JUDGMENT 1. The appellant Bhadreswar Sardar, along with certain other persons who have not appealed to this Court, was tried in the Court of the learned Sessions Judge of Nadia with the aid of a jury for an offence under S. 395 I.P.C., and the learned Judge, agreeing with the unanimous verdict of guilty of the jury, has convicted and sentenced him to undergo five years rigorous imprisonment. The learned vakil who has appeared in support of the appeal has relied upon certain misdirections which he says the learned Judge has committed in that ha admitted in evidence a certain statement made by one of the accused, Purna, before a Magistrate and wrongly described is as a confession. This statement was subsequently retracted. Now, the learned Judge, first of all, put S. 30, Evi. Act before the jury and then he went on to say: The principle underlying the section is that, when a person makes a confession implicating himself and others to the same extent, the fact of self-implication affords some guarantee for the truth of the incrimination of the others. But the truth of this guarantee is weakened, as in the present case, when the confessing accused makes the others take a much more prominent part in the dacoity than he took himself and says that he was forced by the others to take them to Hazari's house and it is still further weakened, as here, when the accused has retracted his confession. Although capable of being taken into consideration, retracted confessions of this nature are to be scrutinized with the greatest care. It has not been made on oath, it has not been tested by cross-examination and its truth has been denied by its maker. If the retracted confession were the only evidence on the record, its evidentiary value as against the other two accused Bhadreswar and Mohendra would be stremely meager. You will take this confession into consideration, gentlemen, only after you have carefully weighed and scrutinized the whole of the prosecution evidence. 2. The learned vakil has contended that he statement made by Purna is not a confession, in as much as it is not in premonitory but self-exculpatory. We have no doubt, on reading the statement, that that is precisely what it is. 2. The learned vakil has contended that he statement made by Purna is not a confession, in as much as it is not in premonitory but self-exculpatory. We have no doubt, on reading the statement, that that is precisely what it is. It has been pointed out in many cases that a statement made by an accused person be-f are it can be taken into consideration against a fellow prisoner, as is provided or in S. 30, Evidence Act, must amount of a confession on the part of the marker with respect to the offence with which 11 are charged. It must be a confession (sic), as it was put by Mr. Justice Straigh (sic) Empress of India v. Ganraj [1879 ] 2 All. 444: the test, S. 30, Evidence Act intended should be applied to a statement of one prisoner proposed to be used in evidence as against another is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. In fact, to use a popular and well-understood phrase, the confessing prisoner must tar himself and the person or persons he implicates with one and the same brush. 3. If that test is applied to the present case, what do we find ? Purna says that he went to the spotthe scene of the dacoity under pressure ; that, in fact, he was actually under fear of imminent death, that he took no part in the dacoity ; that he stood outside the house and at the end went away. Mr. Khundkar who has appeared for the Crown has contended that, though it may not, strictly speaking, be a confession, it is nevertheless an admission. But, if it be regarded as an admission, there can be no doubt that the learned Judge did not put that aspect of the case to the jury; and even then, though it might be considered against the person who made it, it could by no possibility be considered as against the other accused persons. When we find that the learned Judge in this case all through dealt with this statement as a confession, we cannot but hold that this was a serious misdirection. When we find that the learned Judge in this case all through dealt with this statement as a confession, we cannot but hold that this was a serious misdirection. In point of fact, a statement only becomes admissible in evidence at all if it is an incriminating statement which involves the maker as it does those persons whom he incriminates. It is no doubt true that the learned Judge took particular pains to explain what little value a statement of this kind, especially when retracted, has. But, on the other hand, it is possible that the mere fact that this statement had been placed before the jury when it was not admissible at all might have led them to a conclusion at which, in the absence of that statement, they would not have arrived. We think, therefore, that this appeal must be allowed and that the proper order to make in the case is to set aside the conviction and sentence and to direct that all the accused persons except Bhaku Sardar who has been acquitted by the jury be retried on the substantive charge.