The admissibility of evidence, such as confessions, is a question of law for the judge to decide, and the sufficiency of evidence for a charged offense must be carefully evaluated.

Horwill, J.

1. The three appellants were three of the four accused in the Court of the Sessions Judge of Chingleput who were charged under Section 395 of the Indian Penal Code with dacoity. The three appellants were found guilty by a unanimous verdict of the jury and were sentenced by the Sessions Judge to five years rigorous imprisonment.

2. The prosecution case is that the third accused entertained some animosity against P. W. 6, the complainant, and engaged a number of persons to break into his house to attack him and beat him, to do the same to his women, and then to help themselves to whatever property they could lay hands on. In accordance with that plan, the 3rd accused took the other accused and one or two more men in a car to a place near the house of P. W. 6. They watched P. W. 6s house for some time, and when they saw that he and his family had retired to rest, they entered the house. To some extent the plan miscarried, in that P. W. 6 and his womenfolk made so much noise that neighbours were attracted and the accused had to decamp without having taken anything more than a jewel from the person of Mangi Bai, the daughter of P, W. 6. The first accused, in trying to escape, fell into a well and was caught at once. Seeing that the game was up, he made a confession which led to the discovery of all the incidents in the plot and in the offence.

3. The case was tried by jury; and so the only questions that arise here are whether there was any misdirection to the jury and if so, whether as a result of the misdirection the jury returned an erroneous verdict.

4. Many criticisms have been made of the charge delivered to the jury; but most of them do not call for any remarks. It is true that the learned Sessions Judge may have put many of the points with some advantage in a slightly different way which would perhaps have made the charge a little more favourable to the accused; but for the most part I cannot say that the Judge has not put the matters correctly and fairly before the jury.

5. One of the important witnesses in the case was a constable, P. W. 10 who had seen the third accused loitering near his station at 12-30 in the night and who later heard a disturbance from the house of P. W. 6 where the offence took place. When he came out of the station he saw the third accused running away from the house of P. W. 6 to his own house, which he entered. In cross-examination, the attention of this witness was drawn to the fact that the note book in which the matter had been recorded did not mention the time; and in order to show that this entry in the note book was not made subsequently, as a kind of after-thought, the constable stated that he had told the Circle Inspector twice of this matter. The learned Sessions Judge has told the jury that the conduct of the constable supports his evidence that he made a note in the note book then and there. Although evidence of conduct is admissible and his statement to the Circle Inspector was admitted purely for that purpose, yet I am inclined to agree with the learned advocate for the third accused that it is not admissible because of the prohibition in Section 162 of the Criminal Procedure Code. However, this point is after all a petty one; whether or no the constable made an entry in his note book immediately seems to be of little importance.

6. Another point raised is that the learned Sessions, Judge has not told the jury very clearly that in order that the offence of robbery and dacoity might be committed, it was necessary that the violence should have been in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft.

In particular, this sentence in the charge When five or more persons conjointly commit or attempt to commit robbery, that is theft accompanied by or involving violence; person present and aiding such commission or attempt, every person so committing, attempting or aiding is said to co