JUDGMENT Madeley and Walford, JJ. - Barhma, Sheo Balak and Mababir have been convicted u/s 396, Indian Panel Code, and have appealed. In the case of Barhma Section 75, Indian Panel Code has been applied. He has been sentenced to be hanged by the neck till he is dead and the reference for confirmation of sentence is before us. 2. The occurrence took place on the night between the 4th and 5th August, 1945, at the house of Baij Nath, P.W. 1, in village Kakoran, police station Jagatpur, district Rae Bareli. This village is owned by the Raja of Khajurgaun. Chhatarpal Singh Ziledar, Jageshur Sipahi P.W. 4, Ram Lal Sipahi, P.W. 5, and Sankata Sipahi P.W. 7, who are servants of the estate, live in this village. A patrol party of the villagers consisting of five persons used to go round the village at night to prevent offences On this night the patrol consisted of Gaurt Shankar, P.W. 3, Badri P.W. 6, Raghunath, Mata Badal and Ram Autar Halwai. Gauri Shankar is the son of P.W. 1. 3. On the night in question this patrol was going round the village. Baij Nath was sleeping inside the house and his neighbour Debi Bux Singh was sleeping in front of the house. It is said that the dacoits, abut 15 in number, suddenly appeared at the house of Baij Nath, and mistaking Debi Bux Singh for a member of the family of Baij Nath, assaulted him of the dacoits one was armed with a gun and the rest had a this Debi Bux Singh raised an alarm. Baij Nath came out of the house, and the patrol party also came up. The dacoits told the patrol party to run away, and on their refusal to do so, the dacoit with the gun fired, wounding one Rama Nand Halwai, who bad come to the scene of occurrence. This man subsequently died on the 8th August in the Sadr hospital. The patrol party then went into the village and collected other villagers to assist them. They came back, about 50 in number, to the house of Baij Nath and the dacoits then ran away. Baij Nath did not make any report of this dacoity. Nothing had been taken. No attempt to scale the walls of his house or to enter it in any other way had been made. It so happened, however. They came back, about 50 in number, to the house of Baij Nath and the dacoits then ran away. Baij Nath did not make any report of this dacoity. Nothing had been taken. No attempt to scale the walls of his house or to enter it in any other way had been made. It so happened, however. that Hanuman, the son of Rama Nand Halwai, who had been injured, took his father to the police station and he made a report on the 5th August which was entered in the general diary. Safdar Husain Sub-Inspector, who is P.W. 28 and who had made the entry in the general diary, went to the spot on the same day arriving there at 3 P.M. He made a local inquiry and, when he got back to the police station, registered a crime u/s 307, Indian Panel Code. On the 10th August, 1945, the charge was amended by the Superintendent of police from 307, Indian Panel Code. to 396, Indian Panel Code. 4. On the 4th October, 1945. the Sub-Inspector came to know the name of Raja-Ram and the arrested him on the 5th October. Raja Ram was sent before a Magistrate to make a confession but he refused to make any confession. On the 5th October, the Sub-Inspector got to know the names of Dulare, jageshur, Jurai, Barhma and Sheo Balak. Jurai, Dulare and Jageshur were arrested on the same day. Sheo Balak was arrested on the 13th October, Barhma surrendered in Court on the 6th November. 5. 11 persons in all were eventually put on their trial, of whom all except the three Appellants were acquitted. 6. We may say at the outset that whatever may have been the motive of the persons who raided the village, we are very doubtful whether there was any intention to commit a dacoity. It must have taken a considerable tine for the patrol party to collect 50 persons from the village and return to the house of Baij Nath. Baij Nath, so soon as the gunshot was fired, went into his house and bolted the door. He says that after about half an hour the hubbub subsided and he came out. It must have taken a considerable tine for the patrol party to collect 50 persons from the village and return to the house of Baij Nath. Baij Nath, so soon as the gunshot was fired, went into his house and bolted the door. He says that after about half an hour the hubbub subsided and he came out. The dacoits had then gone and Debi Bux Singh was injured at his floor P.W 3 Gauri Shanker says that when the villagers returned in force the dacoits were still hammering Debi Bux Singh while others were patrolling. If the object of these persons was dacoity, why during the whole of this time was no attempt made to enter the house of Baij Nath and to look property? 7. We can think of no answer to this question. 8. We now come to the cases of the individual accused. 9. We take the confessing accused, Sheo Balak, first. The only evidence against Sheo Balak is a retracted confession made before a Magistrate. of the identifying witnesses one never professed to recognize him till the sessions trial and the other, though he was sent to jail to identify, admitted in Court that he had known Sheo Balak from before The learned Sessions Judge has rightly ignored the evidence of these witnesses against Sheo Balak, but of the confession he says: The confession may not be good enough to have any evidentiary value against the co-accused out certainly it is fully binding on Sheo Balak who deliberately made it in spite of the exhaustive cautioning carried out by the Magistrate. 10. We do not consider that it is proper to speak of a confession being "biding" upon an accused person. It is a well known fact that false confessions are often made by perfectly innocent person; for one reason or another. it is the duty of the Court to rind out whether the confession is true or not. If it is not true, the accused cannot be convicted upon it. In the present case we are satisfied that this confession is not admissible at all. It is true that Sheo Balak answered the questions put to him by the Magistrate at the opening of the confession satisfactorily but towards the and of the confession he said. I was arrested 8 days before this Monday. In the present case we are satisfied that this confession is not admissible at all. It is true that Sheo Balak answered the questions put to him by the Magistrate at the opening of the confession satisfactorily but towards the and of the confession he said. I was arrested 8 days before this Monday. After keeping me in the police station for 3 or 1 days I was maltreated. Then the Inspector and the Sub-Inspector of Sheoratanganj met me in the train when I was taken from Jagatpur to Unchahar. They met me when I started by the 2 o'clock train from Lachmanpur. I was seated in another compartment and they two, the Sub-Inspector and the Inspector, sal in the interclass compartment, At got down at Unchahar They put me in the lock-up and began to seep. I was taken out in the morning and all of them began to beat me Then I was taken before the Inspector. On account of fear I pointed out the house of Maiku Pasi and Satteybaz Maiku was not found, He was sleeping somewhere else The police men brought him under arrest The gun was found with Maiku inside the ears etc. of Bajra crop at the outside (sic). 11. In spite of this complaint against the police the Magistrate certified the confession as having been made voluntarily without asking any further questions. The learned Sessions Judge, though he believed the complaints made by the confessing accused against the police, held that the confession was voluntarily made on the basis of the previous procedure followed by the Magistrate and of his certificate. We do not consider that this is legally correct. Where such a complaint was made, the Magistrate recording the confession was bound to find out by putting further questions whether the confession now made was voluntary, or whether the fear inspired by the police which actuated the accused to make the confession in the beginning had not worn off and was still operative upon the mind of the accused. The answers to the preliminary questions put by the Magistrate may themselves have been actuated by this fear. The answers to the preliminary questions put by the Magistrate may themselves have been actuated by this fear. It is for the prosecution to establish the admissibility of a confession Where everything is in proper form and there is nothing to arouse suspicion that improper police methods have been used or that the confession was originally inspired by such motives as would render it inadmissible that the confession may be admitted to the file without more starching inquiry, but in a case like the present where the accused after answering the questions of the Magistrate satisfactorily at the beginning bursts out at the end with a complaint of police ill-treatment which forced him to give the police information, a more searching inquiry is needed before the confession can be admitted. 12. Since then this confession is inadmissible and there is no other evidence to be considered against Sheo Balak, he must be acquitted. 13. We now turn to the case of Brahma who has been sentenced to death. This Appellant was identified by P.W. 1 Baij Nath, P.W. 2 Debi Bux Singh, P.W. 3 Gauri Shankar, P.W. 4, Ram La1, P.W. 6 Badri, and P.W. 7 Sankatha. The learned Sessions Judge has discarded the evidence of Debi Bux Singh and Badri. Debi Bux Singh knew Barhma from before and says he does not know why he did not mention his name to the Sub-Inspector. As to the other witnesses, Brahma states that he was shown to them. There was certainly a chance of this having happened, because the Sub-Inspector met Barhma in August 1945, but did not arrest him. Brahma may have been seen by the witnesses then. Barhma did not abscond as he was met by the Sub-Inspect or after the occurrence. There were some peculiar features also about Barbma's surrender in Court. After he bad given himself upon the 6th November, 1945, before the Magistrate's order that he should be taken into custody could be carried out, the Sub-Inspector arrested him and apparently sent him to the Prosecuting Inspector's office. The Magistrate passed the order. The Station Officer should not have taken him to the Prosecuting Inspector's office. The accused surrendered before me in the Treasury Office. S.O. has been directed to take him veiled at once to the hawalat. 14. The Magistrate passed the order. The Station Officer should not have taken him to the Prosecuting Inspector's office. The accused surrendered before me in the Treasury Office. S.O. has been directed to take him veiled at once to the hawalat. 14. Identification in jail are of considerable value when the conduct of the investigation by the Sub-Inspector gives the Court confidence in the correctness of his methods. We must say that the investigation in this case inspires us with very little confidence. 15. Lastly we come to the case of Mahabir. Two witnesses identified him and he is mentioned in the confession as the confession is inadmissible, there remains only the evidence of identification. The witnesses are Baij Nath P.W. 1 and Gauri Shankar P.W. 3. The learned Sessions Judge has commented upon the high percentage of correctness attained by the identifying witnesses. Apparently of all the identifying witnesses only one, Jageshur, made a single mistake. The Judge says, I am not inclined to attach any suspicion to the cent percent identification in the absence of any other suspicious circumstance. 16. We are inclined to agree that, if there had been no other suspicious circumstances in the case, this cent percent identification might not have aroused suspicion by itself, but as we consider that the case is full of suspicious circumstances and was very badly investigated, we are not prepared to accept these identifications. 17. We therefore allow this appeal and set aside the convictions and sentences passed upon all the Appellants, and acquit them. The reference for confirmation of the death sentence is rejected. The Appellants will be released forthwith unless they are wanted in any other connection.