KHARAITI Vs. EMPEROR

JUDGEMENT

(1.) The applicant, Kharaiti, has been convicted by the Assistant Sessions Judge of Moradabad of an offence under Section 366, Indian Penal Code, and sentenced to three years rigorous imprisonment. The conviction and sentence have been upheld by the learned Sessions Judge. The present application is made on the ground that both Courts have convicted the present applicant --who was put on his trial with several others--on the strength of a statement made by Mt. Naziran to the Sub- Inspector of the police station in Delhi, whereas it is argued that the statement was inadmissible under Section 162, Criminal P.C. No objection appears to have been taken to the admission of the statement in the trial Court. It was preferred in evidence by the prosecution and it was also used on behalf of the defence in order to shake the testimony of the witness by showing that there were discrepancies between her statement made in Court and the statement made to the police.

(2.) It appears that the case for the prosecution was that the girl was taken away from her husband's place in the Moradabad District and that some four months later she was seen with Jahana (one of the persons convicted in this case) in Delhi in circumstances that aroused the suspicion of a constable, who took both of them to the thana and made a report. After receiving the report of the constable the Sub-Inspector recorded the statement of the girl. It was this statement that was afterwards produced in Court to corroborate the testimony of the girl. The question of admissibility of the statement was raised in the lower appellate Court, but the learned Judge, after discussing the matter at some length, came to the conclusion that as the statement was made to a police officer at Delhi who: had no business to investigate an offence, of the commission of which a report has been made long before at Amroha and which was therefore- liable to be investigated by the police there.

(3.) Section 162, Cr. P.C, would not exclude it from evidence. Section 162 provides: No statement mads by any person to a polices officer in the course of an investigation under this chapter shall... be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offeuce under investigation at the time when such statement was made.