Varma, J.The petitioners, Ramkishun Sao, Makhri Barhi, Lachhmi Narain and Ganauri Sao have been convicted u/s 395, Penal Code, and sentenced to three years rigorous imprisonment each. The prosecution case is that on 15th August 1942, a large mob attacked the goods shed at Barh station on the E.I.R. and looted away goods worth about Rs. 1000. An information of this incident was sent by the subdivisional officer of Barh to the Government Railway Police at Barh. This information was included in the station-diary, which is Ex. 1(a). The Sub-Inspector then proceeded to the spot with his junior Sub-Inspector and inspected the condition of the godown. The present petitioners along with a few others were arrested and put on trial before a Special, Magistrate; they were convicted by the Special Magistrate on 5th October 1942; but that conviction was set aside by this Court on 2lst February 1944. Then a regular trial commenced and after a preliminary inquiry the case was committed to the Court of Sessions. The trial was held by the Assistant Sessions Judge of Patna, with the result already stated.

2. That there was an incident of this nature at Barh railway-station, there can be no doubt. There are a large number of witnesses, the credibility of some of whom cannot in any way be questioned, who speak about the incident. The Sub-Inspector saw the effects of the depredations of the mob; and from the descriptions given one cannot help thinking that the incident took place generally as stated by the prosecution witnesses. The formal first information report was drawn up on 26th August 1942. It has been commented by Mr. Jaleshwar Prosad, appearing on behalf of the petitioners, that this first information report does not contain the name of any of the petitioners before us. Considering the disturbed condition of things in those days and the source through which the information of the occurrence was received at the police-station, it is not surprising that no names of the offenders were given in the information. The real question to be decided in this case is whether the participation of the present petitioners in the occurrence has been proved. In this connexion our attention has been drawn to the procedure followed in the course of the trial.

3. It also appears that there was no test identification held in this case. The procedure complained against can be gathered from the observations of the Assistant Sessions Judge himself. The learned Judge observes as follows:

It appears that the committing Magistrate allowed some questions to the witnesses in reference to the statements recorded by the Special Magistrate. The prosecution has attempted to read out some such statements recorded by the committing Magistrate to the assessors while the defence has desired to get the statements recorded by the Special Magistrate here and to put questions to the prosecution witnesses on such statements for the purposes of contradictions. The statements of the accused and those of the witnesses recorded by the Special Magistrate appear to me to be inadmissible statements inasmuch as the Ordinance having been declared to be illegal the Magistrate recording such statements cannot be taken to have any jurisdiction to have recorded them according to law. He recorded the statements not as a private individual so that the statements may be taken even as quasi-judicial statements, but he recorded them as a Magistrate with the result that the statements are inadmissible u/s 24, Evidence Act. Under such circumstances I have disallowed the prayers of the prosecution and the defence in their attempts stated above.

4. I have quoted in full the observations of the learned Assistant Sessions Judge lest he should take some of my observations as unfair. Previous statements reduced to writing are used in cross-examination u/s 145, Evidence Act, but the section does not lay down that the writing which is to be used for the purposes of cross-examination must be by a person having jurisdiction to reduce the statement to writing. This procedure adopted by the Assistant Sessions Judge has certainly been prejudicial to the accused who wanted to make out either that they were not there, or, if they were there, they were mere sight-seers; that is to say, to establish that they were not guilty. The convictions are, therefore, liable to be set aside on this point alone. There is yet another matter which is noticeable in this case in that the lower appellate Court has not analysed the evidence against each individual accused.

5. It has certainly taken up the witnesses one after another and mentioned the names of the accused identified by each of them and the conditions under which they identified; but that does not give this Court an idea as to what the actual evidence against each individual accused is. We have analysed the evidence against each of the present petitioners and I am sure if the case of the individual accused were considered by the lower appellate Court separately, he would not have upheld the convictions at least of petitioners Ramkishun Sao and Ganauri Sao, because the only person who can be said to have identified these two petitioners is P.W. 5, who happens to be a chaukidar; but this witness denied having identified any of the accused and it was only in the course of cross-examination by the Public Prosecutor that the names of Ramkishun, Ganauri and other persons were brought out as amongst those said to have been identified by him. Also in the case of Makhri Barhi and Lachhmi Narain their identification is not satisfactory. A number of witnesses did not identify them in the Court of the Assistant Sessions Judge, and it was only by the process of cross-examination that the Public Prosecutor brought out the names of the accused from the statements made by the witnesses before the committing Magistrate.

6. In view of the fact that the petitioners were prejudiced in their trial by the procedure adopted by the learned Assistant Sessions Judge with regard to the admission in evidence of previous statements, and also owing to the unsatisfactory nature of the evidence against them, I would make the rule absolute, set aside the convictions and sentences and direct that the petitioners be released forthwith.

Pande, J.

7. I agree.