J.N. Datta, J.

[1] Appellants (1) Bhanulal Das, (2) Jogendra Marak, his brother, (3) Nagendra Marak, all of Madhuban village and (4) Naman Marak of Mahishmara village were tried along with another (who was acquitted) before the Assistant Sessions Judge, Tripura, who convicted them for dacoity punishable under Section 395 of the IPC and sentenced each of them to undergo Rule I, for a term of five years.

[2] The dacoity which was not disputed and for which there was ample evidence, was committed by unknown persons, at the cloth shop of Prabhat Datta (P.W. 1) between 8-30 and 9 P, M. on 24-8-1954 at Shekerkut village which is about 9 miles from the Police station at Agartala and is situated on a motorable road connecting it with Agartala.

The shop in question is located in the Bazar at Shekerkut, and there me other shops in its vicinity and at the time of commission of the dacoity a gas lamp was burning in the shop, There were some others also sitting with P.W. 1 in the shop, when the dacoits numbering about ten came there, and at the point of revolvers took away cash, cloth and other articles from the shop and two rings from the fingers of P.W. 1. All this happened within about 5 minutes, and a hue and cry being raised as soon as the dacoits left, others 4 came on the spot.

[3] The village Choukidar Kartick Tanti (P.W. 10) at once left for Agartala and lodged information about it with the Officer-in-charge who (P.W. 15) in turn hastened to the spot in a motor vehicle. The oral report given by P.W. 10 was not recorded, and P.W. 15 recorded the report of P.W. 1 on the spot, which was treated as the F.I.R. under Section 154 .

[4] Some property was alleged to have been seized in the course of investigation from the possession of some of the accused persons which was identified to belong to P.W. 1 and was removed in the course of the said dacoity by the dacoits. The appellants and several other persons who were arrested on suspicion were got identified, and these five identified persons were placed on trial.

[5] It might be mentioned here that all the appellants are young men ranging in age from 17 to 31 years, and were unknown to the prosecution witnesses from before. Madhuban to which three of the appellants belong is in a northernly direction and about 31 miles from Shekerkut, and Agartala is beyond and to the north of Madhuban, at a distance of about six miles.

Mahishmara from which Appellant Naman Marak comes is further to the north of Agartala and about 8 miles from there. These details were ascertained with the help of a map, and counsel on both sides appearing before me, for the proper appreciation of the case.

Shekerkut is a village of some importance, and has a Bazar, where a Hat is held twice a week.

[6] The prosecution case against these appellants was thus based on the identification and the possession of goods stolen in the course of the dacoity.

[7] The defence on the other hand was one of denial, and it was alleged that the appellants and others were arrested on suspicion, and then shown to the complainant and witnesses, who then later identified them in the identification parades. Maltreatment by the Police of some of them was also-alleged. Out of the two appellants from whose houses stolen goods were recovered Nagendra denied the fact, while Naman claimed the articles to belong to him.

[8] I shall first dispose of the legal objections that were raised by the learned Counsel for the appellants, and which objections go to the very root of the case.

[9] The first objection urged by the learned Counsel for the appellants was that Ex. P-l which was treated as the F. I, R, under Section 154, was not really the first information report and it could not be admitted for purposes beyond those permitted by the proviso to Section 162 as in fact it was a statement of a witness recorded under Sub-section (1) of the same section.

It was urged that the real first information was-that which was orally given by the village Choukidar,