Vellaya Rowther and Others vs Emperor

As regards the 2nd and 3rd accused, we find no ground for interference and we confirm their convictions and dismiss their appeal.

As regards the 1st accused, the Sessions Judge has, we think, erred in admitting Exhibit F in evidence. The deposition of the Sub-Inspector

shows that it was a statement taken in the coarse of an investigation and reduced to writing (Section 167 of the Criminal Procedure Code). The

writing could not, therefore, be used as evidence.

The evidence that the cloths produced by the 1st accused, if he, in fact, produced any, were cloths stolen at the dacoity, is the principal

evidence against the accused; the evidence of indentification is, in his case, distinctly weak. The Sessions Judge''s direction to the Jury as to the

value of Exhibit F must have drawn their attention particularly to that document, and may very well have led to their acceptance of the identification

of the cloths by Prosecution witness No. 6; it is impossible to say that it has not affected the verdict and produced a miscarriage of justice in the

case of the 1st accused.

We, therefore, set aside the conviction of the 1st accused and direct his re-trial.