Hari Swarup, J.
1. The State of Uttar Pradesh has filed this appeal against the order of the Session Judge, Dehradun dated the 23rd March, 1965 by which he allowed the appeal of Trilok Chand against his conviction under Section 454, I. P. C, and the sentence of one year's rigorous imprisonment and fine of Rs. 100 awarded by Sri C.N. Srivastava, ' Magistrate First Class, Dehradun, and acquitted him. The learned Magistrate had directed that the amount of Rs. 2706 recovered from the house of the accused be paid to the complainant. The Sessions Judge directed on allowing the appeal that it be returned to the accused.
2. The case for the prosecution in brief was that Inder Singh had a milk shop in his house in Doiwala, Police Circle Clement town, district Dehradun. He had collected money a few days earlier and had kept it in his cash box in the shop. It was a sum of Rs. 3200. On 13th January, 1964 at about 8 a. m. he went to the bus stand for going out, but by mistake left the milk measuring pot at the shop, and hence, sent his servant Babulal to bring it from the shop. Babulal on coming back informed him that the door of his shop had been broken open, cash box had also been opened and the money had been stolen. At 8.30 a. m. on the same day Inder Singh lodged a first information report at Doiwala police station about the theft and stated that he suspected his neighbour Triloki for having committed the theft. The reference was to the accused Trilok Chand. On receiving the first information report Harbal Singh S. I. immediately proceeded to make a search of the house of Trilok Chand. He, however, found nothing incriminating in the house.
It was then alleged that on 15th January, 1964 at about 7.30 a. m. Trilok Chand went to Khem Chand (P. W. 2) and made a confession before him that he had stolen the money and the same had been concealed in his house. Khem Chand thereupon took him to Jagdish Prasad (P. W. 3) and before him it was alleged that Trilok Chand again made a confession of his guilt and in order to avoid prosecution promised to point out the money which lav concealed in his house so that it may be paid to complainant Inder Singh. Both Khem Chand and Jagdish Prasad then took him to Harbal Singh S. I. and it is said that before him Trilok Chand stated that money was concealed underground in his house. Then the S. I. and other witnesses wont to the house of Trilok Chand, and it is alleged that Trilok Chand dug the earth in a corner of his house and took out a bag which contained currency notes of Rs. 2706. The sum was handed over to the S. I. and a memo of recovery was prepared. Trilok Chand was prosecuted on the basis of these facts.
3. The learned Magistrate on a consideration of the evidence produced by the prosecution believed the statements of Khem Chand and Jagdish Prasad about the confession made by Trilok Chand and convicted him under Section 454, I. P. C. and sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs. 100. The amount of of Rs. 2706 was directed to be returned to complainant Inder Singh. On appeal filed by Trilok Chand the learned Sessions Judge held that the confession alleged to have been made by Trilok Chand had not been proved. On a consideration of the evidence he held that the prosecution has failed to prove the case against the accused. He, therefore, allowed the appeal and set aside the conviction and sentences awarded to him. The amount of Rs. 2706 was directed to be retured to the accused. The State of Uttar Pradesh has now filed the present appeal.
4. In the first information report no details are given about the currency notes and therefore, it is not possible to hold with certainty that the amount recovered from the possession of Trilok Chand, which he claimed to be his own, was the same which had been lost by Inder Singh. It was only in Court, after having seen the money, that Inder Singh described the currency notes which composed the amount. As no details of the property lost were given before the recovery, and the amount is not identical to that which was stolen, no reliance can be placed on his statement to establish that the currency notes recovered from the possession of Trilok Chand were those which had been stolen from the possession of Inder Singh.
5. The only evidence to connect the amount recovered from the possession of Trilok Chand with the amount lost by Inder Singh consists of the alleged extra judicial confessions made by Trilok Chand to Khem Chand and Jagdish Prasad. The statements of Khem Chand and Jagdish Prasad besides being unreliable, cannot be used against the accused for the reason hat they had not been put to the accused when his statement under Section 342, Criminal P. C. was recorded. The only question put to the accused on which the counsel for the appellant relied for show-ing that the matter had been put to the iccused, was: ''why have the witnesses given testimony against vou?' In our opinion, this does not comply with the requirements of Section 342, Crimi-nal P. C. The purpose of Section 342, Criminal P. C. is to enable the accused to explain the circumstances appearing' in the evidence against him, and in case any particular circumstance is to be utilised against the accused, it has to be specifically put to him, so that he might explain the circumstance. In the present case, the most important circumstances were the making of the alleged confessions by Trilok Chand to the prosecution witnesses Khem Chand and Jagdish Prasad. Unless these were put to the accused, it could not be said that the accused had been given an opportunity to explain them.
The use of the alleged extra-judicial confessions against the accused in the absence of any question put to him regarding the same is certainly prejudicial to the accused and not permissible under law. In our opinion, the alleged confessions cannot be utilised as circumstances or evidence to prove the guilt against the accused. They have got to be excluded. We are thus left with no evidence to connect the money recovered from the accused with the crime.
6. Further, nothing has been shown to make us hold that the appraisal of evidence of Khem Chand and Jagdish Prasad by the learned Sessions Judge was erroneous. According to the prosecution case the house of Trilok Chand accused had already been searched and nothing incriminating was found by the investigating officer and there could be nothing to impel him to make the alleged confessions. We, therefore, see no reason to set aside the order of acquittal passed by the learned Sessions Judge.
7. In the result, the appeal fails and is dismissed. Trilok Chand respondent is on bail. His bail bonds are discharged. He need not surrender.