Courtney-Terrell, C.J.This is an appeal by two persons Sheonarain Singh and Deosaran Rai who were together with three others, namely, Ramchander Singh, Ram Sawarath Singh and Laldas Ahir placed upon trial before the Sessions Judge of Saran on charges under Sections 395, 458 and 457, read with 114, I.P.C. Laldas Ahir has been acquitted. Ramchander and Ram Sawarath Singh were convicted by the jury and their appeal to this Court has been dismissed. The appellants were convicted by the jury u/s 457 read with Section 114 of abetting housebreaking by night and were sentenced to one years-rigorous imprisonment each, the Sessions-Judge accepting the verdict of the jury.

2. The story upon which the prosecution is based to put it shortly is as follows: A woman named Timli was on the 21st November asleep in her house and at about midnight she was awakened by sounds in her room and saw the accused Ramchander and Ram Sawarath breaking; open a box. She went outside the house and raised an alarm and then there came upon the scene a man named Ramcharitar who lives in the immediate neighbour hood. He went into the house, fought with these two accused persons and ultimately came outside and carried on the fight with the two appellants who were-standing outside. The men who had been inside the house were apprehended. Rahmatulla on going outside the house says that he saw three persons one of whom was the person Laldas who has been acquitted by the jury with the approval of the Sessions Judge and the other two were the two appellants in this case. The prisoner who was acquitted was at a distance of 7 or 8 paces and threw brickbats at him and actually, according to his story, assaulted him with a lathi. Rahmatulla was accompanied by two persons with lanterns and by, the-light of the lanterns he says he was able to recognize not only Laldas but also the two appellants. The convicted man Ramchander made a confession which he subsequently retracted, the confession being made on the spot and immediately after his apprehension in which he gave a list of the persons who were his accomplices and that list included the names of the two appellants in this case.

3. The whereabouts of Laldas upon the night of the occurrence were made the subject of an enquiry by the Sub-Inspector and he stated in Court that he had; received a report that Laldas who was a person under surveillance had been visited at or about midnight at his house some miles away from the scene of the occurrence and had been found to be in his house at that time and was visited later on at about 4 oclock in the morning and was again found to be present.

4. The report which was referred to by the Sub-Inspector was not proved but it is perfectly clear that the jury regarded it as having been established and has certainly believed the Sub-Inspector that Laldas could not possibly have been at the scene of the occurrence on the 21st. Therefore the identification by Rahmatulla of Laldas in the view of the jury was unsatisfactory and they appear to have come to the conclusion that it was unreliable and they acquitted and in our opinion, rightly acquitted, Laldas.

5. On the other hand, as to the two appellants the jury came to the conclusion that the identification by Rahmatulla was satisfactory. The learned Sessions Judge distinctly warned the jury that Rahmatullas identification of Laldas was probably mistaken but he also pointed out to them that the identification by Rahmatulla of Laldas stood upon a somewhat different footing from the identification by Rahmatulla of the two appellants inasmuch as Laldas was pitching brickbats af him from some distance and the two appellants were beating him with lathis.

6. It is, however, contended for these two appellants that the jury should have been expressly warned that inasmuch as the identification by Rahmatulla of Laldas was clearly unsatisfactory they should regard his evidence of identification of the two appellants with special caution and should not rely on it unless convinced of its truth. It is further contended that inasmuch as there is substantially no other evidence against these two appellants but the identification by Rahmatulla, they have been convicted on the evidence of a witness who was prima facie open to suspicion and that the jury had not been warned of the danger of convicting on evidence of that nature. To my imind there are several answers to these propositions. In the first place as regards the accused Deosaran there is corroborative evidence of the identification in the fact that being a person under surveillance his dwelling was visited on the night in question and he was in fact absent at midnight and at 4 a.m. secondly, there is the retracted confession of Ramchander. It is true that a retracted confession must be regarded with the utmost suspicion. It must be regarded with stronger suspicion than that which at taches to the confession of an approver who gives evidence in Court. But nevertheless such evidence is admissible and criticizms upon it can only be directed to its cogency.

7. In this case the confession implicates the person making it, that is to say, Ramchander, and therefore, it becomes admissible. It was made immediately after the occurrence which fact removes to some extent the suspicion which inherently attaches to it. It is corroborated in a material particular because not only Ramchander but one of the other persons mentioned by him Ram Sawarath was apprehended on the spot. It may therefore properly be taken into consideration by a jury, But in this particular case the learned Sessions Judge went even further in favour of the appellants than he need have done and told the jury that:

A retracted confession carried no weight except against the maker and was not to be used against any one of the other four accused.

8. This statement is, in my opinion, contrary to the principles of the law of evidence. Such a retracted statement is admissible but should have no weight attached to it unless either corroborated in a material particular or unless the tribunal comes to the conclusion that the statement as a whole is a truthful statement. In either of these cases the retracted statement may be given full weight. In this case in my opinion there was ample evidence upon which the jury could come to their verdict and there was no misdirection on the part of the learned Judge. It is frequently urged in decoity cases where the accused have been identified by a witness who is shown to have mistakenly identified also other persons who clearly could not have been present that the evidence of such a witness is unreliable against the others. But this view cannot be stated as a general proposition. Each case must depend upon its own merits and where the erroneous identification is of such a character as definitely to throw doubt upon the credibility of the witness then it may well be that the jury should be warned against the danger of accepting his identification of the other accused particularly where the sole evidence against the accused is that of identification by the witness. These circumstances do not present themselves in this case. In my view the appeal should be dismissed and the convictions and sentences should be affirmed.

Allanson, J.

I agree.