JUDGMENT 1. These are two appeals by three accused who have been convicted under S. 396, Penal Code. Haripada Gharami has been sentenced to transportation for life. Dhiren Bairagi has also been so sentenced, while Bistupada Haldar has been sentenced to ten years' rigorous imprisonment. The appeals of the latter two are from jail and no one represents them here. The verdict of the jury in respect of Haripada Gharami was a majority of 5 to 4 and in respect of the other two appellants by a majority of 7 to 2. In our opinion, the appeal of Haripada Gharami must be allowed and he must be retried. The appeals of the other two accused most be dismissed. Briefly the prosecution case is that a dacoity took place at the house of one Aditya who received gun-shot wound in the course thereof and subsequently died in the Campbell Hospital. Another man Aswini was shot dead at the spot. There is evidence that the dacoits left in a boat and were chased. On the way three men got down and there is evidence that one of these, namely, Dhiren Bairagi, was identified by voice by a witness Ananga Ch. Kumar (P.W. 9). At dawn a boat was found in which were the accused Bistupada and his brother Tustu and a small boy Ananta (P. W. 10) 8 years of age. The first information was lodged by a son of Aditya Dhirendra Nath Saha at 2 P. M. the day following the dacoity, the thana being some 29 miles from the place of occurrence. Bistupada and his brother were caught, are alleged to have made extrajudicial confessions and finally Bistupada himself made a confession largely exonerating his brother implicating himself to some extent and also mentioning the appellant Haripada as having used a gun at the dacoity and also naming the appellant Dhiren Bairagi. Amongst other names mentioned by him was that of Noor Ali Holla who was tried along with the present appellants but was acquitted. 2. The evidence against the appellant Haripada is that he was identified by Khagendra Nath Shaw, P. W. 1, as having been on the verandah of the house with a gun in his hand. This witness picked him out at an identification parade. There is also the fact that he is mentioned in the confession of Bistupada. 2. The evidence against the appellant Haripada is that he was identified by Khagendra Nath Shaw, P. W. 1, as having been on the verandah of the house with a gun in his hand. This witness picked him out at an identification parade. There is also the fact that he is mentioned in the confession of Bistupada. The reason why we consider that his appeal must be allowed is that the directions given by the learned Sessions Judge on the question of the value to be attached to confessions are not correct. Moreover in view of the fact that the verdict in respect of this accused was only by a majority of 5 to 4 and in view of the fact that having regard to the nature of the evidence clearly his case is what may be called the border line case where a comparatively small error of direction by the Judge may make all the difference in the verdict given, we think it is necessary that his case should be retried. As to the learned Judge's directions he has said: As far as the Judicial confession goes, yon have noticed that it is a retracted confession. If you come to the conclusion that the confession, which is now retracted, is untrue, then reject it altogether as against the maker as also as against the accused who have been named as associates in the confession. If you come to the conclusion that the confession is true, then you can convict the maker thereof, namely, accused Bistu, only on the confession even though it is not corroborated on material particulars. But even if you accept the confession as true, its evidentiary value against any co-accused named in the confession is practically nil, and you should not convict a co-accused named in the confession unless the confession is corroborated by independent evidence on material particulars, that is to say, not only regarding commission of the crime itself but also about the identity of such co-accused. 3. It will be seen that the learned Additional Sessions Judge has not made the correct and clear distinction between a case of a retracted confession as used against the maker and as used against a co-accused. 3. It will be seen that the learned Additional Sessions Judge has not made the correct and clear distinction between a case of a retracted confession as used against the maker and as used against a co-accused. He nowhere states for instance that as against the maker although the maker may be convicted on the confession alone it is usual to caution the jury that it is unwise so to convict and that they should only act upon such confession if it is corroborated in material particulars. On the contrary, the learned Judge has applied this direction to the case of the use of a confession as against a co-accused. It is true that he does say in regard to the confession that the value of the confession itself is practically nil. He then proceeds to say that it will have a value provided that it is suitably corroborated. The proper direction is that the value of the confession is practically nil and that the words mean what they say and therefore unless the other evidence against the co-accused is substantially that which will stand on its own legs and justify a conviction the confession itself should not be in any way used to support the conviction. Here it is true in the case of this accused Haripada, the evidence of Khagendra Nath Shaw (P. W. 1) is certainly, if believed, sufficient to form the basis of a conviction and the learned Additional Sessions Judge has stated this in discussing the case of this accused separately. But he has immediately proceeded to say. "It is also corroboratory evidence of the confession of Bistu so far as this accused is concerned", thus repeating the error previously discussed above. The appeal, therefore, of Haripada Gharami is allowed. His conviction and sentence are set aside and it is directed that he be retried. He will remain in custody pending the retrial. 4. Bistupada Haldar - As regards this accused we have noted that the learned Judge's directions on the question of confession are not correct, but, in the case of this accused, we do not think that the error was of any importance. Quite apart from the confession of this accused there was ample evidence to establish his guilt. 4. Bistupada Haldar - As regards this accused we have noted that the learned Judge's directions on the question of confession are not correct, but, in the case of this accused, we do not think that the error was of any importance. Quite apart from the confession of this accused there was ample evidence to establish his guilt. He was found a few hours after the dacoity in a boat with some of the articles stolen at the time of the dacoity and was found as a result of a chase of suspected dacoits. On the way, as we have said, one man Dhiren Bairagi was recognised at the spot and was seen to leave the boat that was being chased. This evidence alone, to say the least, called for a very strong explanation from the accused Bistupada. The only explanation he has offered is the confession that he took part in the dacoity. In the circumstances there is no reason for us to interfere in his case. The sentence is not too severe. His appeal is accordingly dismissed. 5. Dhiren Bairagi-This man was named in the first information and there is evidence of the witness Ananga (P. W. 9) who recognised him by the voice leaving the boat. There is evidence that he was recognised by Santa Moni Dasi (P. W. 3) at the place of occurrence. Another witness Sahadeb Gouni (P. W. 2) claim to have recognised him but his evidence is weakened by the fact that in the investigation he told the Calcutta Police Officer in the Campbell Hospital that he had not recognised any of the dacoits. Khagendra Nath Shaw (P. W. 1) also stated that he had recognised him but he did not identify this accused in the committing Magistrate's Court. He was also named in the confession of Bistupada. We think, however, that in his case having regard to the nature of the evidence the errors in the learned Judge's charge cannot have led to an erroneous verdict and, therefore, there is no reason to interfere with his conviction and sentence. His appeal is accordingly dismissed.