1. This is an appeal by five appellants who were tried by a learned Sessions Judge sitting with a jury upon a charge of dacoity under Section 395 of the I. P. Code. The appellant Nandalal Bera was also charged with an offence under Section 412 of the I- P- Code. Nandalal Bera was found not guilty and acquitted upon the charge under Section 395 of the Indian Penal Code, but he was found guilty upon the charge under Section 412 of the Indian Penal Code. He was convicted by the learned Sessions Judge and sentenced to three years' rigorous imprisonment. The other four appellants were found guilty of dacoity and were convicted by the learned Sessions Judge and each sentenced to five years' rigorous imprisonment. It is from these convictions and sentences that the present appeal has been preferred.
2. The charges arose out of a dacoity which was said to have been committed on Falgun 7, 1356 B. S. corresponding to February 19, 1950, at about 11 p.m. at the house of one Umesh Chandra Maity in the village of Chingurdania. On that night the inmates had gone to bed, the owner Umesh Chandra Maity being away from home. It is said that these dacoits came to the house and seized and bound the owner's son Birendra. They then broke into the house and looted it. Eventually the dacoits made off and villagers rushed to the scene where, it is said, the inmates told them that they had recognized a number of the dacoits.
3. A First Information Report was made at the thana fifteen miles away at about noon on the following day by Birendra, the owner's son, who as I have stated was one of the inmates of the house when the dacoity took place.
4. Investigation took place and the five appellants were arrested and were placed for identification at a test identification parade. In due course they were committed to stand their trial in the Court of Sessions and were tried, convicted and sentenced as I have indicated.
5. The learned Sessions Judge at the conclusion of the evidence charged the jury at considerable length and it has been contended by Mr. Sudhangsu Mukherjee who appears on behalf of the appellants that the learned Judge was guilty of a grave misdirection in dealing with the evidence relating to the test identification parade. That parade was conducted my a Magistrate and as each witness was called upon to identify he pointed out various people and stated what part those persons had played in the dacoity. The learned Judge in his charge to the jury refers to the statements made by the various witnesses to the Magistrate at the time of identification. He stated:
'At the T. I. Parade on 7-3-50, this accused (referring to Pinju) was identified by P.W.s. 2,3, 7-10, P.W. No. 2 saying that he was beaten with a lathi by this accused, P.W. No. 3 saying that this accused was loitering in the verandah with a lathi and moshal, P. W. No. 8 saying about this accused's threat with a dagger, P.W. 9 saying that this accused was loitering in the verandah with a lathi, P.W. 10 saying that this accused threatened with a dagger, P.W. No. 7 said to the Magistrate that this accused stood outside the verandah; but here he says that this accused gave him a lathi blow.'
6. Later referring to the appellant Hanif the learned Judge stated:
'P. Ws. 3, 7 and 9 identified him at the T. I. Parade, P.W. No. 7 stated to the Magistrate, while identifying this 'accused, that this man beat him with a lathi.'
7. With regard to the accused Gunadhar Das the learned Judge stated that he was identified at the test identification parade by P.Ws. 2, 8 and 9 and their statements to the Magistrate were mentioned to the jury.
8. The learned Judge also pointed out that the appellant Girish Das had been identified by P.Ws. Nos. 2, 7 and 9 and the learned Judge mentioned to the jury what each of the witnesses told the Magistrate at the time of the identification.
9. It is clear from the charge that the statements made by these witnesses to the Magistrate at the time of the test identification parade were put forward as pieces of substantive evidence. It is I think quite clear that these statements can never be substantive evidence. The evidence given by the Magistrate is evidence of what other people stated and is in the nature of hearsay. The learned Magistrate, might have been entitled to record these statements as he did under the provisions of Section 164 of the Code of Criminal Procedure. But it is abundantly clear that no statement recorded under Section 164 of the Code of Criminal Procedure can be substantive evidence. This has been held on a number of occasions by their Lordships of the Privy Council. In the case of 'BRIJ BHUSHAN SINGH v. EMPEROR', 50 Cal W N 348 (P C), the Privy Council laid down that a statement under Section 164 of the Code of Criminal Procedure made by a witness can be used to cross examine the witness who made it and the result may be to show that his evidence is false. But that does not establish what he stated out of Court under Section 164 as true. A similar case is the case of 'MAMAND v. EMPEROR', 50 Cal W N 353 (P C) in which their Lordships of the Privy Council held that evidence of statement made by a witness under Section 164 of the Code of Criminal Procedure can be used to discredit and contradict. But it is not substantive evidence. The same view was taken by their Lordships in a very recent case 'GULAM HUSSAIN v. KING' 54 Cal W N 464 (P C).
10. Following these decisions a Bench of this Court in which I was a member held in 'KANAI LAL v. STATE', 51 Cri L J 1520 (Cal) that statements made to a Magistrate and recorded by him under Section 164 can never be regarded as substantive evidence, though they may be used to contradict a witness.
11. It might be suggested that these statements could also be used to corroborate a witness by reason of the provisions of Section 157 of the Indian Evidence Act. They are certainly not statements made at or about the time of the fact deposed to. But it might be said that they are statements made by a witness to a person competent to investigate such facts. What is the precise meaning of the phrase 'competent to investigate' is difficult to say, and I do not think it is necessary for me to express any opinion whatsoever in this case as to whether these statements could or could not be used to corroborate. They were put before the jury as pieces of substantive evidence and that being so there was clearly a misdirection. The view of their Lordships of the Privy Council appears to have been that statements made in similar circumstances, to a Magistrate would only be admissible to contradict and could not be used for any other purpose. But it is suggested that the provisions of Section 157 of the Indian Evidence Act were not brought to their Lordships' notice. There is certainly no reference to that section in the cases to which I have made reference, but as I have said the view of their Lordships is clear and in any event it is unnecessary in this case to consider whether these statements could be used to corroborate. They were put before the jury as pieces of sub-stantive evidence and they certainly are not that. That being so we are bound to hold that there was a serious misdirection with regard to this part of the case.
12. It seems to me that this misdirection is serious. Much depended in this case upon the value which the jury placed on identification. The learned Judge placed before thern statements alleged to have been made by these witnesses at the time of each identification and such may very well have convinced the jury that the witnesses had really identified these people as dacoits, as suggested by the prosecution. It cannot possibly be said that this misdirection is upon a point of little importance. The verdict may well have been different if the learn- ed Judge had pointed out to the jury that these statements, if admissible at all except for purposes of contradiction could not be regarded as substantive evidence proving the truth of I the facts alleged in the statements. As there is this misdirection we are bound to hold that the verdict of the jury is vitiated with regard to these four appellants.
13. With regard to Nandalal it appears to me that the charge is not at all adequate. Nandalal was, as I have said, acquitted under Section 395 of the Indian Penal Code but convicted for being in possession of property stolen at this dacoity. Property was recovered in premises in which, it is said, Nandalal lived. But I do not think that the learned Judge made it clear that before Nandalal could be convicted the I have made reference. However I find it difficult to come to the conclusion that a retrial should be ordered in the case of Girish Das only. He appears to me to be the least likely to have been amongst these dacoits. That being so I with some hesitation come to the conclusion that a retrial in the case of Girish Das should not be ordered and that he also should be acquitted. He was in exclusive possession of the room in which these stolen articles were found. The house in which these articles were found was occupied by a number of. persons and there is, for example, the evidence of a search witness, who is described by the Sub-Inspector as a gentlemanly person that the door of the room was locked when the search party arrived and that the key was produced not by Nandalal but Nandalal's brother. Nandalal it is said only came to the scene afterwards. There was also evidence that Nandalal did not live in the house of his widowed mother who was said to have a somewhat doubtful moral character. Nandalal lived according to the witnesses of the neighbourhood in his uncle's house which had a separate yard from his mother's house. In his uncle's house apparently lived a cousin of his, Bankim and somewhere lived Nandalal's younger brother who produced the key of the room in question. Again one of the search witnesses states that the articles were found not in the 'ghar' of the uncle but in the widow's 'ghar' and it was stated categorically that Nandalal lived in his uncle's house and not in his widowed mother's house. The jury should have been very carefully charged upon this aspect of the case and should have been told that upon that evidence it was quite impossible to come to the conclusion that these articles were discovered in a room which was exclusively in the possession of Nandalal. That being so it appears to me that the charge in so far as it affects Nandalal is also defective and the verdict of guilty under Section 412 of the I. P. C. is who vitiated.
14. The question now arises what course should his Court follow. It seems to me that a new trial clearly should not be ordered in the case of Pinju, Hanif and Gunadhar. Neither should it be ordered in the case of Nandalal Bera. (After discussion of the evidence against these accused and the accused Girish Das, the judgment proceeds.)
15. I am somewhat doubtful as to what we should do in the case of Girish Das. In his case there was certainly a misdirection and the verdict is vitiated and the evidence against him is certainly very much stronger than the evidence against the other four appellants to which.
16. The result therefore is that this appeal is allowed and the convictions and sentences passed on the five appellants are set aside and they are acquitted.
17. The bail bond of Nandalal Bera is cancelled and he need not surrender to his bail. The other four appellants who are in custody must be released and set at liberty forthwith.
18. I agree.