JUDGMENT N.N. Sharma, J. 1. This revision is directed against order dated 30th September, 1983 recorded by Sri V. P. Mathur, learned Sessions Judge, Meerut who dismissed Criminal Appeal No. 154 of 1983 but reduced the sentence of revisionist from two years rigorous imprisonment to one year's rigorous imprisonment and upheld the fine of Rs. 500/- as awarded by Sri S. Chandra, learned Additional chief Judicial Magistrate, Meerut on 29-7-1983 in Criminal Case No. 2895 of 1983. 2. Prosecution story briefly stated was that on 30-7-1979 at about 4.30 P M . in Kailashpuri street near Nandan talkies, within the area of Police Station Kotewali, Meerut Balbir Singh informant (PW 1) along with Babu Ram and Sita Ram was going on his Jhonga. Revisionist was driving Mini Bus No. USN 8807 and suddenly placed it infront of Jhonga. Revisionist and his associates belaboured Balbir Singh and removed from his pocket a sum of Rs. 785/- and also relieved him of his wrist watch. It was on the intervention of witnesses that the culprits decamped with the robbed property holding threats to the victim. A written report Ext. Ka. 1 was lodged at police station Kotwali, Meerut in the same evening 7.15 P. M. on the basis of which FIR Ext. Ka 3 was drawn. After completion of investigation, charge sheet Ext. Ka. 5 was submitted by Sri Som Dutta Tyagi (PW 3). 3. In his statement, revisionist denied his participation in the occurrence although he admitted that he was driving Mini Bus No. USN 8807. He further stated that he stopped the vehicle at places to pick up passengers and to alight them. Jhonga was placed in front of his bus by complainant who belaboured alleging that he did not give him side to mow. 4. Prosecution examined Balbir Singh as PW 1, Babu Ram PW 2 and investigator Sri Som Dutta Tyagi as PW 3. Both the courts below believed the prosecution version and recorded the conviction and sentence aforesaid. 5. I have heard learned counsel for parties and perused the record. 6. 4. Prosecution examined Balbir Singh as PW 1, Babu Ram PW 2 and investigator Sri Som Dutta Tyagi as PW 3. Both the courts below believed the prosecution version and recorded the conviction and sentence aforesaid. 5. I have heard learned counsel for parties and perused the record. 6. On behalf of revisionist, it was argued that the revisionist was not named in the first information report; he was not put up for test identification parade, nothing incriminating was traced to his possession in his statement recorded under section 313 CrPC, the revisionist did not admit his guilt and so the conviction was unsustainable Learned A. G. A. pointed out that as the revisionist was apprehended in the same night by S. O. on the pointing out) of informant and other witnesses, so no identification parade was necessary and the statement of accused revisionist was sufficient to sustain his conviction for the offence under section 394 IPC, 7. I have carefully considered the rival contentions. 8. As regards the testimony of PWs in this case, it does not hold water. Occurrence was alleged to have taken place at about 4.00 P. M. at a distance of about four furlongs from police station Kotwali where the first information report was lodged at 7.15 P. M., that is after about three hours. Accused was not named in the first information report. The witnesses cited in that report were Babu Ram and Sita Ram. Sita Ram was not examined in the case. According to Balbir Singh (PW 1) revisionist was not arrested at the time of occurrence. He is alleged to have been arrested by police subsequently, during night. According to babu Ram (PW 2), the revisionist was arrested on the spot at the time of occurrence at about 4.00 P. M. According to Sri Som Dutta Tyagi (PW 3), he embarked on investigation and on the pointing out by informant and witnesses, the revisionist was apprehended although his associates could not be arrested. The G. D. entry drawn at police station Kotwali in that night at 11.40 P. M. shows that revisionist was arrested by the investigator while he was driving the bus towards the side of Medical College. This G. D. also shows that the investigator reached the: spot. The G. D. entry drawn at police station Kotwali in that night at 11.40 P. M. shows that revisionist was arrested by the investigator while he was driving the bus towards the side of Medical College. This G. D. also shows that the investigator reached the: spot. In his statement, PW 3 Sri Som Dutta Tyagi testified that he did not go to the spot but reached Hapur bus stand. Thus the prosecution evidence, as adduced in this case, was totally insufficient to sustain the conviction. So the question arises about the extent to which the statement of accused-revisionist under Section 313 (4), Code of Criminal Procedure is usable ? 9. In order to appreciate the scope of the aforesaid statement, it would be useful to extract the relevant qusstions and answers on this point. 10. The questions formulated by the court were ; Question No. 1 :-Whether on 30-7-79 you were driver of bus no. 8807 USN and on that day at 4.30 P. M. were driving the said bus ? Answer : Yes. Question .No 2 :-Did you stop your bus no. 8807 in front of Jhonga of Balbir Singh who was fetching articles of tent furtniture laden on his trolly on the aforesaid date at about 4.30 P. M. in Kailashpuri street near Nandan Talkies, Police Station Kotwali on the main-road and along with your associates you got down from the bus and pulled down Balbir Singh from his seat and voluntarily robbed him of his watch and cash amounting to Rs. 785/- ? Answer :-No. Question No. 3 Why the case was initialled against you ? Answer : -1 have to stop the bus from place to place for passengers to alight, they placed trolly and Jhonga in my front and dragged me down violently for not giving side and belaboured me. On the basis of the aforesaid statement of the accused, the offence was taken as proved by the Courts below. 11. It is significant to note that in reply to question no. 2 aforesaid which related to the main occurrence, revisionist, emphatically denied his participation in the crime. IT was only his admission about being driver of the said bus. On the basis of the aforesaid statement of the accused, the offence was taken as proved by the Courts below. 11. It is significant to note that in reply to question no. 2 aforesaid which related to the main occurrence, revisionist, emphatically denied his participation in the crime. IT was only his admission about being driver of the said bus. on that date and time and the explanation offered by him for initiation of proceedings against him was that in view of a dispute in connection with driving the bus, he was involved in the case. 12. Section 313 sub section (4) of Code of Criminal Procedure, 1973 (Act No. II of 1974) reads as below :- "313. Power to examine the accused :-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court J- (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." Thus, such statement of accused does not constitute evidence within the meaning of Section 3 of Indian Evidence AM, 1872 (Act No. 1 of 1872). The evidence, as defined in Section 3 of the aforesaid Act, means :- (i) Oral evidence, that is, statements of witnesses; and (ii) documentary evidence. 13. Thus the statement of accused is not a statement made as a witness which the court permits or requires to be made before it in relation to a matter of fact under inquiry. The word 'proved' as defined in Section 3 of the said Act is as under: " "Proved"--A fact is said to be proved when, after considering the matters before it, the Court either believes it to extist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 14. Thus the word 'proved' includes not only the evidence but also other facts. So the answer given by the accused may be taken into consideration only In a trial. Thus the word 'proved' includes not only the evidence but also other facts. So the answer given by the accused may be taken into consideration only In a trial. Obviously, the statement by accused under Section 313 CrPC is quite different from a confessional statement; made under Section 164, CrPC the expression 'may be taken into consideration' means at all events that the statement made by the accused is not to have the force of sworn evidence and a conviction based on such statement alone cannot be maintained. If the prosecution evidence is vague and insufficient, the Court cannot supplement it by such statement of accused by taking up passages from it. The whole statement has to be taken into consideration. It is not possible to ............ the statement. When the accused clearly denied his guilt under question no. 2, it was not possible to sustain conviction. Moreover, the aforesaid statement as mentioned above, is not a direct acknowledgement of guilt. It is not even an indirect acknowledgement of guilt. Section 313 (4) of the present Code corresponds to Section 342 (3) of Old Code (Act No. V of 1898). 15. In Bhola Nath v. Emperor, 30 CrLJ 1929, page 181 at page 182, it was observed : "No general rule can be laid down regarding the use which is to be made of the statement of an accused person in Court. Due consideration must of course be given to every part of the statement but the Court must exercise its judgment and common sense in accepting or rejecting any part of the statement as true or untrue." It was a case of defamation. 16. In Gautam Lal v. State, 1981 CrLJ 1189, the prosecution case was that the deaths of S. O. Railway Police Force and another person on the platform occurred due to the shots fired by the accused at the S. O. from his rifle and because one of the shots hit the other after piercing the body of the S O but it was evident from the expert opinion that the deceased did not die of rifle shots, it was held that the accused cannot be convicted of the offence of murder and had to be acquitted. The mere fact that in his statement under Section 313 CrPC. The mere fact that in his statement under Section 313 CrPC. the accused admitted to have tired on S. O. in defence of his property, could not be relied upon for convicting the accused, It was posited. "It is now a well settled principle of criminal law that an accused can be convicted only when on the evidence produced the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can he based on mere possibility. Nor is it permissible for the Court to speculate as to what had really happened. If both the parties come to court with untrue facts and conceal the real truth they have them selves to blame and they cannot expect the court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances, it may be found to be an impossible task. That is particularly so when the evidence of both the parties is unreliable and cannot be accepted even in part with safety. In such a case it is not open to the court to make out a third case which is different from the case set up by both the parties. In a situation like this the court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The burden which rests on the prosecution to establish its case beyond reasonable doubt i.. neither neutralised nor shifted because the accused pleads the right of private defence. I respectfully follow, the said observations. In this connection, the following observations of the Lord Chancellor in Woolmington v. Director of Public Prosecutions, 1935 AC 462 are worth noting :- "Throughout the web of English Criminal Law, one golden thread is to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to matters as to defence of insanity or any statutory exception. If at the end of and on the whole of the case there is a reasonable doubt created by the evidence of either the prosecution or the prisoner, the prisoner is entitled to acquittal. It is not till the end of the evidence that a verdict can properly be found....At the end of evidence it is not for the prisoner to establish his innocence but for the prosecution to establish guilt....But where the prosecution must prove the guilt of the prisoner there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the criminal law of England and no attempt to whittle it down can be entertained. 17. La a criminal case, burden of proof rests on the prosecution to establish beyond reasonable doubt the guilt. Such burden is not shifted on the accused merely because he may offer some; expLAnation for his implication in the case. 18. Such statement of accused can be taken by court into consideration only to determine whether the issue of guilt is proved or not and to that extent it stands practically on the same footing as other evidence even though technically it is not evidence in the case: within the meaning of the Evidence Act, inasmuch as it is not made on oath. Under Section 315 (1), CrPC if the accused examines himself as a witness on oath for the defence then his statement will be treated as evidence, otherwise his unsworn statement in answer to questions from the court will not be technically treated as evidence. The words 'taken into consideration' are purposely wide. If the statement of the-accused person satisfactorily explains the prosecution evidence, there can be no conviction. If the statement as also the defence do not rebut the prosecution evidence and the court feels justified in acting on the latter, it will convict. Applying the aforesaid principles to the facts of the present case, 1 do not find that the aforesaid statement made by accused amounts to an admission of guilt. 19. If the statement as also the defence do not rebut the prosecution evidence and the court feels justified in acting on the latter, it will convict. Applying the aforesaid principles to the facts of the present case, 1 do not find that the aforesaid statement made by accused amounts to an admission of guilt. 19. In this view of the matter, the revision succeeds and is allowed, the impugned order is set aside and the revisionist is acquitted of the charge under section 394 of Indian Penal Code. He is on bail. He need not surrender to his bonds which arc discharged. Revision allowed.