Ram Labhaya, J.
1. 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 Section 396, IPC 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-section (8) of 8. 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 not 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 Section 423, Cr.PC or S, 418. It is reasonable that he should have the opportunity of showing that his conviction is not sound. Rut all that ha 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-section (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 Sections 418 and 423(2), Cr.PC Section 418 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. Sub-section (2) of Section 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-section (1) of the section. Sub-section (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 Section 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 Section 423 however does not override Section 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 Section 418 and the verdict of the jury would be liable to reversal. In other words, Sub-section (2) of Section 423 should not be construed as controlling Section 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 Section 418 or under Sub-section (2) of Section 423, Cr.PC
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 Kbargharbar Jerenga Pathar at a distance of about two miles from the Police Station at Sib-esag&r.; 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 3-30 p.m. someone from outside shouted to Bapuram to come cut 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 dacolts entered the house and asked the inmates to oome 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 Section 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 Gogoi, Ganesh Gogoi and Chandra Gogoi. These four were tried jointly; The unanimous verdict of the jury was that Chandra Kanta Gogol and Nabin Chandra Gogol were not guilty while against Jurman Saikia and Ganesh Chandra Gogoi, the verdict was of guilty.
9. Though it is claimed in the First Informar tion Report that it was possible for the inmates of the house to identify the accused, no identifi-fication 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 alter 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 to which Ganesti is mentioned as having participated in the dacoity.
11. Mr. Choudhurl contends that even against Jurman, the confession by itself cannot form the basis of conviction unless it is corroborated in come material particulars by reliable and independent evidence. In the absence of such corro-boration, 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. 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 ' tiim. 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 lie 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 else 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. 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 Nabln 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 facturn 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, Section 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 ii 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 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 Section 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 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 Gogoi 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. 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 Jurmau. Then he proceeded to say that he also took the specimen foot-prints of Moina Gogol, Bali Gogoi, Telia Gogol 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. 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 Section 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 misdirections. 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 there- fore desirable and expedient that the verdict of the jury should be set aside and the case trie 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.
Sarjoo Prosad, C.J.
21. I agree.