ORDER :

M.K. Mukherjee, J.

1. This appeal is directed against the judgment and order dated 21-2-1985 of the Patna High Court (Ranchi Bench) in Criminal Appeal No. 199 of 1983 (R) whereby it affirmed the conviction and sentence recorded against the two appellants under Section 302 read with Section 34 Indian Penal Code by the Additional Sessions Judge, Chaibasa and dismissed their appeal.

2. The prosecution case, briefly stated, is that on 17-11-1980, at or about 10 a.m. when Salai Bodra (the deceased) was going to see his paddy field, the two appellants along with a few others (since acquitted) came out of a bush armed with various weapons including pharsas, lathis, bows and arrows and tried to attack him. Seeing them, the deceased ran away and took shelter in the house of one Bomia Bodra. The accused persons who were chasing him, however, forced him to come out of the house and again run for his life. Ultimately they caught hold of him and the two appellants assaulted him with pharsas and after severing his head from the trunk, took it away. It is the further prosecution case that the appellants then went straight to the police station and produced the chopped-off head and the bloodstained weapons of the offence.

3. To sustain the accusation levelled against the appellants, the prosecution examined a number of eyewitnesses but except Subani Kai (PW 6), the daughter-in-law of the deceased, all of them turned hostile. In such circumstances, the prosecution rested its case upon the ocular version of PW 6 and the incriminating conduct of the appellants mentioned above. Both the learned courts below held that as the evidence of PW 6 stood amply corroborated by the circumstantial evidence, it could be made the basis for conviction.

4. Though the above findings of the trial court and the High Court are based on proper appreciation of the evidence, we are unable to sustain the conviction of the appellants in view of the grave error committed by the trial court, in that, while examining the appellants under Section 313 Criminal Procedure Code, it did not ask them to explain any of the circumstances appearing in the evidence against them. Indeed, except one question as to what they have got to say about the prosecution case, the trial court did not put any other question to the appellants. In the context of the facts of the instant case, it was obligatory on the part of the trial Judge, in view of Section 313 Criminal Procedure Code, to put questions to the appellants relating to the evidence of PW 6 and their going to the police station with the head of the deceased and the weapons of offence immediately after the occurrence. What would be the effect of such non-compliance was considered by a three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, and it was held, following earlier decisions of this Court, that the circumstances which are not put to the accused in his examination under Section 313 Criminal Procedure Code must be completely excluded from consideration because he did not have any chance to explain them.

5. We have given our anxious consideration to the question whether in view of the above serious lacunae for which the conviction of the appellants is liable to be set aside, we should, considering the ghastly nature of the crime allegedly committed, remit the matter to the trial court, after setting aside their conviction, to further and properly examine them under Section 313 Criminal Procedure Code and then proceed with the trial from that stage. But having regard to the fact that since the alleged offence was committed, more than 15 years have elapsed and the appellants have already served more than 4 years of imprisonment, we feel, we will not be justified in resorting to such a course of action at this distant point of time. For the foregoing discussion, we are left with no other alternative but to allow this appeal and set aside the conviction and sentence recorded against