1. The appellants, Sarju and Maiku, were convicted by the Sessions Judge of Cawnpore with three other persons of an offence under Section 395, Penal Code, and sentenced to seven years rigorous imprisonment. They have appealed against their convictions and sentences, and Sarju has been represented in this Court by Mr. Saila Nath Mukerji. The dacoity took place on the night between 4th and 5th June 1934, at the house of one Pitan Lodh of village Rastpur in the District of Cawnpore. Pitan himself and his two sons were not at home on the night in question, and the house was only occupied by womenfolk and some children as well as by one Kunwarwa, son of Pitan's nephew, aged 20. The Sessions Judge was thoroughly satisfied by the evidence that a dacoity did take place at Pitan's house on the night in question, though it was not of a very serious nature, the only property taken being the jewels which were on the persons of the woman, nobody being injured. It did not last a very long time because information was taken to the mukhya, Sardar Prasad, and he came to the spot with a relieving force, before whose arrival the dacoits, who are said to have been eight in number, had dispersed. According to the evidence for the prosecution, one of the dacoits, Bajrang Brahman, was not only a resident of Rastpur but was actually the family priest of Pitan, and he and another of the dacoits, Ram Lal Ahir, were recognised by Mt. Kallo, daughter of Pitan, on the night in question. When Pitan returned on the afternoon after the dacoity the names of these two were given to the Police, and Bajrang was arrested at once. Bajrang made a confession which was recorded by a Magistrate on 9th June, but which he retracted in the Sessions Court.
2. The evidence against Bajrang and Ram Lal, who were known beforehand, who were recognised on the spot and were named to the Police, is of a different quality from that against Sarju, the present appellant, and Maiku, who has appealed from jail. I am only now concerned with the cases of the last two. Apart from the retracted confession of Bajrang, the evidence against them consists only of the statement of one identifying witness, Mt. Kallo.
3. It has been pointed out that Bajrang was arrested on 5th June, and he remained in Police custody until 9th June, when his confession was recorded by the Magistrate, and also after that date. The Judge has remarked : 'The confession is not in itself of very much value,' and he goes on to point out that Bajrang was kept in Police custody up to the moment that he was sent to a Magistrate and was then remanded to Police custody and remained there apparently till the case was committed to the Sessions. He gives reasons for holding that this procedure was entirely wrong and that the circumstances strongly suggest that Bajrang received an inducement from the Police, namely, that be would be made a prosecution witness. The Judge had held that, although the circumstances suggest that there was an inducement, it does not necessarily follow that the confession was false. No doubt part of the confession is true, but what the Judge had to consider was whether the confession could be used as evidence if it was caused by some inducement. Under Section 24, Evidence Act, a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The question to consider therefore was, in the first place, whether the confession was relevant or not. If it was not relevant it did not matter how many true facts were mentioned in it, it could not be used against the other persons accused in the case.
4. The Judge however has used it, although be says, 'very little reliance can be placed upon it.' If however the confession is discarded altogether in considering the case against Sarju, and Maiku, the only thing that remains is the evidence of Mt. Kallo who identified them in jail. In the identification proceedings 20 under-trial prisoners were put up from among whom five were to be identified by the witnesses in the present case. Mt. Kallo identified three correctly and made two mistakes, that is to say, she was not a good witness but a fair one, and what is to be considered is whether her evidence is sufficient alone to convict the appellants. The Judge has discussed her evidence at considerable length and with great case. He believed her to be a very stupid witness and she certainly made some mistakes which are difficult of explanation. For 'instance, in cross-examination she stated that she had seen both Sarju and Maiku before the dacoity while visiting Bajrang in the village. If this is a fact it is certainly curious that there was no mention of their names when the report was made to the Police, and Bajrang and Ram Lal were named, that is, it was not suggested that there were other dacoits who had been identified and who could be recognised if they were produced. The Judge remarks that she may not have realised until after she had seen them in jail that she had actually seen them before. But it seems to me to be very doubtful whether he would have convicted Maiku and Sarju on the evidence of Mt. Kallo alone, if he had also not made use of the confession of Bajrang. In these circumstances I think I am bound to give the benefit of the doubt to these two appellants. I therefore allow their appeals, set aside the order of conviction and sentences, and direct that they be acquitted and released.