Order Both the appeals are taken together arising out of common judgment of conviction recorded by the Additional Sessions Judge, F.T.C.-III, Hazaribagh in S.T. No. 275/88, arising out of Berhi P.S. Case No. 23/86, corresponding to G.R. No. 292/ 86 by which all the appellants of the appeals were convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years each. . 2. Prosecution story in short was that the informant P.W. 3 Bijli Devi delivered her statement before the Berhi Police on 10.2.1986 that in the previous night intervening 9/10.2.1986 while her husband was away in the brick-kiln and she was sleeping in her house, she woke up at about 3 O'clock to answer the call of nature and in this connection, when she opened the door, she spotted a culprit standing by the side of the wall of her house and in the meantime, the said culprit dealt blow with the stick on the leg of the informant as a result of which she immediately entered into the house and attempted to close the door by raising alarm. The culprits standing at her door commanded to open the door as they had come to search the liquor, but in spite of all resistance made by the informant, the culprits succeeded in opening the door. . She spotted all the five culprits entering into her house armed with stick, knife and iron khanti. One of the culprits pointed knife on her chest and demanded valuables, whereas others were involved in searching the valuable articles from the rooms. She explained that three culprits had covered their faces with clothes and maintained some distance from her and one of the dacoits standing on her behind snatched silver chain from her neck containing nine silver coins and that she was assaulted by them by putting pressure to disclose the valuables. Informant narrated that the dacoits took away utensils of brass and bronze and toe rings. Informant claimed to identify three culprits as she had occasion to see their faces. They were speaking local language. She further narrated that the dacoits tried to get the door of P.W. 2 Mohan Prasad Mahato opened for commission of dacoity in his house, but they could not succeed as the villagers assembled on her alarm and the dacoits decamped with booty. They were speaking local language. She further narrated that the dacoits tried to get the door of P.W. 2 Mohan Prasad Mahato opened for commission of dacoity in his house, but they could not succeed as the villagers assembled on her alarm and the dacoits decamped with booty. She further narrated that after retreating of the dacoits, P.W. 2 Mohan Prasad Mahato immediately came to her and he claimed to identify the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice, who had come to commit dacoity. She also narrated that appellants Dhaman Mahto and Dihal Mahto had abducted her niece Geeta Kumari only a few days ago with the intention to marry her, which was opposed by the informant and other members of the family, to which the witnesses were threatened. Lastly, the informant suspected the complicity of the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato in the alleged dacoity, which was committed in her house. The F.I.R. was instituted against unknown six dacoits in spite of the fact that the informant had suspected complicity of these three appellants referred to hereinbefore, however, the Investigating Officer after investigation submitted charge-sheet against Dhaman Mahto, Dihal Mahto, Rameshear Mahato, Sewa Mahto by showing the other two Ratan Ram and Jai Prakash Mahto (absconder). It would not be out of place to mention that certain articles, alleged to be the subject matter of dacoity, were recovered from the possession of Sew a Mahto and consequently, charge-sheet was submitted against all the four accused for the alleged offence under Sections 395/ 412 of the Indian Penal Code. All the appellants herein were put on trial after framing of charge under Section 395 and separate charge under Section 412 of the Indian Penal Code against the appellant Sewa Mahto. After trial all the appellants were convicted under Section 395 of the Indian Penal Code and accordingly, sentenced to undergo rigorous imprisonment for seven years each. It would be relevant to mention that charge under Section 412 was proved against the appellant Sewa Mahto but no separate sentence was awarded for the said offence. 3. Learned counsels appearing on behalf of the appellants consistently submitted that the conviction of the appellants herein was based simply upon identification by their voice. It would be relevant to mention that charge under Section 412 was proved against the appellant Sewa Mahto but no separate sentence was awarded for the said offence. 3. Learned counsels appearing on behalf of the appellants consistently submitted that the conviction of the appellants herein was based simply upon identification by their voice. The informant P.W. 3 Bijli Devi was consistent that she claimed to identify two accused by their faces as had not covered their faces and one of them had pointed a knife on her chest, whereas the other three culprits, who had masked their faces with clothes, had been maintaining some distance from her. In course of investigation, the appellant Sewa Mahto was arrested and he was put on Test Identification Parade at the Central Jail, Hazaribagh by observing the formalities and the informant Bijli Devi claimed to identify him by describing that at the relevant time of dacoity, he (Sewa Mahto) was holding a khanti and a torch in his hand and he escaped with an axe, which belonged to her. Learned counsel pointed out that in her substantive evidence before the Trial Court the informant P.W. 3 Bijli Devi testified that she had identified the appellant Sewa Mahto in his Test Identification Parade by describing that at the relevant time he was holding a khanti and a torch in his hand. She made development in her substantive evidence by claiming to identify the appellant Sewa Mahto in the light of torch as also in the light of earthen lamp and that he had also assaulted her but such statement was never made before the police at any time during investigation. As regards the identification of other three appellants viz. Dhaman Mahto, Dihal Mahto and Rameshear Mahato was concerned, the learned counsel submitted that informant Bijli Devi was consistent in her statement before the Trial Court that three accused' had masked their faces, whereas other three had left their faces open, but she neither claimed to identify any of them either by voice or by face, though in her statement recorded at the police station, she claimed to identify those three culprits, who had not covered their faces. The learned counsel assailed the judgment impugned by submitting that the learned Trial Judge convicted the appellants only on the uncorroborated evidence of P.W. 2 Mohan Prasad Mahato, who had neither occasion to come across the dacoits at any point of time nor any dacoity was committed in his house, but he claimed to identify three appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice and the identification of the culprits by their voice is very weak piece of evidence. 4. It would be relevant to mention that statement of P.W. 2 Mohan Prasad Mahato at the first point in time was. recorded under Section 164 of the Code of Criminal Procedure (Ext. -1) wherein he had stated that he had identified Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice. who were standing near his doors commanding him to open the door of the house and in this connection, they had been extending threat and thereafter they went away. 5. Learned counsels pointed out that P.W. 2 Mohan Prasad Mahato was an important prosecution witness but from none of his statements either recorded under Section 164 of the Code of Criminal Procedure or by the Trial Judge, he had ever testified that he had conveyed to the informant Bijli Devi having claimed to identify the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato but the glaring contradiction would be evident from the statement of the informant Bijli Devi recorded at first point in time before the police that soon after the alleged dacoity P.W. 2 Mohan Prasad Mahato came to her and apprised that he had identified the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato by their voice amongst the dacoits. 6. 6. I find from the judgment that the Trial Judge has given a vivid description of the enmity prevailing between the informant and the P.W. 2 Mohan Prasad Mahato on one side and the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato on other side on account of succession of certain land and also on the issue that the daughter of Jagdish Mahto, namely, Geeta had married to a person, who was serving to Jagdish Mahto and thereby deprived the right of P.W. 2 Mohan Prasad Mahato of succeeding the property of Jagdish Mahto upon his death as being the nearest agnate but the learned Trial Judge failed to take into consideration the enmity prevailing between the parties which could be presumed to cut both ways. It is remarkable to note that Court has taken judicial notice to the fact that the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato being the agnates/cognates had every knowledge about the poor financial position of the informant which could be evident from the list of articles which were the subject matter of dacoity but even then they ventured to commit dacoity, which appears unusual and no article, which was said to be removed by the dacoits during course of dacoity, could be recovered from the possession of any of the appellants except it was alleged that certain that is were recovered from the house of Sew a Mahto without any identification mark. The learned counsel pointed out with reference to Test Identification Parade of the materials alleged to be recovered from the possession of Sew a Mahto (Ext.-6) that four plates made of bronze were exhibited/produced for the identification without observing the formalities required for the Test Identification of the material exhibits and that the inform ant P.W. 3 Bijli Deli claimed to identify all the four bronze plates on the ground that bigger plates had undergone the process of soldering, whereas the small bronze plates were identified because of its daily use by her, however no such identification mark of soldering was given at the point in time before the police. I further find from the Test Identification Parade chart (Ext.-6) that formalities before putting the suspected materials on Test Identification Parade were not properly observed except its sheer mentioning in column-5. I further find from the Test Identification Parade chart (Ext.-6) that formalities before putting the suspected materials on Test Identification Parade were not properly observed except its sheer mentioning in column-5. Prosecution had projected P.W. 6 Rupial Prasad Mahato as seizure witness of the bronze plates alleged to be recovered from the possession of the appellant Sewa Mahto but he did not support any such recovery from his possession; as such he was declared hostile by the prosecution and the alleged recovery of the bronze plates (Thalis) from the possession of the appellant Sewa Mahto could not be proved. 7. After examination of the prosecution witnesses, statements of all the four appellants were recorded under Section 313 of the Code of Criminal Procedure, but I find that none of the appellants were confronted with any relevant incriminating materials basing the evidence brought on the record in course of trial so as to attract their conviction under Section 395 of the Indian Penal Code. A simple question was put to the appellant Rameshear Mahato during his examination under Section 313 of the Code of Criminal Procedure that he had committed dacoity in the night intervening 9/10.2.1986 in the house of the informant P.W. 3 Bijli Devi alongwith other accused and took away jewelleries, utensils and silver coins worth Rs. 480/-, to which he denied his guilt and replied that he was falsely implicated. It was nowhere mentioned about the materials whatsoever brought on the record while examining him under Section 313 of the Code of Criminal Procedure stated to be the incriminating material so as to infer that he participated in the dacoity conjointly, which was committed in the house of the informant Bijli Devi in the relevant night. Similarly, it was nowhere stated as to under what manner he was identified either by his voice or on identification by his face. Similarly, it was nowhere stated as to under what manner he was identified either by his voice or on identification by his face. Other appellants were also examined in the similar fashion under Section 313 of the Code of Criminal Procedure by putting questions except one more question that was put to the appellant Sew a Mahto was in regard to recovery of the articles, alleged to be the subject matter of dacoity without confronting him in details distinctly and separately and in that manner I have reason to believe that the appellants have been highly prejudiced for being denied of an opportunity to explain the material circumstances though not put to them in clear words but all of them were convicted under Section 395 of the Indian Penal Code and accordingly sentenced and thereby, I observe that the trial of the appellants stands vitiated. 8. In similar situation, the Supreme Court of India in Asraf Ali vs. State of Assam, reported in 2008 Cri.L.J. 4338 observed:"13. Section 313 of the Code casts a duty on the Court to put in an 'enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary there from that each material circumstance appearing in the evidence against the accused is required to be put to him specially, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it Where no specific question has been put by the Trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice." 9. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice." 9. Taking the next point that the identification of a culprit by voice is a very weak piece of evidence, which needs corroboration, the relevant fact of the instant case cannot be lost sight of that the appellants, who were alleged to be identified by their voice, were the agnates and known to the P.W. 2 Mohan Prasad Mahato from before the alleged dacoity. P.W. 2 Mohan Prasad Mahato in his statement recorded under Section 164 of the Code of Criminal Procedure had stated that the culprits had threatened from outside to open the door, lest they would fire shot causing injuries' but he did not open. It was nowhere stated that the dominant intention of the appellants was to commit dacoity in his house and previous enmity between the parties was admitted. I find from the materials on the record and the discussions made here'inabove that the evidence adduced and produced on behalf of the prosecution during trial were not adequate to inflict the conviction of the appellants Dhaman Mahto, Dihal Mahto and Rameshear Mahato for the charge under Section 395 of the Indian Penal Code. Though the appellant Sewa Mahto was put on Test Identification Parade after his arrest with the alleged recovery of certain utensils, but I find glaring contradiction in the statements of the informant P.W. 3 Bijli Devi, with respect to his identity as one of the dacoits who conjointly committed dacoity in her house. 10. Having regard to the facts and circumstances of the case, to sum up, I observe that the identification of the trio appellants viz. Dhaman Mahto, Dihal Mahto and Rameshear Mahato from their voice as claimed by P.W. 2 does not inspire confidence much less in relation to commission of dacoity in the house of P.W. 3 Bijli Devi who did not claim to identify any of them. She was the eye-witness of the dacoity but she was silent about their participation with their individual overt act. Enmity was admitted between the parties from before. Similarly it was nowhere alleged that they committed dacoity in the house of P.W. 2 Mohan Prasad Mahato. She was the eye-witness of the dacoity but she was silent about their participation with their individual overt act. Enmity was admitted between the parties from before. Similarly it was nowhere alleged that they committed dacoity in the house of P.W. 2 Mohan Prasad Mahato. As regards complicity and identification of the appellant Sewa Mahto is concerned, much has been discussed in the foregoing paragraph and the learned Trial Judge failed to take into consideration the aforesaid aspects and they were convicted without application of judicial mind for the charge under Section 395 of the Indian Penal Code. I further observe that conviction of the appellant Sewa Mahto for the separate charge under Section 412 of the Indian Penal Code for the reasons stated cannot be sustained under law. 11. All the four appellants Dhaman Mahto, Dihal Mahto, Rameshear Mahato and Sewa Mahto, therefore, are acquitted from their conviction. As they are already on interim bail, their bail bonds stand discharged. 12. Accordingly, both the appeals are allowed.