JUDGMENT D.N. Roy, J. - This is an appeal by Budul and Pancham who in a jury trial have been convicted u/s 392, IPC and sentenced to five year's rigorous imprisonment each. The charge against them was that on 23-3-1952, at about 9 p.m. they committed robbery from railway gomti No. 5 in village Husainpur, which was occupied by one Ramphal a cabin man. The gomti in question was situate near railway station Manauri. 2. In appeal it has been contended that the verdict of the jury was vitiated by misdirection and nondirection and it has therefore ended in miscarriage of justice. 3. A report in writing was submitted by Ramphal to the Station Officer of police station Puramufti in which he alleged that four persons forcibly entered into his cabin at about 9 o'clock in the night and by putting him to fear they took away from him a kurta and Rs. 6/8/ - in cash. No names were specified in that report. The report was the report of cognizable offence under the provisions of Section 154 of the Code of Criminal Procedure. The substance of the information should have been entered in the book of reports maintained at the Thana or in the general diary, but such a procedure had not been adopted in the case. Ommission to enter in the general or station diary will not, however, be an illegality vitiating the trial, but it would have an important bearing on the case if the very substance on which the prosecution was founded was assailed from the other side and there were indications to point to the direction that the prosecution story was not an absolutely true story. It is needless to point out that the first information report is not substantive evidence and that it is not evidence of the (acts which it mentions. It can only be used for corroboration u/s 157 of the Evidence Act, or for contradiction u/s 145 of the Act of statement made by the informant subsequently in court. That aspect of the matter had not been laid by the Judge before the jury when the written information Ex.P-2 by Ramphal to the Station Officer was taken in evidence. 4. That aspect of the matter had not been laid by the Judge before the jury when the written information Ex.P-2 by Ramphal to the Station Officer was taken in evidence. 4. The evidence against Budul Appellant consisted of the uncorroborated testimony of Ramphal who, in an identification proceeding before the Magistrate held in jail and in the Court of the Commuting Magistrate as also in the Court of Sessions, had identified Budul as the person who had committed the robbery. In his charge to the jury the learned Sessions Judge no doubt emphasised the fact that it will be unsafe to rely on the identification evidence of a solitary witness, but at the same time the Judge also expressed in the opening part of the charge in the following terms: In the instant case there is a good deal of material in the statement of Ramphal who has said that when he was sleeping in his cabin at about 9 P.M. certain persons armed with lathi and pistol knocked at his door ... if you, as a jury, accept the facts which have been proved in this direction without contradiction, of course, you are entitled to disbelieve anything, if you wish, then as a matter of law this would mean that robbery was commuted on Ramphal in his cabin. 5. The charge was very unhappily expressed on this aspect of the matter. Firstly, that in telling the jury that there was a good deal of material in the statement of Ramphal, the jury might have been led into the belief that even the uncorroborated testimony of Ramphal was enough in the case to establish that a robbery was committed in his cabin in which the robbers were armed with lathi and pistol. The charge was further unhappy; and that feature amounted to misdirection when it said that the jury "has to accept the facts which have been proved in the case without contradiction" from the other side. 6. So far as Pancham Appellant is concerned the evidence against him was the identification by Ramphal and the recovery of a Kurta said to have been robbed from Ramphal's person. In his case the recovery and his arrest were simultaneous. One of the recovery witnesses, namely, Mohammad Hasan P.W.3 stated that the kurta was taken down from the person of Pancham. In his case the recovery and his arrest were simultaneous. One of the recovery witnesses, namely, Mohammad Hasan P.W.3 stated that the kurta was taken down from the person of Pancham. The other recovery witness Rasul Ahmad stated to the same effect in the Court of Sessions, but in the Court of the Committing Magistrate his statement was to the effect that this kurta was recovered from the person of Budul. The witness tried to explain that discrepancy when he was examined in the court of sessions and he said that it was due to some confusion which led him to make a contrary statement on that point before the Committing Magistrate. That evidence was laid before the jury in the fashion in which the explanation had been offered by Rasul Ahmad, but the Judge omitted to draw the attention of the jury to the other part of the evidence of Mohammad Hasan when he said that the face of Pancham was not covered up after his arrest and after the search when fifteen or sixteen persons were there in order to guard against the eventuality of identification proceedings being held at a later stage. Pancham's plea in defence was that he had been shown to the witnesses at the Thana-a plea which found certain degree of affirmance by the statement made by Mohammad Hasan in court and referred to above. Failure on the part of the Judge to bring that important evidence to the notice of the jury amounted to misdirection or nondirection involving a substantial miscarriage of justice. As has been pointed out by the Privy Council in Joseph Connel v. The King 1947 A.L.J. 487 where in a trial by a jury the summing-up by the court did not contain a word of the Appellant's denials or of the evidence for his defence, it was held that the omission was a contravention of the elementary principles of fair trial and the due administration of justice and this matter by itself involved a substantial miscarriage of justice such as would justify the sustaining of the appeal. 7. As against Pancham there was further the evidence of identification of kurta alleged to have been recovered from his person. In the identification memo, it was expressed that two kurtas of similar cloth were mixed with the suspected kurta but one of these two kurtas had a slightly pale colour. 7. As against Pancham there was further the evidence of identification of kurta alleged to have been recovered from his person. In the identification memo, it was expressed that two kurtas of similar cloth were mixed with the suspected kurta but one of these two kurtas had a slightly pale colour. It was not brought to the notice of the jury that in a case of identification, in order to achieve proper and correct results, a larger number of kurtas should have been mixed with the suspected kurta and at least five or six kurtas should have been then. It should further have been pointed out to the jury that out of the two kurtas the cloth of one was not of the same colour as the suspected one. This kurta was identified by Ramphal and also by one Ram Autar who said that he had tailored it for Ramphal. The evidence of Mr. Dwivedi the Magistrate who conducted the identification proceeding in regard to the kurta and the evidence of the other witnesses bearing upon that question was summed up by the Judge in the following words: Ramphal has identified this kurta with the one stolen in the robbery. Ram Autar, a tailor from village Bharwari, which is at a distance of about 2 miles from village Manauri, has further endeavoured to co-relate this kurta with the one he had tailored for Ramphal about 12 months back ... Sri Dwivedi informs that two kurtas one having slightly pale colour were mixed with the suspected kurta and that usual precautions were taken in order to ensure a far identification. Ram Autar on the other hand has made a significant statement saying that four or live other kurtas having different colours were mixed and that no two kurtas were of an uniform colour. This statement renders the identification proceeding to a mere waste paper if you consider that what he is saying is correct ... Ramphal has given the colour of the stolen kurta as Badami.... It is now for you to consider whether the alleged denial by Pancham of the recovery of this kurta has got any strength and that what support the prosecution can receive from the recovery of this kurta. 8. Ramphal has given the colour of the stolen kurta as Badami.... It is now for you to consider whether the alleged denial by Pancham of the recovery of this kurta has got any strength and that what support the prosecution can receive from the recovery of this kurta. 8. The disturbing aspects in the evidence adduced on behalf of the prosecution relating to the recovery of his kurta and relating also to the question as to whether this kurta really belonged to Ramphal had not been put in proper perspective by the Judge in the charge to the jury. According to Ramphal the colour of his kurta as stated in the written report made by him was light-pink and made of poplin cloth. In his statement he said that the kurta robbed from him was of badami colour. The evidence that was led in court with regard to the number of kurtas mixed up with the number of suspected kurtas at the time of identification proceedings was discrepant. The learned Judge should have drawn the attention of the jury to all those discrepancies and he should have directed them that upon such discrepant evidence it would be difficult to hold that the recovered kurta had been robbed from Ramphal; adding further to the direction that the jury was the sole Judge of facts and that the jury should not however, be guided by the expression of opinion based on facts by the Judge. 9. The law on the subject has now been crystallised by a long trend of judicial decisions. The verdict of the jury when accepted by the Judge is final and there can be no appeal u/s 418 of the Code of Criminal Procedure unless there is some matter of law, for example, misdirection, improper admission or exclusion of evidence, violation of any procedure in the Code or any other error of law. Under Sub-section (2) of Section 423, Code of Criminal Procedure the court is enjoined not to alter or reverse the jury's verdict unless it considers it erroneous owing to a misdirection of the Judge or to a mis-understanding on the jury's part of the law laid down by the judge. Under Sub-section (2) of Section 423, Code of Criminal Procedure the court is enjoined not to alter or reverse the jury's verdict unless it considers it erroneous owing to a misdirection of the Judge or to a mis-understanding on the jury's part of the law laid down by the judge. An erroneous verdict due to misdirection, nondirection or any other error of the law is not, however, enough to reverse a verdict as the section is to be read with Section 537(d) which forbids the reversal of any verdict unless it has in fact occasioned a failure of justice. The ultimate analysis therefore is as to whether an erroneous verdict has caused a failure of justice. Undoubtedly on questions of fact or trustworthiness of the evidence the jury are the ultimate authority. But as it is an important part of the judge during his summing up to sift and weigh the evidence in order to help the jury come to a proper conclusion he is entitled to express his opinion on questions of fact and indeed it would be a colourless charge, a mere rejune summary of evidence if the Judge were to direct on the evidence without any comment or without giving expression to his views coupled with reasons. As juries are untrained in weighing evidence, it would be helpful to have the Judge's impression. But whenever his opinion is expressed, the Judge must be careful to make it perfectly clear to them that it is his personal view and it is in no way binding upon the jury who being sole judges of fact have full liberty to come to any conclusion they think proper. The Judge should not, however, express his opinions in terms too dogmatic positive and unqualified calculated to impose his views on the jury. It is the duty of the jury to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned. 10. Looking at the matter from all aspects I am clearly of opinion that the charge laid before the jury suffered from nondirection and misdirection and it has involved a substantial miscarriage of justice such as would justify the sustaining of the appeal. The verdict of the jury must therefore be set aside. 11. The question is whether there should be a retrial. The verdict of the jury must therefore be set aside. 11. The question is whether there should be a retrial. As the evidence led in the case would not on any proper view support a conviction, it would be worse than useless to send back the case for a new trial. Under the circumstances the appeal is allowed, the verdict of the jury is set aside and the Appellants are acquitted of the charge u/s 392, IPC. Bidul Appellant is in jail. He should be set at liberty at once unless wanted in any other matter. Pancham need not surrender to his bail which is discharged.