JUDGMENT : CHATURVEDI, J. 1. This is an appeal from an order of the Special Sessions Judge, Gwalior convicting four appellants under S.395, I.P.C. for an offence of dacoity. Sultan alias Rustom, and Bhanwar Singh, appellants, have been sentenced to seven years' rigorous imprisonment each and also ordered to pay a fine of Rs.25/-. The appellants Aliya and Munshi have been sentenced to five years' rigorous imprisonment each. The Sessions Judge acquitted four accused and the Government has preferred an appeal under S.417, Criminal P.C. against the order acquitting accused Jimipal. This judgment will dispose of both these appeals. 2. The short facts of the case are that complainants Yusuf, P.W.9, Babu Khan, P.W.10, Ellahibux, P.W.11, Kamruddin and Mohammad had gone in a marriage with their musical instruments. They are professional persons and had gone with their party to play music in a 'barat'. On 1-12-1949 they were returning from Sekra village towards Chhimak village via Dabra road, and near the brink of a river eight persons met them and they asked them where they were going. On replying that they were going towards Dabra these eight persons asked them to proceed via Anand Peth. The witnesses declined to go with them and therefore these persons left by a Kacha route. The witnesses then went about two Kos and on the road met several labourers, who were sitting near a fire. The witnesses also sat there. Soon after 5 out of the 8 persons whom the witnesses had met before returned there and asked the labourers to go away. Out of these 5 Badmashes two had guns, one had revolver, one lathi, and one had a sword. It was about 5-30 P.M. that these dacoits threatened the witnesses that in case they did not part with their belongings they would lose their life; and, at the point of revolver, snatched from the witnesses their clothes and the musical instruments and other belongings and decamped with the booty, worth about Rs.240/-. The witnesses then proceeded to Police Station Dabra eight miles distant from the place of occurrence and lodged report at 11 P.M. 3. From the deposition of the Sub-Inspector Vijaya Singh, P.W.7, it appears that some informer had informed him that in village Khedi Raimal, there is one Shankar Singh, at whose house many suspected persons take shelter. The witnesses then proceeded to Police Station Dabra eight miles distant from the place of occurrence and lodged report at 11 P.M. 3. From the deposition of the Sub-Inspector Vijaya Singh, P.W.7, it appears that some informer had informed him that in village Khedi Raimal, there is one Shankar Singh, at whose house many suspected persons take shelter. On 4th December 1949, the Sub-Inspector reached the place and arrested Shankar Singh and Mouji. According to Sub-Inspector, Shankar Singh though not involved in this dacoity, informed him about persons, who were involved in the dacoity on the Chhimak road. On 16th December 1949, it appears that Shankar Singh's house was raided and 8 accused were arrested. Some property was recovered from them and eight persons as stated above were challenged in this case out of which four were convicted and four were acquitted. (3) The prosecution evidence against the four appellants in this case is of three-fold character: First, there are confessions of the accused: secondly, the prosecution relies upon the identification proceedings; and, thirdly, upon the recovery of the looted property from the possession of the appellants. 4. I regret very much to observe that Mr. Mustafa Ahmad, the Sub-Divisional Magistrate, Antri, who recorded the confessions ignored all the salient and mandatory provisions of law as laid down in Ss.164 and 364, Criminal P.C. 5. He did not question any of the accused making the confession about any thing in order to elicit whether the confessions were voluntarily made. There is no mention in the confessions that the accused were informed in the beginning that they were not bound to make the confession and if they did so they would be used as evidence against them. The learned Magistrate did not even consider it proper to make a memorandum at the foot of the confessions as laid down in sub-s.(3) of S.164, Criminal P.C. The Magistrate, however, appeared as a witness in the case to depose that according to his knowledge the confessions so made were voluntary. As the Privy Council has observed in - 'Nazir Ahmad v. Emperor', AIR 1936 PC 253 (1) that if such oral evidence is believed all the precautions and safeguards laid down by Ss.164 and 364 would be of such trifling value as to be almost idle. As the Privy Council has observed in - 'Nazir Ahmad v. Emperor', AIR 1936 PC 253 (1) that if such oral evidence is believed all the precautions and safeguards laid down by Ss.164 and 364 would be of such trifling value as to be almost idle. The Magistrate himself admitted that the accused were produced before him for recording confessions at a certain date but he did not record the confessions on that very date, but continued to record confessions at his leisure from day to day; and the Police and Judicial lock-up being one at Antri, the accused remained in Police custody throughout. Under these circumstances, I agree with the learned Sessions Judge that confessions must be discarded. 6. The manner of conducting the test of identification also shows that the learned Magistrate Mr. Mustafa Ahmad has no idea about the importance which is attached to these proceedings and to the care and precaution with which these proceedings should be conducted. The proceedings took place in the police lock-up first on 22nd December 1949, (Ex.P-10) and next on 5th January 1950, (Ex.P-11). On the first date seven accused were mixed with seven other persons. On the next date eight accused were mixed with six other persons. Where the proportion of the other persons with suspected persons is so less, the result generally, is that it becomes very easy for a witness to hit upon the suspected person. As observed in - 'Kuldip Singh v. Emperor", AIR 1934 Pat 537; - 'Ram Singh v. Emperor', AIR 1943 Oudh 269 and - 'Naubat Singh v. Emperor', AIR 1935 All 653, the proportion of other persons to the accused should be at least 3 to 1. In the Allahabad case it was laid down that the proportion of five other persons to one accused for identification is a minimum desirable proportion for the purpose of satisfying a Court that the identification of the accused was not a mere accident. If the proportion is less there is appreciable risk of a person being implicated purely by chance; in such cases though it is not possible to discard these proceedings merely on that ground, it becomes necessary that the evidence of identification should be subjected to a rigid scrutiny. If the proportion is less there is appreciable risk of a person being implicated purely by chance; in such cases though it is not possible to discard these proceedings merely on that ground, it becomes necessary that the evidence of identification should be subjected to a rigid scrutiny. In this case, however, though in the first information report hulia of every accused had been given in details, yet, the learned Judge did not exert himself to see whether the hulia of the dacoits given in the First Information Report had tallied with the hulia of any of the accused present in his Court. Jammoo, who according to Ex.P-11 had identified all the accused was not produced in the Court and about Yusuf, P.W.9, it is written that he identified Mouji, who was not an accused in this case. As regards Aliya, the learned Sessions Judge in his judgment, has remarked that Yusuf witness was not certain whether Aliya was amongst the five dacoits and that Ellahibux witness said in the Court that he could not identify the appellant Aliya. The learned Sessions Judge has convicted Aliya only on the evidence of Babu Khan, P.W.10. In my opinion it is not safe to base conviction on the identification of a single witness when a proper standard had not been maintained in the mode of conducting a test identification. I would not attach any importance to such identification proceedings. (After discussion of some evidence the judgment proceeds:) Under these circumstances, it will not be safe to convict any of the accused merely on the identification proceedings. In my opinion due to the carelessness or utter lack of knowledge on the part of the Sub-Divisional Magistrate, Antri, Mr. Mustafa Ahmad, we have to discard the confession as well as identification proceedings. Considering the lawlessness prevailing in the District, where innocent people are waylaid and looted in a most reckless manner and the owners of property are deprived of their life, if once offenders are arrested it becomes the bounden duty of the Magistrate and the Courts to see that the non-compliance of the mandatory and salient provisions of law does not lead to difficulties and does not contribute to the acquittal of any of the accused. In my opinion, Mr. Mustafa Ahmad should be warned to be careful in future. 7. In my opinion, Mr. Mustafa Ahmad should be warned to be careful in future. 7. The only testimony that now remains for consideration is about the recovery of the property from the possession of the accused. The most important discovery was the' discovery of several Cornets (i.e. Cornet-a-pistons which are brass portable wind instruments like trumpets). These were recovered at the instance of Bhan-war Singh, appellant, from the huge heap of Karab "Matter in vernacular omitted" (After statement of some evidence the judgment proceeds :) I am of opinion that Bhanwar Singh's appeal should be dismissed. 8. Nothing has been recovered from the possession of Munshi and clearly he is entitled to acquittal. 9. One coat, Article E, is said to have been recovered from Aliya but the evidence is not free from suspicion. The only witness produced by the prosecution to prove this recovery is Komal Persad, P.W.6, who deposes that he was called to the Thana at Bhitarwar and he had reached the office and was sitting there when, after sometime, the eight accused were sent for and at that time when the accused had produced various clothes, Aliya had produced this coat. The witness adds that he could not say since when the clothes were in the possession of the accused. A jersey from Sultan alias Rustom was also produced before Komal Persad. In my opinion, this search seems to be a big farce and cannot be relied upon for basing the conviction thereon. It was incumbent on the Police to have prepared a Panchnama of the clothes the accused had in their possession when Shankar Singh's house at Khedi Raimal was raided on 16-12-1949 and when the accused were arrested there. No such Panchnama was prepared on that date. A search of the accused in the Police Station at Bhitarwar twenty-four hours after the arrest is no proof that the accused brought the clothes to Jail from Raimal Khedi or had been wearing these clothes. Some independent witness from Raimal Khedi, who might have seen the accused with these clothes ought to have been produced. A Chadar from Jimipal was also produced in the search in Jail. It also seems to be tainted with suspicion and Jimipal cannot be convicted on this slender material. We, therefore, dismiss the Government appeal against the order of acquittal of Jimipal. 10. We also dismiss the appeal of Bhan-war Singh. A Chadar from Jimipal was also produced in the search in Jail. It also seems to be tainted with suspicion and Jimipal cannot be convicted on this slender material. We, therefore, dismiss the Government appeal against the order of acquittal of Jimipal. 10. We also dismiss the appeal of Bhan-war Singh. 11. We are, however, of opinion that there is not sufficient material for the conviction of appellants Aliya, Munshi and Sultan (alias Rustom). We, therefore, allow their appeal and order that they be acquitted. 12. SHINDE, C.J. :- I agree.