Norman Macleod, Kt., C.J.
1. The accused was charged with the offence of murder before the Sessions Judge of Thana sitting with a Jury. There was an unanimous verdict of guilty under Section 302, Indian Penal Code, and the accused was sentenced to transportation for life. In appeal it has been contended that the confession should not have been admitted in evidence and placed before the Jury, as it was not relevant under Section 24 of the Indian Evidence Act. If the confession itself had been free of all defect, and then in the Sessions Court had been retracted, and the accused had made allegations that the confession had been made under inducement, then it would be a question for the Court to consider whether or not the confession was relevant; and it seems as if the learned Judge in directing the Jury had considered himself free to consider whether the confession was relevant under Section 24 of the Indian Evidence Act,. But on reading the confession, it appears that the accused told the Magistrate that he had been told to tell the truth by the Saheb who told him to tell the truth and he would be released. Obviously, then, the accused told the Magistrate that he was making a confession under an inducement, and it was quite useless for the Magistrate to continue further to record the, confession. It does not matter whether as a matter of fact the Police Superintendent had told the accused that he would be released if he told the truth. It is rather difficult to believe that any Police Superintendent would have been so foolish as to tell the accused that. But once the accused had told the Magistrate that he was making the confession under inducement it was no use whatever continuing to record the confession. Therefore we shall have to consider the record as if the confession had never been made. No doubt the Jury, in coming to the conclusion they did, under the direction of the Sessions Judge, took the confession into consideration and weighed it with the rest of the evidence, and it is impossible to say whether, supposing that the confession had never been placed before them, they would have convicted the accused on thereat of the evidence. It would be open for us to consider the evidence apart from the confession and see whether it would be sufficient to support the conviction. But in a case like this that is an extremely difficult course for the Court to pursue because no doubt we have read the record and it is almost impossible for us to exclude all consideration of the confession from our minds while looking at the rest of the evidence. Undoubtedly there is a considerable body of evidence apart from the confession which the Jury might or might not believe, though speaking for myself I should find it extremely difficult to be able to come to a conclusion on that evidence with regard to the guilt or innocence of the accused. I think the best course to pursue is to set aside the conviction and direct a retrial.
2. I agree.