1. This is an appeal by one Kanai Lal Dwary who was tried by a learned Assistant Sessions Judge and jury upon a charge of dacoity. The jury unanimously found the appellant guilty Under Section 395, Penal Code, and the learned Judge agreeing with the verdict convicted the appellant under that section and sentenced him to five years' rigorous imprisonment. It is from that conviction and sentence that the present appeal has been preferred.
2. The charge against Kanai was that he and others on 17th March 1949, committed dacoity in the house of one Durgadas Nandi at Kanchannagar. A number of dacoits are said to have broken into the house and looted cash and property to the value of Rs. 1300/-.
3. At the trial the factum of dacoity was not contested and the only point at the trial was whether or not Kanai and four others who were standing their trial, were amongst the dacoits and had been satisfactorily identified by the witnesses. The only other piece of evidence against the accused was a confession by one Tej Bahadur which had been subsequently retracted.
4. Mr. Sudhansu Mukherji who has appeared on behalf of the appellant has confined his argument to the summing up of the learned Judge with regard to the evidence against his client.
5. The learned Judge very rightly pointed out that the retracted confession of Tej Bahadur was of little evidentiary value against the appellant Kanai. The learned Judge, I think, should have gone further than that and should have told the jury that the retracted confession of Tej Bahadur implicating Kanai was not evidence upon which the jury could convict Kanai. The implication of Kanai by Tej Bahadur was at most a circumstance which the jury could take into account by way of assuring them of the truth of other evidence. In short, the retracted confession of Tej Bahadur at most would only afford some weak corroboration of any other admissible evidence against the appellant. Merely telling the jury that the retracted confession was of little evidentiary value is not to my mind sufficient. The jury should be told that its evidentiary value is such that no conviction could be based upon it alone and that at most it can only be regarded as a weak corroboration of other evidence.
6. The only other evidence against the appellant Kanai was the evidence of two witnesses--Abhoy and,, Jatin, Abhoy (P. W. 11) and Jatin (P. W. 10) stated that they were villagers who had recognised these two dacoits. Admittedly they did not know the appellant and their evidence of identification was sought to be corroborated by evidence relating to ft test identification.
7. Kanai who was practically a one eyed man was put up for identification and it is said that he was identified by Abhoy and Jatin. Had the test identification been a satisfactory one there can be no question that the identification of Kanai by these two witnesses at such a parade would afford valuable corroboration of their evidence that they had recognised this appellant during the dacoity. However the evidence relating to this test identification is most unsatisfactory and it appears to me clear that as far as Kanai was concerned the test identification was a farce. The learned Judge did warn the jury about the disquieting features of this test identification parade, but in my view he did not place the matter strongly enough to the jury.
8. The test identification parade was carried out by a Magistrate who is referred to as Radha Syam Babu in the summing up. In his evidence he stated that it had been reported to him by the police that Kanai and another accused person had been in Court for hours before the test identification and further that the two witnesses Abhoy and Jatin had also been in Court. If the accused and the witnesses had been in the same Court for some hours before the test identification parade then quite obviously the two witnesses would know that this practically one eyed man Kanai was alleged to have been in the dacoity.
9. A test identification, when witnesses have already seen an accused person, is worth nothing at all and it appears to me, having: regard to the admissions made by the learned Magistrate, that the witnesses must have seen this rather peculiar looking appellant before they were asked to identify him at the parade.
10. As I have said the learned Judge did warn the jury about this parade. But it appears to me that his warning was neither clear nor strong enough. Having mentioned the facts that I have stated the learned Sessions Judge observed as follows:
'The witnesses came to Court between 11 a.m. and 12 noon and the identification took place at 5 p.m. Yon are to consider if in view of the statement of Badhashyam Babu, the Magistrate who held the test identification parade, that identifying witnesses had occasion to see the accused Kanai and Niranjan before the test identification parade. You must be satisfied on this point before you can hold that recognition in test identification parade was correct and genuine.'
11. What the learned Judge meant by saying 'you must be satisfied on this point before you can hold' etc., is difficult to say. It appears to me that the learned Judge ought to have told the jury that, if they accepted the learned Magistrate's statement that the accused and the witnesses had been in Court for hours before the test identification, then they should attach no importance whatsoever to the identification of the appellant who, as I have said, was a rather distinctive looking person, being practically one-eyed. Merely telling the jury that they had to be satisfied and not making it clear what they had to be satisfied about is not to my mind a sufficient direction upon a point of this kind. The learned Judge should have made it clear that if the jury were of opinion that the witnesses had seen the accused before the identification or were in any doubt about the matter, then the evidence as to the identification at the test identification parade should be rejected altogether and the jury should further have been told that without evidence of a satisfactory test identification, their evidence of identification given in the witness box was worth little or nothing at all. It appears to me that on the facts of this case the jury should have been very carefully warned that it would be highly dangerous to accept the evidence of identification and should have been further warned that without such evidence the implication of Kanai by the retracted confession of Tej Bahadur was to all intents and purposes worthless. The failure to make the position clear with regard to the test identification is to my mind most material and may well have led to a miscarriage of justice in this case.
12. Mr. Sudhansu Mukherji also pointed out that the Magistrate who conducted the test identification parade was allowed to give evidence as to what witnesses told him when they identified a particular suspect. It is I know usual for a Magistrate to record statements made by witnesses at test identification parades. But that does not mean that those statements are admissible in evidence. They are statements made Under Section 164, Criminal P. C., to a Magistrate after investigation has commenced. They are not confessional statements and are not recorded as such. That being so, they can only be admissible to contradict a witness. It is true that a statement was used to contradict one of the witnesses against Kanai, but the evidence was admitted by the learned Judge as if it was substantive evidence against the accused. The evidence should not be admitted in chief and should only be admitted for one purpose, namely, to contradict the person who is alleged to have made a statement to the Magistrate.
13. Having regard to the failure of the learned Judge to warn the jury sufficiently of the unsatisfactory nature of the test identification parade, I think we are bound to bold that there was in this case a misdirection on material matters which vitiated the verdict.
14. The question arises what course should the Court follow having set aside the conviction and sentence. We could of course order a new trial. But having regard to the evidence in this case I do not think any jury could be asked to convict upon such evidence. That being so, it appears to me that the proper course is to acquit the appellant.
15. In the result, I would allow this appeal, set aside the conviction and sentence and acquit the appellant. The appellant who is on bail need not surrender to his bail and his bail is cancelled.