I.A. Ansari, J.
1. Under challenge, in the present appeals, are the judgment, dated 28.02.2013, passed, in Sessions Trial No. 195 of 2010, by learned 1st Additional Sessions Judge, Katihar, and the order, dated 06.03.2013, whereby various sentences have been passed against the accused-appellants.
2. By the impugned judgment, learned trial Court has convicted all the accused-appellants, except accused-appellant, Rajendra Mahaldar, under Section 302 read with Section 149 and also under Section 148 of the Indian Penal Code. The learned trial Court has convicted the accused-appellant, Rajendra Mahaldar, under Section 302 of the Indian Penal Code. Following their conviction under Section 302 read with Section 149 of the Indian Penal Code, all the accused-appellants, except accused-appellant, Rajendra Mahaldar, have been sentenced to undergo imprisonment for life and pay fine of Rs. 500/- each and, in default of payment of fine, suffer rigorous imprisonment for one month. For their conviction under Section 148 of the Indian Penal Code, all the accused-appellants, except accused-appellant, Rajendra Mahaldar, have been sentenced to undergo rigorous imprisonment for two years and pay fine of Rs. 500/- each and, in default of payment of fine, suffer rigorous imprisonment for one month. The accused-appellant, Rajendra Mahaldar, having been convicted under Section 302 of the Indian Penal Code, stands sentenced to death.
3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
(i) On 19.11.2008, at about 7:00-8:00 AM, accused Upendra Mahaldar, son of Kokai Mahaldar, Manoj Mahaldar, son of Upendra Mahaldar, Sanoj Mahaldar, son of Upendra Mahaldar, Sonu Mahaldar, son of Upendra Mahaldar, Papla Mahaldar, son of Shibu Mahaldar, Nakul Mahaldar, son of Parmeshwar Mahaldar, Pramod Yadav, son of Late Bhumi Yadav, Khatwa Yadav, son of Late Bhumi Yadav, Putal Yadav, son of Late Bhumi Yadav, Gonu Mahaldar, son of Late Babu Lal Mahaldar, Rajendra Mahaldar @ Talku Mahaldar, son of Late Babu Lal Mahaldar, variously armed with weapons, surrounded village Hanseli Kothi and, abusing the residents of the said village by calling them dusadh (a particular caste amongst the scheduled castes), they started firing. Accused Upendra Mahaldar set the house of Suresh Rishi on fire and the said house was burnt to ashes. In the mean-while, Rupesh Rishi, son of Pathli Rishi (PW 7), who was aged about 13 years and who was returning from tuition, was shot, on his head, by accused Rajendra Mahaldar. Injured Rupesh Rishi succumbed to the bullet injury so sustained.
(ii) On coming to learn about the occurrence, police arrived at the village, where the occurrence had taken place, shifted Rupesh Rishi to hospital, where he was declared dead.
(iii) To the police, who had so arrived from Falka Police Station at the place of occurrence, a statement was given, with regard to the occurrence, by Pathli Rishi (PW 7), father of the said deceased. The statement, so made, by Pathli Rishi (PW 7), was recorded by S.I. Q. I. Mallick, who was, at the relevant point of time, S.H.O. at Falka Police Station.
(iv) Treating the said statement of Pathli Rishi (PW 7) as First Information Report, Falka Police Station Case No. 196 of 2008, under Sections 147/148/149/341/324/ 326/307/436 of the Indian Penal Code, Section 27 of the Arms Act, 1959 and Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was registered. As Rupesh Rishi died, Section 302 of the Indian Penal Code was, later on, added to the case aforementioned.
(v) During investigation, inquest was held over the said dead body, which was also subjected to post mortem examination, and, on completion of investigation, charge sheet was laid against accused persons, namely, Upendra Mahaldar, Sanoj Mahaldar, Sonu Mahaldar, Papla Mahaldar, Nakul Mahaldar, Rajendra Mahaldar, Manoj Mahaldar, Pramod Yadav, Putal Yadav, Khatwa Yadav, Sahodar Mahaldar and Gonu Mahaldar, under Sections 147/148/149/341/324/326/ 307/302/436 of the Indian Penal Code, Section 27 of the Arms Act, 1959, and Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. During trial, charges under Sections 436, 307 and 302 read with Section 149 were framed. Charge was also framed under Section 148 of the Indian Penal Code. To the charges, so framed against the accused persons, they all pleaded not guilty.
5. In support of their case, prosecution examined altogether seven witnesses. The accused persons were, then, examined under Section 313(1)(b) Code of Criminal Procedure and, in their examinations aforementioned, the accused persons denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence.
6. Having found the accused persons guilty of the offences, as has been pointed out, learned trial Court has convicted them accordingly and passed sentences against them as mentioned above.
7. For the reason that sentence of death has been passed against one of the accused, namely, Rajendra Mahaldar, learned trial Court, in terms of the provisions of Section 366 of the Code of Criminal Procedure, committed the proceedings of the case to this Court for confirmation of the sentence of death. At the same time, aggrieved by their conviction and the sentences passed against them, all the accused, as convicted persons, have preferred appeals.
8. The reference, so made, under Section 366 of the Code of Criminal Procedure, by the learned trial Court, has come to be registered as Death Reference No. 10 of 2013; whereas the appeal, preferred by the appellant, Rajendra Mahaldar, has come to be registered as Criminal Appeal (DB) No. 249 of 2013. The other convicted persons have also preferred appeals, which have given rise to the remaining appeals herein.
9. Because of the fact that the death reference and the appeals are wholly inextricable from each other, we decided to hear both, the reference as well as the appeals, together.
10. We have accordingly heard Mr. Bikramdeo Singh and Dhirendra Kumar Sinha, learned Counsel for the accused-appellants, and Mr. Ashwini Kumar Sinha, Mr. S. C. Mishra, Mr. S. B. Verma, Mr. A. Sharma, Mr. Ajay Mishra, learned Additional Public Prosecutors, appearing for the State.
11. Upon perusal of the materials on record and on hearing learned Counsel appearing before us, it cannot be said, concedes even the learned Counsel appearing on behalf of the appellants, that the present one is a case, wherein no evidence exists implicating the accused persons with the offences, which they have been held guilty of. Whether the evidence, adduced by the prosecution, was sufficient to convict the appellants of the offences, which they have been found guilty and convicted of, is the question, which, now, confronts this Court.
12. With regard to the above, it has been justifiably pointed out, on behalf of the accused-appellants, that the learned trial Court has not determined if an unlawful assembly was found and if so, what the common object of the unlawful assembly was and whether the accused-appellants, other than the accused-appellant, Rajendra Mahaldar, were members of the unlawful assembly.
13. It is imperative, in a case of present nature, that a learned trial Court, first, determines as to what the common object of an assembly was and if the common object was such as would have made the assembly unlawful, then, the learned trial Court has to determine, in order to take aid of Section 149 of the Indian Penal Code, if an accused was or was not a member of such an unlawful assembly. Without having arrived at any definite conclusion on this aspect, no conviction of an accused, for a substantive offence, with the aid of Section 149 of the Indian Penal Code, can be sustained.
14. Coupled with the above, there are some other noticeable infirmities with which suffer the case of the prosecution. What is, most prominently, noticeable, in this regard, is that the evidence on record does not disclose as to when informationŸwas received, at Falka Police Station, which brought the police to the place of occurrence. It is also not discernible from the materials on record as to what the informationŸwas, which impelled police of Falka Police Station to arrive at the place of occurrence. If the police had arrived at the place of occurrence on receiving informationŸabout offence or offences, which were cognizable, then, the informationŸ, which was so received by the police and set thereby the machinery of law into motion, ought to be treated as the First Information Report.
15. It was, therefore, imperative, on the part of the learned trial Court, to bring on record as to what informationŸhad brought the police from Falka Police Station to the place of occurrence, when and where the informationŸ, withregard to alleged occurrence, had been received by the police and whether the informationŸ, so received, constituted, in law, First Information Report or not. If the informationŸ, so received by the police, was the First Information Report, then, the police investigation had already commenced before the statement of Pathli Rishi (PW 7) was recorded and treated as fardbayan.
16. In the circumstances mentioned above, the fardbayan could not have been treated as the First Information Report and the same ought to have been treated as the statement made, during investigation of the case, by Pathli Rishi (PW 7) to the police. In such an event, the fardbayan, which contained the statement of Pathli Rishi (PW 7), was required to be treated as a statement recorded under Section 161 of the Code of Criminal Procedure and not as First Information Report.
17. It was, therefore, the duty of the prosecution as well as the learned trial Court to determine if the fardbayan, in question, was First Information Report or it was a statement recorded under Section 161 of the Code of Criminal Procedure.
18. Apart from the fact that the informationŸ, which the police had received and which had taken them to the place of occurrence, has not been brought on record, what can also be noticed is that even the fardbayan, which appears to have been treated as the First Information Report, has not been proved inasmuch as Pathli Rishi (PW 7) is an illiterate person and the Police Officer, who had recorded the fardbayan, has not been examined at the trial.
19. Coupled with the above, the report of the inquest, which had been held over the dead body of Rupesh Rishi has not been proved.
20. The manner in which the prosecution has been conducted and the manner in which the learned trial Court has dealt with the case are wholly unsatisfactory. In a case as serious as the present one • where the accused persons stood the risk of being sentenced to death • it was the duty of the prosecution to bring on record every material fact so that the learned trial Court could have reached a finding based on consideration of all the relevant facts.
21. Coupled with the above, the learned trial Court, to our dismay, appears to have been merely recording the evidence without being aware of the duty, which a trial Judge is required to discharge, and the role, which a trial Judge is required to perform, inasmuch as the learned trial Judge has not, in the present case, exercised its powers under Section 311 of the Code of Criminal Procedure, which mandates the Courts to call or recall or examine a witness, if the witnesss evidence appears to the Court essential to just decision of the case.
22. Bearing in mind the above aspects of the present appeals, we, now, turn to the scope of Section 311 of the Code of Criminal Procedure, its aims and objectives. For the purpose of a clear understanding of what Section 311 of the Code of Criminal Procedure aims at conveying, appropriate it is that the provisions, embodied in Section 311 of the Code of Criminal Procedure are, carefully, taken note of. Section 311 of the Code of Criminal Procedure is, therefore, reproduced herein below :-
œ311. Power to summon material witness, or examine person present: Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.?
23. A patient reading of the Section 311 of the Code of Criminal Procedure clearly shows that this Section is divided into two parts. While the word, used in the first part, is, "may", the word used, in the second part, is, "shall", It would, therefore, logically follow that the first part of Section 311 of the Code of Criminal Procedure, is permissive in nature and gives a discretion to a criminal Court to act, at any stage, of enquiry, trial or other proceeding, in one of the three ways, namely,
(1) to summon any person as a witness, or
(2) to examine any person in attendance, though not summoned as a witness, or
(3) to recall and re-examine any person already examined.
24. The second part of Section 311 of the Code of Criminal Procedure is, however, mandatory in nature and casts an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
25. The language, employed in Section 311 of the Code of Criminal Procedure, clearly shows that this Section is couched in widest possible terms and do not limit the discretion of the Court in any manner. However, the wider the power, more cautious shall be the exercise thereof. No exercise of power, in a judicial proceeding, can be arbitrary and, more so, the power to call or recall a witness. Whereas the first part of Section 311 of the Code of Criminal Procedure, as already indicated above, gives a discretion to the Court to call, recall and re-examine any person as a witness, the second part of this Section does not really give any discretion to the Court; rather, it clarifies that if a Court forms the view, in the facts of a given case, that the evidence of the person, who is sought to be called, recalled or re-examined, is essential to the just decision of the case, it would be mandatory for the Court to call, re-call or re-examine such a person as a witness. This mandatory exercise of power can also be undertaken to obtain fresh evidence provided that the Court forms a view, as indicated hereinbefore, that bringing of such fresh evidence on record is essential to the just decision of the case.
26. Though the law requires the parties to produce, before the court, the best available evidence, the fact remains that even in a criminal trial, prosecution as well as defence has the right to choose their witness or witnesses and also choose as to what evidence they would adduce. Nonetheless, they are bound to adduce the best available evidence. The Court has no power to compel either the prosecution or the defence to examine any particular witness. This embargo placed on the powers of the Court, i.e., the limitation of not directing either the prosecution or the defence to examine any particular witness as their witness, is sought to be balanced by the Legislature with the help of the provisions contained in Section 311 of the Code of Criminal Procedure inasmuch as the Legislature has, with the help of Section 311 of the Code of Criminal Procedure, empowered the criminal court to call, recall or re-examine any person as witness. The only rider, which Section 311 of the Code of Criminal Procedure attaches to the exercise of this power, is that a criminal court cannot call, recall or re-examine any person as witness, unless examination of such a person is, in the opinion of the Court, essential to a just decision of the case. If, however, the court is of the view that evidence of a particular witness is necessary for reaching a just decision of the case, the court, either on its own or on the application of any of the parties concerned, call, recall or re-examine any witness as long as it does not cause prejudice to any of the parties concerned or does not give an undue advantage to any of such parties.
27. The kind of power, which Section 311 of the Code of Criminal Procedure vests in a Court, is not peculiar to the criminal law inasmuch as similar provisions have been made even in respect of civil courts in the form of Order X, Rule 2, Order X, Rule 14 and Order XVIII, Rule 17.
28. Even Section 165 of the Evidence Act recognizes court's power to put any questions to any witness, at any time, which appears to the Judge as necessary for just decision of the case or in order to discover or obtain proof of relevant facts.
29. We may pause here to point put that a trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time • be it during the course of examination-in-chief or cross-examination or at the end of any such examination or re-examination, which, to the Judge, appears to be necessary to a just decision of the case and in order to discover or obtain proof of relevant fact.
30. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. A Judge, who, while presiding over a trial, merely records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth.
31. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfold complete truth, it is not only right for the Judge, but his duty it is to intervene and put such questions as may be warranted and permissible within the ambit of Section 165 of the Evidence Act.
32. A Judge cannot behave like a passive agent, when a case is tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials.
33. A case cannot be allowed to suffer for failure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165 of the Evidence Act. It is with this object in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo motu or at the instance of any of the parties if it becomes necessary to a just decision of the case.
34. If the prosecution omits to bring out any relevant fact or the defence elicits from a witness, in the cross-examination, a statement, which is obscure or incomplete, the defence does not acquire (the Judge must bear in mind) a vested right in such limited cross-examination. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question.
35. In a case of the nature, as indicated above, it is, rather, the duty of the Judge, conducting the trial, to elicit from the witness complete information so that the evidence given by him or her becomes clear and intelligible, though his putting of questions cannot be in a manner as if the witness is under cross-examination nor can such examination be aimed at destroying or diluting the effect of the cross-examination of the witness by the defence. It is for this reason that a Court shall not put, in exercise of its powers under Section 165 of the Evidence Act, leading question or put words into the mouth of the witness.
36. In fact, emphasizing what role a Judge should play in a trial, the Supreme Court, in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble [MANU/SC/ 0677/2003 : (2003) 7 SCC 749], observed:
œ34. The courts exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object of trial, i.e., to get at the truth, and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred under the Code. It has a greater duty and responsibility, i.e., to render justice in a case where the role of the prosecuting agency itself is put in issue.? (Emphasis is supplied)
37. From the position of law laid down, in Shakila Abdul Gafar Khan (supra), it becomes transparent that a Court is not a tape-recorder, which has to merely record evidence. Far from this, when the Court's object is to do justice, it cannot overlook the necessity to reach the truth. Hence, while a Court cannot assume the role of a party to a case, it nevertheless has the duty to remove vagueness or obscurity from a witness's evidence so that the evidence becomes intelligible to a Court of law.
38. No wonder, therefore, that the Supreme Court, in Jamatraj Kewalji Govani v. State of Maharashtra [MANU/SC/0063/1967 : AIR 1968 SC 178], observed that these two sections, (i.e., Section 311 of the Code of Criminal Procedure and Section 165 of the Evidence Act) confer jurisdiction on the judge to act in aid of justice. Dealing With the corresponding section in the old Code (Section 540) Hidayatuliah, J. (as the learned Chief Justice then was), speaking for a three-Judge Bench of the Supreme Court, in Jamatraj Kewalji Govani (supra), observed as follows:
œIt would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new Evidence is needed by it for a just decision of the case.?
39. The observations, made by O. Chinappa Reddy, J. in Ram Chander v. State of Haryana [MANU/SC/ 0206/1981 : AIR 1981 SC 1036] are also to the same effect as the observations in Jamatraj Kewalji Govani (supra).
40. However, as already pointed out earlier, the wider the power, more cautious has to be its exercise. The power, under Section 311 of the Code of Criminal Procedure, cannot, therefore, be uncanalised, uncontrolled or arbitrary. Section 311 of the Code of Criminal Procedure is neither limited by any particular stage of a criminal proceeding nor is it conditioned by any specific circumstance. The principle, underlying Section 311 of the Code of Criminal Procedure, is that the evidence, to be obtained, shall appear to the court essential to a just decision of the case.
41. It is for the reason, as indicated above, that in Mohanlal Shamji Soni v. Union of India [MANU/SC/0318/1991 : (1991) Supp (1) SCC 271], the Supreme Court has held that the aid of Section 311 of the Code of Criminal Procedure should be invoked only with the object of discovering relevant facts or obtaining proof of relevant facts in order to render a just decision in a given case. It is incumbent, on the part of the court, to take care to ensure that while exercising its powers under Section 311, Code of Criminal Procedure, it does not allow a lacuna, left by the prosecution or by the defence, to be fulfilled nor shall the exercise of power put the accused to disadvantage or cause prejudice to him or give an unfair advantage to the prosecution. Section 311 of the Code of Criminal Procedure, can also not be utilized in such a way that it changes the nature of the case of either of the parties.
42. Failure of proper and effective management of a case by counsel cannot be treated as a lacuna of a partys case. In other words, a lapse, in the management of a case, is not to be regarded as a lacuna of a party's case. An oversight, in the management of the prosecution's case, is not a lacuna. It is not the duty of the trial Court to count errors committed by the parties in conducting their cases or to find out and declare as to who, among the parties concerned, performed better. A lacuna, in a complainant's or prosecution's case, would mean an inherent weakness or a latent wedge in the complainant's or prosecution's case. Explaining as to what can be regarded as a lacuna in a prosecution's case, the Supreme Court, in Rajendra Prasad v. Narcotic Cell [MANU/SC/ 0397/1999 : (1999) 6 SCC 110], observed:
œ7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case." A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a ease cannot be understood as a lacuna which a court cannot fill up.
8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better?. (Emphasis is added)
43. Hence, when a defect arises, or crepts in, due to faulty management of the case by a party's Counsel or due to oversight or unmindfulness of a counsel, such a defect cannot, and shall not, be treated as a lacuna inherent in the case of the prosecution or the complainant.
44. There is yet another clearly noticeable infirmity in the case. We notice that the examination of none of the accused-appellants, under Section 313 (1) (b) of the Code of Criminal Procedure, is wholly adequate inasmuch as we notice that the learned Trial Court has not put to the appellants various incriminating pieces of evidence, which became the basis of conviction of the appellants. If the accused-appellants are not properly examined under Section 313 of the Code of Criminal Procedure, none of the incriminating pieces of evidence can be relied upon by this Court, for, placing of reliance on an incriminating piece of evidence, which had not been put to the appellants, would cause serious prejudice to the accused-appellants. At the same time, if the accused-appellants are given the benefit, because of the vital omission or lapse on the part of the learned trial Court, it would cause serious prejudice to the prosecution inasmuch as prosecution cannot be made to suffer, because of the lapse on the part of the learned trial Court.
45. The remedy, therefore, lies, in our considered view, in remanding the case to the learned Trial Court for proper examination of the accused-appellants under Section 313 of the Code of Criminal Procedure and, then, to come to its own judicious conclusion depending on what surfaces from the record.
46. We may refer, at this stage, to the case of Sharad Birdhi Chand Sarda v. State of Maharashtra (AIR 1984 SC 1662), wherein their Lordships have succinctly laid down the law on the above subject as follows:
œAs these circumstances were not put to the Appellants in their statement under Section 313 of the Code of Criminal Procedure they must be completely excluded from consideration because the Appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagat v. State of Madhya Bharat MANU/SC/0073/1951 : AIR 1953 SC 468 this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Code of Criminal Procedure cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of Section 313 of the Criminal Procedure Code, the same cannot be used against him....It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court in this view of the matter the circumstances, which were not put to the Appellant in his examination under Section 313 of the Code of Criminal Procedure have to be completely excluded from consideration.? (Emphasis is supplied)
47. Even in the case of State of Maharashtra v. Sukdeo Singh and Another (MANU/SC/0416/1992 : AIR 1992 SC 2100), their Lordships have observed as follows:
œThe trial judge is not expected, before he examined the accused under Section 313 of the Code, to sift the evidence regarding any incriminating material to determine whether or not to examine the accused as that material. To do so, would be to prejudice the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon.?
48. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies upon to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Code of Criminal Procedure will stand defeated if a trial Court, without asking for explanation of an accused on the circumstances, which appear to it to be incriminating, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person, under Section 313 Code of Criminal Procedure, is considered a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality.
49. In the case at hand, the incriminating circumstances, spoken to by each prosecution witness, on which the learned trial Court has relied upon, ought to have been put to the accused-appellants, when they were being examined under Section 313 (1) (b) of the Code of Criminal Procedure and the same having not been done, learned trial Court ought not to have based its findings on such incriminating pieces of evidence. In fact, it appears to us that the learned trial Court had not put to the accused-appellants, in the present case, even the sum-total of the prosecution's case, which, in our considered view, does not satisfy the requirements of law.
50. Situated thus, one has no option but to conclude that if the accused-appellants are not examined under Section 313(1)(b) of the Code of Criminal Procedure as warranted by law, it will deny to the accused-appellants a valuable right vested in him by law to properly and effectively project their defence. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313(1)(b) of the Code of Criminal Procedure. We are, therefore, clearly of the view, if we may reiterate, that this case needs to be remanded to the learned trial Court.
51. Ordinarily, we would have re-appreciated the entire evidence on record to arrive at a legally correct finding; but in the case at hand, since we have found that before the evidence on record is re-appreciated in these appeals, the learned trial Court ought to bring on record as to when, where and what žinformationŸhad been received by the police of Falka Police Station, which had brought them to the place of occurrence. We are also fully satisfied that the omission to examine the Investigating Officer, in a case of present nature, was wholly imperative and his presence ought to be procured by the learned trial Court even if the prosecution had not taken necessary steps for bring the Investigating Officer to Court as a witness. The journey of a Judge, in a criminal trial, is really a journey for discovery of truth and this duty cannot be avoided; or else, criminal justice system may not be able to deliver justice.
52. Coupled with the above, we are also of the considered view that in the present case, further examination of the accused-appellants, under Section 313 (1) (b) of the Code of Criminal Procedure, in accordance with the requirements of law contained in that behalf, is imperative and that the case, for the purposes aforementioned, needs to be remanded back to the learned trial Court, we do not wish to enter into the merit of the various grounds on which the judgment has been impugned in these appeals and we do not even remotely wish to make any observation about the reliability of the relevant evidence on record so that the learned trial Court does not get fettered by any of the observations of this Court on any piece of evidence on record and it may feel free to come to its own independent findings.
53. Because of what has been pointed out above, we are clearly of the view that in the facts and attending circumstances of the present case, the impugned judgment of conviction cannot be sustained and the case needs to be remanded to the learned trial Court with direction to obtain presence of Investigating Officer and also such other police officer or officers as may be necessary in order to bring on record facts, namely, what žinformationŸhad been received by the police, which took them to the place of occurrence; when and where was the žinformationŸso received by police. Further-more, if the fardbayan, which had been treated as First Information Report, is really the First Information Report, then, this fardbayan ought to be brought on record in accordance with law. We must also make it clear that while examining any witness or bringing any evidence on record, the learned trial Court must provide effective opportunity to the accused-appellants to cross-examine the witness or witnesses, who may be called or recalled. For this purpose, learned trial Court shall examine the accused-appellants under Section 313 (1) (b) of the Code of Criminal Procedure on every incriminating piece of evidence, which may be on record.
54. In the result and for the foregoing reasons, the impugned conviction of the appellants by the judgment, under appeal, as well as the impugned order of sentence are hereby set aside and the case is remanded to the learned trial Court for disposing of the same in accordance with law keeping in view the observations made by this Court in the preceding paragraphs of this judgment.
55. In order to avoid delay in the conduct of trial, the learned trial Court shall not, unless it becomes wholly imperative, recall any witness merely for further cross-examination.
56. Coming to the question as to whether the appellants shall, on account of the fact that their conviction has been set aside, be set at liberty, we cannot ignore the fact that one of the important witness, i.e. Investigating Officer, has not turned up to depose during the trial.
57. In the circumstances indicated above, it would be appropriate to keep, in custody, the accused-appellants, whose conviction and the consequential sentences have been set aside, until the time their trial is concluded and judgment is pronounced. The release of the accused-appellants shall, therefore, be governed by the outcome of the trial, which shall be held, on remand, in terms of the directions given above and until the time the trial is concluded, the accused-appellants shall be detained in custody unless, otherwise, directed by this Court.
58. In terms of the above observations and directions, the death reference and the appeals shall stand disposed of.
59. The learned trial Court is also directed to expeditiously deal with the case and dispose of the same in accordance with law within a period of three months from the date of receipt of the Lower Court Records along with a copy of this judgment and order.
60. The Registry shall send back the Lower Court Records along with a copy of this judgment and order.