JUDGMENT : Goutam Bhaduri, J. 1. The present acquittal appeal has been filed against the judgment of acquittal dated 31/08/2012 passed in S.T. No.102/2011 by the Vth Additional Sessions Judge, Raipur, C.G. whereby Respondents No.1 to 4 were acquitted from the charges of offence punishable under Section 302 read with Section 34 of the IPC. The instant appeal has been filed by the father of one of the deceased Manoj Mishra. For the sake of convenience, the respondents No.1 to 4/accused would be hereinafter referred as per cause title of the impugned judgment as A/1 to A/4. 2. The case of the prosecution, in brief, is that:- (A) on 02/01/2011 a report was made at about 11.15 pm in the police station Pachpedi Naka that certain quarrel is going in between a group near a Bar. At that time, the Constable Raju Nirmalkar rushed to the spot towards the Login Bar, where he found that one Manoj Mishra was lying in injured condition on the road and one Kirti Choubey was lying dead in front of Laxmi Medical and General Store. Stab injury was apparent over the chest and thigh of Manoj Mishra and on the body of Kirti Choubey the injury was prima facie apparent on the head and abdomen and lot of blood was scattered over the road; (B) The dead body of Kirti Choubey was sent to the hospital. Manoj Mishra, who was unconscious, was sent for medical treatment. Initially the case was registered under Sections 302 & 307 of the IPC against the unknown persons and subsequently the merg was registered on the death of Kirti Choubey. During the treatment, Manoj Mishra also died for whom also merg was registered. The police collected the blood stained soil from the spot and also the plain soil and statement of witnesses namely Sunil Mishra, Ajay Wankhede, Raju Nirmalkar and Ashok Soni were recorded. The accused having been arrested on 03/01/2011 on their memorandum statements were recorded and at the instance of Anil Kumar Dewangan (A/1) & Rajesh Mitra (A/2) knife, baseball bat and full shirt were seized on the next day. Thereafter the charge-sheet was filed. 3. During the trial the accused persons abjured their guilt and claimed to be tried. The prosecution on its behalf examined as many as 14 witnesses and exhibited 33 documents. The learned Sessions Judge after evaluating the evidence acquitted the accused persons. Thereafter the charge-sheet was filed. 3. During the trial the accused persons abjured their guilt and claimed to be tried. The prosecution on its behalf examined as many as 14 witnesses and exhibited 33 documents. The learned Sessions Judge after evaluating the evidence acquitted the accused persons. Hence this appeal by father of one of the deceased namely; Manoj Mishra. 4. Learned counsel for the appellant/complainant would submit that the incident was seen by Ajay Wankhede (PW-10) who has supported his statement under Section 161 Cr.P.C. and immediately after the incident on the next day the blood stained knife, shirt, baseball bat etc. were recovered from Anil Kumar Dewangan (A/1) & Rajesh Mitra (A/2) vide Ex. P/8 & P/9. He would further submit that the FSL report shows the presence of blood over the incriminating articles, which the accused have failed to explain as to how the incriminating articles, which were recovered, were having blood stains. He would further submit that the memorandum and seizure witness Veer Singh Parihar (PW-6) & Rintu Gupta (PW-8) both have supported, therefore, there is no ambiguity left out to raise a doubt. Consequently, the appeal is liable to be allowed and the respondents No.1 to 4 be convicted under Section 302 read with Section 34 of the IPC. 5. Per contra, learned counsel for Accused/Respondents No.1, 3 & 4 would submit that no eye witness has supported the case of the prosecution. He would further submit that the FIR was lodged against the unknown persons and the presence of blood has not been affirmed to be a human blood, therefore, no inference can be drawn in such circumstances and in such eventuality the acquittal is well merited which do not call for any interference. 6. Learned counsel for Rajesh Mitra (A/2), Respondent No.2 herein, would submit that the prosecution has filed the case only on the basis of presumption and there is no evidence on record to establish the fact that Ajay Wankhede (PW-10) has seen the incident on the contrary the statement of Ajay Wankhede (PW-10) would reveal that he completely denied the fact that his statement was ever recorded. She would further submit that this witness Ajay Wankhede (PW-10) was not declared hostile and the statement under Section 161 Cr.P.C. since been denied and those circumstances were not put to the accused, therefore, it will go against the prosecution and if two views are possible, in such situation the view which favours the accused is required to be adopted. 7. We have heard learned counsel for the parties and perused the evidence. 8. The date of incident is 02/01/2011 at about 11.00 pm, wherein two persons Kirti Choubey and Manoj Mishra lost their lives. As per the prosecution case, Anil Kumar Dewangan (A/1); Rajesh Mitra (A/2); Durgesh Kumar Dewangan (A/3); and Rajkumar Sen (A/4) over a rivalry for extortion of money as they used to demand money in lieu of allowing ply of the auto/vehicles, which the accused objected and prior to the incident some threats were exchanged in between. On date of incident all the accused came in an Auto and thereafter assaulted the victims. The eye-witness is Ajay (PW-10). The postmortem report of Kirti Choubey is Ex. P/14, which is proved by Dr. R.K. Singh (PW-7), wherein following injuries were found on the body of the deceased:- On the Back side- 1. Stab Incised wound on right side back 3 cm right to midline obliquely transverse 2 x 0.5 cm at T6 plane deep into lung. Depth-7 cm. 2. Incised wound 9 cm lower to injury no. (1) transverse 2 x 0.6 x 0.8 cm & 4.5 cm right to midline back. 3. Stab Incised wound at L3 plane 3 cm right to midline back transverse 2 x 1 cm. It has entered into intestine lumen deep. Total depth 6.5 cm. 4. Stab Incised would at T 11 plane transverse just left to midline back 3.5 x 1 cm. It has entered into intestine lumen deep 6.5 cm. The part of skin wound i.e. 1.5 cm is the extension of main wound. On the Front Side- 1. Stab Incised wound 2.5 cm lower to right nipple transverse 1 x 0.4cm x 7 cm. It has entered into right lobe of liver. 2. Stab Incised wound slightly above xiphisternum just left to midline transverse 1 x 0.5 cm. It has entered into stomach lumen through pericardium and other tissues in the passage. Total depth 6 cm. 3. Stab Incised wound 2.5 cm lower to right nipple transverse 1 x 0.4cm x 7 cm. It has entered into right lobe of liver. 2. Stab Incised wound slightly above xiphisternum just left to midline transverse 1 x 0.5 cm. It has entered into stomach lumen through pericardium and other tissues in the passage. Total depth 6 cm. 3. Stab Incised wound 8 cm below left nipple transverse 0.8 x 0.5 cm. It has entered into stomach lumen. Total depth of wound is 6 cm. 4. Stab Incised wound 2 cm right to midline & slightly above to Umbilicus transverse 2 x 0.5 cm. It has entered into intestine lumen. Total depth 7 cm. 5. Incised wound 7 cm below left armpit 0.5 x 0.4 x 0.3 cm. Left Lower Limb- 1. Incised wound on left thigh lower 1/3 front obliquely transverse 2 x 0.5 cm x 1cm. 2. Incised wound lower lateral border of left knee vertical 1x 0.5cm x 0.5cm deep. All stab wounds have one end narrow and the other broad. The broad end margins slightly contused & lacerated while rest margins are clearly cut. The character of shape is the same of all stab wounds from skin to deep inner end of the wounds. Wounds taper distally inwards. All incised wounds have clean cut margins. Head Injury 1. Lacerated wound on right fronto-parietal region obliquely sagittal 10 x 1 cm x bone-deep upper part, slightly right to midline. (2) Lacerated wound on left fronto-parietal upper part slightly left to midline sagittal 4.5 x 1.5 cm x bone deep. (3) Lacerated wound on left temporo-parietal region slightly above left ear coronal 3.5 x 1 cm x bone deep. Depressed comminuted fracture on left temporal region 4 x 2 cm Sagittal. From its upper border goes to coronal suture a radiating fracture on left frontal bone. Posteriorly also there is a radiating fracture from left side coronal suture 7 cm long. Left side coronal suture loosened. On right side slightly behind coronal suture fractures bifurcates, right going to pterion left goes to coronal suture laterally. Scalp ecchymosed against injuries. 9. Likewise, the postmortem report of Manoj Mishra is Ex. P/16, which is proved by Dr. Rajkumar (PW-9), wherein following injuries were found on the body of the deceased Manoj Mishra:- 1. Left side coronal suture loosened. On right side slightly behind coronal suture fractures bifurcates, right going to pterion left goes to coronal suture laterally. Scalp ecchymosed against injuries. 9. Likewise, the postmortem report of Manoj Mishra is Ex. P/16, which is proved by Dr. Rajkumar (PW-9), wherein following injuries were found on the body of the deceased Manoj Mishra:- 1. Stab wound present on left chest upper part 2 cm above to nipple which cut-skin and soft tissue between second and third rib. The third rib also show sharp cut at superior margin then cut through and through upper lobe of left lung and collection of about 500 C.C. blood in left side of thoracic cavity. The size of wound is 2x1.3x12 cm anteroposteriorly. 2 Stab wound present on left chest lower part 6cm below to nipple and 5 cm lateral to midline of chest which cut skin and soft tissue then cut left side of diaphragm through and through. Size of wound is 2.5x1.3x6cm anteroposteriorly. 3. Stab wound present on upper part of left side of abdomen which cut skin and soft tissue then cut abdominal peritoneum and wall of stomach through and through and after then cut transverse colon lower border through and through after then goes to second part of duodenum and cut through and through. Abdominal cavity contains semidigested food about 100 gm and collection of about 1 liter blood. The size of wound is 2.5x 1x5 cm vertical anteroposteriorly. 4. Same type of stab wound present just below to wound No.3. The size of wound is 2x1x5 cm transverse oblique anteroposteriorly. 5. Stab wound present on lower part of right chest 8 cm below to nipple and just lateral to midline of chest which cut skin and soft tissue then cut lower lobe of right lung through and through and collection of about 500 C.C. blood on right side of chest cavity. The size of wound is 2x1x4.8 cm transverse anteroposteriorly. 6. Contused split lacerated wound present on left side of forehead in area of 6x2 cm bone deep vertical with margins are abraded. 7. Contused split lacerated wound present on vertex region in area of 6x1.5 cm coronaly bone deep with abraded margin. 8. Contused split lacerated wound present on forehead mid part in area of 3x1.5 cm bone deep oblique with abraded margin. 10. 7. Contused split lacerated wound present on vertex region in area of 6x1.5 cm coronaly bone deep with abraded margin. 8. Contused split lacerated wound present on forehead mid part in area of 3x1.5 cm bone deep oblique with abraded margin. 10. Both the deaths were homicidal in nature for the injury caused on head, abdomen and various parts of the dead bodies by knife. The prosecution examined one eye witness namely Ajay (PW-10). According to his statement, he averred that he knew Kirti Choubey, the deceased but did not know Manoj Mishra and he was drinking in the Bar at that time at about 10 O’Clock he heard some sound from outside the Bar, he came out and saw that Kirti Choubey was lying on the road, at that time the police came. This witness further stated that he has not given any statement to the police though he was called. With the permission of the Court the public prosecutor then allowed to put a leading question. Section 141 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act, 1872) defines the leading question as any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. Further, Section 142 of the Act, 1872 puts a restriction which speaks that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. It further provides that the Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved and Section 143 of the Act, 1872 allows that the leading questions may be asked in cross-examination. 11. In the instant case, the leading question was allowed to be asked by the prosecution, wherein at para 4 of the statement this eye-witness stated that it would be wrong to say that he has not given the statement under Section 161 of the Cr.P.C., which is Ex. P/18. The specifically marked question part of Ex. 11. In the instant case, the leading question was allowed to be asked by the prosecution, wherein at para 4 of the statement this eye-witness stated that it would be wrong to say that he has not given the statement under Section 161 of the Cr.P.C., which is Ex. P/18. The specifically marked question part of Ex. P/18 from A to A would show that Ajay (PW-10) stated that on the date of incident on 02/01/2011 at about 10.45 in the night while he was going with his friend, he saw the deceased Kirti Choubey & Manoj Mishra as also Ayaz Khan, Sushil Mishra and another person, thereafter Sushil took Ayaz Khan to leave him to his house and this witness stood there alone, he was talking to Kirti Choubey, the deceased and Manoj Mishra, the other deceased was also standing along with him. Both were drunk. At 11.00 pm in an Auto Anil Kumar Dewangan (A/1); Rajesh Mitra (A/2); Durgesh Kumar Dewangan (A/3); and Rajkumar Sen (A/4) came in an Auto and stopped in front of Login Bar. Anil Kumar Dewangan (A/1) alighted and went towards Kirti Choubey and some talk took place in between them. He was taken to a distance in front of Laxmi Medical at that time all of a sudden Anil Kumar Dewangan (A/1) took out a knife and assaulted Kirti Choubey on his abdomen for several times. Having seen the incident Manoj Mishra, the other deceased, rushed to save Kirti Choubey, at that time Rajesh Mitra (A/2); Durgesh Kumar Dewangan (A/3); and Rajkumar Sen (A/4) all three started beating Manoj and Rajkumar Sen took out a baseball bat and gave a blow on the head of Kirti Choubey & Manoj Mishra and Anil Kumar Dewangan (A/1) further assaulted on thigh of Manoj Mishra by knife and Kirti Choubey fell down infront of the medical store and Manoj Mishra tried to run away and fell down and lost his conscious. There is no cross-examination of this witness on this issue. 12. The Supreme Court way back in the year 1976 in the case of Sat Paul Vs. Delhi Administration { (1976) 1 SCC 727 } laid down that in India the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared adverse or hostile. 12. The Supreme Court way back in the year 1976 in the case of Sat Paul Vs. Delhi Administration { (1976) 1 SCC 727 } laid down that in India the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared adverse or hostile. In this case Ajay was a prosecution witness, he was not declared hostile, therefore, to grant permission under Section 142 to put a leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party that has left to the discretion of the Court. Para 38 of the said judgment is reproduced herein below:- 38. To steer clear of the controversy over the meaning of the terms “hostile” witness, “adverse” witness, “unfavourable” witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared “adverse” or “hostile”. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi [ AIR 1922 PC 409 : 72 IC 286]). The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission it is preferable to avoid the use of such expressions, such as “declared hostile”, “declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts. 13. In the instant case, the statement of the witness Ajay (PW-10) before the Court while he did not support, he was not declared hostile but leading question was permitted by the Court wherein he admits the fact that he has given such statement to the police. Applying the principle laid down by the Supreme Court in the matter of Sat Paul (supra) the said evidence cannot be sidelined or shelved. 14. The Supreme Court in the matter of Vinod Kumar v. State of Haryana, (2015) 3 SCC 138 has held thus in para 29:- 29. In this context, we may usefully refer to the authority in State of U.P. v. Nahar Singh [ (1998) 3 SCC 561 : 1998 SCC (Cri) 850], wherein the Court has dealt with the effect of absence of cross-examination. True it is, the factual matrix was different therein, but the observations are salient. In the said case, it has been held : (SCC pp. 566-67, paras 13-14) “13. … In the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. 14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus: ‘I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.’” Be it stated in the said case, this Court did not approve the conclusion of the High Court that the explanation for the delay was not at all convincing and the said view was expressed as there was no cross-examination. In the instant case, in the absence of cross-examination of the witness, barring a bald suggestion to PW 12, we are inclined to hold that the appellant was the author of the letters and the same were not written under any pressure. 15. There is no cross-examination of this witness by the accused. When there is no cross-examination on the issue, the statement which has come before the Court would be admissible. The statement of the witness is further corroborated by the injuries which were found on the body of the deceased in the postmortem Ex. P/14 & Ex. P/16. That corroborative piece of evidence would also be relevant to evaluate the fact that whether the true narrations have been made or not about the incident. 16. The statement of the witness is further corroborated by the injuries which were found on the body of the deceased in the postmortem Ex. P/14 & Ex. P/16. That corroborative piece of evidence would also be relevant to evaluate the fact that whether the true narrations have been made or not about the incident. 16. Considering the nature of injury and the narration which has been made under Section 161 Cr.P.C. vide Ex. P/18 it shows that the prosecution was able to prove the commission of offence by mainly two of the aggressors namely Anil Kumar Dewangan who gave assault by knife and Rajesh Mitra by baseball bat, however, nothing much has been attributed in respect of Durgesh Kumar Dewangan and Rajkumar Sen. 17. Now coming back to the recovery. Memorandum of Rajesh Mitra, who assaulted by baseball bat, is Ex. P/6 and the recovery of baseball bat, which was having blood on it by Ex. P/9 and the memorandum of Anil Kumar Dewangan is Ex. P/7 and on his memorandum a knife was recovered by Ex. P/8 of size of 12.5 inch of total length; 4 inch blade (length 8.5 inch) and one full shirt wherein sleeves were having blood was also recovered. Apart from that shirt of Kirti Choubey was recovered by Ex. P/10 and the shirt of Manoj Mishra was recovered by Ex. P/11 and soil stained with blood and plain soil near the dead body of Manoj Mishra by Ex. P/12 and plain and blood stained soil near the dead body of Kirti Choubey was recovered by Ex. P/13. 18. Memorandum and seizure witness Beer Singh Parihar (PW-6) has proved the both memorandum and seizure. All the recovered incriminating articles were sent for FSL. The FSL report is on record, which shows that the knife recovered from Anil Kumar Dewangan (A/1) blood was found; likewise a shirt from Anil Kumar Dewangan blood was found on its sleeves; and baseball bat which was recovered from Rajesh was also having blood on it on it’s blunt part. Likewise, the blood stained soil which was recovered from the spot was also given the positive report. It would be significant to note that the recovery was made immediately on the next date on 03/01/2011 not after considerable period of time. 19. Likewise, the blood stained soil which was recovered from the spot was also given the positive report. It would be significant to note that the recovery was made immediately on the next date on 03/01/2011 not after considerable period of time. 19. The knife which was recovered at the instance of Anil Kumar Dewangan and the baseball bat which was recovered at the instance of Rajesh Mitra were having blood apart from the fact the sleeves of shirt of Anil Kumar Dewangan was also having blood. The arrest memo of Anil Kumar Dewangan is Ex. P/25. The entire arrest memo do not show that Anil Kumar had any injury. Likewise, from the arrest of memo of Rajesh Mitra is which is Ex. P/26 it also shows that he do not have any injury and in respect of Rajkumar Sen arrest memo is Ex. P/27 which also do not show any injury. Arrest memo of Durgesh Kumar Dewangan is Ex. P/24 which also do not show presence of any injury. 20. It has not been explained by the present respondents/accused as to how the blood was present in the baseball bat, knife and shirt which were recovered immediately after the incident i.e. on the next day. Though the record shows that it was sent for further serological report to the Director, Serologist & Chemical Examiner to the Government of India, Kolkata, but the report is not on record. 21. In the peculiar facts & circumstances of the case, during the hearing before this appellate Court, the question with respect to the statement given by the Ajay (PW-10) under Section 161 Cr.P.C. and the presence of blood, the explanation was sought for about the presence of blood in the incriminating articles, however, no plausible explanation has been offered. We are aware of the fact that it was the duty of the trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately on the basis of which the prosecution is seeking conviction. The principle laid down by the Supreme Court in the matter of Raj Kumar Vs. State (NCT of Delhi) {2023 SCC OnLine 609} purports that sometime if the proper explanation is not offered even during the appellate stage, the omission which occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. 22. State (NCT of Delhi) {2023 SCC OnLine 609} purports that sometime if the proper explanation is not offered even during the appellate stage, the omission which occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. 22. Further, the Supreme Court in the matter of Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra { (1973) 2 SCC 793 } at para 16 has laid down the principle that it is open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has with regard to circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists. Para 16 of the said judgment is reproduced hereinbelow:- 16. The discovery of incriminating materials pursuant to confessions made by the accused constitutes the third category of evidence. Obviously, the confessions are inadmissible but the discoveries are, provided they are pertinent to the guilt of the accused. So far as Accused 2 is concerned, his statement resulted in the discovery of a knife (Vide Panchnama, Ext. 13). Of course, knives were discovered long ago and not now but this knife lay buried and was recovered by the accused from a pit in the corner of a wall of his house. There was human blood on the blade of the knife, MO 5/1 according to the chemical analyst's report. The second accused's clothes also were picked up by him pursuant to his statement. He had worn a shirt and pants on the day of occurrence and PW 13, a neighbour deposes that the second accused had come to him at about 6 p.m. on the Monday when Hariba died and had mentioned to him that since his own house was locked he might be permitted to keep his clothes in the witnesses house. Thereafter he left his clothes under an empty khokha from where he himself took them out when he later came in the company of the police. There are blood-stains on the clothes and it is found by the chemical examiner that the blood on the pants are of the same blood group as that of the deceased. Thereafter he left his clothes under an empty khokha from where he himself took them out when he later came in the company of the police. There are blood-stains on the clothes and it is found by the chemical examiner that the blood on the pants are of the same blood group as that of the deceased. When the second accused was asked under Section 342, CrPC about the report of the chemical examiner noticing blood stains on the shirt, MO 5/2 and of human blood on the blade of the knife, MO 5/1, he merely answered, “I do not know”. He also described as false the fact of his recovering the clothes and the knife. Bald denial notwithstanding, we are inclined to believe, with the learned Judges of the High Court, that the knife and the shirt have been identified as his and since he had recovered them, thereby making the police discover the fact, there was incriminating inference available against the said accused. We may notice here a serious omission committed by the trial Judge and not noticed by either court. The pants allegedly worn at the time of the attack by the second accused has stains of blood relatable to the group of the deceased. This circumstance binds him to the crime a little clear but it is unfortunate that no specific question about this circumstance has been put to him by the Court. It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, CrPC, the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was “I do not know”. Counsel for the appellants could not make out any intelligent explanation and the “blood” testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertance of the trial court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out. 23. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out. 23. In the case in hand, the question under Section 313 Cr.P.C. which touches upon the 161 statement made by Ajay (PW-10) was put to the respondents apart from the fact that the blood was found on the incriminating articles except the fact that the human blood is not there, no further plausible explanation was given by the respondent except the statement made in examination-in-chief of Ajay (PW-10), wherein simple evasive reply of denial has been made. 24. The Supreme Court in the matter of Madhav v. State of M.P., (2021) 17 SCC 600 has held thus at para 34 : 34. Therefore, as pointed out by this Court in Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781 : (2019) 3 SCC (Cri) 392, there cannot be any fixed formula that the prosecution has to prove, or need not prove that the blood groups match. But the judicial conscience of the court should be satisfied both about the recovery and about the origin of the human blood. 25. Therefore, in view of the discussion made hereinabove, when the eye-witness Ajay (PW-10) has categorically established the fact that the assault was primarily made by Anil Kumar Dewangan (A/1) and Rajesh Mitra (A/2) by baseball bat and knife to the deceased Kirti Choubey and Manoj Mishra and in absence of any rebuttal and the plausible explanation before this Court too, we are inclined to accept the same. Accordingly, we hold that the prosecution was able to prove the guilt of murder against Anil Kumar Dewangan (A/1) and Rajesh Mitra (A/2) beyond the reasonable doubt whereas with respect to Durgesh Kumar Dewangan (A/3); and Rajkumar Sen (A/4) no evidence exists that any fatal blow was made by them. 26. It is well settled that in case where an order of acquittal has been made on improper and erroneous appreciation of evidence, it is always open to the court of appeal to make proper and reasonable appreciation of evidence and differ from the order of acquittal and in such event, it shall never hesitate in reversing the same. (See: Anjan Dasgupta v. State of W.B., (2017) 11 SCC 222 ). 27. (See: Anjan Dasgupta v. State of W.B., (2017) 11 SCC 222 ). 27. In the result, we allow this acquittal appeal in part as under : The accused namely Anil Kumar Dewangan (A/1) and Rajesh Mitra (A/2) are convicted under Section 302 read with Section 34 of the IPC and sentence them to undergo R.I. for life imprisonment with a fine of Rs.1000/-, each, in default of payment of fine to further undergo R.I. for three months. They are directed to surrender immediately before the concerned trial Court to undergo the jail sentence, failing which the trial Court shall take appropriate action under intimation to the Registry. In absence of any evidence, the acquittal appeal in respect of the accused namely Durgesh Kumar Dewangan (A/3); and Rajkumar Sen (A/4) is dismissed. 28. Copy of this judgment be sent to the trial Court for information and compliance along with its record.