1. [His lordship stated the facts and discussed at length the evidence in the ease. The discussion gave vine to a doubt'as to the accused's guilt: the accused was given the benefit of that doubt. The judgment then proceeded:--] Before concluding, I may mention that the learned Sessions Judge has admitted in evidence the written record of a statement made by the boy Eknath before the Police Sub-Inspector in the course of the Police investigation into this case. This was apparently done in the course of the boy's cross-examination at the request of the accused's pleader in order to discredit his statement that he and his father were dragged out of the hut. there is no doubt that, under Section 162 of the Criminal Procedure Code, the fact that no such allegation had been made by him to the police could be proved in order to discredit him under Section 145 of the Indian Evidence Act, 1872. But Section 162 says that the accused may be furnished with a copy of the statement of a witness, 'in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act 1872.' The words 'if duly proved' in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course I do not mean to say that, if the particular police officer who recorded the statement is not available, other means of proving the statement may not be availed of, e. g., evidence that the statement is in the handwriting of that particular officer.
2. That is one point on which, I think, the Sessions Judge erred, and another is that he has admitted evidence that the witnesses Tuka and Vithu made statements supporting the prosecution case before the Sub-Inspector. It is quite clear that under Section 162, Criminal Procedure Code, as substituted by the Code of Criminal Procedure Amendment Act of 1923, it is not now permissible for statements to the police, whether oral or written, to be put in evidence, in order to corroborate a prosecution witness, or to contradict a defence witness, treating Tuka and Vithu as practically defence witnesses. To this extent the decisions of this Court in fmperatrix v. Jijibhai Govind I.L.R. (1896) 22 Bom. 596 and Emperor v. Hanniaraddi I.L.R. (1914) 39 Bom. 58, 14 Bom. L.R. 603 which rule that evidence of that kind is permissible, are now superseded by the enactment of the legislature. It is quite clear from the very strong terms of the present Section 162, Criminal Procedure Code, that a police statement can only be used for one purpose, and that is by the accused to contradict a prosecution witness in the manner provided by Section 145 of the Indian Evidence Act of 1872.
3. For these reason's, I would allow the appeal, wet aside the conviction and sentence passed upon the accused, and direct that he be set at liberty.
Lallubhai Shah, Actg. C.J.
4. I agree.