RAM LABHAYA, J: The two appellants, Ganesh Gogol and Jurman Gogoi were tried in the court of the Sessions Judge, Upper Assam Districts. The trial was with the aid of a Jury which returned a unanimous verdict of guilty under S. 396, I. P. C. against both. They were convicted and sentenced each to rigor­ous imprisonment for two years. They have appealed. At the hearing, in view of the apparent disproportion between the gravity of the offence and the sentence awarded, a notice of enhance­ment was issued to the accused by this Court on its own motion. (2) At the outset, it may be stated that the position of the appellants so far as their challenge to the verdict of the Jury is concerned is not im­proved by the notice of enhancement. Sub-Sec. (6) of S. 439, Cr. P. C. does confer on the accused served with a notice to show cause why the sentence be not enhanced the privilege to show cause against his conviction also but the privilege is no greater than what he would have had in an appeal from his conviction. The provision was necessary inasmuch as a person convicted may act appeal where the sentence is lenient. Such a sentence may be sought to be enhanced. Liberty had to be reserved to him to show that the con­viction is not sustainable on grounds available to him under S. 423, Or. P. C. or S. 418. It is reason­able that he should have the opportunity of show­ing that his conviction is not sound. But all that he can show is that the conviction itself is not maintainable though in the same manner and to the same extent as he would have done if he had appealed. (3) Sub-section (6) applies to cases tried with the aid of Jury also. A person convicted on the basis of Jury's verdict may also show cause against his conviction under sub-s. (6) but in showing cause against his conviction even, he has got no larger or better rights than he would have had if he had appealed from his conviction. In other words, the validity of conviction may be challenged on the grounds on which it can be challenged in appeal under the combined opera­tion of Ss. 418 and 423(2), Or. In other words, the validity of conviction may be challenged on the grounds on which it can be challenged in appeal under the combined opera­tion of Ss. 418 and 423(2), Or. P. C. Section 413 lays down that an appeal lies on a matter of law only where the trial is by a jury except in cases where a person is sentenced to death. Sub­section (2) of S. 423 provides that "nothing herein contained (in the section) shall authorise the Court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirec­tion by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him." Section 423 deals with the powers of the appel­late Court in disposing of appeals. These powers are described in sub-s. (1) of the section. Sub­section (2) is in the nature of a proviso which applies to cases where there is a verdict of the jury. Alteration or reversal of the verdict is possi­ble under S. 423, only if the verdict is erroneous and the error is due to a misdirection by a Judge or a misunderstanding of the law by the jury as laid down by him. Sub-section (2) of S. 423 now ever does not override S. 418. That is more general. That section permits appeals on matters of law even in cases where the trial is by a jury. If therefore the trial can be shown to be illegal or without jurisdiction, an appeal would lie un­der S. 418 and the verdict of the jury would be liable to reversal. In other words, sub-section (2) of S. 423 should not be construed as controlling S. 418. The position then would be that a ques­tion of law may be taken up in appeal even if there is no misdirection by Judge or misunder­standing of the law by the jury as laid down by him. If the trial is illegal, it may be set aside for that reason only. (4) The scope of the appeal before us is there­fore not enlarged by the notice of enhancement. The appellants can succeed in having the con­viction quashed if they can bring their case either under the provisions of S. 418 or under sub-s. (2) of S. 423, Cr. (4) The scope of the appeal before us is there­fore not enlarged by the notice of enhancement. The appellants can succeed in having the con­viction quashed if they can bring their case either under the provisions of S. 418 or under sub-s. (2) of S. 423, Cr. P. C. (5) The learned counsel for the appellant, Ganesh Gogol, has contended that the verdict against both the appellants rests on no evidence and therefore it is reversible. He urges that the Judge's presentation of the case as a whole was not in conformity with the requirements of the law and the error in the verdict may be easily attributed to the failure of the Judge to state the law precisely; in his view, it is a case of mis­understanding of law by the jury that has led to a conviction. He goes so far as to say that the Judge should have told the jury that there was no evidence to base a conviction on and that the accused be given the benefit of doubt. (6) The prosecution version of the case is as follows: Bapuram Koch (deceased) was living in the Khargharbar Jerenga Pathar at a distance of about two miles from the Police Station at Sib-sagar. It appears that the houses of other people in the locality were at some distance. On 8-1-1950, his wife, Musst. Phuleswari and his daughters had come back after about a fortnight's stay in the house of Bagai Koch (brother of Musst. Phuleswari). He also came with his sister and was staying for the night with Bapuram. When Bapuram and Bagai Koch, his brother-in-law were having their meal at about 8 or 8-30 p.m. some­one from outside shouted to Bapuram to come out and also told him that he would be killed. Then others also shouted likewise. There was knocking and kicking at the eastern door which was' closed. The western door was open. Bapu­ram closed it. When he was about to close the door of the dining room, the people outside start­ed firing. Bapuram was first hit on the leg. The inmates then shouted presumably for assis­tance. The people outside continued to fire from all sides. Bapuram received a gun-shot wound in the chest also and fell down. Bagai Koch, Phu­leswari and the children concealed themselves in a 'chang'. The dacoits entered the house and asked the inmates to come out. Bapuram was first hit on the leg. The inmates then shouted presumably for assis­tance. The people outside continued to fire from all sides. Bapuram received a gun-shot wound in the chest also and fell down. Bagai Koch, Phu­leswari and the children concealed themselves in a 'chang'. The dacoits entered the house and asked the inmates to come out. One of them seized Bagai Koch by wrist, tied his hands and kicked him and told him to remain quiet. Another dacoit dragged Musst. Phuleswari and asked her on pain of death to show where the cash and ornaments were kept. Phuleswari pointed out the boxes which contained valuables. One of the dacoits suggested that Bagai Koch should also be killed for if spared, he might create trouble afterwards. Just then, someone whistled from outside and the dacoits made good their escape. They could take out only one or two boxes. There was a light in the dining room when the dacoits entered the house. The dacoits according to Bagai Koch had turbans and caps on their heads. (7) A written report was handed over to the officer-in-charge, Sibsagar Police Station by Bagai Koch when he arrived at the scene of occurrence at about 11-30 p.m. The occurrence had taken place only about two hours before. In the report, it was stated that the dacoits were suspected to by Assamese people, one of whom had a long pant and a coat of cream (muga) colour. He had cloth wrapped on his head. This according to Bagai Koch was the man who had seized him. Others were young people. He also stated that he and others will be able to identify the cul­prits if they were shown to them. (8) In the course of investigation, some seven­teen persons were arrested. In his final report, the officer-in-charge stated that the investigation disclosed a prima facie case against twelve per­sons under S. 396, I. P. C., and he charge-sheeted them. Maliram Bezbarua was one of these per­sons. He requested for the discharge of some other persons who had also been arrested in the course of the investigation. The Special Magis­trate, who committed the case to the Sessions Court only found a prima facie case against Jurman Saikia, Nabin Gogol, Ganesh Gogol and Chandra Gogoi. These four were tried jointly. Maliram Bezbarua was one of these per­sons. He requested for the discharge of some other persons who had also been arrested in the course of the investigation. The Special Magis­trate, who committed the case to the Sessions Court only found a prima facie case against Jurman Saikia, Nabin Gogol, Ganesh Gogol and Chandra Gogoi. These four were tried jointly. The unanimous verdict of the jury was that Chandra Kanta Gogoi and Nabin Chandra Gogoi were not guilty while against Jurman Saikia and Ganesh Chandra Gogoi, the verdict was of guilty. (9) Though it is claimed in the First Informa­tion Report that it was possible for the inmates of the house to identify the accused, no identification parade was held nor did Bagai Koch and Musst. Phuleswari claim at the trial that they could identify any of the accused in the dock. A test identification parade at the earliest oppor­tunity after arrest might have been of some assistance. Why it was not held it is difficult to say. (10) The prosecution case rests on a retracted confessional statement of Jurman Saikia, accused and some evidence which in its nature is cir­cumstantial. It may be convenient to deal with the evidence under the following heads- 1. The production of the sten-gun and sixty cartridges by the appellant Ganesh and the seizure of nine empty sten-gun cartridge shells at the place of occurrence. 2. The evidence of the foot-print expert, Harendra Nath Saikia (P. W. 13) that the sample foot-print of Ganesh accused was identical with the foot-prints at the spot as shown in tracings Exs. 23 and 24. 3. The retracted confession of Jurman, appellant in which Ganesh is mentioned as having participated in the dacoity. (11) Mr. Choudhuri contends that even against Jurman, the confession by itself cannot form the basis of conviction unless it is corroborated in some material particulars by reliable and inde­pendent evidence. In the absence of such corroboration, the rule of practice which has by now acquired almost the force of law would not permit conviction being founded on the confession alone by reason of its subsequent retraction. He argues further that the confession has not been corro­borated at all or at least to the extent that the rule of practice requires, and the prosecution evi­dence does not yield any convincing guarantee of its truth or its voluntary character. He argues further that the confession has not been corro­borated at all or at least to the extent that the rule of practice requires, and the prosecution evi­dence does not yield any convincing guarantee of its truth or its voluntary character. In regard to Ganesh Gogoi he urges that the retracted con­fession had no value at all. He could not be convicted without the fullest corroboration both in regard to the crime and his complicity in it. He points out that the confession even with what little corroboration it receives from the testimony of the foot-print expert was not considered enough against the two accused who were acquitted by the jurors themselves. (12) In regard to Ganesh Gogoi, there are other pieces of circumstantial evidence. A sten-gun and some sixty live cartridges were found buried underground. Ganesh Gogoi led the police to the place where they were buried. They were taken in consequence of the information received from him. But the sten-gun and the cartridges were not exhibited in Court. The learned counsel for the accused urges that the recovery does not lead to the inference that the sten-gun recovered was used in the dacoity or that Ganesh Gogoi parti­cipated in it; the circumstance therefore is in­conclusive. In regard to the testimony of the foot-print expert, his case is that there is no proof that Ganesh Gogoi foot-prints were taken for the purpose of comparison. In any case, he urges that the statement of the expert fails to connect Ganesh Gogoi with the crime as the expert merely indicated the possibility of the foot-prints being his. Mr. Choudhuri argues that he was on his own showing not in a position to make any definite statement about the identical nature of the foot-prints compared by him; he also conceded that the examination of foot-prints cannot lead to such sure results as the comparison of finger impressions. His case so far as Ganesh Gogoi is concerned was that the retracted con­fession had no value and the other two circum­stances were inconclusive. (13) The vital question is whether the verdict is vitiated by any misdirection. In regard to the use that can be made of the confession against the maker, Jurman Gogoi, the learned Judge ob­served that Jurman accused had placed a greater burden on the other accused persons than him­self. The confession was exculpatory to some extent in his opinion. (13) The vital question is whether the verdict is vitiated by any misdirection. In regard to the use that can be made of the confession against the maker, Jurman Gogoi, the learned Judge ob­served that Jurman accused had placed a greater burden on the other accused persons than him­self. The confession was exculpatory to some extent in his opinion. Such a confession, he told the jury, could not be considered against the other persons. His direction in regard to the accused was as follows: "A retracted confession of this nature should be totally ingored by you so far as the other ac­cused persons, viz., Chandra Gogoi, Ganesh Gogoi and Nabin Gogoi are concerned. So far as Jurman is concerned, you cannot base a finding of guilty against him on this retracted confession unless you find that it has been corroborated in material particulars both as to the factum of crime and the identity of the accused. Here, I must tell you that there is no corroboration to this confession even so far as accused Jurman is concerned." (14) The charge does appear to be favourable to the accused but the statement of the law as to the use that could be made of the confession against the accused is not precise or accurate. The confession has been retracted. As regards its use against the maker, what should have been conveyed to the jurors was that they had to satisfy themselves both about the voluntary cha­racter and the truth of the confession. If the evidence led to this conclusion the conviction of the maker could be founded on the confession in law. But established practice and prudence regarded it as both unsafe and unwise to convict on a retracted confession without some indepen­dent corroboration. As regards others than the maker, S. 30 permits its consideration but although it may be taken into consideration, the rule now firmly established and adhered to in practice con­sistently for a long time is that its value against a co-accused is practically nil and that there can be no conviction on it without substantial and independent corroboration both in regard to the crime and the identity of the criminal. The re­sult of practice so stated may be explained further to avoid any possibility of mistake about the legal position by the jurors. The re­sult of practice so stated may be explained further to avoid any possibility of mistake about the legal position by the jurors. The jury should be told that it is not substantive evidence in the sense that conviction of a co-accused may be based on it. If there is no other evidence con­necting the accused with the crime, the retracted confession cannot by itself form the foundation for a conviction. It is worthy of note that S. 30 has to be used with great caution and circumspec­tion. It embodies an exception to the fundamen­tal principle of criminal law that a confession is evidence only against the maker. (15) The learned Government Advocate urges that the learned Judge in the charge did not at all encourage the jury to make any unauthorised use of the confession and prejudice to the accused was not likely. The offence is a very serious one. Capital punishment is possible if it is held to be proved. The direction to the jury in the matter of the use of the confession both against the maker and against the co-accused ought strictly to conform to the requirements of the law. Where the statement of the law though apparently favourable is not adequate or complete, there is a possibility of an error in the verdict however small the margin of error may be. The case may be regarded as on the border line. Very small j error in the direction may make all the difference 'in the verdict. In this view of the matter, we think that it is a fit case in which retrial should be ordered. (16) The sten-gun and sixty live cartridges alleged to have been tendered to the police by Ganesh Gogol were not exhibited. It is surprising that such an obvious omission should have escaped the notice of those in charge of the pro­secution. There must have been a case under the Arms Act against appellant Ganesh but it is difficult to understand why the sten-gun and the cartridges were not produced as material Exhi­bits in this case. We did send for these articles and examined them ourselves with the help of the Arms expert and the Police Officer, Syed Asa-dulla (P. W. 15) to whom they were handed over by the accused. We did send for these articles and examined them ourselves with the help of the Arms expert and the Police Officer, Syed Asa-dulla (P. W. 15) to whom they were handed over by the accused. The prosecution may have been misled in the beginning by the belief that the cartridges recovered from the scene were revolver cartridges but the relevancy of the fact that the sten-gun and some sten-gun cartridges were re­covered, should have appeared to those in charge of the prosecution after the confession made by Jurman. Sten-gun or their cartridges are not commonly available. (17) In regard to the specimen foot-prints, the learned Judge when summing up stated that P. W. 12 who stated to have taken the sample foot­prints of Ganesh. appellant, did not prove them in court. He proved six specimen foot-prints of accused Jurman. Then he proceeded to say that he also took the specimen foot-prints of Moina Gogol, Bali Gogol, Telia Gogoi and 'others' (un­derlines are ours) (here in ' '). These foot-prints were taken for the purpose of examination by the expert, as stated by the witness. But it is another astounding feature of the case that while the prosecution was not anxious to exhibit the sample foot-prints of Jurman, it did not care at all to exhibit the sample foot-prints of Ganesh. This shows the inefficient manner in which the prosecution was conducted in Court. The learned Sessions Judge also failed to have a clear state­ment from the witness as to what he meant by others. The other sample foot-prints probably included the specimen foot-prints of other ac­cused. The record would disclose that sample foot-prints of Ganesh Gogoi were taken. (18) The learned Judge dealt with the testi­mony of the expert at some length. His conclu­sion was that the evidence of the expert came to nothing. He did not direct the jury on the legal value of the testimony of the foot-prints expert. Section 45, Evidence Act does not include foot­prints within its ambit as it does the finger im­pressions. Notwithstanding this omission, the evi­dence of foot-prints expert has been admitted with the qualification that there should be other evidence to bring home the charge to the accused. Section 45, Evidence Act does not include foot­prints within its ambit as it does the finger im­pressions. Notwithstanding this omission, the evi­dence of foot-prints expert has been admitted with the qualification that there should be other evidence to bring home the charge to the accused. The rule on the point is that the opinion of the foot-print expert would not by itself suffice to base conviction on and the rule has been applied to testimony of other experts including experts on finger-prints. (19) Considering that foot-prints as such are not included in S. 45, Evidence Act, it is expedient that the comparison of the foot-prints may be made so that the Judge and the jury could see for . themselves to what extent the foot-prints in question coincide. The summing up of the learned Judge does not embody any observations on the value of the testimony of a foot-print expert, in law. (20) In view of what has been said above, the charge cannot be regarded as free from mis-­directions. The trial thus was not as fair as it might have been. There are omissions and irregu­larities. The cumulative effect of all these is that there has not been a trial which may be regarded as proper or in accordance with law. It is there­fore desirable and expedient that the verdict of the jury should be set aside and the case tried de novo in accordance with law. The appeal is therefore allowed and the conviction and the verdict of the jury are set aside. The case shall go back to the Court of Sessions for retrial. (21) SARJOO PROSAD C. J.: I agree. Appeal allowed.