Walsh, J.:— In this case five men, Daryao Singh, Umrai, Sibba Singh, Khetal and Bhopal Singh, appeal against their convictions for dacoity by the Sessions Judge of Shahjahanpur. They have all been sentenced to ten years' rigorous imprisonment. It is a bad case. Owing to the mistakes of the Sessions Judge, and to what appear to me to be errors of judgment on the part of the Deputy Superintendent of Police, due, in part, to a strange order by the Magistrate in refusing an application for pardon, I have had difficulty in disposing of the case. I am compelled to allow two of the appeals, but, in one case, it seems to me a miscarriage of justice.

The learned Judge has based his decision almost entirely upon the confessions of Daryao Singh and Sibba Singh. He has worked from this standpoint, and has sought for corroboration of the confessions from independent evidence against each of the accused, except in the case of Daryao Singh where he has fallen back upon the confession of his co-accused, Sibba Singh. This is a very usual method in such cases as this, but when both confessions are inadmissible, which is the case here, it has serious drawbacks. A great deal of the Judge's work has been thrown away, and I have had to do it again.

The dacoity took place in the night of the 4th and 5th of June, 1922, and, on the 6th of June, Daryao Singh and Sibba Singh were arrested. Both were old soldiers and had gun licences. Both were obviously persons who never ought to have been permitted to carry firearms. Both were winding to sell their comrades to the public for a pardon. I am quite satisfied that both were induced to make their confessions by the promise of being made an approver, if possible.

At the end of his confession, Daryao Singh said that he had been told by the darogha that he would be made an approver. He explained to the Magistrate, in the most convincing fashion, that he was telling the truth for this reason, and that he knew that what he said might procure his conviction or his release. The Magistrate wrote the usual certificate in an unusual form. He said:—“I believe the above statement was voluntarily made, although it is quite possible that the police officers may have told him that he will be made an approver.” It seems incredible that this confession should have been admitted in the face of this. Section 24 of the Evidence Act makes a confession inadmissible if it appears to have been caused by any inducement or promise. Both the Sessions Judge and the First Class Magistrate, and even the assessors, under the misdirection of the Judge, held that it was made voluntarily. Of course it was, in the colloquial sense of that term. Everything done willingly under a promise or inducement is done voluntarily. Every Judge ought to know that this section requires a confession to be made spontaneously and without any inducement, and “voluntarily,” only in that sense. This is elementary. In the case of this appellant there is no independent evidence against him and he must be acquitted.

I am satisfied that the confession of Sibba Singh was also caused by the same inducement. He not only says so himself, but the Deputy Superintendent of Police said at the trial that the confession of Daryao Singh was not clear or satisfactory to his mind. He, therefore, took Sibba Singh with him to the spot to verify his statements, obviously with the intention of making him an approver instead of Daryao. He applied to the Magistrate for a pardon to Sibba Singh. This, for some reason which has not been stated in evidence, was refused. This seems to have upset the judgment of the Deputy Superintendent and he abandoned the plan of putting forward any accused as an approver, apparently trusting to evidence of identification against these two men, and possibly also to their confessions. But neither of them has been identified. In addition to this, it is to be noted that these two accused, while awaiting trial, were put up to identify their co-accused. If either of them was to be made an approver, this would be a natural proceeding. But neither of them was, and the Sessions Judge allowed evidence of identification by them, which, in substance, came to little, to be given at the trial. The Judge has failed to see that inasmuch as an accused cannot give evidence while on his trial, secondary evidence of identification by him is clearly inadmissible. Evidence by an official witness of an identification is only admissible if the identifying witness is called to support his identification on oath. Both these confessions ought to be rejected. But in the case against Sibba Singh there are other features which I will examine hereafter.

The case against Umrai rests upon the inadmissible confession of Sibba Singh, and a remarkable incident alleged to have occurred when he was arrested. Sibba Singh had been left at the village of the dacoity in the custody of two constables. He had first disclosed, and handed over, ornaments looted at the dacoity, which were hidden on his premises. He was driven back on an ekka, accompanied by the two constables. In the Sadar Bazaar, Shahjahanpur, he pointed out Umrai to the constables, who arrested him as one of the dacoits. The Judge says this was on the 12th of July. But he has made several slips in his dates, and it must have been the 12th of June. Umrai was not searched. This was a piece of gross negligence. He was driven on the ekka to the Deputy Superintendent's house, where he was searched, and nothing incriminating was found. When the party came away from the Deputy Superintendent's house, it was decided to leave the ekka. Two coats belonging to the two constables had been spread on the ekka, and the four men had sat on them, the two prisoners, not handcuffed, sitting between the constables. When the coats were removed from the ekka, three ornaments, two being basubands, and, therefore, of some size, were found concealed beneath. The evidence of the finding is hopelessly contradictory. The ekkawala says the constable took down the coat; the constable says the ekkawala did. One says they were picked up from the ground; another says they were found under the coat. One constable and the ekkawala contradict one another as to which coat Umrai sat upon. The Judge has noted only one discrepancy, but the witnesses seem agreed upon hardly a single detail. Umrai's costume was such that concealment of these articles must have been difficult. It must also have been difficult to put them under the coats upon which the four men were sitting. It is necessary to find that he had them on him when he went, one week after the dacoity, and sat in a shop in the bazaar. There is nothing suggestive about the shop, and I am unable to accept this story of the finding of the articles in his possession as satisfactorily proved. There is no other evidence against Umrai, and he also is entitled to an acquittal.

As for Sibba Singh, there is a good deal of evidence against him which the Sessions Judge, presumably because he relied upon the confession, has not dealt with in detail. The discovery of the ornaments at his house is clearly a fact discovered within the meaning of section 27 of the Evidence Act, and is admissible in evidence. As the guilt of Umrai is not established, the discovery of Umrai is not a fact within the meaning of this section. The discovery of the gun by the police with the assistance of Sibba would have been such a fact, if it were clearly established that this gun had been used in the dacoity. But the Judge has rightly formed the opinion that it was not, and that the gun exhibited in the case, which was dropped by a dacoit during the struggle with the villagers, was the gun covered by Sibba's licence. He has given strong reasons for this inference, but the fact is corroborated by the evidence of two witnesses. Ganga Ram at the trial pointed to Sibba as the man who dropped the gun. Narpat said the same thing. He also said that he had told the investigating officer this, before the hearing by the committing Magistrate, but that he forgot it when giving evidence. This happens not infrequently in criminal cases, and is often due to the omissions of the prosecuting officer in examining the witnesses. It appears to be an honest and natural statement Narpat made a hopeless mess of the identification at the jail. Sibba, of course, was not put up, but Narpat said he did not see Sibba when he came to the village. The fact that a witness makes mistakes in identification is no reason for discrediting his evidence in other matters. It is, indeed, strong evidence that he has not been coached by the police, but is merely an enthusiast who is not to be trusted in recognizing faces seen under such circumstances. But it is another thing when a man is seen in moonlight struggling with a gun which he is forced to drop. It must be accepted that Sibba was using the gun which had been dropped at the dacoity, that he had two guns in his possession, and that he voluntarily disclosed the second in order to disclaim his connection with the one dropped. This is quite sufficient to establish his guilt.

With reference to Khetal and Bhopal, they were identified by eight, and four, witnesses respectively. Making due allowance for those who made mistakes, and ignoring the confessions of Daryao and Sibba, which I have not read, the balance of evidence against these men is ample, and their convictions were right.

The result is that the appeals of Daryao and Umrai are allowed and they must be discharged. The appeals of Sibba, Khetal and Bhopal are dismissed and their convictions and sentences confirmed.

I direct that a copy of this judgment be sent to the District Magistrate with a view to his considering the propriety of instituting proceedings against Daryao Singh under the had livelihood sections. I have held that the confessions were inadmissible in law. But Daryao's statement may afford clues to evidence as to his conduct. It appears also that he is an associate of Sibba Singh, and identified the brother, Sukha, in jail. It would be well if the District Magistrate were to draw the attention of the Magistrate who took the statements of Daryao and Sibba Singh to what I have said about section 24, and to inquire why two accused persons, who were not made approvers, were put up to identify their co-accused, and why the Deputy Superintendent's application for a pardon for Sibba Singh was refused. He should also draw the Deputy Superintendent's attention to the negligence of the constables in failing to search Umrai when he was arrested.