JUDGMENT Lodge, J. - This is an appeal by two persons Badaruddin and Elahi against convictions and sentences under sec. 397 of the Indian Penal Code. Three persons were placed on their trial together, Badaruddin and Elahi on a charge under sec. 397 and Annan on a charge under sec. 395 of the Indian Penal Code, and they were tried before the Additional Sessions Judge of Dacca with the help of a jury. The jury returned a unanimous verdict finding Annan not guilty and Badaruddin and Elahi both guilty under sec. 397 of the Indian Penal Code. The learned Additional Sessions Judge accepted the unanimous verdict, acquitted Annan of the charge against him, convicted Badaruddin and Elahi and sentenced each of them under sec. 397 of the Indian Penal Code to undergo rigorous imprisonment for eight years. The case for the prosecution briefly is as follows: At about midnight on the night of August 6th, 1943, there was a dacoity in the house of one Rahimuddin. Rahimuddin himself was caught by the dacoits, dragged outside the room and beaten mercilessly. His daughter Jabatannessa was also caught by the dacoits and a silver bigha was taken forcibly from her person. The wife of Rahimuddin was also severely assaulted by the dacoits. The dacoits broke open a wooden box, a trunk and a cash box and decamped with the contents. A first information report was lodged at the police station on the following morning by Mohammadi uncle of Rahimuddin; and in that first information report the names of Badaruddin and Elahi were given and a description of a third man was given as being among the dacoits. 2. The defence was a denial that the accused persons had themselves taken any part in the dacoity. There was no attempt to dispute the fact that a dacoity had taken place. The learned Judge in his charge has nowhere explained sec. 397 in relation to the facts sought to be proved by the witnesses in the present case. In the opening parts of the chare he gave a general explanation of sec. 397 but he did not attempt to point out to the jury any evidence indicating that either of the two Appellants used deadly weapons or that cither of the two Appellants caused grievous hurt to any person or attempted to cause death or grievous hurt to any person. 397 but he did not attempt to point out to the jury any evidence indicating that either of the two Appellants used deadly weapons or that cither of the two Appellants caused grievous hurt to any person or attempted to cause death or grievous hurt to any person. Nor did he explain to the jury that only the offender who used deadly weapons or who caused grievous hurt or who attempted to cause grievous hurt could be found guilty under sec. 397. In fact from the charge it is impossible for us to say whether there was any evidence at all to show that either of the two Appellants committed an offence under sec. 397. It is clear therefore that the charge in this respect was unsatisfactory and the convictions and sentences under sec. 397 cannot possibly be upheld. 3. Further, it is apparent from the charge that the learned Sessions Judge ignored the provisions of sec. 162 of the Code of Criminal Procedure. He allowed questions to be put to Rahimuddin, P. W. 1, in cross-examination which obtained from this witness the statement which this witness had made during the investigation by the police officer. These statements do not contradict the evidence given by the witness in his examination-in-chief and were not, strictly speaking, admissible according to the provisions of sec. 162 of the Code of Criminal Procedure. Having obtained these answers they were used contrary to the provisions of sec. 162. For instance, the learned Judge in discussing the evidence whether or not Rahimuddin was unconscious after the dacoits entered the bari stated as follows: Secondly the complainant stated to the Police that he turn the details of the dacoity at least the details of the first part of the dacoity. If this is true he could not have been unconscious as soon as he was assaulted. Because some of the things look place a short while afterwards. The complainant also stated to the Police that the dacoits shouted "Allah-o-Akbar" after dacoity. If he had heard that he could not have been fully unconscious. 4. In this portion of the charge the learned Judge clearly used the statements made to the police officer during the investigation for the purpose of corroborating the witness Rahimuddin and not for the purpose of contradicting him or for explaining any contradictious otherwise obtained by the defence. If he had heard that he could not have been fully unconscious. 4. In this portion of the charge the learned Judge clearly used the statements made to the police officer during the investigation for the purpose of corroborating the witness Rahimuddin and not for the purpose of contradicting him or for explaining any contradictious otherwise obtained by the defence. Moreover, this Rahimuddin in his examination-in-chief said nothing about hearing the dacoits shouting "Allah-o-Akbar." In his cross-examination he states definitely "I did not hear the dacoits shouting anything." He was not asked whether he told the police that the dacoits shouted "Allah-o-Akbar," but the investigating officer was cross-examined and a statement was obtained from him that "Rahimuddin also stated that the dacoits shouted 'Allah-o-Akbar' three times before they left." This statement of the Daroga as to what Rahimuddin told him during the investigation though contradicted by Rahimuddin in his evidence is used to corroborate the other evidence of Rahimuddin. This again is a serious abuse of the provisions of sec. 162 of the Code of Criminal Procedure. 5. Again, the learned Judge throughout the charge treated the first information report as substantive evidence. In the first information report it is not stated that Rahimuddin recognised Radaruddin and it is not stated that Rahimuddin's daughter, Jabatennessa, recognised Badaruddin as well as Elahi. But Jabatannessa in her evidence stated that she told her grand-father Mahammadi that she had recognised Badaruddin and Elahi. The grand-father Mahammadi stated in his examination-in-chief that Rahimuddin's daughter told him that Badaruddin and Elahi assaulted her. He was not cross-examined on this point. His attention was not drawn to the first information report. Yet the learned judge throughout the charge accepted the statement in the first information report as contradicting Jabatennessa. In other words he accepted the first information report itself as substantive evidence of the of the statements contained in it. 6. Apart from these defects the charge to the jury is unduly brief and summary. It is not possible to determine from the charge that all the arguments that might reasonably be placed before the jury were in fact placed before them or that the evidence was adequately presented and summarised in a way to assist the jury in arriving at their conclusion. It is not possible to determine from the charge that all the arguments that might reasonably be placed before the jury were in fact placed before them or that the evidence was adequately presented and summarised in a way to assist the jury in arriving at their conclusion. In my opinion, the charge is unsatisfactory in many respect and the jury could not have received the assistance from that charge which they were entitled to expect from the learned Judge. There misdirections as pointed out with regard evidence of the witnesses wrongly admitted in spite of the provisions of sec. 162 and there were serious non-directions in respect of the charge under sec. 397. 7. In my opinion this appeal should be allowed, the convictions and sentences should be set aside and the case be remanded for retrial according to law. 8. At the time of the retrial it is desirable that in placing the first information report before the jury the word " dagi " used as an epithet in describing the accused Elahi should be omitted and the jury should not be informed that this epithet was used with regard to him. Sen, J. 9. I agree. The charge of the Judge exhibits certain mis-conceptions regarding the law of evidence and the law contained in sec. 162 of the Code of Criminal Procedure and I think that it would be useful to remove them. 10. As has been pointed out by my learned brother Lodge, the learned Judge has throughout his charge to the jury used the first information report as substantive evidence. In dealing with the evidence of the witness Rahimuddin he used the first information report to show that Rahimuddin may not have recognised the dacoits because nothing was said in the first information report to the effect that he had recognised any one. In dealing with the evidence of Jabatannessa, the daughter of Rahimuddin, the learned Judge again uses the first information report as a piece of evidence which may be taken to indicate that she had not recognised the accused Badaruddin because in the first information report it is not stated that she recognised Badaruddin. The first information report was made not by Rahimuddin or Jabatannessa but by Mohammadi, uncle of Rahimuddin who knew nothing about the details of the dacoity but merely reported what he had gathered from the victims. The first information report was made not by Rahimuddin or Jabatannessa but by Mohammadi, uncle of Rahimuddin who knew nothing about the details of the dacoity but merely reported what he had gathered from the victims. The first information report is not a piece of substantive evidence. It merely amounts to a previous statement made by Mahammadi and the only person who could be contradicted or corroborated by the statements contained in it is Mahammadi. That is all the use the first information report can he put to. The defence may use the first information report for the purpose of contradicting Rahimuddin in accordance with the provisions of sec. 145 of the Indian Evidence Act. In order to do this the attention of Rahimuddin would have to be drawn to the contradictions contained in the first information report so that he may be given an opportunity of explaining the apparent contradictions. 11. Again, the first information report may be used in accordance with the provisions of sec. 167 of the Evidence Act in order to corroborate the testimony of Rahimuddin because it is a statement made by Rahimuddin before an authority legally competent to investigate the fact regarding which the report was being made. It is not permissible to use the first information report to contradict any one but the maker there of. It is true that in this case the use made by the learned Judge of the first information report was not prejudicial to the accused but nevertheless it is necessary to point out to the learned Judge that this use was not in accordance with law so that in future cases he may avoid this error. 12. Next, the learned Judge has seriously erred in the use which he has made of the statement made by the witness Rahimuddin to the investigating police officer. I would draw the learned Judge's attention to the provisions of sec. 162 of the Code of Criminal Procedure which says that such statements cannot be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made except in the manner provided in the proviso to that section. The proviso states that such statements can be used by the accused only for the purpose of contradicting a witness for the prosecution in accordance with the provisions of sec. The proviso states that such statements can be used by the accused only for the purpose of contradicting a witness for the prosecution in accordance with the provisions of sec. 145 of the Indian Evidence Act. The proviso goes on to say that when any part of the statement has been so used the Crown is entitled to use any other part of the statement in re-examination but for the purpose only of explaining any matter referred to in cross-examination. The section is quite clear. The prosecution is not permitted to use these statements for the purpose of corroborating the prosecution witnesses. The benefit of the use of this statement is given to the accused in order to enable him to contradict the evidence given on behalf of the Crown. The only use which the prosecution can make of this statement is in re-examination for the purpose of explaining any ambiguity or uncertainty which may have been caused by answers given in cross-examination with respect to it. The learned Judge however, as has been pointed out by my learned brother, made full use of this statement for the purpose of corroborating the evidence of Rahimuddin that he had recognised some of the dacoits. It appears, from the charge that the defence case was that Rahimuddin could not have recognised any of the dacoits because he became unconscious at an early stage of the dacoity. The learned Judge uses the statement made by Rahimuddin to the investigating officer to the effect that be heard the dacoits shouting "Allah-ho-Akbar" at the time of leaving to negative this defence by showing that Rahimuddin was conscious throughout until the dacoits had left. This is a most improper use of the statement made by the witness to the investigating police officer. 13. On going through the evidence I find that the investigating police officer was cross-examined to prove certain statements made by Rahimuddin without Rahimuddin being asked anything about those statements. The learned Judge should never have allowed this. As I have pointed out before, the statements made to the police officer can be used by the defence only in accordance with the provisions of sec. 145 of the Evidence Act; that is to say, for the purpose of contradicting the maker of the statement. The learned Judge should never have allowed this. As I have pointed out before, the statements made to the police officer can be used by the defence only in accordance with the provisions of sec. 145 of the Evidence Act; that is to say, for the purpose of contradicting the maker of the statement. Sec. 145 of the Evidence Act expressly lays it down that when a statement is used for this purpose, the maker of the statement must first be shown the statement so that he may have an opportunity of explaining the apparent contradiction. 14. Again I find that the learned lawyer for the defence brought out statements from the investigating inspector regarding what Rahimuddin stated which was not at all contradictory to Rahimuddin's testimony in Court. It is difficult to understand why he did this. It may be and this is merely a guess on my part--that the lawyer was not given an opportunity of seeing the police diary in which the statement of Rahimuddin was recorded and he may have been examining the police sub-inspector about this statement on wrong information given to him regarding the contents of the diary. I do not know whether the learned lawyer for the defence requested the Court to look into the diary and to furnish the accused with a copy thereof. It may be--and here again I am hazarding a guess--that such request was refused and that for this reason the defence lawyer was misled into asking questions and getting answers which were wholly prejudicial to the accused. If my guesses be right then I would impress upon the learned Judge that if the accused requested the Court to be furnished with statements of witnesses examined by the prosecution, be should have acted in accordance with the provisions of sec. 162 of the Code of Criminal Procedure and furnished the accused with a copy unless he was satisfied that the statement was not relevant to the subject-matter of the enquiry or trial or that its disclosure to the accused was not essential in the interest of justice and was inexpedient in the public interest. These the only grounds on which the Court could refuse such a request. These the only grounds on which the Court could refuse such a request. I mention this because I know of certain instances where the accused has been refused a copy of a statement made by a prosecution witness to the investigating police officer on grounds not covered by sec. 162 of the Code of Criminal Procedure. I agree with my learned brother that Judge has not placed before the jury with sufficient clearness the case of the Crown or of accused and that there has been misdirection in respect of the offence made punishable under sec. 397 of the Indian Penal Code.