JUDGMENT 1. This is an appeal by 12 accused who have been convicted of dacoity under S. 395, Penal Code and have been sentenced each to five years' rigorous imprisonment. 2. The prosecution case is that there was a dacoity on 30th May 1943 at about midnight when 30 or 40 men raided the house of Bhagaban Chandra Gayen (P.W. 3), assaulted him and looted all the house-hold ornaments, cash, utensils and cloths. Information was lodged at the thana the following day by Radhakanta (P.W. 1), a nephew of Bhagaban, who was sleeping in an adjacent room. Gayamoni Dasi (P.W. 2), aunt of Radhakanta, was sleeping in another room in the house. The dacoits were not recognised but Rudra Narayan Prodhan (P.W. 16), President of a Local Union, received information at about noon 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 a body 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 man was caught. It may be mentioned here that these three were sent up on a trial along with the present 12 accused but they were acquitted. Thereafter the party collected the scattered articles and kept them in custody. The investigating officer came that night and on the following morning took charge of the accused and the articles and prepared lists Exs. 1(a), 1(b), 1(c), 1(d) and 1(e), of the articles seized. In Court Radha Kanta (P.W. 1), Gayamoni (P.W. 2) and Bhagaban Chandra Gayen (P.W. 3) all identified the articles seized as their house-hold property. In all there were 56 articles one of them, Ex. 31, bears the name of Bhagaban Gayen. Evidence of the seizure of the dacoits and collection of the articles and their making over to the Sub-Inspector was duly given. The jury arrived at a unanimous verdict in respect of the 12 accused who were caught on the spot running away scattering the stolen articles. 31, bears the name of Bhagaban Gayen. Evidence of the seizure of the dacoits and collection of the articles and their making over to the Sub-Inspector was duly given. The jury arrived at a unanimous verdict in respect of the 12 accused who were caught on the spot running away scattering the stolen articles. They in fact presumed from the recent possession and the fact of identification of the property as stolen property that the persons caught were the actual dacoits. 3. Mr. Mukherjee appearing on behalf of the accused urges two 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 the identification of the stolen property by Radha Kanta Gayen and Gayamoni to the investigating 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 dacoity took place and showed them to Radha Kanta Gayen and Gayamoni Dasi who recognised the articles as their property and told the Sub-Inspector that they had recognised them. Mr. Mukerjee's objection consists in the fact that the Sub-Inspector's evidence that the witnesses told him that the articles produced by him were identified by them as their property and the statement by the witnesses themselves that they had "identified" the articles to the Sub-Inspector are proofs of statements to an investigating officer in the course of investigation and therefore offend against the provisions of S. 162, Criminal P.C. 4. In support of his contention Mr. Mukherjee refers to the case of Sk. Khabiruddin and Others Vs. Emperor, AIR 1943 Cal 644 and the other cases referred to in that judgment, namely, Krishna Chandra Dhenki Vs. Emperor, AIR 1935 Cal 311 and Krishna Kahar v. Emperor, 43 C.W.N. 1117 : (I.L.R. (1939) Cal. 569). All these are cases of test identification whereas in the present case, as the learned Judge pointed out to the jury in another connection, there was no actual test. The learned Judge pointed this fact out for discounting to some extent the value of the identification made by the witnesses, because they were merely shown the articles and not asked to pick them out from amongst others. In Lala Lalung Vs. The learned Judge pointed this fact out for discounting to some extent the value of the identification made by the witnesses, because they were merely shown the articles and not asked to pick them out from amongst others. In Lala Lalung Vs. Emperor, AIR 1939 Cal 176 an opposite view on this question as regards the test identification before the police has been taken. This case was discussed in the latter case of Sk. Khabiruddin and Others Vs. Emperor, AIR 1943 Cal 644 by Das J. and was not approved. The head-note in the latter case is to the following effect: Evidence of identification of stolen property in the presence of a police officer during investigation, being evidence of statements made in his presence, is inadmissible under S. 162, Criminal P.C. It is immaterial whether the identification was at the police station or at some other place. There are some expressions in the judgment of Lodge J. which appear to support the headnote in that form and Das J. has in discussing the case of Lala Lalung Vs. Emperor, AIR 1939 Cal 176 remarked: With utmost respect to the learned Judge, I can see no distinction between the two things. The statement of the identifier constitutes the identification. Identification has no separate existence apart from the statement whereby the things are identified. Therefore when a person says that so and so identified certain things as his own, he in effect states that so and, so stated that the things were his. In my opinion the evidence of the fact of identification is nothing but evidence of the statements which constitute the identification in a compendious and concise form. The two things appear to me to be the same. With the greatest respect to the learned Judge he appears to have failed to distinguish between on the one hand the actual fact of identification 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 is identical with some particular object or person, and on the other hand the communication to a third person of this mental act. The communication is of course a statement, but the identification by the identifier cannot possibly be a statement. 5. If Mr. The communication is of course a statement, but the identification by the identifier cannot possibly be a statement. 5. If Mr. Smith, shall we say, leaves his hat on a peg at his club and later returns and is confronted with the row of a multitude of hats: he looks at them, he identifies his hat and takes it off the peg and in due course puts it on his head. The identification consists of seeing and recognising out of multitude of hats which is his own hat. Thereafter this fact of identification is followed by the above course of conduct. It cannot be said that unless Mr. Smith utters the word 'that is my hat' that he has not identified his hat. Otherwise we will reach the absurdity that until he has said that 'that is my hat', he cannot pick the hat out from the multitude and take 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 a test identification parade of hats. If Mr. Smith happens to be suspected to be a murderer and to know that his hat may have been recognised, although he personally may not have been recognised and as he approaches the multitude of hats by some intuition realises that an innocent looking by-stander is a detective, he may appreciate that if he takes his own hat off the peg he will probably be arrested. Therefore to mislead the detective he may take another hat to make the detective think that the other bat has been identified by him as his. He may then go outside and inform Mr. Jones that his (Mr. Smith's) bat is on peg No. 5, say and ask him to bring it to him. Mr. Smith will then have identified his hat in the presence of the detective and by his conduct substantially have made a statement to the detective that some other hat is his, and then have gone out and told the correct fact to Mr. Jones and so obtained his hat. Neither the statement of Mr. Jones nor the implied statement to the detective constitute, with great respect, the identification of the hat. If Mr. Jones and so obtained his hat. Neither the statement of Mr. Jones nor the implied statement to the detective constitute, with great respect, the identification of the hat. If Mr. Smith subsequently having been cleared of suspicion as a murderer happened to be a witness in Court he might be called on to depose as to what had occurred. He could certainly say that he had seen and identified his hat as the hat on peg No. 5. Mr. Jones could be called to corroborate him by the statement made to him. The detective might be called to contradict him by saying that in fact Mr. Jones did not take the hat from peg No. 5 but took the hat from peg No. 6. It would be then for the Court to consider whether it would accept Mr. Smith's evidence that he had in fact identified his hat. 7. If we turn from the illustration to an actual identification parade we may see clearly that the witness who has gone to the thana for the purpose of submitting to a test may certainly subsequently in Court say, for what it is worth, that on such and such occasion he went to the thana and saw the accused in dock mixed up with a hundred or so others and picked him out. He cannot be allowed to say that he told the investigating officer that he had recognised the accused, and he cannot be corroborated either by the Sub-Inspector or any other person present by their staling in evidence in Court that he told them of the fact of his identification. With great respect we agree that the distinction sought to be made in Lala Lalung Vs. Emperor, AIR 1939 Cal 176 between an actual verbal statement and some action on the part of the identifier disclosing the fact of his identification cannot legitimately be made. Both are hit by S. 162, Criminal P.C. in our opinion. Whether the witness at the parade discloses his identification by saying "this is the accused" or whether he does it by tapping the accused or by some other code of signs it appears to us to make no difference. Both are hit by S. 162, Criminal P.C. in our opinion. Whether the witness at the parade discloses his identification by saying "this is the accused" or whether he does it by tapping the accused or by some other code of signs it appears to us to make no difference. The communication of his own mental act of recognition and identification to the police is what is hit by S. 162, Criminal P.C. With respect, while therefore we agree with Das J. in his criticism of the distinction sought to be made in Lala Lalung Vs. Emperor, AIR 1939 Cal 176 , we are unable to accept his view that a statement constitutes identification and the headnote to that case in our opinion is misleading and any expressions in the cases cited which may appear to say that evidence in Court subsequently by 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 been given by third parties, but the present distinction made here had not been brought to the notice of the Courts or to that of the author of the head-note in Sk. Khabiruddin and Others Vs. Emperor, AIR 1943 Cal 644 . The distinction is of course one of some importance. 8. In connection with the question of identification some of the difficulty arises from the different meanings to be attached to the word "identify" and for this reason we have put the word in inverted commas when using it above. When a identifier says "I identify X as the thief" he is or purports to be communicating the fact that he has recognised X as the thief. When a third person says "he (meaning the witness) identified X as the thief", he cannot possibly mean more than the identifier had said he had identified the thief. No third party can actually know whether the identifier has in fact identified the person or not as we indicated in our illustration of the hats, the identifier may deliberately tell or express a falsehood as regards the identification. It is due to this double meaning of the. No third party can actually know whether the identifier has in fact identified the person or not as we indicated in our illustration of the hats, the identifier may deliberately tell or express a falsehood as regards the identification. It is due to this double meaning of the. word "identification" that some of the expressions used in some of the cases appear to be to a contrary effect to the view which we have expressed here, but once the distinction is appreciated we think it will be found that in none of the cases has anything been said contrary to the view now expressed that any identifier can give evidence as to the fact of his having seen, recognised or identified any accused person on some previous occasion, so long as it is made clear that by this it is not meant that he can give evidence that he has communicated the fact of his identification to third parties if the communication of that identification was made in the presence of a police officer. It is not the actual act or process of seeing or recognising the accused in the presence of the officer which is affected by the provisions of S. 162, Criminal P.C.; it is the communication of that fact to the police officer of which proof cannot be given. In our illustration of the hats, for example, if the circumstances were slightly different and Mr. Jones happened to be a police officer and Mr. Smith, although he had done his identification not in the presence of the officer, had gone outside and told him that his (Mr. Smith's) 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 made but the circumstances in which communication of the fact of recognition was made. 9. If a witness states that he went to the thana on a particular day and saw the investigating officer, it might be said that his presence at the thana amounted to a statement to the officer "I am here" and therefore the provisions of S. 162, Criminal P.C. would prevent the proof of this statement being given. Hence the witness could not prove the fact that he went to the thana. Hence the witness could not prove the fact that he went to the thana. We think that Ghose J. in Lala Lalung Vs. Emperor, AIR 1939 Cal 176 was probably treating the fact of identification on these lines. We do not think that anybody would seriously attempt to urge that the witness could not prove that he had been to the thana on a particular day because it could be said that his mere presence amounted to a statement to the investigating officer that he was at the place. The distinction is clear. In such a case, the witness is referring solely to a physical fact which can be appreciated and is obvious to anyone; whereas identification is essentially a mental act as we have shown above. What is said or done after the mental act may be to disclose the fact or may be deliberately done to conceal the fact. In any case the actual fact of identification is something known only to the identifier and can only be known to others by a statement or by some conduct amounting to a statement having the effect of communicating the fact of identification. 10. In the present case Mr. Mukherjee relying on cases cited is really seeking to prevent Radha Kanta and Gayamoni supporting their present statement in Court identifying the articles by their proving that they had in fact seen the same articles and recognised them when they were produced before them by the Sub-Inspector. This he cannot do. He is entitled to object to the evidence of the Sub-Inspector that the witnesses "identified" the articles to him or the evidence of the witnesses when they say they "identified" the articles in the presence of the Sub-Inspector in so far as the latter expression is taken to mean and include not only that they recognised the articles as theirs but conveyed the fact of that recognition to the Sub-Inspector. We have then to consider what is the effect of the admission of this inadmissible evidence. In our opinion, in this instance the effect is and must have been negligible. The circumstances here are peculiar. We have then to consider what is the effect of the admission of this inadmissible evidence. In our opinion, in this instance the effect is and must have been negligible. The circumstances here are peculiar. A vast quantity of articles were stolen and a vast quantity of articles were recovered in circumstances which themselves are evidence that the articles in question were stolen, and the circumstances of their recovery is to some extent evidence that they are the stolen property of the dacoity at the house of Bhagaban. They were recovered within a few hours of the dacoity at no great distance and the circumstances all indicate that they were recovered at a meeting of dacoits to share 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 these dacoits were caught in sharing out what was an obvious loot in circumstances close in time and place to the dacoity in this case is itself evidence going in some way to establish the identity of the articles. Again, the very bulk of the articles and their varied nature, which a glance of the lists will disclose, shows that the identification by the owners is a matter of ease and a matter about which there could be little or no doubt. Again, the very bulk of the articles and their varied nature, which a glance of the lists will disclose, shows that the identification by the owners is a matter of ease and a matter about which there could be little or no doubt. The learned Judge in our opinion has 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 merely because the articles were shown to them by the Sub-Inspector, Accordingly, when it is realised that the circumstances of the find are themselves some evidence to establish identity, in addition when the quantity and nature of the articles are taken into account not forgetting the existence of one actually bearing the name of Bhagaban, when it is recognised that Radha Kanta and Gayamoni can now identify the articles in Court and can say that they recognised them when they were presented before them by the Sub-Inspector, and that the Sub-Inspector can say 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 that the mere addition that these witnesses mentioned their recognition to the Sub-Inspector at the time of the showing is a piece of almost useless corroboration in the circumstances. The fact that evidence of this statement as to recognition was given though inadmissible appears to us therefore to be immaterial. 11. That every breach of S. 162, Criminal P.C. will not vitiate a trial was very emphatically pointed out by Sir George Rankin in the case of Sajjad Mirza and Another Vs. Emperor, AIR 1927 Cal 372 . Chotzner J. in the case of Harendra Nath Saha and Others Vs. Emperor, AIR 1925 Cal 161 has pointed out that in the case of reception of evidence inadmissible owing to the provisions of S. 162, Criminal P.C. is not necessarily fatal and that in an appeal the Court has to see whether the reception influenced the mind of the jury so seriously as to lead them to a conclusion which might have been different but for its reception and support for the view is taken from S. 537, Criminal P.C. and S. 167, Evidence Act. In the case of Nitai Koley v. Emperor, ILR (1939) Cal. 337 Henderson and Khundkar JJ. In the case of Nitai Koley v. Emperor, ILR (1939) Cal. 337 Henderson and Khundkar JJ. have taken the same view that it must always be a question whether prejudice has been caused in such cases, and if not, whether the materials left are sufficient within the meaning of S. 167, Evidence Act. In that case Henderson J. held that the inadmissible evidence did not amount to anything more than an almost useless evidence of corroboration. 12. The second objection raised by Mr. Mukherjee is also under S. 162, Criminal P.C. and relates to three seizure lists, Ex. I a list of some 29 articles made over by Rudra Narayan Prodhan P.W. 15, Ex. I (a) a list of 5 articles made over by the same and Ex. I (c) a list relating to one article made over by one Hare Krishna Pattanayak not called as a witness. The seizure lists are signed by search witnesses some of whom have deposed and of course Rudra Narayan the President has deposed with regard to lists Exs. I and I (a). The objection is to some descriptive entries made on each of these three lists where something is said as to the circumstances in which the articles had been recovered by the persons from whom they were taken. In Ex. I it is mentioned that the articles had been thrown into the tank when the President and the villagers surrounded the dacoits. In Ex. I (a) it is mentioned that the articles were thrown away by Surendra Dinda and the President Babu had kept them in his custody in the presence of the villagers. In Ex. I (c) it is mentioned that the article was seized by the dafadar whilst Dhanonjoy was throwing it away in a gunny bag. 13. Mr. Mukherjee referring to Sk. Khabiruddin's 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 an entry in the remarks column of a search list was the substantial reason given by Lodge J. for interfering with the conviction in that case and he urges that we should follow a similar course here. The case is, however, in our opinion very different. In Sk. Khabiruddin and Others Vs. The case is, however, in our opinion very different. In Sk. Khabiruddin and Others Vs. Emperor, AIR 1943 Cal 644 the entry on the search list was an extra judicial confession said to have been made to some of the witnesses. In the present case there is a mass of evidence to show that these 12 accused were caught on the spot practically simultaneously with the seizure of the stolen property in circumstances as we have already indicated, which alone go to show that the property was stolen in the dacoity in this case and that these accused were the dacoits. The case would be very different if these accused, including the two who are named Surendra Dinda and Dhananjoy, had not been caught on the spot and had not been in custody at the time the articles were made over to the officer. We cannot think that the mere mention in these lists of a brief reference to the circumstances of the seizure of the articles which is merely corroborative of the whole mass of evidence in the case, supported as that evidence is by the actual arrest of the accused on the spot and recovery of the articles and the accused at the same time on the spot, can have had any material effect on the verdict of the jury. In other words, either the jury would conclude that the whole case was a false case, the articles were in some way planted and the complainant identified them after consulting with the President and others to implicate innocent men, or else that it was a true case which abundantly proves the charges against the accused. The question whether in the seizure lists prepared at the time some brief reference to the circumstances was made or not cannot in our opinion have affected the verdict. The admission of this inadmissible evidence in the special circumstances of this 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 blow with a lathi had dislocated one of his finger joints. The admission of this inadmissible evidence in the special circumstances of this 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 blow with a lathi had dislocated one of his finger joints. On the whole we think that the sentences in the circumstances are somewhat excessive and we reduce the sentences of imprisonment from five years' rigorous imprisonment to four years rigorous imprisonment in the cases of all the accused except Dhananjay Bar whose sentence is reduced to two years' rigorous imprisonment on account of his youth. 15. The appeal is disposed of accordingly. 16. The accused appellants must surrender to their bail and serve out the remainder of their sentences.