1. This is an appeal by 12 accused who have been convictedof dacoity under S. 395, Penal Code and have been sentenced each to five yearsrigorous imprisonment.

2. The prosecution case is that there was a dacoity on 30thMay 1943 at about midnight when 30 or 40 men raided the house of BhagabanChandra Gayen (P.W. 3), assaulted him and looted all the house-hold ornaments,cash, utensils and cloths. Information was lodged at the thana the followingday by Radhakanta (P.W. 1), a nephew of Bhagaban, who was sleeping in anadjacent room. Gayamoni Dasi (P.W. 2), aunt of Radhakanta, was sleeping inanother room in the house. The dacoits were not recognised but Rudra NarayanProdhan (P.W. 16), President of a Local Union, received information at aboutnoon the following day and as a consequence he went with Basanta Kumar Roy,Sribatsa Kumar Pattanayak (P.W. 6) and others to a village Dakshin Maithuna.When they came near the house of the Bhuiyas of the village the accused in abody rushed out, 5 or 6 of them carrying a bag threw it into the nearby tank,other articles were thrown into the nearby doba and scattered them round about.The party of the President rounded up the men and caught the present 12 accused.Two others who escaped were chased and brought back. The next day another manwas caught. It may be mentioned here that these three were sent up on a trialalong with the present 12 accused but they were acquitted. Thereafter the partycollected the scattered articles and kept them in custody. The investigatingofficer came that night and on the following morning took charge of the accusedand the articles and prepared lists Exs. 1(a), 1(b), 1(c), 1(d) and 1(e), ofthe articles seized. In Court Radha Kanta (P.W. 1), Gayamoni (P.W. 2) andBhagaban Chandra Gayen (P.W. 3) all identified the articles seized as theirhouse-hold property. In all there were 56 articles one of them, Ex. 31, bearsthe name of Bhagaban Gayen. Evidence of the seizure of the dacoits andcollection of the articles and their making over to the Sub-Inspector was dulygiven. The jury arrived at a unanimous verdict in respect of the 12 accused whowere caught on the spot running away scattering the stolen articles. They infact presumed from the recent possession and the fact of identification of theproperty as stolen property that the persons caught were the actual dacoits.

3. Mr. Mukherjee appearing on behalf of the accused urgestwo points before us each relating to a breach of the provisions of S. 162,Criminal P.C. The first objection relates to the evidence given as to theidentification of the stolen property by Radha Kanta Gayen and Gayamoni to theinvestigating officer. The evidence is that this officer took the articles,which had been made over to him on the spot, to the house where the dacoitytook place and showed them to Radha Kanta Gayen and Gayamoni Dasi whorecognised the articles as their property and told the Sub-Inspector that theyhad recognised them. Mr. Mukerjees objection consists in the fact that theSub-Inspectors evidence that the witnesses told him that the articles producedby him were identified by them as their property and the statement by thewitnesses themselves that they had "identified" the articles to theSub-Inspector are proofs of statements to an investigating officer in thecourse of investigation and therefore offend against the provisions of S. 162,Criminal P.C.

4. In support of his contention Mr. Mukherjee refers to thecase of Sk. Khabiruddin v. Emperor, : 48 C.W.N. 356 : (A.I.R.1943 Cal. 644 [LQ/CalHC/1943/105] : 45 Cr. L.J. 258) and the other cases referred to in thatjudgment, namely, Krishna Chandra Dhenki v. Emperor, : 39C.W.N. 488 : (A.I.R. 1935 Cal. 311 [LQ/CalHC/1935/58] : 46 Cr. L.J. 1470) and Krishna Kahar v.Emperor, : 43 C.W.N. 1117 : (I.L.R. (1939) Cal. 569). Allthese are cases of test identification whereas in the present case, as thelearned Judge pointed out to the jury in another connection, there was no actualtest. The learned Judge pointed this fact out for discounting to some extentthe value of the identification made by the witnesses, because they were merelyshown the articles and not asked to pick them out from amongst others. In LalaLalung v. Emperor, (: 42 C.W.N. 620 : A.I.R. 1939 Cal. 176 [LQ/CalHC/1938/53] :40 Cr. L.J. 240) an opposite view on this question as regards the testidentification before the police has been taken. This case was discussed in thelatter case of Sk. Kabiruddin v. Emperor, (: 48 C.W.N. 356 :A.I.R. 1943 Cal. 644 [LQ/CalHC/1943/105] : 45 Cr. L.J. 258) by Das J. and was not approved. Thehead-note in the latter case is to the following effect:

Evidence of identification of stolen property in thepresence of a police officer during investigation, being evidence of statementsmade in his presence, is inadmissible under S. 162, Criminal P.C. It isimmaterial whether the identification was at the police station or at someother place.

There are some expressions in the judgment of Lodge J. whichappear to support the headnote in that form and Das J. has in discussing thecase of Lala Lalung v. Emperor, (: 42 C.W.N. 620 : A.I.R.1939 Cal. 176 [LQ/CalHC/1938/53] : 40 Cr. L.J. 240) remarked:

With utmost respect to the learned Judge, I can see nodistinction between the two things. The statement of the identifier constitutesthe identification. Identification has no separate existence apart from thestatement whereby the things are identified. Therefore when a person says thatso and so identified certain things as his own, he in effect states that soand, so stated that the things were his. In my opinion the evidence of the factof identification is nothing but evidence of the statements which constitutethe identification in a compendious and concise form. The two things appear tome to be the same.

With the greatest respect to the learned Judge he appears tohave failed to distinguish between on the one hand the actual fact ofidentification which is a mental act on the part of the person identifying,seeing an object or person and recognising that the object or person seen isidentical with some particular object or person, and on the other hand thecommunication to a third person of this mental act. The communication is ofcourse a statement, but the identification by the identifier cannot possibly bea statement.

5. If Mr. Smith, shall we say, leaves his hat on a peg athis club and later returns and is confronted with the row of a multitude ofhats: he looks at them, he identifies his hat and takes it off the peg and indue course puts it on his head. The identification consists of seeing andrecognising out of multitude of hats which is his own hat. Thereafter this factof identification is followed by the above course of conduct. It cannot be saidthat unless Mr. Smith utters the word that is my hat that he has notidentified his hat. Otherwise we will reach the absurdity that until he hassaid that that is my hat, he cannot pick the hat out from the multitude andtake it away.

6. We may develop the illustration a little further, for Mr.Smith in taking out his hat from a multitude of others is in effect passing atest identification parade of hats. If Mr. Smith happens to be suspected to bea murderer and to know that his hat may have been recognised, although hepersonally may not have been recognised and as he approaches the multitude ofhats by some intuition realises that an innocent looking by-stander is adetective, he may appreciate that if he takes his own hat off the peg he willprobably be arrested. Therefore to mislead the detective he may take anotherhat to make the detective think that the other but has been identified by himas his. He may then go outside and inform Mr. Jones that his (Mr. Smiths) butis on peg No. 5, say and ask him to bring it to him. Mr. Smith will then haveidentified his hat in the presence of the detective and by his conductsubstantially have made a statement to the detective that some other hat ishis, and then have gone out and told the correct fact to Mr. Jones and soobtained his hat. Neither the statement of Mr. Jones nor the implied statementto the detective constitute, with great respect, the identification of the hat.If Mr. Smith subsequently having been cleared of suspicion as a murdererhappened to be a witness in Court he might be called on to depose as to whathad occurred. He could certainly say that he had seen and identified his hat asthe hat on peg No. 5. Mr. Jones could be called to corroborate him by thestatement made to him. The detective might be called to contradict him bysaying that in fact Mr. Jones did not take the hat from peg No. 5 but took thehat from peg No. 6. It would be then for the Court to consider whether it wouldaccept Mr. Smiths evidence that he had in fact identified his hat.

7. If we turn from the illustration to an actualidentification parade we may see clearly that the witness who has gone to thethana for the purpose of submitting to a test may certainly subsequently inCourt say, for what it is worth, that on such and such occasion he went to thethana and saw the accused in dock mixed up with a hundred or so others andpicked him out. He cannot be allowed to say that he told the investigatingofficer that he had recognised the accused, and he cannot be corroboratedeither by the Sub-Inspector or any other person present by their staling inevidence in Court that he told them of the fact of his identification. Withgreat respect we agree that the distinction sought to be made in Lala Lalungscase: (: 42 C.W.N. 620 : A.I.R. 1939 Cal. 176 [LQ/CalHC/1938/53] : 40 Cr. L.J.240) between an actual verbal statement and some action on the part of theidentifier disclosing the fact of his identification cannot legitimately bemade. Both are hit by S. 162, Criminal P.C. in our opinion. Whether the witnessat the parade discloses his identification by saying "this is theaccused" or whether he does it by tapping the accused or by some othercode of signs it appears to us to make no difference. The communication of hisown mental act of recognition and identification to the police is what is hitby S. 162, Criminal P.C. With respect, while therefore we agree with Das J. inhis criticism of the distinction sought to be made in Lala Lalungs case,(: 42 C.W.N. 620 : A.I.R. 1939 Cal. 176 [LQ/CalHC/1938/53] : 40 Cr. L.J. 240),we are unable to accept his view that a statement constitutes identificationand the headnote to that case in our opinion is misleading and any expressionsin the cases cited which may appear to say that evidence in Court subsequentlyby the actual identifier himself is inadmissible under S. 162, Criminal P.C.are, with great respect, in our view not a correct statement of the law.Actually in the cases cited, evidence, as we have already pointed out, had beengiven by third parties, but the present distinction made here had not beenbrought to the notice of the Courts or to that of the author of the head-notein Sk. Khubiruddins case: (: 48 C.W.N. 356 : A.I.R. 1943Cal. 644 : 45 Cr. L.J. 258). The distinction is of course one of someimportance.

8. In connection with the question of identification some ofthe difficulty arises from the different meanings to be attached to the word"identify" and for this reason we have put the word in invertedcommas when using it above. When a identifier says "I identify X as thethief" he is or purports to be communicating the fact that he hasrecognised X as the thief. When a third person says "he (meaning thewitness) identified X as the thief", he cannot possibly mean more than theidentifier had said he had identified the thief. No third party can actuallyknow whether the identifier has in fact identified the person or not as weindicated in our illustration of the hats, the identifier may deliberately tellor express a falsehood as regards the identification. It is due to this doublemeaning of the word "identification" that some of the expressionsused in some of the cases appear to be to a contrary effect to the view whichwe have expressed here, but once the distinction is appreciated we think itwill be found that in none of the cases has anything been said contrary to theview now expressed that any identifier can give evidence as to the fact of hishaving seen, recognised or identified any accused person on some previousoccasion, so long as it is made clear that by this it is not meant that he cangive evidence that he has communicated the fact of his identification to thirdparties if the communication of that identification was made in the presence ofa police officer. It is not the actual act or process of seeing or recognisingthe accused in the presence of the officer which is affected by the provisionsof S. 162, Criminal P.C.; it is the communication of that fact to the policeofficer of which proof cannot be given. In our illustration of the hats, forexample, if the circumstances were slightly different and Mr. Jones happened tobe a police officer and Mr. Smith, although he had done his identification notin the presence of the officer, had gone outside and told him that his (Mr.Smiths) hat had been picked up by him from peg No. 5, that statement to Mr.Jones would, if the other conditions necessary were satisfied, be hit by S.162, Criminal P.C. It is not the circumstances in which the recognition is madebut the circumstances in which communication of the fact of recognition wasmade.

9. If a witness states that he went to the thana on aparticular day and saw the investigating officer, it might be said that hispresence at the thana amounted to a statement to the officer "I amhere" and therefore the provisions of S. 162, Criminal P.C. would preventthe proof of this statement being given. Hence the witness could not prove thefact that he went to the thana. We think that Ghose J. in Lala Lalungs case:(: 42 C.W.N. 620 : A.I.R. 1939 Cal. 176 [LQ/CalHC/1938/53] : 40 Cr. L.J. 240)was probably treating the fact of identification on these lines. We do notthink that anybody would seriously attempt to urge that the witness could not provethat he had been to the thana on a particular day because it could be said thathis mere presence amounted to a statement to the investigating officer that hewas at the place. The distinction is clear. In such a case, the witness isreferring solely to a physical fact which can be appreciated and is obvious toanyone; whereas identification is essentially a mental act as we have shownabove. What is said or done after the mental act may be to disclose the fact ormay be deliberately done to conceal the fact. In any case the actual fact ofidentification is something known only to the identifier and can only be knownto others by a statement or by some conduct amounting to a statement having theeffect of communicating the fact of identification.

10. In the present case Mr. Mukherjee relying on cases citedis really seeking to prevent Radha Kanta and Gayamoni supporting their presentstatement in Court identifying the articles by their proving that they had infact seen the same articles and recognised them when they were produced beforethem by the Sub-Inspector. This he cannot do. He is entitled to object to theevidence of the Sub-Inspector that the witnesses "identified" thearticles to him or the evidence of the witnesses when they say they"identified" the articles in the presence of the Sub-Inspector in sofar as the latter expression is taken to mean and include not only that theyrecognised the articles as theirs but conveyed the fact of that recognition tothe Sub-Inspector. We have then to consider what is the effect of the admissionof this inadmissible evidence. In our opinion, in this instance the effect isand must have been negligible. The circumstances here are peculiar. A vastquantity of articles were stolen and a vast quantity of articles were recoveredin circumstances which themselves are evidence that the articles in questionwere stolen, and the circumstances of their recovery is to some extent evidencethat they are the stolen property of the dacoity at the house of Bhagaban. Theywere recovered within a few hours of the dacoity at no great distance and thecircumstances all indicate that they were recovered at a meeting of dacoits toshare up the loot. A meeting of dacoits sharing loot is hardly, even in Bengal,a daily occurrence in any district, and the very circumstances that thesedacoits were caught in sharing out what was an obvious loot in circumstancesclose in time and place to the dacoity in this case is itself evidence going insome way to establish the identity of the articles. Again, the very bulk of thearticles and their varied nature, which a glance of the lists will disclose,shows that the identification by the owners is a matter of case and a matterabout which there could be little or no doubt. The learned Judge in our opinionhas certainly put the case very favourably to the accused when he, as it were,wrote down the value of the identification by Radha Kanta and Gayamoni merelybecause the articles were shown to them by the Sub-Inspector, Accordingly, whenit is realised that the circumstances of the find are themselves some evidenceto establish identity, in addition when the quantity and nature of the articlesare taken into account not forgetting the existence of one actually bearing thename of Bhagaban, when it is recognised that Radha Kanta and Gayamoni can nowidentify the articles in Court and can say that they recognised them when theywere presented before them by the Sub-Inspector, and that the Sub-Inspector cansay that he showed the articles present in Court to the witnesses at the time,when he says he did, shortly after the recovery, it must have been evident thatthe mere addition that these witnesses mentioned their recognition to theSub-Inspector at the time of the showing is a piece of almost uselesscorroboration in the circumstances. The fact that evidence of this statement asto recognition was given though inadmissible appears to us therefore to beimmaterial.

11. That every breach of S. 162, Criminal P.C. will notvitiate a trial was very emphatically pointed out by Sir George Rankin in thecase of Sajjad Mirza v. Emperor, (: 45 C.L.J. 199 : A.I.R.1927 Cal. 372 [LQ/CalHC/1926/307] : 28 Cr. L.J. 446). Chotzner J. in the case of Harendra Nath Sahav. Emperor, (: 40 C.L.J. 313 : A.I.R. 1925 Cal. 161 [LQ/CalHC/1924/332] : 26 Cr.L.J. 307) has pointed out that in the case of reception of evidenceinadmissible owing to the provisions of S. 162, Criminal P.C. is notnecessarily fatal and that in an appeal the Court has to see whether thereception influenced the mind of the jury so seriously as to lead them to aconclusion which might have been different but for its reception and supportfor the view is taken from S. 537, Criminal P.C. and S. 167, Evidence Act. Inthe case of Nitai Koley v. Emperor, I.L.R. (1939) Cal. 337 Henderson andKhundkar JJ. have taken the same view that it must always be a question whetherprejudice has been caused in such cases, and if not, whether the materials leftare sufficient within the meaning of S. 167, Evidence Act. In that caseHenderson J. held that the inadmissible evidence did not amount to anythingmore than an almost useless evidence of corroboration.

12. The second objection raised by Mr. Mukherjee is alsounder S. 162, Criminal P.C. and relates to three seizure lists, Ex. I a list ofsome 29 articles made over by Rudra Narayan Prodhan P.W. 15, Ex. I (a) a listof 5 articles made over by the same and Ex. I (c) a list relating to onearticle made over by one Hare Krishna Pattanayak not called as a witness. Theseizure lists are signed by search witnesses some of whom have deposed and ofcourse Rudra Narayan the President has deposed with regard to lists Exs. I andI (a). The objection is to some descriptive entries made on each of these threelists where something is said as to the circumstances in which the articles hadbeen recovered by the persons from whom they were taken. In Ex. I it ismentioned that the articles had been thrown into the tank when the Presidentand the villagers surrounded the dacoits. In Ex. I (a) it is mentioned that thearticles were thrown away by Surendra Dinda and the President Babu had keptthem in his custody in the presence of the villagers. In Ex. I (c) it ismentioned that the article was seized by the dafadar whilst Dhanonjoy was throwingit away in a gunny bag.

13. Mr. Mukherjee referring to Sk. Khabiruddins case,: 48 C.W.N. 356 : (A.I.R. 1943 Cal. 614 : 45 Cr. L.J. 258)urges that a similar admission of an inadmissible evidence in the form of anentry in the remarks column of a search list was the substantial reason givenby Lodge J. for interfering with the conviction in that case and he urges thatwe should follow a similar course here. The case is, however, in our opinionvery different. In Khabiruddins case, (: 48 C.W.N. 356 :A.I.R. 1943 Cal. 644 [LQ/CalHC/1943/105] : 45 Cr. L.J. 258) the entry on the search list was anextra judicial confession said to have been made to some of the witnesses. Inthe present case there is a mass of evidence to show that these 12 accused werecaught on the spot practically simultaneously with the seizure of the stolenproperty in circumstances as we have already indicated, which alone go to showthat the property was stolen in the dacoity in this case and that these accusedwere the dacoits. The case would be very different if these accused, includingthe two who are named Surendra Dinda and Dhananjoy, had not been caught on thespot and had not been in custody at the time the articles were made over to theofficer. We cannot think that the mere mention in these lists of a briefreference to the circumstances of the seizure of the articles which is merelycorroborative of the whole mass of evidence in the case, supported as thatevidence is by the actual arrest of the accused on the spot and recovery of thearticles and the accused at the same time on the spot, can have had anymaterial effect on the verdict of the jury. In other words, either the jurywould conclude that the whole case was a false case, the articles were in someway planted and the complainant identified them after consulting with thePresident and others to implicate innocent men, or else that it was a true casewhich abundantly proves the charges against the accused. The question whetherin the seizure lists prepared at the time some brief reference to thecircumstances was made or not cannot in our opinion have affected the verdict.The admission of this inadmissible evidence in the special circumstances ofthis case in our opinion has been immaterial.

14. The only question left is the question of sentence,Bhagaban was beaten and had some, not very severe, injury, although one blowwith a lathi had dislocated one of his finger joints. On the whole we thinkthat the sentences in the circumstances are somewhat excessive and we reducethe sentences of imprisonment from five years rigorous imprisonment to fouryears rigorous imprisonment in the cases of all the accused except DhananjayBar whose sentence is reduced to two years rigorous imprisonment on account ofhis youth.

15. The appeal is disposed of accordingly.

16. The accused appellants must surrender to their bail andserve out the remainder of their sentences.

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Surendra Dinda and Ors. vs. Emperor (22.03.1945 - CALHC)