JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Appellant, Sipahi Ram @ Sipahi Paswan has been found guilty for an offence punishable under Section 412 of the IPC while appellant, Vijay Koiri has been held guilty for an offence punishable under Section 395 of the IPC vide judgment dated 29.02.2012 and both have been directed to undergo R.I. for 10 years along with fine of Rs. 5,000/- in default thereof, to undergo S.I. for six months additionally, independently, vide order dated 02.03.2012 passed by Additional Sessions Judge-FTC-IV, Sasaram in Sessions Trial No. 282/1991/198/2010, the subject matter of instant appeal. 2. PW-6, Ram Pravesh Tiwari had recorded his Fard-e-beyan on 22.09.1990 at about 12:30 p.m. at his house lying at village-Karmaini, P.S. Natwar, Distt-Rohtas before O/C, Natwar P.S. disclosing therein that unknown dacoits have raided his house in the preceding night of 21.09.1990 at 11:00 p.m. and took away all their belongings and he had detailed the detailed articles in the Fard-e-beyan itself. He had further claimed identification of the dacoits whom he had seen in the torch light. 3. On the basis of aforesaid Fard-e-beyan, Natwar P.S. Case No. 38/1990 was registered and investigation commenced during course of which so many suspects were apprehended and were put on TIP out of whom, appellant Vijay Koiri along with other absconding co-accused were identified. It is further evident that on getting confidential information booty was recovered from the house of appellant no. 1, Sipahi Ram @ Sipahi Paswan which was also put on TIP and was identified and on account thereof, charge-sheet was submitted whereupon both the appellants have faced trial and met with ultimate result having been the subject matter of instant appeal. 4. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of innocence as well as false implication at the instance of Investigating Officer who coerced the prosecution party to identify the articles as well as the persons. 5. As is evident from the lower court records altogether eight PWs had been examined out of whom PW-1 Munsif Tiwari, PW-2 Parasu Ram Tiwari, PW-3, Ajay Kumar Tiwari, PW-4 Shrijee Tiwari, PW-5 Kanhaiya Lal Tiwari, PW-6 Ram Pravesh Tiwari, PW-7 Aditya Kumar Mishra, and PW-8 Raghu Pati Singh. 5. As is evident from the lower court records altogether eight PWs had been examined out of whom PW-1 Munsif Tiwari, PW-2 Parasu Ram Tiwari, PW-3, Ajay Kumar Tiwari, PW-4 Shrijee Tiwari, PW-5 Kanhaiya Lal Tiwari, PW-6 Ram Pravesh Tiwari, PW-7 Aditya Kumar Mishra, and PW-8 Raghu Pati Singh. Side by side Prosecution had also exhibited Ext-1 series, T.I. Chart relating to articles as well as person, Ext-2, Fard-e-beyan, Ext-3, formal FIR. Ext-4, seizure list. Material Exhibits-I, Paraat (Tray), Ext-II, Saree, Ext-III, Chadar. Neither DW nor any document has been exhibited on behalf of appellants. 6. While challenging the finding recorded by the learned lower court, it has been submitted on behalf of appellants that the judgment impugned suffers from conjecture and surmises because of the fact that it has been passed in mechanical manner. Now coming to the merit of the case, it has been submitted that there happens to be specific disclosure in the Fard-e-beyan as well as during course of evidence of PW-6, the informant, the inmates of the house were firstly, confronted with the dacoits but unfortunately, the reason best known to the prosecution none of them came forward to participate during course of TIP. Purposely and intentionally withholding the material witness who could have divulged complicity of appellants including others happens to be serious deformity persisting in the prosecution case. As per prosecution version dacoits had direct confrontation with them while looting their personal belongings apart from boxes kept in a room. It has also been submitted that at that very moment, informant PW-6 was at upper floor and from-there, he had claimed identification through torch. It has further been pleaded that PW-6 himself had disclosed that some of the dacoits came near him after forcing him to open door of his room while remaining dacoits stayed at ground floor. Therefore, non presence of other witnesses on the score of TIP did not justify the nature of investigation as conducted by PW-7, the Investigating Officer. 7. It has further been submitted that appellant, Vijay Koiri, though denied by the informant to be known since before but had admitted that Village-Baruna happens to be his adjoining village as well as his land is spread over adjacent to Village-Baruna. 7. It has further been submitted that appellant, Vijay Koiri, though denied by the informant to be known since before but had admitted that Village-Baruna happens to be his adjoining village as well as his land is spread over adjacent to Village-Baruna. Therefore, the probability having seen the appellant Vijay Koiri since before occurrence cannot be ruled out and this part indicates that prosecution was overpowered as well as undue influenced by the Investigating Officer during course of investigation whereunder PW-6 had claimed identification of appellant, Vijay Koiri. Therefore, it has been submitted that such identification has got no value. 8. Now coming to the case of Sipahi Ram@Sipahi Paswan, again it has been submitted that he happens to be resident of Village-Baruna and on account thereof, his complicity, on account of recovery of looted articles has been perceived by the prosecution party. Then in that event, must have come to their knowledge regarding keeping of looted articles. Not only this, it has also been submitted that though some sort of articles have been shown recovered from his possession but he was not put on TIP and that shows the callous attitude of Investigating Officer. The recovery of article visually denotes complicity of an accused during commission of crime and for that at least, appellant, Sipahi Ram@Sipahi Paswan would have been put on TIP. Withholding Sipahi Ram @ Sipahi Paswan is indicative of the fact that the investigation was not fair. 9. Now coming to the items, it has been submitted that PW-6 had himself admitted that he had not mentioned Chadar in the Fard-e-beyan to have carried away by the dacoits. Furthermore, though identification has been made by PW-1 as well as PW-6 but without having any sort of specific mark which could have enabled them to identify the articles. Because of the fact that those articles were commonly found in all the houses and on account thereof, appellant is entitled for benefit of doubt. Moreover, the Magistrate who had conducted TIP has also not been examined. 10. Because of the fact that those articles were commonly found in all the houses and on account thereof, appellant is entitled for benefit of doubt. Moreover, the Magistrate who had conducted TIP has also not been examined. 10. Then it has been submitted that recording of statement of both the accused by the learned lower court happens to be in most perfunctory manner and violative of Sub-Section 1 of Section 313 of the Cr.P.C. wherein all sorts of incriminating material so produced by the prosecution during course of trial has to be confronted with the accused so that the answer coming from the mouth of accused be there which has got legal sanctity in terms of Sub-section 4 of Section 313 of the Cr.P.C. As such the judgment of conviction and sentence recorded by the learned trial court is fit to be set aside. 11. On the other hand, learned APP while supporting the findings recorded by the learned trial court has submitted that non-examination of particular witness is not going to defeat the ends of justice because of the fact that the prosecution case is found fully proved by the evidence of the witnesses who have been examined. In terms of Section 134 of the Evidence Act, it is not the quantity rather quality which matters. It has also been submitted that the factum of dacoity has not been challenged so dacoity in the house of PW-6 is out of controversy and in likewise manner the articles having been looted thereunder. Recovery is also admitted. During course of cross-examination of PWs-1 and 6 along with PW-7, the Investigating Officer, the appellant, Sipahi Ram@Sipahi Paswan had claimed the articles to be his personal property but surprisingly, neither he himself nor any of his family members nay any of the witness deposed on his behalf on that very score. Therefore, having failed to explain or failed to claim by cogent and reliable evidence clearly suggest that the articles so recovered from his possession happen to be the booty of instant case. 12. In likewise manner, identification of Vijay Koiri happens to be. Therefore, having failed to explain or failed to claim by cogent and reliable evidence clearly suggest that the articles so recovered from his possession happen to be the booty of instant case. 12. In likewise manner, identification of Vijay Koiri happens to be. While cross-examining PW-6, it has been suggested that he was knowing Vijay Koiri from before the occurrence being resident of Village-Baruna, his adjoining village which PW-6 had denied and on account thereof it was expected at the end of appellant, Vijay Koiri to have adduced the some sort of evidence that there was an occasion for PW-6 to identify him or known him from before the occurrence but again failed. 13. Now coming to the deficiency persisting in statement recorded under Section 313 of the Cr.P.C., it has been submitted that no such deformity is found because of the fact that appellant was well aware while meeting with trial and during course of cross-examination of witness took probable defence. As such, by having some sort of lapses on the part of trial court was not at all found to have jeopardized or prejudiced the interest of the appellants nor the appellants have been capable to suggest that by such lapses their interest is found prejudiced. Hence, the judgment impugned is legally sustainable. 14. As is evident from the evidence of PW-7, the I.O., he had seized articles during course of investigation from conscious possession of appellant, Sipahi Ram@Sipahi Paswan which was put on TIP and was identified by PWs-1 and 6 which, PWs-1 and 6 had reiterated during course of their evidence before learned trial court. It is also evident from the evidence of PW-7 that so many suspects were apprehended who were put on TIP and were identified and PW-6 on this score claimed identification not in TIP but also during trial. PW 8 had corroborated such event as he was the officer under whose guidance TIP was conducted. Save and except Vijay Koiri, others jumped out and still their presence could not be procured. When the statements of both the appellants have been gone through, it is apparent there-from that Vijay Koiri was not at all confronted and apprised with the factual allegation persisting against him that he was identified during course of TIP conducted by PW-8, Raghu Pati Singh, Judicial Magistrate, 1st Class wherein PW-6, Ram Pravesh Tiwari had identified him. When the statements of both the appellants have been gone through, it is apparent there-from that Vijay Koiri was not at all confronted and apprised with the factual allegation persisting against him that he was identified during course of TIP conducted by PW-8, Raghu Pati Singh, Judicial Magistrate, 1st Class wherein PW-6, Ram Pravesh Tiwari had identified him. In likewise manner, Sipahi Ram@Sipahi Paswan was not at all confronted as well as apprised with the allegation which PW-7 had stated regarding seizure of booty followed with conduction of TIP whereunder PWs-1 and 6 identified those articles which, PWs-1 and 6 also deposed before the Court. 15. Statement of an accused is not a mere formality, its introduction has a purpose, a meaning whereunder the Court directly come in contact with the accused, poses incriminating circumstances having been adduced by the prosecution during course of trial and gets an explanation at the end of accused. Again an obligation is cast upon an accused to answer each and every incriminating circumstance so put by the Court before him and during said course so many options are available, that means to say, he may keep silence, he may or may not give an explanation, and the conduct of the accused in the aforesaid event is also to be perceived in the background of facts and circumstances of the case as well as in terms of Sub Section-4 of the Section 313 of the Cr.P.C. That means to say, the evidence by way of examination-in-chief as well as cross-examination is parted with under separate identity than that of statement and that happens to be reason behind that irrespective of the allegation whatever may be, adduced during course of examination-in-chief, under Sub-section 1 of Section 313 of the Cr.P.C., an obligation has been cast to have the accused apprised with the aforesaid incrimination article and further to have an explanation at the end of accused. 16. In the case of Sujit Biaswas Vs. State of Assam reported in (2013) 12 SCC 406, the Hon’ble Apex Court have minutely and critically analyzed the ambit and scope as well as importance of Section 313 of the Cr.P.C. and held as follows:— “20. 16. In the case of Sujit Biaswas Vs. State of Assam reported in (2013) 12 SCC 406, the Hon’ble Apex Court have minutely and critically analyzed the ambit and scope as well as importance of Section 313 of the Cr.P.C. and held as follows:— “20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement. 21. In Hate Singh Bhagat Singh Vs. State of Madhya Pradesh, AIR 1953 SC 468 , this Court held, that any circumstance in respect of which an accused has not been examined under Section 342 of the Code of Criminal Procedure, 1898 (corresponding to Section 313 Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in catena ofjudgments of this court uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him. (See also: Shamu Balu Chaugule Vs. State of Maharashtra, AIR 1976 SC 557 ; Harijan Megha Jesha Vs. State of Gujarat, AIR 1979 SC 1566 ; and Sharad Birdhichand Sarda (1984) 4 SCC 116 ). 22…….. 23……. 24…….. 25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. State of Gujarat, AIR 1979 SC 1566 ; and Sharad Birdhichand Sarda (1984) 4 SCC 116 ). 22…….. 23……. 24…….. 25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself. 26. The present case is required to be examined in light of the aforesaid settled legal propositions. The instant is one of circumstantial evidence, and only two circumstances have appeared against the appellant, namely, I. That he had been able to point out the place where Sima Khatoon was lying, after his demand for Rs.20/- had been accepted; and II. That subsequently, he had left the said place and boarded a bus immediately. 17. As indicated above, it is an admitted position that relevant incriminating material has not been confronted either to appellant, Sipahi Ram alias Sipahi Paswan from whose possession booty was recovered and was identified during course of TIP, and even during trial or to against appellant, Vijay Koiri who was apprehended and was identified during course of TIP as well as identified during trial. Therefore, the aforesaid event is found with a severe infirmity persisting in the prosecution case and taking into account the principle laid down by the Hon’ble Apex Court as referred above, the judgment of conviction and sentence recorded by the learned trial court is found nullified. 18. Consequent thereupon, the judgment of conviction and sentence rendered by the learned trial court is set aside. Appeal is allowed. 19. Since appellant, Sipahi Ram @ Sipahi Paswan is on bail, he is discharge from the liability of bail bond. So far as appellant, Vijay Koiri is concerned, he is under custody, hence, he is directed to be released forthwith if not wanted in any other case.