V.BOSE, J.

(1) THE appellant Bihari Singh has been convicted of the murder of his brother Fakira Singh and has been sentenced to death. The conviction is based on the evidence of the appellants wife Mst Gujri. She has been believed and ordinarily that would have concluded the matter. But the trial has been so perfunctory and the examination of the evidence so careless and uncritical that we consider it proper to exercise our special powers to set aside the conviction and acquit the appellant.

(2) TO begin with, there is the examination of the appellant under Section 342 of the Criminal Procedure Code. Despite the repeated pronouncements of this court about the importance of this part of a trial and despite the decision reported in Tara Singh v. The State, AIR 1951 SC 441 (A), the provisions of Section 342, as expounded by this court, have been disregarded and, in our opinion, grave prejudice has been caused to the appellant because of it.

(3) IN the Committal court this was all the examination:

"Q. Have you heard the statements of the witnesses? A. Yes, Sir. Q. Did you commit the offence? A. No, Sir." In the trial court it was no better. The trial was held by the Additional Judicial Commissioner of Chota Nagpur, the learned Additional Judicial Commissioner acting as a Sessions court. The questions and answers were: "Q. Did you on 1-10-51, in your house at village Demu, tola Semri, knowingly strangle to death your brother Fakira Singh? A. No Sir. Q. Did you. on the same day or the 1st to 2nd. conceal the dead body of Fakira with this intention that you may be exonerated from the charge? A. No, Sir. Q. Have you got anything more to say? A. I have been falsely implicated."

(4) THE first two questions in the trial court are cross-examination pure and simple. The very question the court had to determine was whether the appellant had knowingly strangled his brother to death. Neither this question, nor the next, indicates any of the circumstances appearing in the evidence against him, that is to say, the circumstances which the court intended to use as proof of the question, it had to determine. The learned Sessions Judge had no difficulty in collecting this material in his judgment He has there summarised the eight points on which he proceeds. It was his duty to explain those points clearly and explicitly to the accused and afford him an opportunity of meeting them. So also in the High court The learned Judges held that the evidence of the wife on which the whole case rests had been wrongly admitted to evidence. She had been examined m the Committal court but was not called at the sessions trial and the learned Additional Judicial Commissioner simply transferred her deposition under Section 288 of the Criminal Procedure Code and used it as substantive evidence without making any effort to find out whether she was available and could be found. This was rightly condemned and the High court had her evidence recorded by the learned Additional Judicial Commissioner who tried the case. But the accused was not questioned afresh about this additional evidence. That answers were possible is evident from the appellants petition to this court and also from a perusal of the Case Diary. Had these answers been given at the proper time no court could have disregarded them. Grave prejudice has therefore ensued. We now intend to use this matter and interpret the evidence and circumstances afresh in the light of the material now placed before us.

(5) THE facts are these. The deceased Fakira, the appellant Bihari and a third person Kunja were brothers who formed a joint Hindu family. On the death of their father disputes arose between them and they divided the property (except one item) with the help of punches. The excluded item was a bari which contained standing crops of maize and Bodi. This could not be divided because the appellant Bihari claimed the crops for himself. This fact and the partition led to str