Meredith, J.These two appeals, one from jail and one a regular appeal, are by the same two persons and relate to the same case. The appellants, Dwarka Singh and Bhaswa Dhanuk, have been convicted u/s 395, Penal Code by the learned 1st Assistant Sessions Judge, Patna, Mr. A.C. Banerji and have been sentenced to five years rigorous imprisonment each and to pay fines of Rs. 200 each, or in default to suffer six months further rigorous imprisonment each. At the time of admission of the appeal a rule was issued to show cause against enhancement of the sentence in the event of the convictions being upheld.

2. This was a supplementary trial, as another person accused of this dacoity had been previously tried and convicted. The dacoity in question took place in the house of one Baiju Pasi (P.W. 1) of village More, police station Mokamah, on 2-7-1913. Ornaments and cash to the total value of Rs. 351/4/-were taken by the dacoits, and Baiju and his son and a relative and one of the villagers were assaulted and injured by the dacoits. The occurrence of the dacoity was not challenged at the trial, and was well established. Baiju, on account of his injuries and inability to secure a conveyance, was not able to set out for the thana, six miles distant, in the morning, but the village Chaukidar was sent. It so happened he met the Sub Inspector of Police near the village, as the Sub-Inspector was going that way in connection with some other inquiry, and according to the prosecution the Chaukidar gave him a brief intimation of the occurrence of dacoity but without any details. There is, I think, reason to doubt whether he ever actually met the Sub-Inspector, who was going through More in any case. However thai may be, the Sub-Inspector did not record any statement, but when he arrived at the village at 9 A.M. he recorded the fard-i-beyan of Baiju. In this information Baiju claimed to have identified, amongst others both the appellants, Indeed, he attributed some of his injuries to Bhaswa, saying that this man, whom he had recognised by the light of a lantern burning in the verandah and by the light of the dacoits torches had struck him on the head with a spear. He also said that the appellant Dwarka Singh and another man Fauzdar Dusadh had carried out of his house a wooden box containing money, paper and ornaments.

3. Both the appellants were found absconding. Bhaswa was arrested in connection with some other case some time before 25-8-1943, and a test identification of Bhaswa was held by a Magistrate on 13-9-1943, some two months after the occurrence. Dwarka Singh could not be arrested until 1-7-1941 and a test identification in his case was not held until 13.11-1944, 16 months after the occurrence.

4. At the trial Baiju identified both the appellants. As against Dwarka the only evidence in addition to Baijus identification was that of Baijus own son, Ram Saroop Pasi (P.W. 2), who at the time of the dacoity was a boy of 10, and also of the son-in-law of a sister of Baijus named Fauzdari This man was examined by the committing Magistrate, but could not be examined at the trial as he had disappeared and could not be found, the allegation being that he had made himself scarce owing to threats by relatives of the accused Dwarka. However that may be, his deposition was taken in u/s 33, Evidence Act. The evidence of these two witnesses was that they had identified Dwarka, who was unknown to them previously, at the test identifications, and the test identifications were proved by the Magistrates who held them to corroborates that.

5. As against Bhaswa, in addition to the identification by P.W. 1 there was also positive identification by the boy Ram Saroop (P.W. 2) already referred to, and by Baijus daughter, Ajnasia (P.W. & 4), a young girl of 16, who testified that the dacoits invaded her room and told her they would kill her if she did not give them her ornaments, and on this she took off her ornaments and made them over to Bhaswa. Moreover, there was the evidence of Fauzdari, supported by the Magistrate, that he had identified Bhaswa at the test identification held two months after the occurrence.

6. The accused were not properly examined by the learned Judge u/s 842, Criminal P.C. The learned Judge ought to have put to them the main features of the evidence against them, and asked them definitely for their explanation if they had one. Instead of that, he merely asked them whether they were aware of what offence they had been charged with, and when they said yes, he only asked them whether they had anything further to say. Dwarka said he would file a written statement, and did file one which contained a specific allegation of enmity on the part of Baiju. It was asserted that Dwarka, under the orders of a certain Musammat, had cut a crop grown by Baiju upon land taken in settlement from another Musammat, said to have some dispute with the first Musammat. This case was also made out to Baiju in cross-examination but was denied, and no attempt was made to establish it by evidence.

7. As for Bhaswa, he simply said he did not commit the offence, and when asked "Do you want to say anything more" he replied: "What else shall I say." Nor was any suggestion of enmity against him put to any of the prosecution witnesses in cross-examination.

8. It will be seen that there is a wide difference between the cases of the two appellants, and, in my opinion, while there can be no possible doubt about Bhaswas guilt, there is just room for doubt in the case of Dwarka, despite the fact that he absconded for so long, and made no attempt to establish his defence positively. In Dwarkas case there is really nothing, except the evidence of Baiju himself; because little or no value can be attached to the test identification held so long after the event, particularly in view of the fact that Dwarka is a man of the same village. One would expect, in fact, that Ram Saroop must have known his co villager Dwarka. If he did know him, then he would have no difficulty in picking him out at a test identification; whereas if he did not, it is difficult to believe that he could really remember a strange face seen at night after a year and four months. If we assume that Ram Saroop did know him and really saw him, then he should have named him before the police, which he did not do. As for Fauzdari, who is a man of a different village, we get it from the test identification report that as soon as Fauzdari Pasi came to the place where the test identification was held suspect Dwarka Singh cried out that the witness was a resident of his village, and so could identify him. In the circumstances not much value can be placed upon the identification by Fauzdari. Thus as I have said, the case really rests on the evidence of Baiju. Now, Dwarka had made very definite and very specific allegations of enmity on the part of Baiju. On the one hand, Dwarka made no attempt to substantiate these allegations but possibly he might have been handicapped by the fact that his allegations could only be substantiated by his companions in cutting the crop, or by the evidence of the Musammat, and such people, if it was really a case of cutting a crop grown by somebody else, might well hesitate to give evidence. On the other hand, as I have said, there was no adequate examination u/s 842. Had the learned Judge told Dwarka that a written statement could be no real substitute for his own positive explanation in his own words, and had he put specific questions, it seems possible that Dwarkas story might have been put forward by himself in a form and in a manner which might have led to the learned Judge attributing considerably more weight to it. It is important that accused persons, and the lawyers defending them, should realise that a written statement drafted by the defence lawyer cannot possibly be regarded by the Court as more than a formal statement of the defence case drawn up by the defence lawyer for the convenience of the Court, and admitted only for that purpose, since the law no where provides for the admission of any written statement at sessions trials. On the other hand, a positive statement of his defence by the accused himself in his own words and his explanation of why the witnesses had given the evidence against him in his own words may well, if put forward convincingly and with assurance and the appearance of truth, carry very great weight with the Judge. Therefore, it is not only desirable for the Court to give the accused a full opportunity of taking this course by putting specific questions but it is desirable for the defence, when given that opportunity, to adopt it.

9. There is another circumstance which makes me hesitate to accept what is practically the sole evidence of Baiju, without corroboration. It is this. Baiju states that he told the names of the dacoits he had identified to five villagers, whom he named, who had come up directly after the departure of the dacoits. The prosecution made no attempt to examine four of these. The fifth, Misri Pasi (P.W. 6) was examined, but he said "Baiju did not tell me the names of the dacoits identified by him." He was allowed to be declared hostile and cross-examined by the Assistant Public Prosecutor. But here again there was a defect in the procedure of the learned Judge. He allowed it to be put to the witness in cross-examination by the Crown that he had stated before the Sub Inspector that Baiju had told him that he had identified Dwarka and others. u/s 162, Criminal P.C., the defence is entitled to contradict a witness called for the prosecution by reference to his statements before the police; but, the prosecution is not. Section 162 lays down in the most positive manner that, apart from this privilege extended to the accused, the statements to the police shall not be used for any purpose at the trial. In my opinion, Dwarka Singh must get the benefit of the doubt, and must be acquitted.

10. No such considerations arise in Bhaswas case, Bhaswa having been identified as a known person by three different witnesses, to none of whom was it suggested that they did not name him to the police at the earliest opportunity. It is true that the examination of this man also u/s 842 was inadequate; but I am confident that if any enmity or reason for false accusation had existed, that would have been the first thing which Bhaswa would have blurted out in answer to the general question put to him. Not only did he make no allegation of any enmity, but, as I have said, he did not suggest to any of the witnesses that any reason existed for false implication. The learned Judge in the course of his judgment says:

The other accused Bhaswa Dhanuk, who defended himself, simply made a statement that he is innocent, and has been falsely implicated out of grudge.

11. I find no such statement anywhere on record, and I think the learned Judge is in error and cannot have referred, when writing his judgment, to Bhaswas statement which he had himself recorded. I am quite satisfied that Bhaswa has been rightly convicted.

12. With regard to the enhancement rule, I must point out, in the first place, that a sentence of fine is not appropriate in dacoity cases of this kind. These dacoits are generally persons of little or no means. Where there are also sentences of long term imprisonment it simply means that the sentence of fine will cause hardship and suffering to the unfortunate members of their family, who have been deprived of their bread winner. Such sentences generally result in what small property there may be being sold up during the absence of the convict in jail, and his womenfolk being not only severely harassed through no fault of their own, but being left without any means of livelihood pending the return from jail of their men years hence. The sentence of fine on Bhaswa must be set aside. The sentence of five years is, in my opinion, inadequate. This was a nasty dacoity in which not only Baiju received injuries (one, as he says, caused by a deadly weapon wielded by Bhaswa), but a little boy had a number of his teeth knocked out, and a young girl of 16 was molested and deprived of her ornaments. As my learned brother said in a recent case, crimes like this are a disgrace to any civilised community, and should be put down with the utmost rigour of the law. I would enhance the sentence upon Bhaswa to ten years rigorous imprisonment.

Bennett, J.

13. I agree and I associate myself particularly with what my learned brother has said as to the nature and effect of a written statement. When written statements were first admitted in sessions case and regarded merely as a formal statement of the defence case drawn up by the defence lawyer for the convenience of the Court and admitted only for that purpose, there was no harm in the practice provided the examination u/s 342, Criminal P.C., was properly carried out. But when after a general question, the acceptance of a written statement is substituted for any further examination u/s 342, Criminal P.C., the Court is adopting a procedure which is doubly illegal in that it is nowhere authorized in the Code of Criminal Procedure and is adopted soloy to avoid the procedure which is authorized by that Code. When an accused person in answer to a general question u/s 342, Criminal P.C., denies the offence and says that he will file a written statement, the duty of the Court is to read Section 342, Criminal P.C., over to him and explain that he has no right to file a written statement,; and also explain what may be the consequences of his refusal to answer any further questions. Having done so, the Court should proceed to put the necessary and proper questions, and should only desist when the accused makes it abundantly apparent that he will refuse to give any explanation whatever of any of the circumstances in evidence against him. The primary matter to be ensured u/s 342, Criminal P.C., is that the accused has been given a proper opportunity to explain the vital matters in evidence against him, but it must not be forgotten that, if he fails or refuses to give an explanation, it is of equal importance that his failure or refusal should be made abundantly apparent on the face of the record, in order that the inference against him thereon, authorized by Section 342, may be well-founded. A mere written statement does not afford a proper or sufficient basis upon which to base such an inference, because it proceeds merely by way of argument from the mind of his lawyer.