The statements of witnesses in a test identification parade are inadmissible in evidence if they are not recorded in accordance with the procedure prescribed by Section 164, Criminal Procedure Code.

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. 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). On 10-1-19