doubts, if any, arising out of inept examination of witnesses. But, as stated by Lord Denning in Jones v. National Coal Board, 1957 (2) All ER 155 (CA), the Judge cannot “drop the mantle of a Judge and assume the robe of an advocate” 54. Of course, the Judge should not be a passive spectator but should take a proactive role as emphasized by Phipson (Evidence, 1999, 15th Ed, para 1.21 as under:- “When the form of the English trial assumed its modern institutional form, the role of the judge was that of a neutral umpire. This is still broadly the position in criminal cases. In civil cases, the abandonment of jury trial except in a few exceptional cases led to some dilution of this principle. The wholesale changes in 1999 of the rules governing civil procedure has emphasized the interventionist role of the modern judge. Whereas formally the tribunal was a ‘reactive judge (for centuries past at the heart of the English Common Law—concept of the independent judiciary) instead we shall have a proactive judge whose task will be to take charge of the action at a nearly stage and manage its conduit.” (Emphasis supplied) 55. This Court in State of Rajasthan v.Ani @ Hanif and Ors. This Court in State of Rajasthan v.Ani @ Hanif and Ors. (1997) 6 SCC 162 , made very relevant and important observations as under:- “11....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. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross- examination or even during reexamination 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.”(Emphasis supplied) 11. 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.”(Emphasis supplied) 11. Likewise the judgment rendered in the matter of V.K. Mishra and another v. State of Uttarakhand and another { AIR 2015 SC 3043 } touches upon the subject issue wherein the Court observed that Section 161 Cr.P.C. titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. In this case Dhirsai (PW-1), who allegedly happens to be the eye witness to the incident, his statement was recorded, however, as per Section 162 Cr.P.C. it was not signed. The Court held that Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161 (1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. The Court further held that the Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. For the sake of brevity para 15, 16 & 18 are reproduced hereunder:- 15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. For the sake of brevity para 15, 16 & 18 are reproduced hereunder:- 15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. XXX XXX XXX 18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction. 12. The Supreme Court In Re: To issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, 2017 SCC OnLine SC 298 with regard to marking of contradictions has issued suo moto guidelines to arrive at uniform best practices across the country. In the aforesaid case/guideline Supreme Court has observed as under :- 10. Marking of contradictions - A healthy practice of marking the contradictions/Omissions properly does not appear to exist in several States. Ideally the relevant portions of case diary statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a Prosecution/Defence exhibit. 11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration U/s. 145/157 of the Evidence Act deserves to be marked separately and specifically. 13. 11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration U/s. 145/157 of the Evidence Act deserves to be marked separately and specifically. 13. Further the Supreme Court in the matter of State of Maharashtra v. Bharat Chaganlal Raghani { (2001) 9 SCC 1 } has reiterated the law for proving contradiction in Tahsildar Singh v. State of U.P. [ AIR 1959 SC 1012 : 1959 Cri LJ 1231] held: (AIR p. 1023, paras 19-20) “19. ‘Contradict’ according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examination counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer — in the sense we have indicated — and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other. 20. It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in Section 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated. By that process, if a part of a statement is recorded, what was not stated could go in on the sly in the name of contradiction, whereas if the entire statement was not recorded, it would be excluded. By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature, viz., that the statement should have been recorded.” 14. By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature, viz., that the statement should have been recorded.” 14. Now coming back to the facts of this case, we see that while the witness Dhirsai (PW-1) has turned eye witness to the incident, whereas the statement under Section 161 Cr.P.C. it has not been categorically stated so. In a criminal trial the inference cannot be drawn specially when the witness stepped into the shoes of an eye witness in the Court but other statement was given by the witness during the investigation. If he has not been confronted to such statement, it would cause serious prejudice as would lead to defeat the life and liberty which is guaranteed under Article 21 of the Constitution of India. 15. As a Court of law while going through the records we cannot shut our eyes to sit at fence to allow such serious lacuna to precipitate. We feel during the examination and cross-examination the statement of Dhirsai (PW-1) was not brought for confrontation or contradiction as has been stated that the Judge cannot drop the mantle of a Judge and assume the robe of an advocate once this fact comes to fore that the eye witness has not deposed before the police that he has seen that the accused was assaulting his mother-in-law. 16. The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one. In the pious process of unraveling the truth so as to achieve the ultimate goal of dispensing justice between the parties. At this stage, we do not want to deliberate upon the other factors about the seizure & FSL and we deem it appropriate to remand the case for afresh examination of Dhirsai (PW-1) and cross- examine him to advance the concept of fair trial. Truth is the soul of justice. The sole idea of criminal justice system is to see that justice is done. Accordingly, we set aside the impugned judgment and remand back the case for adjudication afresh after recording statement of Dhirsai (PW-1). 17. Accordingly, the appeal is disposed of with the aforesaid observation.