JUDGMENT : Heard Sri Rajeev Roy, learned Advocate assisted by Sri Pravin Kumar Agarwal and Sri Sardanand Mishra who are the advocates engaged in Cr. App. (SJ) No. 6/2004 and Cr. App. (SJ) No. 726/2007 respectively. Since, in the analogous Cr. App. (SJ) No. 725/2007 and Cr. App. (SJ) No. 727/2007, the learned advocates on behalf of the appellants are not present, therefore, on the request of the Court, learned advocates representing the appellants in the aforesaid two criminal appeals have also assisted the court as Amicus curiae in the other two appeals. 2. State is represented by Mr. Sujeet Kumar Singh, learned Additional Public Prosecutor and Binod Bihari Singh, learned Additional Public Prosecutor. 3. These criminal appeals have arisen from the judgment dated 9th December, 2003 passed by learned Additional Sessions Judge, Fast Track Court, Bhagalpur in Sessions Trial No. 427/1986 (State through Etwari Yadav, Informant Vs. Manik Bind @ Maniki Bind and others) whereunder the learned trial court had recorded a finding of guilt against the accused-appellants under Section 395 of the Indian Penal Code and imposed a sentence of 7 years against these appellants. 4. The brief facts which emerged out of the records of the trial court are that in the night of 27th April, 1984 at about 2.00 P.M. while the informant Etwari Yadav (P.W.5) was sleeping on the roof of his house in village Shivnandanpur Musahari under P.S. – Sultanganj in the District of Bhagalpur, all of a sudden two miscreants came there and placed their gun on the chest of the informant. The informant allegedly identified one Tanki Bind, son of Chhabbu Bind and other one being Chhotan Bind, son of not known, resident of Belwatandi. The informant alleged that he could identify them in the light of the torch, the accused asked him not to raise Hulla but when they went towards the courtyard (Angan) of the house the informant jumped upon the chappar of his uncle Gholti Yadav. The informant alleged that from the chappar of Gholti Yadav he could see that in the backside of his house also five miscreants/criminals were standing. He explained that they were lashed with lathi, revolver and bhala. He described them saying that they were sanwala and youths who were wearing lungi and ganji and were speaking in Beldari language. The informant claimed that he could identify them in the light of their torch. He explained that they were lashed with lathi, revolver and bhala. He described them saying that they were sanwala and youths who were wearing lungi and ganji and were speaking in Beldari language. The informant claimed that he could identify them in the light of their torch. He further claimed that he can identify them on seeing. It is further case of the informant in his fard-e-beyan that he ran towards southern side of the house and moved from south to east. According to him in the southern as well as northern side of the house two criminals/miscreants were present who were identified as Biswanath Bind son of Mannu Bind, Bliash Mandal, son of Bhuneshwar Mandal, Manki Bind, son of Bhutku @ Dwarika Bind and Mahavir Bind of village Belwatandi. The informant alleged that the criminals fired a number of shots, therefore, being afraid of them nobody came from his village despite the Hulla raised by the informant. 5. It is alleged that in the said firing, one Bechan Yadav who is brother-in-law of Sumit Yadav got injured. According to the informant the criminals committed lootpaat in his house for 20 minutes, and therefore they entered in the house of Janak Yadav and Chhoti Yadav where they committed lootpaat and then fled towards the western side. It is alleged that while fleeing away the criminals exploded bombs. He further disclosed that apart from him his mother, father and other persons have identified the criminals such as Umesh Bind son of Ramswarup Bind, Basuki Bind brother-in-law of Bhuchunglal Bind, Saudagar Bind, son of Bhothari Bind of village Shivnandanpur, Vijay Bind son of Jagdish Bind of Belwatandi was allegedly identified as he was committing the lootpaat inside the house. According to the informant, there were altogether 15-20 criminals who were speaking Beldari language. The informant also gave detail of the ornaments and some articles which were looted from his house. 6. Pursuant to the fard-e-beyan of the informant (P.W.5) recorded by the S.I. J.N. Choudhary (not examined) of Sultanganj Police Station, on 27.04.1984 at about 4.30 A.M. in Sultanganj Police Station a formal F.I.R. (Ext.3) was lodged giving rise to Sultanganj P.S. Case No. 062 dated 27th April, 1984 under Section 395 of the Indian Penal Code. 7. Upon completion of investigation a charge Patna sheet against the accused was submitted on 21st June, 1984. 7. Upon completion of investigation a charge Patna sheet against the accused was submitted on 21st June, 1984. At the time of submission of charge-sheet the accused Tanka Bind was declared dead, while another accused Chotan Bind was found absconding. The learned Chief Judicial Magistrate, Bhagalpur took cognizance of the offence vide order dated 4th July, 1984 and the case was transferred for commitment to the court of another learned Judicial Magistrate, 1st Class, Bhagalpur. On commitment the case was transferred to the court of learned Sessions Judge where from it came to the court of learned Additional Sessions Judge - VIth, Bhagalpur and then ultimately transferred to the court of learned Additional Sessions Judge (F.T.C.), Bhagalpur. 8. During this period the charge was framed on 10th September, 1997 by the then learned VIth Additional Sessions Judge, Bhagalpur. As is apparent from the stand taken by the accused-appellant and their statements under Section 313 Cr.P.C. recorded on 16.03.2001, they denied the charges and pleaded innocence. It further transpires that two witnesses (D.Ws.1 & 2) who are Kishun Yadav and Deepnarayan Bind respectively and are co-villagers of the accused-appellants were examined on behalf of the defence and certified copies of two judgments out of which one is dated 12th September 1983 passed in Sessions Trial No. 13/81 by the then learned 1st Additional Sessions Judge, Bhagalpur (Ext. A) and another one is dated 20th June, 1994 (Ext.A/1) passed in G.R. No. 735/79, T.R. No. 973/84 by Sri Sagir Ansari, the then Judicial Magistrate, 1st Class, Bhagalpur were proved and marked as Ext. A and Ext. A/1 respectively. The accused-appellants pleaded that there had been a long standing enmity between the family of the accused and that of the informant and his witnesses and for that reason these appellants were falsely implicated. As the trial begun the prosecution brought altogether six witnesses in support of the charge against the accused-appellants. 9. Upon perusal of the evidences and the materials placed on the record, the learned Trial court convicted these appellants for the offences under Section 395 I.P.C. and as stated above sentenced them to undergo R.I. for a term of 7 years. 10. Mr. 9. Upon perusal of the evidences and the materials placed on the record, the learned Trial court convicted these appellants for the offences under Section 395 I.P.C. and as stated above sentenced them to undergo R.I. for a term of 7 years. 10. Mr. Rajeev Roy, learned counsel leading the argument on behalf of the appellants submits that the judgment under appeal is liable to be set aside on various grounds such as the vital contradictions in the statement of the prosecution witnesses which belies the statements made by the informant (PW.5) and doubt the veracity of their own statements, according to him, even the place of occurrence has been extended from the house of the informant to the house of Gholti Yadav and Janak Yadav and there is no reliable evidence in proof of the place of occurrence as neither the Investigating Officer was examined nor the witnesses are unanimous and/or consistent as respect the place of occurrence. 11. He would further submits that the statement of P.W.1 & P.W.2 who are the mother and wife of the informant (P.W.5) are at variance with each other and in fact falsifying the statement made by each other in relation to whole occurrence, the mode and manner of the occurrence as alleged by P.W. 2 is totally different from what has been stated by P.W.1. 12. Learned counsel for the appellants further submits that on a bare perusal of the evidences in form of deposition of witnesses would show that even presence of the informant (P.W.5) on the alleged place of occurrence has become highly doubtful and would go to a reasonable belief in the mind of this court that the P.W.5 is not even present when the alleged occurrence is said to have taken place. 13. Learned counsel submits that on perusal of the deposition of the informant (P.W.5) as well wife (P.W.2) it would appear that they claimed at several places that they can identify the accused but no T.I. parade was conducted for this purpose and what has been done in course of trial is that by putting the accused persons in the vicinity of the witnesses the witnesses were called upon to identify them, this according to learned counsel, would be fatal to the whole prosecution, as it cannot be said to be in accordance with the concept of fair trial. 14. 14. One of the arguments of learned counsel would be that in this case once again the essence of the provision as contained in Section 313 Cr.P.C. has not been duly appreciated by the trial court and the kind of question was asked, it was in the nature of a formality alone and for that reason also following the judgments of the Hon’ble Supreme Court in the case of Sukhjit Singh Vs. State of Punjab reported in 2014 (10) SCC 270 , the trial court’s order would be required to be interfered with by this Court. 15. In course of argument, learned counsel has taken this court through the deposition of the prosecution witnesses as well as the defence witnesses and the various exhibits marked in course of trial. P.W.1 is Sabo Devi who is mother of the informant, P.W.2 is Bagro Devi, the wife of the informant, P.W. 3 is Sumit Yadav, the maternal uncle of the informant and sister’s son of Janak Yadav, P.W. 4 is Ramesh Prasad Yadav, cousin of the informant who has been declared hostile, P.W. 5 is Etwari Yadav who is informant of this case and P.W.6 is Md. Sakoor who is only a formal witness. 16. Referring to the statement of P.W.1 (Sabo Devi), learned counsel would submit that according to this witness, on the alleged night of occurrence at about 2.00 A.M. she was sleeping with her daughter Manki Devi and the daughter-in-law (P.W.2). Five criminals came and entered in the house through the staircase and surrounded her bed, one of the criminals was guarding her while other four broke open the lock and entered in the house, they broke four boxes and took away all the articles. Then she says that apart from those five criminals two other miscreants were also there who were standing at the gate of the house. In paragraph 2 of her deposition she states that the dacoits threatened the daughter and daughter-in-law of this witness and snatched away the ornaments which they were wearing in the nose and ears. She says that the co-villagers were assembling therefore the criminals exploded the bombs and fired Chharra. The Chharra caused injury to Bechan yadav. She is said to have identified Vijay Bind, Vilash Bind, Saudagar Bind, Mahavir Bind, Mankiya Bind, Tanku Bind and Bishwanath Bind. 17. She says that the co-villagers were assembling therefore the criminals exploded the bombs and fired Chharra. The Chharra caused injury to Bechan yadav. She is said to have identified Vijay Bind, Vilash Bind, Saudagar Bind, Mahavir Bind, Mankiya Bind, Tanku Bind and Bishwanath Bind. 17. In course of her cross examination this witness has stated in paragraph 9 which has been specifically pointed out by learned counsel for the appellants to show the contradictions in the statement of the daughter-in-law (P.W.2). Here P.W.1 says that the dacoits gave her a fist blow and assaulted her daughter and daughter-in-law by lathi and because of that they started bleeding. Cloths were also stained with blood. She further says that as soon as the dacoits came they placed a cloth and covered her and asked her not to move even slightly. This witness has categorically stated that her daughter and daughter-in-law were also covered by putting cloths on them and they were being constantly threatened. 18. Learned counsel for the appellants submits that when this court will examine the deposition of P.W.2 it would appear that she has denied any injury on her body in course of the alleged occurrence, neither any injury report was produced/exhibited nor the alleged bloodstained cloths were exhibited in course of trial. The daughter of the P.W.1 who was alleged present at the place of occurrence was also not examined. Learned counsel gives emphasis on the fact that this witness accepts that she, her daughter and daughter-in-law were all covered by cloths since the dacoits came and therefore a question as to identification of the accused-appellants has been raised by the learned counsel for the appellants. According to him if all of them who were present at one place were covered by putting cloths on them then in the mid night at about 2.00 A.M. they cannot and could not have identified the accused-appellants. No mode of identification has been canvassed or proved in course of trial. 19. It is further pointed out from paragraph 10 of cross examination of P.W.1 that she has categorically stated that on that day no male member was present in the house and in the morning on Hulla many a persons assembled including Yadavas and Binds. 20. No mode of identification has been canvassed or proved in course of trial. 19. It is further pointed out from paragraph 10 of cross examination of P.W.1 that she has categorically stated that on that day no male member was present in the house and in the morning on Hulla many a persons assembled including Yadavas and Binds. 20. Learned counsel submits that this statement in paragraph 10 of the cross examination of P.W.1 would make the statement of the informant (P.W.5) highly doubtful because according to this witness if no male member was present in the house on that day, there was no question of the informant being an eye witness to the alleged occurrence. It is further pointed out that according to this witness in paragraph 11 and 12, police came on next day i.e. Saturday, statement was taken and altogether three of them were there in the house when police came. In paragraph 13 of her cross examination she has further stated that she had not disclosed the name of any accused/appellants. The name was disclosed by Ramesh, Sumit and Janak etc. 21. Learned counsel, therefore, submits that this witness has categorically stated that the name of these accused/appellants were told to police by Ramesh, Sumit and Janak, even the informant (P.W.5) was apparently not there when the police came. It is further stated that in paragraph 14 of the cross examination, she has admitted that Jageshwar Bind had earlier lodged case against Janak Yadav and Subhit Yadav, therefore, according to him prior enmity is admitted by this witness. 22. Learned counsel further submits that in fact in the case lodged by Jageshwar Bind the accused namely Janak Yadav and Subhit Yadav were convicted which will be evident from the certified copy of the judgment of the said case proved as Exhibit-A by D.W.1. 23. Referring to depositions of Bagro Devi (P.W.2), learned counsel for the appellants submits that if the statement of P.Ws.1 & 2 are read side by side it would appear that both of them have come out with a totally different story. According to this witness, when she woke up on hearing some sound (dhamdham), she saw six criminals who had entered in her house. According to this witness, when she woke up on hearing some sound (dhamdham), she saw six criminals who had entered in her house. On seeing them she started fleeing away being afraid of them but one of the criminals got hold of her hand and took her on the roof of her house where two more criminals were seen. She could identify Mahavir Bind and Chotan Bind, both of them are resident of village Belwatandi. She claimed to have identified all the eight criminals by face and two criminals were identified by name. 24. Learned counsel submits that despite the fact that this witness claimed that she could identify eight criminals by face, no step was taken to get those accused identified by conducting a T.I. parade in course of investigation. He further submits that Umesh Bind and Bilash Bind who were in the dock in course of trial were identified by this witness but this mode of identification in the dock in course of trial when earlier no T.I. parade was conducted to identify the accused would be fatal for the prosecution as this cannot be taken as a lawful mode to identify an accused against whom there are serious allegation of committing dacoity. 25. Learned counsel has further drawn my attention to the statements made in paragraph 5 in course of cross examination where this witness has explained the topograph of the place of occurrence. It is the submission of learned counsel that even the place of occurrence has not been duly proved and the witnesses have given contradictory statements as respect the place of occurrence. In paragraph 5, P.W.2 has stated that towards the west of the house of this witness the house of Gholti Yadav is situated and thereafter the house of Janak Yadav exists. In the eastern side of her house it is the house of Girchand Beldar and towards the northern side the house of Chalo Yadav is situated. In paragraph-8 of her further cross examination she has stated that her house is of pucca and from all the four sides it is surrounded by boundary wall. Her house situated facing north. In paragraph 9 this witness has contradicted her own statement saying that the house of Janak Yadav and Gholti Yadav both are next to the house of this witness. Her house situated facing north. In paragraph 9 this witness has contradicted her own statement saying that the house of Janak Yadav and Gholti Yadav both are next to the house of this witness. According to her the dacoits entered in her house first, remained there four two hours and thereafter they entered in the house of Janak Yadav and Gholti Yadav where they spent half hour at each of the houses. She has stated that on Hulla the villagers did not assembled and even after the dacoits left people did not assembled. She has admitted in paragraph 11 that police had not taken her to jail for identification of the dacoits. In paragraph 12 of her cross examination, she has stated that in the morning chowkidar and Mukhiya were informed by her husband. Learned counsel submits that chowkidar and Mukhiya has not been examined in this case. Pointing out the statements made in paragraph 15 of the cross examination of this witness, learned counsel submits that she had denied any injury on her body in course of the alleged occurrence. This declaration of the P.W.2 is in conflict with the statements of P.W.1 where she had stated that dacoits had assaulted P.W.2 by lathi which had resulted in injury and she was bleeding. Learned counsel submits that the false implication of the accused may be apparent from the attempt made by P.W. 1 to implicate the accused by saying that they had assaulted and caused injury to her daughter and daughter-in-law (P.W.2). 26. Learned counsel further submits that the statement of P.W.2 belies the statement of P.W.1 and even the informant’s statement that he had jumped from the roof of his house to the chappar of Gholti Yadav from where he could be in the courtyard of his house stands falsifies because P.W.2 says that two dacoits were there on the roof and if they were already there it cannot be believed that they will allow informant to get out of their control. 27. Learned counsel further submits that according to P.W.2 her house is north facing and Gholti Yadav’s house is in west to her house, therefore, if P.W.5 jumped to Gholti’s house towards the west he cannot see from there as to who where standing in the backyard (southern side) of his house. 27. Learned counsel further submits that according to P.W.2 her house is north facing and Gholti Yadav’s house is in west to her house, therefore, if P.W.5 jumped to Gholti’s house towards the west he cannot see from there as to who where standing in the backyard (southern side) of his house. Further the statement of P.W.2 that the dacoits were there inside the house for two hours is in conflict with the statement of P.W.1 and P.W.5 saying that the dacoity was committed in their house for about 20 minutes. 28. Learned counsel has taken this court through the deposition of Subhit Yadav (P.W.3) and submits that from a reading of his deposition it would appear that he has altogether a different story to say. This witness is maternal brother of the informant in relation and claims that he was permanently residing with Janak Yadav right from his childhood. In his examination in chief he has stated that in the night of alleged date of occurrence he was sleeping in the eastern Varandah in the house of his maternal uncle Janak Yadav. He could hear the sound of dhamdham on the chappar at about 2.00 A.M., he got woke up from his slumber and found that 2 – 4 dacoits were there on the chappar. He says that he started running towards south raising Hulla. In the south gali he found 3 to 4 criminals who were lashed with gun and country made pistol with torch. This witness is said to have run away on which the dacoits fired which did not hit this witness. In paragraph 3 of his deposition he says that on Hulla the villagers assembled. Thereafter, the dacoits fled away towards west exploded bombs and firing. 29. Learned counsel submits that the statement of this witness that on Hulla villagers assembled is in complete contradiction with the statement of P.W.1, P.W.2 and even the informant (P.W.5) who have all stated that despite Hulla raised nobody came. P.W.2 has even gone to the extent saying that nobody assembled even after the dacoits left the house. 30. 29. Learned counsel submits that the statement of this witness that on Hulla villagers assembled is in complete contradiction with the statement of P.W.1, P.W.2 and even the informant (P.W.5) who have all stated that despite Hulla raised nobody came. P.W.2 has even gone to the extent saying that nobody assembled even after the dacoits left the house. 30. Learned counsel submits that from the deposition of this witness it would appear that he could not identify all the criminals except Mahavir Bind, Vijay Bind, Basuki Bind and Saudagar Bind and even then no step was taken by the police to conduct the T.I. parade to identify the other accused. Again when the accused persons were in dock in course of trial this witness was asked to identify the accused which was not in accordance with the principles of fair trial. Learned counsel submits that in the cross examination what this witness has stated in paragraph-‘8’ regarding the description of P.O. is totally different from the description given by P.Ws.1, 2 and 5. He has stated that the house of this witness is facing west and Varandah towards the east. In the northern side of the Varandah is the house of Uttarnarayan Yadav, there exist a wall in between the house, in the southern side it is the house of Etwari Yadav (P.W.5) again there is a wall in between, towards the eastern side is the house of Jagarnathi Bind and in west it is the bari of Janak Yadav, Etwari Yadav and Narayan Yadav. He has stated that there exists a 2½ ft. gali in between the house of this witness and the house of the informant which is not a public road and is normally used by the two families. Learned counsel points out that P.W.2 in her deposition has stated that towards the west of her house is the house of Gholti Yadav and then thereafter it is the house of Janak Yadav, therefore what is being said by P.W.3 now is in conflict with the claim of P.W.2. 31. In paragraph 9 of the cross examination, P.W.3 denied a suggestion that he was an accused in Sessions Trial No. 13/1981. 31. In paragraph 9 of the cross examination, P.W.3 denied a suggestion that he was an accused in Sessions Trial No. 13/1981. According to learned counsel this witness was speaking a lie despite the defence pointing out the Sessions Trial number in which he was an accused and therefore the defence had to bring the Exhibit-A and A/1 through D.W.2 to demonstrate that this witness was an accused in the said Sessions Trial and he was one of the convicts. Further pointing out paragraph 12 of the cross examination, the witness says that Ramesh Yadav and Gholti Yadav did not come after the dacoits left the village. Learned counsel submits that it is difficult to believe that if the dacoits entered in the house of Gholti Yadav and committed the lootpaat, still after the dacoits left the village and the co-villagers assembled, Gholti Yadav did not come forward and was not seen amongst others. 32. P.W.4 who happened to be cousin of the informant has been declared hostile and in his deposition there is nothing to support the prosecution. 33. P.W.5 is the informant himself. Learned counsel submits that in paragraph 6, P.W. 5 has made a statement that he was sleeping on the roof of his house and in the adjacent house of Janak Yadav he and his entire family were sleeping on the roof. Learned counsel points out that P.W. 3 Subhit Yadav who was there in the family of Janak Yadav permanently residing with him has categorically stated that he was sleeping in the eastern Varandah of the house and nowhere claimed that Janak Yadav and the entire family were sleeping on the roof of the house. Further P.W.3 claimed that he woke up on hearing of sound of movement (dhamdham) on the chappar of his house, therefore, had the family of Janak Yadav or Janak Yadav himself were sleeping on the roof, they would have definitely been a witness in this case and particularly when the informant claimed that the dacoity was also committed in his house then this fact should have come in course of investigation either in this case or by instituting a separate case in respect of the occurrence which took place in his house but nothing sort of that has been done in this case. 34. 34. Learned counsel submits that in paragraph 12 of his deposition in course of cross examination, this witness states that he went to the police station which took one hour, the distance of police station is said to be 3-4 kilometers but this witness says that it took one hour in reaching the police station and then he came back to his house with the police force. Learned counsel submits that if this witness had gone to the police station then his fard-e-beyan was required to be recorded immediately by police at the police station itself which was not done, no sanha entry showing that the police recorded any information in respect of this occurrence has been exhibited in course of trial, the fard-e-beyan of P.W. 5 has been recorded at 4.30 A.M. i.e. much after this witness is said to have contacted the police. He submits that even a delay of two hours in such cases where prior enmity is so evident may prove fatal to the prosecution. In this regard, learned counsel for the appellants submits that the ratio of the judgment of Hon’ble Supreme Court in the case of State of Punjab Vs. Trilok Singh reported in (1972) 3 SCC 869 and the judgment in the case of Ishwar Singh Vs. State of Uttar Pradesh reported in AIR 1976 SC 2423 would be fully applicable. 35. Learned counsel submits that delay in lodging of the F.I.R. or recording of the fard-e-beyan of P.W.5 much after he reached the police station would lead to an adverse inference because the time taken in recording of fard-e-beyan were sufficient to implicate the accused-appellants with whom he had inimical terms. He points out that P.W.1 has specifically stated that the police was given name of the accused by Ramesh Yadav, Subhit Yadav and others. He submits that the false prosecution of the appellants is apparent from the conflicting statement of the witnesses, delay in lodging of the F.I.R. and by not establishing the place of occurrence in this case. 36. He points out that P.W.1 has specifically stated that the police was given name of the accused by Ramesh Yadav, Subhit Yadav and others. He submits that the false prosecution of the appellants is apparent from the conflicting statement of the witnesses, delay in lodging of the F.I.R. and by not establishing the place of occurrence in this case. 36. Learned counsel for the appellants submits that in this case at different places P.W.5 and other witnesses have stated that they had shown the place of occurrence and the circumstances connected to the alleged occurrence to the Investigating Officer, but in course of trial neither the Investigating Officer appeared for examination nor the description of the place of occurrence or the statements of those witnesses which might have been recorded by him in the case diary could be otherwise proved to substantiate the allegations, which according to learned counsel would prove fatal to the entire prosecution. He relies upon a Division Bench judgment of this Court recently pronounced on 11.11.2017 in Cr. Appeal (DB) No. 399/2016 (Gopal Singh Vs. State of Bihar) where the Hon’ble Division Bench has considered the effect of absence of I.O. and when the prosecution did not take any effort to mark the case diary as Exhibit and there were many discrepancy in the version of the witnesses, in the statement before police and then in course of trial. Learned counsel submits that in this case even the trial court has failed to abide by the principles embodeied in Section 313 of the Code of Criminal Procedure. He submits that only two formal questions were asked to the accused, the court did not confront the accused with all adverse situation existing against them in the evidences brought before the court in course of trial. 37. Learned counsel has relied upon the judgment of the Hon’ble Apex Court in the Case of Sukhjit Singh Vs. State of Punjab reported in 2015 (1) EastCrC 443 (SC) : (2014) 10 SCC 270 , which has also been taken note of by the Hon’ble Division Bench of this Court in Cr. App.(DB) No. 399/2016. Referring to paragraph Nos. 37. Learned counsel has relied upon the judgment of the Hon’ble Apex Court in the Case of Sukhjit Singh Vs. State of Punjab reported in 2015 (1) EastCrC 443 (SC) : (2014) 10 SCC 270 , which has also been taken note of by the Hon’ble Division Bench of this Court in Cr. App.(DB) No. 399/2016. Referring to paragraph Nos. 11, 12 and 13 of the judgment rendered by the Hon’ble Apex Court in the case of Sukhjit Singh (supra), learned counsel submits that the object behind the provision as contained in Section 313 Cr.P.C. is in the nature of principles of natural justice and fair play in action. The principle enunciated in this provision is based on sound public policy particularly in an adversary system of law where it is well said that hundred of culprits may go escort free but one innocent cannot be hanged. For a ready reference the questions put forth to the accused by the trial court under Section 313 Cr.P.C. are taken note of as under : - “Question: Kya aapne gawahon ka beyan suna hai? Answer : Jee Ha. Question : Kaha jata hai ki aap anya sathiyon ke saath dinank 27.04.2084 ko sakeen Shivnandanpur, Mushari, thana – Sultanganj, District – Bhagalpur me Dakaiti kiya, kya kahana hai? Answer : Jee nahi. Question : Safai me kya kahna hai? Answer : Nirdosh hu.” 38. The three paragraphs of the judgment of the Hon’ble Apex Court in the case of Sukhjit Singh (supra) which have been relied upon by the Hon’ble Division Bench of this Court are quoted hereunder for ready reference: - 11. In this context, we may profitably refer to a four-Judge Bench decision in Tara Singh v. The State wherein, Bose, J. explaining the significance of the faithful and fair compliance with Section 342 of the Code as it stood then, opined thus: "30. I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342 of the Criminal Procedure Code. It is not a proper compliance to read out a long string of questions and answers made in the committal court and ask whether the statement is correct. A question of that kind is misleading. I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342 of the Criminal Procedure Code. It is not a proper compliance to read out a long string of questions and answers made in the committal court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of Section 342 of the Criminal Procedure Code, is so gross in this case that I feel there is grave likelihood of prejudice." 12. In Hate Singh Bhagat Singh v. State of Madhaya Bharat, Bose, J. speaking for a three- Judge Bench highlighting the importance of recording of the statement of the accused under the code expressed thus:- "8. In Hate Singh Bhagat Singh v. State of Madhaya Bharat, Bose, J. speaking for a three- Judge Bench highlighting the importance of recording of the statement of the accused under the code expressed thus:- "8. Now the statements of an accused person recorded under Sections 208, 209 and 342, Criminal Procedure Code are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused is some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box." 13. The aforesaid principle has been reiterated in Ajay Singh v. State of Mahrashtra in following terms: "14. The word "generally" in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.” 39. Learned counsel submits that the defence witnesses have supported the case of the accused-appellants as regards prior enmity and false implication because of that. The trial court’s judgment in which the persons of the informant party were convicted has been marked as exhibits in course of trial as have been noted hereinabove. 40. On these submissions learned counsel submits that the prosecution has miserably failed to establish the guilt beyond all reasonable doubt, and therefore, it is a case of clean acquittal. 41. Opposing the submissions of the learned counsel representing the appellants, Shri Sujeet Kumar Singh, learned Additional Public Prosecutor assisted by Shri Binod Bihari Singh, Additional Public Prosecutor submits that these cases are to be considered in the totality of the facts and circumstances. He would point out that it is a case of house dacoity and in this kind of cases not one person but a group of persons act in connivance and with concert with each other. According to him, in course of dacoity while some persons stand guarding the entry and exit of a house, few of them monitors the movements while some others enter the house to commit dacoity. Learned Additional Public Prosecutor submits that witnesses such as P.W.1, P.W.2, P.W.3 and P.W.5 have stated the truth, and therefore, there may be some discrepancy in their statement because these witnesses were not stating like a parrot. According to him, the guilt against the appellants is duly proved in course of trial. 42. Learned counsel submits that submission of learned counsel for the appellants that the informant attempted to improve upon the case by trying to name some of the accused in course of his deposition in trial, though he had not named them in the fardbeyan is not fit to be accepted because the attention of the witnesses was not drawn towards the F.I.R. and no contradiction was taken by the defence. 43. 43. Learned Additional Public Prosecutor has submitted that the evidences are consistent on the point that the accused-appellants had committed dacoity in the house, and therefore, the judgment of the trial court need not be interfered with. CONSIDERATION 44. I have heard learned counsel for the appellants as well as learned Additional Public Prosecutor for the State and perused the records. On going through the evidences of the prosecution witnesses, I find that there are vital contradictions in the statement of these witnesses. P.W.1 who is mother of P.W.5 has categorically stated that on the alleged occurrence, there was no male member in the house, if it is so, the claim of the informant (P.W.5) that he was there on the roof of the house cannot be believed. P.W.1 in her deposition has stated that the criminals had entered in the house and had placed cloths covered on her as well as on her daughter and daughter-in-law (P.W.2), if all the three female members were covered by cloths immediately when the accused entered in the house, they cannot explain the entire occurrence as has been done in the present case. P.W.1 has not disclosed even the mode of identification of the accused in the night that too when she and other two female members were covered by cloths immediately. Further the enmity between the family of the informant and the prosecution witnesses on the one hand of the accused on the other hand has been admitted and is also evident from the defence exhibit – A and A/1. P.W.1 says that all the accused were identified by her as they were her next door neighbour, but she did not disclose their name when police reached in morning and recorded her statement. 45. Learned counsel for the appellants rightly raised a question saying that it is highly improbable that the accused, who are living in the neighbourhood would go to commit dacoity without putting a mask on the face and therefore even this statement of the P.W.1 does not inspire confidence. 45. Learned counsel for the appellants rightly raised a question saying that it is highly improbable that the accused, who are living in the neighbourhood would go to commit dacoity without putting a mask on the face and therefore even this statement of the P.W.1 does not inspire confidence. The veracity of the statement of P.W.1 further fails to stand the test of faithfulness inasmuch as she has stated in her deposition that the criminals assaulted her daughter and daughter-in-law (P.W.2) and as a result of this assault the daughter-in-law was bleeding but in course of deposition the daughter-in-law (P.W.2) has categorically stated that she did not suffer any injury on her body. Neither injury report nor the blood-stained cloths of P.W.2 could be produced in course of investigation or trial. This shows that P.W.1 was making statement with an intention to implicate the accused appellants and in her attempt to falsely implicate the accused appellants, she went on to say that they had assaulted and caused injury. 46. P.W.1 has stated in paragraph 10 of her cross examination that her statement was recorded by the police only on Saturday i.e. on the next day. It has further stated that on the date of occurrence there was no male member in her family, this statement of P.W.1 would go against the prosecution because if P.W.5 says that he had jumped down to the roof of Gholti Yadav and then went to the police station where he reached after one hour and then returned with the police force, there was no reason to delay the recording of statement of P.W.1. Further even when the police recorded her statement on Saturday i.e. next date from the date of alleged occurrence, she did not disclose the name of the accused appellants. 47. In paragraph 13 of her cross examination, she has clearly stated that ‘Maine police ke paas kisi ka naam nahi liya tha. Ramesh, Subhit, Janak wagairah wahi log likhwaya tha.” It is therefore, evident that this witness had not disclosed the name of accused appellants at the earliest opportunity. This conduct of the witness doubt her veracity when she says that she could identify the dacoits as they were next door neighbour. 48. Ramesh, Subhit, Janak wagairah wahi log likhwaya tha.” It is therefore, evident that this witness had not disclosed the name of accused appellants at the earliest opportunity. This conduct of the witness doubt her veracity when she says that she could identify the dacoits as they were next door neighbour. 48. Again on perusal of the evidence of P.W.2 who is wife of the informant, I find that she has made an altogether different statement from that of the statement made by the P.W.1. She has stated that she was taken on the roof, whereas P.W.1 has stated that she along with her daughter and P.W.2 were covered by cloths and were asked not to move. P.W.1 has further stated that all of them were being constantly threatened. Thus what P.W. 2 says about taking her to the roof where two more criminals were already standing creates doubt over the statement of P.W.1 and P.W.5 as well, because we will find that P.W.5 has stated in his deposition that he jumped on the roof of Gholti Yadav when the criminals went to the courtyard (Angan) of his house. Further the description of place of occurrence given by P.W.2 is also different from the description given by P.W.5. P.W.2 has stated that her house is north facing and Gholti Yadav’s house is west to her house, so if P.W.5 jumped to Gholti’s house in west, learned counsel for the appellants is correct in contending that P.W.5 could not have seen who were standing in the backyard (southern side of his house). P.W.2 has stated that dacoits were in the house for about two hours which is in conflict with the statement of P.W.5 and also P.W.1. As it has come in course of their deposition that the dacoits were there in his house for twenty minutes, and thereafter for 30 minutes each in the house of Gholti Yadav and Janak Yadav. 49. As it has come in course of their deposition that the dacoits were there in his house for twenty minutes, and thereafter for 30 minutes each in the house of Gholti Yadav and Janak Yadav. 49. Learned counsel for the appellants has submitted that if P.W.2 claimed that she can identify the accused then there was no reason as to why police did not conduct a T.I. parade, in the present case no T.I. parade was conducted to identify the accused and only when some of the accused were present in the dock in course of trial, the witnesses were called upon to identify them which is not in consonance with the principles of fair trial in criminal jurisprudence. I would agree with the contention of learned counsel for the appellants that this method of calling upon the witness to identify the accused where she has not earlier identified the accused in accordance with law and/or had not made statement regarding his identification by name in course of investigation, the mode adopted by the prosecution in course of trial would be fatal for the prosecution. 50. The deposition of P.W.3 cannot be believed by this court for a simple reason that he has stated that he was sleeping in the eastern Varandah and from there he reached towards the outside and from there he could identify 2 to 4 accused on the roof of the house in the night at about 2.00 A.M., it is not believable that P.W.3 would identify the accused who were allegedly standing at the roof of the house at dead of night. There is no sufficient space to move at a reasonable distance to look at the roof of the house. The veracity of the statement of this witness may also be tested from the fact that even as he was suggested by the defence that he was an accused in the Sessions Trial No. 13/81, he denied the same and therefore the defence had to bring Exhibit A and A/1 through DW2 to prove that this witness was an accused and he was also convicted in the said sessions trial. The description of P.O. given by this witness is again different from the description given by P.W.1, 2 & 5. In paragraph ‘12’ this witness has stated that Ramesh and Gholti Yadav did not come when the dacoits left the village. The description of P.O. given by this witness is again different from the description given by P.W.1, 2 & 5. In paragraph ‘12’ this witness has stated that Ramesh and Gholti Yadav did not come when the dacoits left the village. It is difficult to believe that if dacoity was committed in the house of Gholti Yadav, as is the case of the prosecution, he would not come out even after the dacoits had left the village. Gholti Yadav has not even appeared as a witness in course of trial. 51. P.W.3 has nowhere stated in his deposition about presence of P.W.5 at any point of time. A question would arise that if P.W.5 jumped from his roof to the chappar of Gholti and then he came on the ground and was going to police station, if, at the same time, at 2.00 A.M. P.W.3 had also awaken and had come out of his house, then why he and P.W.5 were not together or went together to the police station. P.W. 3 says that on hulla many persons assembled but P.Ws 1 & 2 as also P.W.5 have stated that nobody came forward on hulla. People assembled only in the morning. Thus, the statement of this witness does not inspire confidence. 52. The most important witness is P.W.5 who is informant and has proved his fard-e-beyan. He has stated that on the alleged night he was sleeping on his roof when the dacoits entered and he named two persons only who had placed gun on his chest, in the fard-e-beyan, he did not disclose the name of other criminals or presence of criminals on roof whereas P.W.2 says that she was brought to the roof by one of the dacoits where she saw two other dacoits were present. Neither P.W. 1 nor P.W.2 says about presence of P.W.5 in house on that night. 53. Submission of learned counsel for the appellants is that if this witness was able to explain about even the smallest weapon such as the revolver in the hand of the accused standing on the ground, the description of their built including the colour of accused it is difficult to believe that he will not disclose the name of the accused who were all allegedly next door neighbours. Learned counsel submits that it is stated in the fardbeyan that Bechan Yadav brother-in-law of Sumit Yadav got injured in firing but again Bechan Yadav was not examined in course of trial and no injury report of Bechan Yadav has been brought on the record. 54. Submission of learned counsel for the appellants is that he has attempted to improve by taking name of some of the accused in paragraph 13, this has though been contested by learned Additional Public Prosecutor stating the attention of the informant was not drawn towards the fardbeyan to contradict him, I am of the considered opinion that the fact that the evidence of P.W. 5 has not been corroborated in material particulars by independent witnesses, the statement made by this witness even if taken on the face of it cannot bring home the accusation because of the consistent loopholes which have been found in the statement of the prosecution witnesses and non-disclosure of names of some of the accused appellants in the fard-e-beyan. The chain of the events and the circumstances are not complete from the deposition of prosecution witnesses and they are not consistent on the place of occurrence and/or the mode of alleged act of commission of dacoity as also on the issue of identification of the accused. 55. I am of the opinion that non-examination of Investigating Officer in the present case would go against the prosecution inasmuch as it was the Investigating Officer who was competent to prove the place of occurrence particularly when the witnesses were not unanimous on the place of occurrence and they were giving contradictory statements as regards the existence and location of the house. The statement made by P.W. 3 and P.W.5 as also other witnesses that they narrated or made statement in support of the prosecution to the Investigating Officer in course of inquiry could not be substantiated by bringing the Investigating Officer, therefore, the story as made out by the prosecution could not be tested by defence and had the Investigating Officer been brought in the dock the defence would have got an opportunity to cross examine him and find out the truth which could not be done, therefore, a serious prejudice has been caused to the defence due to non production of the Investigating Officer. In absence of the Investigating Officer no attempt was even made to get the case diary exhibited and therefore what had transpired in course of investigation and what was recorded in the case diary were also not available for drawing any strength to the prosecution. 56. As regards the submission that the trial court has not complied with the provision of section 313 Cr.P.C., I am in agreement with this contention. On going through the relevant paragraphs of the judgment of the Hon’ble Apex Court in the case of Sukhjit Singh (supra), I am of the considered opinion that the failure on the part of the court in not confronting the accused with all adverse situations would go to against the prosecution case and taking together the entire facts and circumstances it would be one of the grounds which vitiate the entire trial. 57. Upon consideration of the totality of the facts emerging out from the evidences brought on the record in course of the trial as also upon considering the effect of non examination of the Investigating Officer in this case and the fact that no effort was taken by the prosecution to mark the case diary exhibited and then the mandatory provision of Section 313 Cr.P.C. has not been followed, I would come to a conclusion that the prosecution has failed to prove the case against the appellants beyond all reasonable doubts. The appellants-accused are entitled to get the benefit of doubt, and therefore, an acquittal in this case. 58. In the result, these appeals are allowed and the judgment under appeal is set aside. The appellants are discharged from their liabilities of their respective bail bonds.