The admissibility of evidence and its influence on the jury's decision, as well as the sufficiency of evidence to justify the verdict, are crucial legal principles established in the judgment.

JUDGMENT

Chotzner, J. - 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 u/s 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