JUDGMENT : G.K. Misra, J. - Nine accused were put on trial. Accused Dukhia Hansda was convicted u/s 395 read with Section 75, Indian Penal Code and sentenced to undergo R.I. for five years. The rest were acquitted. Dukhia has filed an appeal against his conviction. The State has filed this appeal, against seven Respondents and did not file appeal against accused Banchhanidhi Das. Warrant of arrest could not be executed against Respondent Lalmohan Murmu as his address could not be traced out. The appeal against him was dismissed. This appeal is, therefore, confirmed to six Respondents. They are Debraj Bhakta, Sarna Bhakta, Sridhar Bhakta, Iswar Bhakta, Kalicharan Bhakta and Nanda Bhakta. 2. Prosecution case runs thus-At about 10 to 11 p. m. on 17th of December 1962 a dacoity was committed in the house of Panu Sahu, Khatu Sahu and Kanduri Sahu, who are brothers. The inmates of the house had gone to sleep. Petting of stones on their tin roofs aroused them from sleep. Bidyadhar Sahu (p.w.13), son-in-law of Kanduri Sahu, opened the eastern door to find out who were pelting stones. Four to five parsons were standing near the eastern door. A lathi blow was given to Bidyadhar. Be tried to bolt the door from inside. The dacoits pushed open the door and got into the Khanja, The hands of Bidyadhar were tied with his cloth and a watch was kept on him. Some members of the gang assaulted Panu Sahu and his labourers who were sleeping on the outer varandah. Khatu Sahu was also assaulted. He handed over the keys of the boxes out of fear. The dacoits broke open the boxes, removed some ornaments and also forcibly removed ornaments from the persons of the females. The alarm raised by the inmates of the house attracted the notice of the immediate neighbours. P. Ws. 2 and 3, neighbours of Panu and Khatu, immediately came to the place of occurrence with the villagers with a burning petromax light. They found some of the dacoits breaking open boxes on the other verandah of the house of Panu and Khatu. The dacoits shifted to the back side of the house on seeing the petromax light. P. Ws. 2 and 3, neighbours of Panu and Khatu, immediately came to the place of occurrence with the villagers with a burning petromax light. They found some of the dacoits breaking open boxes on the other verandah of the house of Panu and Khatu. The dacoits shifted to the back side of the house on seeing the petromax light. While Dukhia Hansda was coming out of the house of Khatu and Panu through southern door on the southern side with a bag in hand, p.w.3 dealt a lathi blow on him and he fell down with injury. P.W.2 and other villagers caught hold of Dukhia and detained him in a room of Panu Sahu. There was a fight between the docoits and the villagers. The dacoits pelted stones and bamboo splinters to put out the petromax light and to rescue their companion Dukhia Hansda. As the villagers in a large number had collected at the place, the dacoits decamped with the booty they had already taken. 3. Dukhia Hansda took the plea that he was passing along the road by the side of village Danda when he was caught and assaulted by the villagers and detained in the house of Panu Sahu. The other accused took the plea of denial. 4. The learned Assistant Sessions Judge after a thorough discussion of the evidence in paragraph 8 of his judgment came to the conclusion that a dacoity was committed in the house of Panu Sahu and Khatu Sahu of village Bamda at about midnight between 17-12-1962 and 18-12-1962. This finding is not challenged before us. After having gone through the evidence and the discussion made by the learned Assistant Sessions Judge we are of the view that, the conclusion is well founded. 5. Accused Debraj Bhakta, Kalicharan Bhakta, Sarna Bhakta and Nanda Bhakta were produced in Court on 23-12-1962 after their arrest. Iswar Bhakta was produced on 15-4-1963 and Sridhar Bhakta on 18-6-1903. Two test identification parades were held on 10-1-1963 and 25-6-1963. Sri B.N. Misra (nota witness). Magistrate, First Class, Baripada, held the T.I. Parade of Debraj, Kalicharan, Sama and Nanda on 10-1-1963 and submitted his report (ext. 22). The T.I. Parade relating to Iswar and Sridhar was held on 25-6-1963 by Sri P.B. Panda (p.w.5), Magistrate, Third Class, Baripada. He submitted his report (ext. 9). Sri B.N. Misra (nota witness). Magistrate, First Class, Baripada, held the T.I. Parade of Debraj, Kalicharan, Sama and Nanda on 10-1-1963 and submitted his report (ext. 22). The T.I. Parade relating to Iswar and Sridhar was held on 25-6-1963 by Sri P.B. Panda (p.w.5), Magistrate, Third Class, Baripada. He submitted his report (ext. 9). On 10-1-1963 p.w.7 identified Sarna Bhakta, Debraj Bhakta and Nanda Bhakta; p.w.2 identified Kalicharan Bhakta; p w.11 identified Sarna Bhakta and p.w.16 identified Kalicharan Bhakta and Sarna Bhakta. On 25-6-1963 p. ws. 2 and 7 identified Sridhar Bhakta and Iswar Bhakta, and p.w.3 identified Iswar Bhakta only. The statements of these witnesses in the two T.I. Parades were not recorded in accordance with the manner prescribed is Section 164, Criminal Procedure Code. 6. u/s 164. Criminal Procedure Code, any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the Second class specially empowered in this behalf by the State Government may, if he is not a police-officer, record any statement or confession made to him in the course of an investigation under Chapter XIV, Part v. or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. Sub-section (2) thereof lays down that such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in the opinion of the Magistrate, best fitted for the circumstances of the case. Thus u/s 164(1) and (2), a Presidency Magistrate, a Magistrate of first Class or any Magistrate of the second class specially empowered in this behalf may record the statement of any person made to him in the course of an investigation before the commencement of the inquiry or trial, and the statement shall be recorded in same manner as is prescribed in recording of evidence. If the recording is not made as prescribed by this section, the statement is inadmissible in evidence. The matter came up directly for consideration in Deep Chand Vs. The State of Rajasthan. The question of admissibility of a verification proceeding conducted by a Magistrate was in issue. The Magistrate, who conducted the verification proceeding, recorded his observations regarding the conditions of the house in which the victim was detained. The matter came up directly for consideration in Deep Chand Vs. The State of Rajasthan. The question of admissibility of a verification proceeding conducted by a Magistrate was in issue. The Magistrate, who conducted the verification proceeding, recorded his observations regarding the conditions of the house in which the victim was detained. He also recorded a statement made by the victim of abduction; but it was not in compliance with the provisions of Section 164, Criminal Procedure Code. The Magistrate proved the memorandum and gave evidence in Court. It was held that Section 164, Code of Criminal Procedure and Section 9 of the Evidence Act dealt with different situations and that they must be harmoniously construed to give full effect to both the provisions. The memorandum prepared by the Magistrate describing the conditions of the house and his evidence on its basis were relevant u/s 9 of the Evidence Act; but the statement of the victim of abduction recorded in contravention of the procedure prescribed by Section 164, Code of Criminal Procedure was inadmissible in evidence. Thus the Magistrate cannot speak of the statements made by a witness recorded by him in contravention of the provision of Section 164, Criminal Procedure Code. Applying this test, both exts. 9 and 22 are inadmissible in evidence. The statements of the witnesses identifying the persons were not recorded in the manner prescribed in Section 164, (2), Criminal Procedure Code. P.w.5 cannot give evidence of the statements of the witnesses in the test identification parade made on 25-6-1963. Even if Sri B.N. Misra had been examined, he could not also have deposed those facts. Ext. 9 is also otherwise inadmissible. As the verification proceeding was done by a Magistrate of the third class, who could not have recorded a statement u/s 164, Criminal procedure Code. In State of Uttar Pradesh Vs. Singhara Singh and Others, a Magistrate ot the second class not specially empowered, recorded a confession u/s 164, Criminal Procedure Code. Applying the principles in Najir Ahmad v. King Emperor AIR 1936 P.C. 235, their Lordships held that the oral evidence given by the second class Magistrate not specially empowered for recording the confession was inadmissible (see para 15). Ext. 9 and the evidence of p.w.5 are inadmissible on this additional ground. So far as ext. Applying the principles in Najir Ahmad v. King Emperor AIR 1936 P.C. 235, their Lordships held that the oral evidence given by the second class Magistrate not specially empowered for recording the confession was inadmissible (see para 15). Ext. 9 and the evidence of p.w.5 are inadmissible on this additional ground. So far as ext. 22 is concerned, there is a further objection that it is not admissible without proof, and that Section 80 of the Evidence Act does not apply to such a memorandum which cannot be presumed to be genuine and must be proved to be so by evidence. Sri B.N. Misra has not been examined to prove ext. 22. In Sheo Raj Vs. State the conflict of authorities was considered and the memorandum was held to be inadmissible as the Magistrate recording it had not been examined. The scope of Section 80, Evidence Act was fully examined. With respect, we are inclined to accept the view propounded therein as correct. On the aforesaid analysis, exts. 9 and 22 and the evidence of p.w.5 are inadmissible in evidence. The learned Assistant Session Judge erroneously admitted them. 7. He had discarded exts. 9 and 22 not because- of their inadmissibility, but because the T.I. Parades were conducted after some delay and the witnesses had opportunities of seeing the accused before. So far as the T.I. Parade held on 10-1-1963 (which was held 7 days after their production) is concerned, there are no materials on record to show that the witnesses had any opportunity of seeing the accused persons identified. Same is the position in the case of accused Sridhar Bhakta who was arrested on 18-6-1963 and the T.I. Parade was held a week after. We are not in agreement with the learned Assistant Sessions Judge in the facts and circumstances of this case that exts. 9 and 22 were to be rejected on account of delay in holding the T.I. Parade. But as on questions of law we are of opinion that they are inadmissible, they must be ruled out from consideration. 8. It would now be necessary to consider whether the identification in Court is sufficient to warrant a conviction. The identification in Court is substantive evidence. If it is acceptable, it can constitute the basis for conviction. 9. But as on questions of law we are of opinion that they are inadmissible, they must be ruled out from consideration. 8. It would now be necessary to consider whether the identification in Court is sufficient to warrant a conviction. The identification in Court is substantive evidence. If it is acceptable, it can constitute the basis for conviction. 9. Before scrutinising the evidence of various witnesses, it is necessary to indicate as to which of the accused persons had been identified by which of the witnesses in Court. Accused Witness(s) Debraj Bhakta . ... P.W.7. Sarna Bhakta ... P. Ws. 11 and 16. Sridhar Bhakta ... P. Ws. 2 and 7. Iswar Bhakta ... P. Ws. 2,3 and 7. Kalicharan Bhakta... P. Ws. 2, 7 and 16. Nanda Bhakta ... P.W.7. 10. It is now necessary to closely scrutinise the evidence of p. ws. 2, 3, 7, 11 and 16 to see how their evidence of identification in Court is acceptable. The doctor (p.w.1) examined on 19-12-1962. P.ws. 3, 7, 11 and 16 who were injured during the commission of the dacoity-vide Injury Reports exts. 1-1, 3-1, 5-1 and 7-1. 11. It would be profitable to narrate the story of p.w.:3 whose version has been consistently supported by all those witnesses. He was aroused from sleep by p. ws. 7 and 12 who told him that a dacoity was being committed in the house of p.w.16 and Khatu Sahu. P.w.3 lighted a petromax and they came with it. All of them carried lathis in hand. When they reached the door of the home of Khatu Sahu, they found accused Dukhia Hansda coming out of the house with a bag in hand. P.w.3 kept the petromax on the verandah and gave a stroke to Dukhia with a stick as a result of which he fell down. P.w.2 pressed him down. All of them caught hold of Dukhia, tied his hands and body with a rope and detained him there. On seeing the petromax light, the other dacoits 8 to 10 in number had receded to the backside of the house of Panu Sahu. The dacoits attempted to release Dukhia. They pelted stones and lathis towards the villagers. P.w.1 took precaution to shield the petromax light which the dacoits wanted to extinguish by hitting it with stones. There was a fight between the dacoits and the villagers. The dacoits attempted to release Dukhia. They pelted stones and lathis towards the villagers. P.w.1 took precaution to shield the petromax light which the dacoits wanted to extinguish by hitting it with stones. There was a fight between the dacoits and the villagers. In course of the fight, some of the villagers sustained injuries. The petromax light was not affected. P.w.2 clearly stated that when he reached the gate of the house of Panu Sahu and Khatu Sahu he could see accused Iswar, Kalicharan and Sridhar by the light of the petromax. The witness was cross-examined at length. Nothing substantial could be elicited from him so as to discard his evidence of identification in Court. The learned Judge was not inclined to accept the identification evidence in Court and puts his reasons with reference to p.w.7 and applies the same to all the witnesses thus P.w.2 had to shield the petromax light as the dacoits tried to extinguish it by pelting stones. So at the time the fighting was going on between the dacoits and some people of village Bamda, the place of fighting must not be getting direct light from the petromax. I am, therefore, not prepared to place any reliance on the evidence of p.w.7 that he could identify accused Debraj at the time the dacoits were fighting with some people of village Bamda. We do not find much force in the aforesaid criticism. One of the accused was caught red-handed on the spot. The other dacoits tried to release him. There was a fight for sometime and it is not that the dacoits fled away the moment the villagers reached the spot. The witnesses received injuries in course of the fight. It was quite possible for the witnesses to identify some of the accused persons. Doubtless the petromax light was shielded from attack. But there is no evidence 011 record that the petromax ceased to shed its light because of the shielding. The attempt to shield the petromax light only means that the villagers were prepared to bear the injuries caused by the pelting of stones and sticks and did not allow the petromax light to be destroyed. No question was put in cross-examination to any of the witnesses as to how they could identify the accused when p.w.3 tried to shield the petromax light from attack. All these witnesses spoke in a very straight-forward manner. No question was put in cross-examination to any of the witnesses as to how they could identify the accused when p.w.3 tried to shield the petromax light from attack. All these witnesses spoke in a very straight-forward manner. The dacoits belong to the district of Midnapur in West Bengal. The villagers have no axe to grind against these persons so as to falsely implicate them. We are of opinion that in the Petromax light the witnesses had full opportunity of seeing the dacoits with whom they fought and that identification evidence of these witnesses in Court is acceptable. Each of Sana Bhakta and Sridhar Bhakta hag been identified by two witnesses. Each of Iswar Bhakta and Kalicharan Bhakta has been identified by three witnesses. The witnesses identified different accused persons and did not make a general statement that they identified all the accused persons. They inspire our confidence. Though Debraj Bhakta and Nanda Bhakta have been identified only by p.w.7, we accept his evidence also. P.w.7 stood near a palm tree by the side of a Khala (thrashing floor). He concealed himself with big lathi in hand. The other villagers came towards the front door of the house of Panu and Khatu with a petromax light. The dacoits receded towards the place where he was standing. They surrounded him and assaulted him with small barn boo pieces causing injuries on his finger and shoulder. The injury report on those parts corroborates him. He clearly stated that in the petromax light he could see accused Debraj, Sridhar, Nanda, Iswar and Kalicharan. Nothing substantial was elicited from him in cross-examination for discarding his evidence. A question was put to him in cross-examination that a cloth was tied over the head of Debraj. He denied it. The question suggests the presence of Debraj on the spot. It is unnecessary to discuss the evidence of p.ws. 3, 11 and 16. The story narrated by all of them is almost similar. They stood the test of cross-examination. The identification of different accused by them is reliable in the facts and circumstances of this case. The reasons given in respect of p. ws. 2 and 7 need not be repeated. 12. We accept the identification evidence of p. ws. The story narrated by all of them is almost similar. They stood the test of cross-examination. The identification of different accused by them is reliable in the facts and circumstances of this case. The reasons given in respect of p. ws. 2 and 7 need not be repeated. 12. We accept the identification evidence of p. ws. 2, 3, 7, 11 and 16 in Court and hold that accused Debraj Bhukta, Sana Bhakta, Sridhar Bhakta, Iswar Bhakta and Kalicharan Bhakta committed dacoity on the date of occurrence in the house of Panu Sahu and Khatu Sahu. The order of acquittal in respect of these Respondents is set aside. They are convicted u/s 395, Indian Penal Code and each of them are sentenced to rigorous imprisonment for four years. Government Appeal against these six Respondents is allowed and that against Lalmohan Murmu is dismissed. A. Misra, J. - I agree. Final Result : Allowed