JUDGMENT 1. The Appellant, Sourendra Nath Miittra, branch postmaster of Kulingram, in the District of Burdwan, has been convicted by the jury of offences punishable under secs. 409 and 477 (a) of the Indian Penal Code, and has been sentenced to three years' rigorous imprisonment. The appeal before us rests on a question of misdirection by the Judge to the jury. The Judge, although, dealing separately with the evidence against the present Appellant and his subordinate peon, who was tried with him, has not warned the jury that the statement of one prisoner was not to be used against his co-prisoner. That this is a material error has been laid down in the case of Reg. v. Shek Miyavalad Daud 6 Bom. H. C. R. (CC) 10 (1869); and this misdirection itself would warrant our setting aside the conviction and directing a retrial. 2. It has been further urged that the learned Sessions Judge has misdirected the jury in the following observations: What you have to consider is whether under the circumstances you can accept this story as credible. In deciding this you ought to take into account the whole conduct of Sourendra throughout. You should observe that the Kulingram post office is a small one and that the money order transactions do not appear to be numerous or large, in fact it appears from the daily accounts filed that this money order was one of rather exceptional magnitude for the office. You should also observe that the accused is a resident of Kulingram and therefore likely to be acquainted with the people of the neighbourhood, and although it is not to be supposed that he was necessarily acquainted with all the Mahomedans of Terapura, he would presumably have had no difficulty whatever in finding out who Jonab Ali was for whom this money order was intended and whether there were any other person of the same or similar name, if at any stage he were led to look into the matter for himself, and it would have been perfectly easy for him to discover that the money had not been paid to Jonab Ali if once he enquired. 3. 3. No doubt, the Judge was entitled to state his opinion to the jury but it is advisable in such a case that he should guard himself by indicating clearly that the opinion is his own and that the jury are entitled to draw their own independent conclusions upon the facts. 4. We think further that the evidence of the Appellant's brother Amarendra and that of others proving Amarendra's conduct ought to be excluded upon the trial of the case, as there is nothing beyond surmise to indicate that his source of knowledge was necessarily derived from the accused and that he did not act solely upon his own initiative and without any suggestion from the accused. 5. With these observations we direct that the conviction and sentence of the Appellant be set aside and the case be sent back to be retried with a fresh jury. We further direct that the Appellant be admitted to bail to the same amount as before pending the new trial.