The prosecution case, briefly stated, is as follows: It has been elicited in the cross-examination of the Sub-Inspector that Pallikudathan alias Sithan Lakshmanan and Kullu were examined in the committal Court and that Lakshmanan and Kullu were examined as eye-witnesses to the occurrence, and that the three witnesses mentioned were not treated as hostile by the prosecution. In those circumstances, in our opinion, the three witnesses examined in the committal Court should have been examined in the Sessions Court as well There is no satisfactory explanation for not examining those witnesses in the Sessions Court. In our opinion the omission to examine those witnesses is a serious defect in the conduct of the prosecution. A number of contradictions were elicited between the statements of these witnesses made to the police in the course of the investigation and their evidence in the trial Court. The learned Judge does not appear to have attached any importance to those contradictions and the reasons for the same are contained in paragraphs 11 and 12 of his judgment. The learned Judge says: “It is seen from the evidence of the Sub-Inspector that P.Ws. 1 to 4 were examined only at the inquest and not on any subsequent occasion. Obviously the statement made by them at the inquest is not the statement on the basis of which this contradiction is elicited. The inquest statement is recorded by the Sub-Inspector in Tamil. Their statements found in English in the case diary, on the basis of which alone, this and other contradictions have been elicited by the defence appear to be translations of their statements made during the inquest. It is apparent that the English translation was not a record Prepared on the examination of P.Ws. 1 to 4, for a second time by the investigation officer. The practice obtaining in this district seems to be that the version of the witnesses examined at the inquest is recorded in Tamil and a translation of this version is embodied in the diary prepared by the investigating officer at a subsequent period. Obviously this English translation could not be taken as the statement made by the witnesses during investigation (Italics are ours). A number of other contradictions have also been elicited on the basis of the English transaction of the statements made by P.Ws. 1 to 4. Obviously this English translation could not be taken as the statement made by the witnesses during investigation (Italics are ours). A number of other contradictions have also been elicited on the basis of the English transaction of the statements made by P.Ws. 1 to 4. They could not be relied upon as contradictions because they are not statements made by these witnesses during investigation” (Italics are ours). We are unable to follow the reasoning of the learned Sessions Judge with regard to the statements contained in the case diary. The learned Judge seems to think that as the statements found in the case diary are only translations of the statement made by the witnesses in Tamil, they could not be taken as statements made by the witnesses during the investigation. If witnesses therefore speak in their own language and if the English translations of those statements are not to be considered as statements made by the those witnesses, then we do not see how, when the witnesses in this case who admittedly must have spoken only in Tamil in’ Court the English translation of the statements recorded by the Judge as the deposition of the witnesses can ever be considered as depositions of these witnesses. To accept the view of the learned Judge is to hold that these depositions now recorded in English which is only a translation of the evidence given by these witnesses in Tamil cannot be treated as evidence in Court and, therefore, the convictions have been based no evidence whatsoever. The view of the learned Judge leads to this reductio ad absurdem. Assuming for a moment that the English translations of the statements of the witnesses are not to be considered as statements of the witnesses, then when the accused applied for copies of the statement under section 162, Criminal Procedure Code, what was the statement that was given to him as statements made under section 162, Criminal Procedure Code, in the course of the investigation? It is only the case diary statements which are the translations of the statements, that are given as copies. Copies of the statements in Tamil presumably are not being given because only copies of the statements in the case diary are generally furnished. It is only the case diary statements which are the translations of the statements, that are given as copies. Copies of the statements in Tamil presumably are not being given because only copies of the statements in the case diary are generally furnished. The accused applied for copies of the statements under section 162, Criminal Procedure Code, and if the statements in the case diary are not, according to the Judge statements made by the witnesses, and if the Tamil statements are not given, then the accused have not been given copies of the 162 statements. Right to get the 162 statement is a valuable right given to the accused by the Statute and if the view of the learned Sessions Judge is correct this has been denied to them. As pointed out by their Lordships of the Privy Council in Kotoyya v. King Emperor1:- "Courts in India have always regarded any breach of the Proviso to section 162 as a matter of gravity. Baliram v. King Emperor2, where the record of statements made by witnesses had been destroyed, and Emperor v. Bansidhar3, where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instance in which failure to comply with the Provisions of section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference which is almost irresistible, arises of prejudice to the accused." In this case the case diary contained only the English statements and only copies of those statements would have been given to the accused; and by the failure to give copies of the original statements in Tamil, which according to the Sessions Judge are really statements under section 162, Criminal Procedure Code and not the English translations in the case diary, an inference of prejudice to the accused certainly arises and in such circumstances, as pointed out in Baliram v. King Emperor , the accused cannot be said to have had a fair trial. In our opinion the learned Judge is not correct in holding that the English translations could not be taken as statements made by the witnesses during the investigation, as that will lead to the absurd result that the evidence taken by the Judge cannot be considered as evidence given by the witnesses. We hold that the statements in the case diary though they are English translations of the Tamil statements are statements made during investigation. The statements if recorded in Tamil must be preserved and copies of them must be given when the accused applies for copies of the statements under section 162. If it is proved that the statements were taken in Tamil and if they are destroyed, as pointed out by the Privy Council in Kotoyya v. Emperor4, prejudice can be presumed and the accused will have to be acquitted. The investigating officers must bear this in mind and not destroy the original statements in Tamil and must furnish copies of the same when the accused applies for statements under section 162 Criminal Procedure Code. As we have already stated, on the evidence we are satisfied that the guilt of the two accused, has not been brought home to them beyond all doubts. Their convictions and sentences are therefore set aside and both of them are acquitted. The appeals are allowed. R.M. ------------- Appeals allowed.