KERAMAT MANDAL Vs. EMPEROR

JUDGEMENT

(1.) This case See 92 Ind. Cas. 439 : 27 Cr. L.J. 263--[Ed.] came up once previously before this Court on which occasion the conviction of the appellants was set aside and the case sent back for re-trial on the ground of erroneous admission of inadmissible evidence. The Court gave also certain directions as regard the framing of charges on the re-trial. On this occasion also the appellants have been convicted on the unanimous verdict of the Jury under Section 366 and 376, Indian Penal Code, and sentenced to ten years rigorous imprisonment, each under each section, the sentences to run concurrently.

(2.) On behalf of the appellants it has been contended by their learned Vakil that the present trial has also been vitiated on account of the use made by the Sessions Judge of the statements made by witnesses to the Police Officer during the course of investigation under Ch. XIV, Cr. P.C., in contravention of Section 162 of the Code. The learned Judge was of opinion that he was entitled to put question with regard to those statements in the exercise of the power conferred upon him by Section 165 of the Indian Evidence Act, in the order to show that the witnesses had made contradictory statements to the Police Officer and before the Court. We have no doubt that the Judge was clearly wrong in making such use of the statements The power conferred on the Judge under Section 165, Evidence Act, cannot be exercised for the purpose of introducing evidence in contravention of the law. The last para of Section 2 of the Evidence Act leaves the provisions of the Cr. P.C. unaffected. Under Section 162, Cr. P.C., statements made to a Police Officer are prohibited from being used for any purpose save as provided in the section; and there is no provision for allowing the Judge to use such statements for confronting the witnesses with them. To use the statements for this purpose was to contravene the provisions of Section 162 of the Code. The learned Deputy Legal Remembrancer is unable to support the procedure adopted by the Sessions Judge.

(3.) The use of which the learned Vakil complains is primarily that of the statements made by Sukhlal (P.W. No. 13) to the Police Officer which was introduced with the evidence by a question put to the Sub-Inspector by the Judge, that on the night of the occurrence Joyhari and Kailash came to the witness and informed him that Belat, Keramat (the two appellants before us) and a few others had forceably taken away Adhar s wife from Adhar s bari, while he stated in Court that on the night of the occurrence Kailash and Jaihari came to him and said that they suspected Belat and Keramat of having taken away the woman. It is contended that this has occasioned a failure of justice, for if the Jury thought that Sukhlal was a truthful witness in the absence of this contradiction, the verdict might have been in favour of the accused. It is urged that the verdict must, therefore, be set aside and the case sent back for fresh trial. We are not prepared to accept this contention. The statement was with regard to such an unimportant matter and had such a remote bearing on the question in issue, and the contradiction not being at all vital. We are unable to hold that the admission of the evidence could have affected the verdict of the Jury in any way. Jaihari and Kailash were not eye-witnesses to the occurrence. They only purported to state what they had heard from another witness Radhapyari. Whether they stated that the accused had committed the act or that they had been suspected to have done that act on the night of the occurrence seems to have a very little bearing on the positive evidence given as to the occurrence itself.