J.P. Mitter, J.
1. The appellant was tried upon charges under Sections 304 and 394 of the Indian Penal Code by a learned Additional Sessions Judge, Alipore, with the aid of a jury. The Jury found the appellant not guilty under Section 304, but found him guilty under Section 394 of the Indian Penal Code. The learned Judge acquitted the appellant of the offence under Section 304 but convicted him of the offence under Section 394 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for four years.
2. The prosecution case against the appellant was that one Kshetramoni was murdered in the course of a robbery which took place on the 1st July 1957 & that the appellant was one of the miscreants. On the 6th July 1957 the appellant was arrested. He took the police to a jungle at a distance from the place and brought out a trunk containing clothings. The trunk was proved to have been taken away in the robbery. On the 19th July the appellant made a confession before a Magistrate,
3. The appellant's defence was that he had been tortured to make the confession which he afterwards retracted. It was also his case that he had had nothing whatsoever to do either with the murder or with the robbery.
4. Before us Mr. Arun Das Gupta appearing on behalf o the appellant has contended that the learned Judge's summing-up as to the law relating to a retracted confession was wholly inadequate. This criticism appears to us to be well-founded. The learned Judge was merely content to say that according to the appellant he had been tortured by the police to make the confession and that it was there after retracted. Nothing further was said. In our view the learned Judge should have directed the Jury that the value of a confessional statement be came diminished as soon as it was retracted and that in order to found a conviction upon such a confession it had to be corroborated in material respects by independent evidence. In this case there was no-such evidence. The learned Judge did not also give the Jury any direction as to the question whether or not in the circumstances disclosed the confession was a voluntary one. True, it was for the learned Judge to decide the question of voluntariness in the first instance. But the same issue had to be placed before the Jury for their decision. These important aspects relating to the confession were wholly omitted by the learned Judge. This, in our view, was a very serious matter. Having considered the question with a certain amount of anxiety, we are constrained to leave the appellant's confession out of consideration in deciding the merits of the case. The only other item of evidence against the appellant was the recovery of a steel trunk in consequence of what the appellant must have told the police. The mere circumstance of this trunk having been recovered as a result of what the appellant had said to the police cannot connect the appellant with any crime under Section 394 of the Indian Penal Code. Accordingly, we find that there was no sufficient evidence to warrant the appellant's conviction upon a charge under Section 394 of the Indian Penal Code. We must also find that the learned Judge misdirected himself as well as the Jury with regard to the law relating to a retracted confession and that such misdirection induced an erroneous verdict occasioning a failure of justice. We must in the result set aside the Jury's verdict and the conviction which followed and allow the appeal.
5. The appellant who is in jail is to be set at liberty at once.
6. I agree.