Chotzner, J.
1. The appellant in Appeal No. 185 is Harendra Nath Saha alias Bechu.
2. The appellants in Appeal No. 186 are Dhirendra Nath Biswas, Bhola Nath Rai, and Lal Gopal Rai alias Khoka.
3. They have been convicted under Section 395, Indian Penal Code and sentenced to nine years' rigorous imprisonment by the learned Additional Sessions Judge of the 24-Pargannas in agreement with the unanimous verdict of the jury.
4. The appellants had already been convicted on the same charges but on appeal to this Court the sentences were set aside and a re-trial was directed.
5. The dacoity was committed in the early hours of the morning of the 8th June 1922, in the house of Nandalal Nandi at Balliaghata in the suburbs of Calcutta and money and jewellery of considerable value was stolen. Nandalal and his wife Manoda were the only people in the house that night. After the dacoits had left, the neighbours were called and one of them reported the crime to the police. On the morning of the 11th, upon information received, the police traced one Brojendra Nath Dey, who is the approver in the ease, and found one of the stolen articles under his bedding. He was arrested, and on the 12th made a statement in pursuance of which he took the police to the shop of a goldsmith named Bibhuti at Jorasanko, to whom the stolen jewellery was said to have been taken after the dacoity, Bibhuti admitted this was so and said he had sold it to Kanai Marwari. Kanai stated that he had melted down most of the ornaments and took the police to the house of another Marwari named Champalal where two bars of gold, a gold chain, two rings, and a pair of silver anklets were found, which were identified as part of the stolen property. The same night Harendra and Bholanath were arrested on Brojendra's information.
6. The other two appellants were arrested subsequently. Bibhuti and Kanai were also arrested but released on bail after a week's detention. Test identifications were held on the 7th and 10th July and 9th August 1922, by Babu Jyoti Prasad Das, Sub-Deputy Magistrate of Sealdah, exercising 2nd Class powers. On 7th July, Lal Gopal alias Khoka was identified by Nandalal as one of the dacoits, and by Bibhuti as one of the persona who brought the stolen property to his shop. Bibhuti and Kanai also identified Bhola as having come to the shop. On 10th July, Harendra was identified by Nandalal as one of the dacoits and by Bibhuti and Kanai as having come to the shop. Brojendra was identified by Bibhuti as having come to his shop after Harendra had gone. Nimai, the convict witness, was also identified by Kanai. On 9th August Harendra and Manoda both identified Dhirendra as one of the dacoits.
7. The learned vakil who has appeared on behalf of the appellants has assailed the learned Judge's charge on the ground firstly of the admission of inadmissible evidence; and secondly of misdirection on the part of the learned Judge.
8. In support of the first ground, he has urged that the statements made by the witnesses to the Sub-Deputy Magistrate at the test identification were inadmissible at the trial because the Magistrate was not an ' authority legally competent to investigate the fact ' within the meaning of Section 157 of the Evidence Act. This point was considered by the learned Judges who heard the former appeal and decided against the appellants. They accepted the arguments advanced by the learned Counsel for the Crown ' that the case was before a first class Magistrate, and that under the provisions of Sections 157 and 159 of the Criminal Procedure Code he could depute Mr. Das who held the test identification to hold an investigation of a preliminary inquiry....and Mr. Das could also under the provisions of Section 164, Sub-section (1)...record a statement of a witness made before him in the course of the police investigation...and it is urged therefore that this is admissible as a statement made in the course of an investigation.'
9. We agree with that decision, and even if we did not, we would consider it binding on us in this appeal.
10. The second ground taken is that Bibhuti and Kanai were accomplices who had been arrested on 12th June and kept in custody for eight days and were then discharged without being placed before a Magistrate. It is contended that the Judge omitted to place those facts before the jury or to caution them that those were circumstances which cast grave suspicion upon their testimony.
11. Upon a perusal of the charge we find that the learned Judge said (P. 32): ' The defence challenge the evidence of Bibhuti and Kanai on the ground that they are accomplices. 'It will be for you to decide this point. If they are accomplices, their evidence cannot corroborate the evidence of Brojendra, for it is tainted evidence. If they are found to be independent, then their evidence will corroborate the evidence of Brojendra.' He develops this point at some length, and at the end of page 32 goes on to say: '' It will be for you to nay whether the conduct of Bibhuti and Kanai is open to suspicion that they knew the vendors were dacoits or that the properties were obtained by dacoity or theft; for, if so, they were accomplices, or in the nature of accomplices.'
12. At the end of page 35 he repeats this warning and leaves it to the jury to decide the question.
13. On the question whether the learned Judge had put the fact of Bibhuti and Kanai's arrest and detention to the jury, we find at page 33 he said 'It is pointed out by the defence that Bibhuti did not give up all the ornaments on that day and that after Ms release he made over certain ornaments to the police.
14. At page 45 he said: 'the defence is that Brojendra has implicated Harendra on account of a quarrel over his mistress Panna and that the identification of Bibhuti and Kanai is of no value since they were together in hojat with Harendra for several days.' At page 51 he said 'how Bibhuti and Kanai bad been released on bail. They were not there on the 30th June.' The learned Judge might no doubt [have elaborated the point, but we think having regard to the ample directions he gave the jury as to the value of the evidence of these men if they were found to be accomplices and to the fact that he Called the attention of the jury in three passages to their detention by the police, that no further amplification was necessary.
15. The learned vakil next refers to a remark made by the learned Judge at page 48 of the charge where in referring to the evidence of Bibhuti and Kanai he says 'you will remember that as you start from the presumption that the accused are innocent, you should also start from the presumption that the witnesses are tailing the truth until they are shown to be giving false evidence.'
16. It is argued that the learned Judge has misdirected the jury in not telling them that the ordinary presumption attaching to the veracity of a witness will not apply to these two men if they are accomplices. As we have already said, the learned Judge gave them ample warning on this point elsewhere in his charge, and though he might perhaps have appropriately emphasised it hero, he concluded his remarks by saying 'It is for you to say whether Bibhuti and Kanai are telling an untruth on this point.'
17. The final argument on the matter of misdirection is that certain statements made by Bibhuti and Kanai to the investigating Sub-Inspector Pulin Kumar Chatterji regarding the identification of the appellant Harendra are inadmissible in evidence under Section 162 of the Code of Criminal Procedure and should, therefore, not have been admitted by the learned Judge nor referred to in his charge.
18. The first statement appears at page 364 of the Sub-Inspector's evidence: 'Bibhuti identified him' i.e., Harendra, 'as having come to his shop.'
19. The second statement is at page 367: 'Haren was shown to Kanai. He identified Haren.' The learned Judge has referred to the statements at pages 46 and 48 of his charge. At page 46 he says 'Pulin said as a matter of fact that Brojendra remained downstairs, that Bibhuti was taken upstairs and he identified Harendra.'
20. At page 48 he says: 'The evidence of Pulin was commented upon in this connexion because he deposed that when he took Haren to Belliaghatta thana on the 13th morning, Kanai who was in the look-up said that he was one of the men who came. Kanai himself does not say this.'
21. We are clear that the statements made by Bibhuti and Kanai to the Sub-Inspector were inadmissible under Section 162 of the Procedure Code and that the learned Judge should have stopped the witness, when he began to depose to them. Once however the evidence was in and became the subject of criticism by the defence it is difficult to see how the learned Judge could allow it to pass without comment especially when Kanai's statement in Court was at variance with the Sub-Inspector's evidence.
22. What we sitting as a Court of appeal, have to consider is whether the reception of this inadmissible evidence influences the minds of the jury so seriously as to lead them to a conclusion which might have been different, but for its reception.
23. Section 423(2) of the Code of Criminal Procedure is in these terms: 'Nothing herein contained shall authorise the Court to alter or reverse the verdict of the jury, unless it is of opinion that such verdict is erroneous, owing to a misdirection by the Judge,' and Section 537 says: 'No finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account....(d) of any misdirection in any charge to a jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.'
24. To this section is appended an explanation in these words. ' In determining whether any error, omission or irregularity' in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the facts whether the objection could and should have been raised at an earlier stage in the proceedings.'
25. The explanation evidently does not apply to a misdirection on the part of the Judge.
26. Again Section 167 of the Evidence Act says:-' The improper admission....of evidence shall not be ground of itself for a new trial or reversal of any decision in any ease, if it shall appear to the Court before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision.'
27. There are, therefore, two points for our consideration: firstly whether the reception of the inadmissible evidence has in fact occasioned a failure of justice; and secondly whether if it is excluded, there was sufficient evidence to justify the verdict of the jury.
28. Now the charge must be read as a whole, and we are of opinion, looking to its tenor and general effect, that the learned Judge pointedly left all questions of fact to the jury and that his reference to inadmissible evidence did not influence their minds in such a way as in fact to cause a failure of justice.
29. The question still remains whether apart from this inadmissible evidence, there was (to use the language of Section 167 of the Evidence Act) ' sufficient evidence to justify the decision' as against Harendra.
30. The jury had before them the evidence of the approver Brojendra and the convict Nemai. Their statements were corroborated by the evidence of Nandalal who swore that Harendra was one of the men who examined the room with a candle in his hand. Even then their statements made in Court by Bibhuti and Kanai that he was one of the men who disposed of the stolen property be put on one side, there was sufficient corroboration, if believed, of the statements of the approver and of Nemai. The Judge cautioned the jury both as to the equality of the corroboration required and as to its application to each individual accused, and we have no doubt that the jury gave his advice their fullest consideration before coming to their decision.
31. The conclusion, therefore, at which we arrive is that the reception of the inadmissible evidence did not in fact occasion a failure of justice, and that, when it is excluded, there was sufficient evidence before the jury to justify their verdict.
32. The appeals accordingly fail and must be dismissed.
Sanderson, C.J.
33. I agree.