JUDGMENT : B. P. Sharma, J. - Both appeals have been preferred against the JUDGMENT : and ORDER :passed by 1st Addl. Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 102 of 1986. By the impugned JUDGMENT : dated 14th of September, 1987 the learned Addl. Sessions Judge convicted the three accused persons, namely, Binoy Kumar Sinha, Ram Kishun Dass and Muna Dass of offence punishable under section 395 of the Indian Penal Code and he also convicted them under section 412 of the Indian Penal Code and by the subsequent ORDER :of the same day, the learned Sessions Judge sentenced the three convicts to undergo R.I. for seven years under section 395 I.P.C., but, however, he did not pass any separate sentence under section 412 I.P.C. 2. Out of three convicts, Binoy Kumar Sinha filed a memo of Appeal which was forwarded through the Jail Superintendent, Central Jail, Muzaffarpur and it was registered as Cr. Appeal No. 433 of 1987. It appears that subsequently a similar memo of Appeal was forwarded by the Jail Superintendent, Central Jail, Muzaffarpur on behalf of the other two convicts, namely, Ram Kishun Dass and Muna Dass and the same was registered as Cr. Appeal No. 32 of 1988. Since both the appeals arise out of the same JUDGMENT : and ORDER :, they have been tagged together and have also been heard together. 3. The facts of the case, in brief, are like this. On 25.8.1984 in the early hours a Police Officer Jagat Narain Singh heard hulla when he was present at Kartaha within the P.S. Lalganj and he proceeded towards the village Gurmaichak where he learnt that there was a dacoity in the house of one Md. Nuruddin and the dacoits after committing dacoity were running away towards the east. So he followed the path of retreat of the dacoits and with the help of villagers he succeeded in capturing the three of the dacoits from whose possession various articles were also recovered apart from the fire arms and ammunitions. The dacoits themselves disclosed their names and also disclosed that they had committed dacoity in another village Yasupur within the same P.S. Lalganj, in the district of Vaishali. The dacoits themselves disclosed their names and also disclosed that they had committed dacoity in another village Yasupur within the same P.S. Lalganj, in the district of Vaishali. The articles found in the possession of the three persons, who were caught, were seized in presence of the witnesses and seizure lists were prepared and three persons were taken into custody and thereafter the Police Officer recorded the Fardbeyan of Md. Nuruddin (PW.2). Subsequently this Fardbeyan was forwarded to the Police Station where a formal F.I.R. (Ext. 4) was drawn up and a case was registered and the investigation was entrusted by the officer-in-charge to the S.I. Jagat Narain Singh of Kartaha, who inspected the P.O., held Test Identification Parade of the accused and the articles recovered. He also recorded the statements of the witnesses regarding the commission of dacoity in village Yusufpur and on completing investigation submitted charge sheet in the case. Accordingly, cognizance was taken and three appellants were put on trial. In their defence the accused persons denied the charge against them and they pleaded not guilty and claimed to be tried. However, no defence evidence has been adduced nor any specific evidence has been led on their behalf. Being satisfied with the materials on record, the trial court came to the conclusion that the charge under section 395 I.P.C. stood proved and substantiated against the three appellants and accordingly, he convicted them of the same. The learned Addl. Sessions Judge was convinced of the materials in support of the charge under section 412 I.P.C. and convicted the appellants of the same. However, he did not pass any separate sentence so far as section 412 I.P.C. is concerned. 4. It appears that for proving the charge against the accused persons facing trial the prosecution examined altogether 16 witnesses. Out of these witnesses P.W. 2, Md. Nuruddin, happens to be the informant of this case. He has supported the story of dacoity in his house. He stated that he was sleeping on the roof of his pucca house alongwith the family members. When he was awaken by the lady members of the family he found that the dacoits had arrived. Thereafter the dacoits assaulted him and they ransacked his house and looted away valuables. He has supported the story of dacoity in his house. He stated that he was sleeping on the roof of his pucca house alongwith the family members. When he was awaken by the lady members of the family he found that the dacoits had arrived. Thereafter the dacoits assaulted him and they ransacked his house and looted away valuables. However, according to him when the dacoits were retreating after committing dacoity the villagers and the police party which had arrived in the meanwhile on information followed them and three persons were caught and they were brought to the place where he saw them. He also identified these three persons in dock. He also proved his signature (Ext. 1) on the Fardbeyan (Ext.2). P.W.1 Horil Ram happened to be a servant of P.W.2, Nuruddin and he was also present at his Darwaja on the alleged night of the occurrence, and he had also seen the dacoity being committed, but he could not identify anyone. However, he has also stated that subsequently he learnt that three of the dacoits were caught. P.W.8 Chandra Kishore Prasad Verma is a formal witness. P.W.4 Hari Narayan Bhagat is also a formal witness and similarly P.Ws. 5 and 6 also happens to be the formal witnesses. They have, however, proved the Fardbeyan and the seizure lists (Ext. 2 and Ext. 3 series respectively). P.W.7 Baidyanath Patel have supported the story of arrest of the three culprits after the incident of dacoity and he has also supported the story of recovery of articles from their possession and he also identified the appellant Muna Dass in the dock as one of the persons, who was caught. P.W.8 Islamul Nisa is the wife of Lal Mohammad of village Yusufpur, whose house was also attacked and was looted by the dacoits. She has stated that there was dacoity in her house also at about midnight. According to the prosecution story the dacoits had first raided the house of Lal Mohammad of village Yusufpur within the P.S. Lalganj in the night between 24th and 25th of August, 1984 and had looted away valuables after terrorising and assaulting the family members and inmates of the house and thereafter they came to the place of the informant of this case, Md. Nuruddin (P.W.2) and ransacked his house and assaulted the family members and looted away the articles and after committing dacoity in the house, they fled away. They were chased and arrested by the villagers who had informed the local police. This P.W.8 has identified the three accused on trial and she has stated that they were the persons who had committed dacoity in her house and she also further stated that she learnt that they were subsequently arrested and looted articles were recovered from their possession. This P.W.8 also participated in the Test Identification Parade of the articles recovered from the possession of the appellants and identified these articles. P.W.9 Shiv Narayan Rai has also supported the story of arrest of the three appellants and of the recovery of article from them. He happens to be the Mukhiya of Gurmia Gram Panchayat. P.W.10 Dinesh Patel also supported the factum of dacoity in the house of Md. Nuruddin of village Gurmia and also further supported the story of the arrest of these culprits and he also supported the story of seizure from the possession of these three culprits subsequently and he had signed the seizure lists prepared in this connection. P.W.1 Md. Ful Hssan of Yusufpur has also stated that there was dacoity in his house and valuables were looted by the dacoits and subsequently there was recovery of valuables from the culprits and he identified the appellants Binoy Kumar Sinha as one of those persons in the Test Identification Parade and also in court and he had also identified the recovered articles in the T.I.P. P.W.18 Sakina Khatun is the wife of Ful Hassan (P.W.11). This Ful Hassan happens to be the son of Lal Mohammad whose house was looted. Sakina Khatun has also supported the factum of dacoity and has stated that subsequently some dacoits were caught and the articles were recovered and she identified those articles in Test Identification Parade. P.W.13, Jagat Narayan Singh, is the I.O. of this case. P.W. 14 Ramashankar Prasad is a formal witness, who proved the formal F.I.R. (Ext. 4). P.W.15 Hari Shankar Prasad proved the T.I. Chart prepared by the circle officer, Amarendra Narain, and P.W. 16 Ramchandra Prasad has proved the T.I. Chart prepared by the Judicial Magistrate Mahendra Pratap Singh. P.W.13, Jagat Narayan Singh, is the I.O. of this case. P.W. 14 Ramashankar Prasad is a formal witness, who proved the formal F.I.R. (Ext. 4). P.W.15 Hari Shankar Prasad proved the T.I. Chart prepared by the circle officer, Amarendra Narain, and P.W. 16 Ramchandra Prasad has proved the T.I. Chart prepared by the Judicial Magistrate Mahendra Pratap Singh. It is obvious that the person, who had conducted the T.I.P. of the articles i.e. Sri Amrendra Narain has not been examined by the prosecution in this case and the T.I. Chart prepared by him (Ext. 5) has been proved in formal manner by P.W.15. Similarly, the Judicial Magistrate, Mahendra Pratap Singh, who conducted T.I.P. of the suspects (Ext. 6) has also not been examined by the prosecution in this case and the T.I. Chart has been proved in formal manner by P.W. 16. 5. So far as the factum of dacoity in the house of Md. Nuruddin is concerned, there is no doubt about it that a dacoity was committed in his house in the alleged night of occurrence. It is also established from the evidence of the witnesses that the three appellants were arrested subsequently in the early hours of 25th of August, 1984 and apart from the villagers Police Personnel had also arrived and had succeeded in capturing the three appellants. However, it is also clear from the evidence that these three persons who were caught subsequent to the commission of dacoity in the house of Md. Nuruddin were arrested at a distance of about 1 K.M. away from the house of Md. Nuruddin. It is also clear from the evidence on record that huge quantity of articles were recovered from their possession which were seized and seizure lists (Ext. 3 series) were prepared by the Police Officer (P.W.13) in the presence of the witnesses. Nuruddin were arrested at a distance of about 1 K.M. away from the house of Md. Nuruddin. It is also clear from the evidence on record that huge quantity of articles were recovered from their possession which were seized and seizure lists (Ext. 3 series) were prepared by the Police Officer (P.W.13) in the presence of the witnesses. However, it has been stated by the informant (P.W.2) that the articles which were recovered from the possession of the persons, who were caught were not the articles looted from his house and the prosecution story is that the articles which were recovered from the possession of the three persons, who were caught, were the articles looted away from the house of Lal Mohammad of village Yusufpur and accordingly, Test Identification Parade of those articles were also held before the Circle Officer of Lalganj and the family members of Lal Mohammad i.e. his son (P.W.11), his wife (P.W.6) and his daughter-in-law (P.W.12), participated in the Test Identification Parade vide Ext.5 and identified those articles but the Circle Officer, who held the T.I.P., has not been examined by the prosecution in this case and by merely getting the T.I. Chart (Ext.5) proved by a formal witness, the prosecution has tried to establish that the articles were identified by the witnesses in the T.I.P. In absence of the maker of the document and the persons who held the T.I.P., the T.I. Chart has no value in the eye of law and it cannot be taken into consideration. 6. So far as the Investigating Officer of the case (P.W.13) is concerned, he has stated that he had inspected the P.O. which was the house of the informant (P.W.2) in village Gurmia and he found that there were signs of the house being attacked and ransacked by the dacoits and he had also recorded the statements of the inmates of the house of Md. Nuruddin. This P.W.13, the I.O. has also stated that he had inspected the house of Lal Mohammad of village Yusufpur whose house was alleged to have been attacked by the same gang of dacoits prior to the commission of dacoity in the house of P.W.2 Md. Nuruddin and he also found that there were signs to indicate that there was dacoity in the house and he also recorded the statements of the inmates of the house of Lal Mohammad in village Yusufpur. Nuruddin and he also found that there were signs to indicate that there was dacoity in the house and he also recorded the statements of the inmates of the house of Lal Mohammad in village Yusufpur. It also appears that this Lal Mohammad had also made a statement before the Police Officer which was recorded by a Police Officer, S.I. P.Tiwary of Lalganj P.S. on 25.8.1984 at 11.30 A.M. This statement of Lal Mohammad is Ext. 2/1 in which he stated about the dacoity in his house in the night between 24th and 25th of August, 1984. His family members (P.Ws. 8, 11 and 12) have also supported the story of dacoity in the house of Lal Mohammad in village Yusufpur and it is abundantly clear from the evidence that whereas the gang of dacoits committed dacoity in the house of Lal Mohammad of village Yusufpur in the midnight in between 24th and 25th of August, 1984, they attacked the house of the informant (P.W.2) in village Gurmia at about 2.30 A.M. and thereafter while the dacoits were retreating after committing dacoity the villagers and the Police party chased them and succeeded in capturing three of them at a distance of 1 K.M. away from the house of the informant (P.W.2) and recovered some articles which were suspected as stolen articles. However, it has been stated by the informant (P.W.2) that the articles which were recovered from the possession of the three arrested persons were not the articles taken away in the dacoity from the house of the informant, but those articles were suspected stolen articles of the house of P.W.11, Ful Hassan son of Lal Mohammad of village Yusufpur. Therefore, the trial court has come to this conclusion that both the dacoities took place in the same night one after another and subsequent to the commission of dacoity in the house of the informant (P.W.2) three of the members of the gang were caught and the suspected stolen articles were recovered from their possession and since those articles were identified in the T.I.P. as the articles looted from the house of Lal Mohammad of village Yusufpur, the accused persons were guilty of offences under section 395 as well as under section 412 I.P.C. 7. In this connection a pertinent point has been raised by the learned counsel appearing for the appellants in this case that first of all the identification of the articles has not been proved because of non-examination of the witness conducting T.I.P. of the articles and secondly in the statement of the accused under section 313 Cr. P.C. the trial court did not put any question on this point whether any such article was recovered from their possession and whether those articles were identified by the witnesses as the articles looted from the house of Lal Mohammad and therefore, it has been submitted that the evidence of recovery of the stolen articles looted from the house of Lal Mohammad of village Yusufpur from the possession of the appellants cannot be treated as an evidence in this case. It has also further been pointed out by the learned counsel for the appellants that the learned trial court while examining the accused persons under section 313 Cr. P.C. did not even put any question to the accused persons whether they had committed any dacoity in the house of Lal Mohammad of village Yusufpur and therefore, it has been submitted that the prosecution has failed to prove that there was dacoity committed by the gang of which the appellants were the members in the house of Lal Mohammad of village Yusufpur or that any stolen article of this dacoity was recovered from their possession. 8. Learned counsel for the appellants pointed out towards the observations made by their Lordships of the Supreme Court in the case of Shobhit Chamar & anr. vs. State of Bihar, reported in 1998 Cr. L.J. 2259 : 1998(2) PLJR 17 (SC) in which in paragraph 20 their Lordships have observed like this: "We have perused all these reported decisions relied upon by the learned Advocates for the parties and we see no hesitation in concluding that the challenge to the conviction based on non-compliance of Section 313 Cr.P.C. first time in this appeal cannot be entertained unless the appellants demonstrate, that the prejudice has been caused to them. In the present case as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. In the present case as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. If the evidence of these witnesses is found acceptable, the conviction can be sustained unless it is shown by the appellants that a prejudice was demonstrated before us and, therefore, we are unable to accept the contention raised on behalf of the appellants." It has been submitted in this connection that in the case under reference the plea was taken for the first time before the Supreme Court and therefore, their Lordships repelled the argument and it also appears that in the case under reference certain questions were specifically put to the accused persons which are described in paragraph 13 of the JUDGMENT : under reference, but what has happened in the present case is that the trial court has been most casual in the matter of examination of the accused under section 313 Cr.P.C. Looking into the questions put to the appellants, it appears that one question has been put only regarding the allegation against them for commission of dacoity in the house of Mr. Nuruddin of village Yusufpur which is incorrect because the dacoity is said to have been committed in the house of Md. Nuruddin, the informant (P.W.2) in village Gurmia whereas another dacoity is said to have been committed in the house of Lal Mohammad of village Yusufpur. Therefore, the question put to the accused in the examination under section 313 Cr.P.C. is itself thoroughly misleading. The second question put to the accused in this case is whether the stolen articles of dacoity were recovered from their possession and they said 'No'. Here the prosecution tried to establish that the articles recovered from their possession were the stolen articles of a dacoity committed in the house of Lal Mohammad of village Yusufpur. Therefore, the question was neither specific nor clear enough so that the accused persons could reply to it. In this view of the matter, there does not remain any doubt that because of the specific questions not being put to the accused under section 313 Cr.P.C. serious prejudice has been caused to the accused appellant and therefore, their conviction under section 412 I.P.C. is illegal and improper and that cannot be sustained. 9. In this view of the matter, there does not remain any doubt that because of the specific questions not being put to the accused under section 313 Cr.P.C. serious prejudice has been caused to the accused appellant and therefore, their conviction under section 412 I.P.C. is illegal and improper and that cannot be sustained. 9. So far as the conviction under section 395 I.P.C. is concerned, it appears that the learned Addl. Sessions Judge had led much emphasis on the circumstance that the appellants were caught in the proximity of the alleged time of occurrence. According to the learned trial court the accused persons were caught immediately after committing dacoity in the house of Md. Nuruddin in village Gurmia, but it appears from the evidence of the witnesses as well as the I.O. that whereas the dacoity took place in the house of Md. Nuruddin (P.W2) at about 2.30 A.M. in the night, three persons were caught at a distance of 1 K.M. away from this village in the early hours in the morning of 25th of August, 1984. Therefore, it also cannot be said that three persons were caught immediately after coming out of the house of the informant (P.W.2) or soon-thereafter in the vicinity of the P.O. house. The only material to connect the arrested persons with the commission of dacoity in the house of the informant (P.W2) is that the dacoits are said to have admitted their guilt before the witnesses on their arrest, but such admission was clearly made in presence of the police because at the time of arrest the police party had also arrived according to the witnesses and it is also admitted by P.W.13. I.O. Therefore, there is no material to connect the incident of arrest of the accused persons with the, commission of dacoity in the house of the informant (P.W.2) and so far as the commission of dacoity in the house of Lal Mohammad of village Yusufpur or Md. Nuruddin of village Gurmia is concerned, in the question put to the accused serious confusion has been created. Nuruddin of village Gurmia is concerned, in the question put to the accused serious confusion has been created. So far as the identification of the appellants by the witnesses as the persons having participated in the commission of dacoity is concerned, neither the informant nor any other witness has stated that those were the persons who had committed dacoity in their house and some witnesses have only stated that those persons who were arrested were the dacoits. So far as the T.I.P. of the appellants is concerned, though T.I. Chart (Ext.6) has been proved in formal manner, the Magistrate holding the T.I.P. i.e. Judicial Magistrate, Mahendra Pratap Singh, could not be examined by the prosecution. Therefore, it has not been established by the prosecution that the appellants were placed on T.I.P. in presence of the witnesses and they were identified. Similar confusion has been created in the evidence of the witnesses regarding identification in court also. 10. Taking into view all these circumstances, it is very difficult to accept the prosecution story so far as the participation of the appellants in the commission of two dacoities in question is concerned. In this view of the matter, it is very difficult to agree with the findings of the trial court in this regard. The conviction of the appellants, in this circumstance, cannot be maintained under section 395 I.P.C. also. Accordingly, it is held that the conviction of the appellants both under sections 395 as well as under section 412 I.P.C. are not sustainable. The appeals are accordingly, allowed and the conviction recorded against the appellants by the trial court is hereby set aside. The appellant, Binoy Kumar Sinha, of Cr. Appeal No. 433 of 1987 was granted bail by this Court by the ORDER :dated 15.2.1991 and therefore, he is ORDER :ed to be discharged from his bail bond. However, the appellants, namely, Ram Kishun Dass and Muna Dass, in Cr. Appeal No. 32 of 1988 were never granted bail in this appeal and they have remained in custody all along. They are ORDER :ed to be released from jail custody forthwith, if not wanted to be detained in any other case. The trial court shall issue the release ORDER :accordingly.