N.K. Das, J.
1. All the three appellants have been convicted under Section 302 I.P.C. and each of them has been sentenced to undergo rigorous imprisonment for life for committing murder of Doma Sabar on 19-3-1977 at 12 noon.
2. Prosecution case is that on 19-3-77 P. Ws. 1, 6 and 13 and the deceased came to the house of one Bodu Sabar to negotiate about a marriage. On the way P. W. 3 accompanied them. All of them drank liquor known as 'Bihari Mai'. The appellants also joined them and they also drank liquor. Then they went to the house of Ulla Sabar where each one of them drank two more bottles of liquor. Thereafter they came and drank 'Tadi' (Kha-juri juice). All of them had been intoxicated. At that time appellant Raghu gave a slap on the check of P. W. 3 who is his brother-in-law. P. W. 3 also retaliated with a slap. Thereafter quarrel ensued. It is alleged that appellant Raghu asked the appellant Joda to bring a Kati. Joda brought a Kati from his house. The deceased was highly intoxicated and was unable to move. Raghu and Doma caught hold of both the hands of the deceased and Joda gave two to three strokes on the neck of the deceased, as a result of which the head of the deceased was severed from the body. P. Ws. l and 3 left the place and informed P. W. 9 and P. W. 5, the widow of the deceased. P. W. 9 informed the matter to the sarpanch and thereafter F.I.R. was lodged at the Police Station. P. W. 6 was watching the dead-body and at that time the appellant threatened P. W. 6 to leave the deadbody or to get similar consequence. P. W. 6 came away and thereafter the appellants dragged the deceased to some distance from the place of occurrence.
The plea of the appellants is of complete denial.
3. The trial court has relied on the evidence of P. Ws. 1, 3 and 4 who are said to be the eye-witnesses and also circumstances that P. W. 5 went and saw the dead body there; and subsequently it was found that the head of the deceased had been chopped off. Accordingly, he convicted the appellants only under Section 302 I.P.C. holding that the prosecution has not established the common intention.
4. P. Ws. 1, 3 and 4 are the only eyewitnesses to the occurrence. The admitted prosecution story is that the appellants, deceased as well as P. Ws. l and 3 were heavily drunk. It is admitted by these witnesses that P. Ws. 1, 3 and the appellants were not in senses. The prosecution evidence further reveals that they had consumed five bottles of country liquor and after that again they consumed Tadi.' Each one of them was not in proper sense. P. W. 1 has admitted 'we were fully intoxicated. After we were fully intoxicated we could not distinguish what is right and what is wrong. We were not under our control'. P. W. 3 has stated 'after we consumed five bottles of liquor we were heavily intoxicated and out of sense. All of us including the accused persons and deceased were out of seases.' In view of such evidence, it cannot be said that these two witnesses were in a position to know and to remember as to what was happening at the spot or who were the actual assailants. Prosecution has tried for cor-roboration of the s'atement of these two witnesses through P. W. 4 but from -he evidence of the Investigating Officer, P. W. 15, it transpires that neither P. W. 1 nor P. W. 3 stated before him about the presence of P. W. 4 at the spot. The evidence of P. W. 4 thus appears to be a subsequent development and his presence at the spot appears to be doubtful. In view of such evidence it cannot be said that the prosecution has been able to prove beyond all shades of doubt that the evidence of these witnesses is to be accepted so as to implicate the appellants with the commission of crime.
5. There is another aspect of the matter. The F.I.R. is said to have been lodged by P. W. 5. The scribe of the F.I.R. has not been examined nor P. W. 5 has proved the F.I.R. The F.I.R. is proved by the Investigating Officer. In the F.I.R. it is stated that two of the appellants assaulted the deceased by means of a knife but the prosecution story at the time of trial is otherwise.
6. Appellant Joda is admittedly deaf and dumb. From the statement recorded by the trial court under Section 313 Cr. P.C. it appears that proper questions have not been put to this appellant so as to obtain explanation about the evidence available on record as against him. The proper method is to bring to the attention of the accused specific matters which appear in the evidence against him, and merely questioning him generally is not a satisfactory method of application of Section 313 Criminal P.C. The Court must place before the accused the facts and circumstances appearing against him in order to furnish him an opportunity of showing his innocence, by offering his explanation to those facts and circumstances. In the instant case, the trial court pointed out the knife to appellant Joda but he denied. Then a napkin was shown which he admitted. But it is not clear whether he admits to have used the weapon and also had worn the napkin that day at the time of alleged occurrence. Thereafter this appellant appears to have made some demonstrations in court and the trial court has relied on that. There is nothing on record to show that the trial court has pointed out the prosecution witnesses who are said to be eye-witnesses to the occurrence, to this appellant and asked for his explanation. The trial court should have been more careful1 for his satisfaction and should have been more scrutinising when this appellant was deaf and dumb. But this has not been done. We, therefore, conclude that this appellant has been prejudiced for not proper observance of the provisions of Section 313 Criminal P.C.
Under the aforesaid circumstances, we hold that the prosecution has failed to establish the charge against the appellants beyond all shades of reasonable doubt and, as such, the appellants are entitled to be acquitted.
7. In the result, the appeal is allowed. The conviction and sentence' passed against the appellants are set aside and they are acquitted of the charge levelled against them. They are directed to be set at liberty forthwith.
B.K. Behera, J.
8. I agree.