Ganga Nath, J.
1. This is a Government appeal against the acquittal of Chhadammi Lal, son of Sarju Prasad, caste Brahman, resident of Khajuha, police station Bindki, district Fatehpur, who was charged under Sections 395, 397 and 398. Two dacoities were committed, one at Maika-ka-purwar in the house of Maika Kewat on 28th December 1932 and the other in Mauza Ranupur in the house of Hari Lal on 30th December 1932. In connection with these dacoities, Chhadammi Lal, respondent, and Gulab were prosecuted. Both were acquitted by the learned Sessions Judge, Fatehpur. The Government have appealed against the acquittal of Chhadammi Lal alone.
2. No trace of these dacoities was found till the time Chhadammi Lal made a confession on 14th June 1933. On 2nd April 1933 Chhadammi Lal, who was wanted in connection with several other dacoities, was arrested at Fardahan railway station in the Lakhimpur district by Ghoore Khan, constable. He was brought from Lakhimpur to Unao on 14th April 1933. Identification proceedings were held in the Unao jail on 21st May 1933. Thereafter Chhadammi Lal was sent back to Lakhimpur on 31st May 1933. He was brought from there to Fatehpur jail on 9th June 1933. He made a confession which was recorded partly on 14th and partly on 17th June 1933. Identification proceedings were conducted in Fatehpur jail in connection with these dacoities in which Chhadammi Lal was identified by several witnesses. On 22nd and 23rd June 1933 Chhadammi Lal took a Deputy Magistrate with him and pointed out some places in connection with these dacoities. Chhadammi Lal retracted his confession. The learned Sessions Judge, finding that the identification was not reliable and the confession had not been corroborated, acquitted Chhadammi Lal.
3. There is no doubt that these two dacoities were committed as stated by the prosecution witnesses. The only question is how far the prosecution has succeeded in proving the participation of the respondent in either of these dacoities. Besides his own retracted confession and the evidence of the identifying witnesses, there is no other evidence to prove the guilt of the respondent. As regards his confession, the respondent has stated that it was made under the tutoring of the police. When he was asked to make a confession, he told the Sub-Inspector who had asked him to make the confession that he did not know the places of the dacoities and would not be able to point them out. As stated by the respondent, he was taken by the Sub-Inspector on 21st June 1933 to the places which he pointed out on succeeding days to the learned Deputy Magistrate. There is no evidence in support of the statement of the respondent, but there is one fact which is very significant. On 21st June 1933 the respondent was taken out of the jail at 10 a.m. and he was not readmitted till 24th June 1933. The Magistrate met the respondent at Jahanabad on 22nd June 1933. On 22nd June 1933 the respondent took the Magistrate to point out the places in connection with Ranupur dacoity. He jointed out one grove at Nanora where, he stated, the dacoits had left a cart and Sukhanpur Purwa, where the respondent laid he had taken two Gadaryas to take he dacoits to Ranupur. He also pointed out at Ranupur the house of Hari Lal where the dacoity was committed and pointed out a well near the house on the platform of which he said he sat and a box was opened. A pit was also pointed rat by the respondent where, according to him one dacoit fell down breaking his arm. None of these places has been mentioned in the confession and consequently the mere fact that these places were pointed out would not amount to. corroboration of any matter in the confession.
4. On the other hand the accused told he Deputy Magistrate, when pointing out Purwa Sukhanpur, that the dacoits had taken two Gadaryas with them from there, while in the confession it is stated that two Kurmis had been taken. Neither of these persons who according to the statement of the respondent were taken by the dacoits with them has been produced though, according to the learned Deputy Magistrate, two Gadaryas were pointed out by the respondent as the persons who had been taken by the dacoits with them.
5. On 23rd June 1933 the respondent showed to the Deputy Magistrate the places in connection with the dacoity of Mathurapur. He pointed out to the learned Deputy Magistrate the jungle between Gurha and Bijli where Suraj Din had seen the accused (respondent). Chhadammi Lal pointed out Suraj Din there as the person who had seen him. This Suraj Din has also not been produced by the prosecution. There is no mention in the confession of Suraj Din or any other person having seen the accused in the jungle between Gurha and Bijli. The respondent stated that while going to Rampur he felt tired and so his companion, Salbahan, took a cart from Kirpalpur which they left at Nanora. According to the confession of the respondent, the dacoits started from the jungle which was only about 2 miles from Kirpalpur. So the statement that the respondent was feeling tired and so he took the cart is evidently not correct. As regards the taking of this cart, the prosecution has examined three witnesses, Chunka, Chitwa and Aswa. Their evidence simply shows that a cart and a pair of bullocks had been taken away. But their evidence fails to prove that it was Salbahan who had taken away the cart and the bullocks. The persons who told these witnesses that Salbahan had taken away the cart and the bullocks have not been examined. So we are not prepared to differ from the learned Sessions Judge on the point that the confession of the respondent has not been corroborated by any satisfactory evidence.
6. As regards the evidence of the identifying witnesses, the respondent was mixed up with only five under-trials. The value of identification depends on the factors which minimize the possibility of chance as much as possible. It appears that a practice has been established on account of certain observations made in the judgment in Asa Ram Gang case Cr. A. No. 148 of 1927, decided on 15th May 1928 to mix 5 under-trials with a suspect for purposes of identification proceedings. The observations in the judgment seem to have been misunderstood because those observations were made in connection with a case in which there were a large number of suspects who were put up for identification. In cases in which there is only one or two suspects to be put for identification, the proportion of 1 to 5 cannot be regarded as satisfactory. There should be at least 10 under-trials for each suspect in such cases because every effort should be made to minimize the possibility of a chance which in the first instance can be done by mixing as many persons as possible with the suspect, who is put up for identification.
7. The value of identification depends on two most important factors, namely that the persons who identify an accused have had no opportunity of seeing him after the commission of the crime in connection with which the suspect is put for identification, and secondly that no mistakes have been made by these witnesses or the mistakes made by them are negligible. In this case we find both these factors missing. As already stated, identification proceedings took place cm 14th June 1933 in the afternoon. The respondent was taken out of the jail at about 6 a. m. on 14th June 1933 and was not re-admitted till 10-30 a. m. He was taken out of the jail to the house of the Magistrate. The witnesses who had to come from a distance of more than 30 miles must have arrived. So it cannot be said that it was not possible for the witnesses to have seen the respondent before identification when he was taken out of the jail and taken to the house of the Magistrate and brought back to the jail. As regards the second point the respondent has been identified by Banga, Rati Lal Bhadayyan and Sawania in connection with the Mathurapur dacoity. Out of these four witnesses, three, namely Banga, Rati Lal and Sawania, each made a mistake in connection with the other co-accused who was also put up for identification in connection with the same dacoity. So each of these made one correct identification against one mistake.
8. In connection with the Ranupur dacoity, the respondent was identified by Muswa, Parshad, Rajania, Bharosa, Manna, Raghubar, Kalicharan and Dhanattar. Out of these witnesses, Muswa, Parshad, Bharosa, Manna, Kalicharan and Dhanattar each made a mistake in connection with the other accused. Rajania says that he noticed the accused from over the roof of Bhagwan. He also states that the dacoits were firing guns at the persons who were on the roof and he used to conceal himself when the dacoits fired guns. In the face of the fact that the dacoits fired guns from time to time at the persons who were on the roof of Bhagwan it appears very difficult to believe that this witness could have noticed the accused. Raghubar states that the accused had a dhata on his face. It being so it is also difficult to believe that Raghubar had an opportunity of seeing the accused. There is thus no satisfactory evidence on which the conviction of the respondent may be based. It is therefore ordered that the appeal be dismissed.