Harries, C. J.
1. This is an appeal by one Tobarak Mandal who was tried by a learned Sessions Judge and a jury upon a charge Under Section 366, Penal Code. The jury returned a unanimous verdict of guilty of an offence under that section and the learned Sessions Judge accepted the verdict, convicted the appellant and sentenced him to a term of five years' rigorous imprisonment. From that conviction and sentence the present t )peal has been preferred. The charge was that Tobarak Mandal had abducted a young married woman named Mentu Daaai the daughter of the complainant Jatil Mehna, from the house of Jatil Mehna in village Hariramput;.
2. It appears that on Ashar 15 last Mentu Dasai was staying at the houae of her father and at about Candle-light time she went out to a tank called Bodipukur which was not far from the house of the complainant to ease herself, There it is suggested that she was abducted by the appellant with intent that she should be compelled to marry him against her will or she might be forced or seduced to illicit intercourse. It is said by the prosecution that Tobarak Mandal was accompanied by his cousina Rustom and Sabu and when they found the young woman at the tank she was seized and gagged and forcibly dragged away to the house of Sabu where she was kept confined until the following night. She was then taken to the village of Kanpur by Tobarak Mondal and Sabu and there kept confined for ten days. It is said that during the period of her confinement Tobarak threatened and cajoled Mentu Dassi and tried to persuade her to embrace Islam and marry him, though, it is said, Tobarak Mandal well knew that the young girl was married and that her husband was alive. She did not, however, yield to these threats or inducements and finally after being confined for about ten days she managed to make good her escape and returned home to the house of her father. Her father in the meantime had made a complaint, but no steps had been taken as a result of it. When the girl appeared she was produced before the Court by the complainant where she was examined and eventually proceedings were commenced against the appellant and Sabu, but the appellant only was committed for trial.
3. Mr. Sudhansu Mukherjee on behalf of the appellant has contended that the verdict of the jury is vitiated by reason of the' admission of inadmissible evidence. The girl was abducted, as I;have said, on Ashar 13 which corresponds to 29th June 1948. She was kept confined for about ten days when she returned to her father's house. Her father Jatil gave evidence and he stated that when the girl returned she told him what had happened and the statement of the girl to her father corresponded very closely to the evidence which she gave in the Sessions Court.
4. A neighbour Gosta Mondal, P.W. 5, also gave evidence that the girl told him what had happened and how she had been abducted by Tobarak Mandal. This witness also gave evidence and told the Court and the jury what the get had told him.
5. Jatil. Mehna, P.W. 2, also stated in evidence that he a few days after the abduction told other people. Gosto Mondal, P.W. 6, said that one morning Jatil told him that his daughter Mentu had been abducted by Tobarak Man-dal four days before. There was also the evidence of Haripada Mondal that Jatil had told him ' that his daughter Mentu had been abducted by Tobarak Mondal on the previous evening.
6. Mr. Sudbasu Mukherjee'a argument is that the evidence of Jatil Mehna, P.W. 2, and Gosta Mondal, P.W. 5, was clearly inadmissible. It had been tendered by the prosecution as evidence tending to corroborate the girl's evidence, but Mr. Mukherjee has pointed out and I think rightly that these statements were made too long after the occurrence to be admissible as corroboration.
7. Section 157, Evidence Act provides:
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
8. Had this young woman escaped during the night on which she was abducted and told her father on arrival at the house what had 1 occurred, Such a statement of the girl would be, I think, admissible Under Section 157, Evidence Act, to corroborate her evidence, because the statement would be one made at or about the time when the abduction took place. The statement which the girl made to her father Jatil Mehna, P.W. 2, was made ten days or so after the occurrence. It was suggested that the offence was a continuing one and continued up to the time of the girl's escape and therefore her statement to her father could be regarded as a statement made at or about the time when the offence was committed. However, it is quite clear from the charge that the offence was the offence of abduction and that took place on the night of Aabar 15 when it is said that she was dragged forcibly from the tank and confined in the house of Sabu. It appears to me that a statement made by the girl ten days after that alleged occurrence cannot possibly be admissible in evidence to corroborate the girl Under Section 157, Evidence Act. Had the statement however been made to a person legally compe-tent to investigate the offence, then would it be admissible because it will be observed that the section draws a sharp distinction between statements made to persons competent to investigate facts and statements made to other persons. This aspect of the section was referred to in a Bench decision of this Court in Emperor v. Bam Chandra Boy : AIR1928Cal732 , in which it was held that a report of an offence, not made at or about the time of the occurrence, to an officer, who had no powers to investigate the matter, though it can be used under S. 155, Evidence Act to. impeach the credit of the person making the same, cannot be used to corroborate the witness Under Section 167, Evidence Act, It is to be observed that in that case the statement was made to a District Judge. But the Bench held that as he had no power to investigate the commission of offences the case did not fall within Section 157, Evidence Act and as the statement was not made at or about the time of the occurrence it was inadmissible,
9. In my view the evidence of Jatil Mehna and the evidence of Gosta Mondal of what this young girl told them when she returned from her alleged confinement was inadmissible and the jury should not have been allowed to hear such evidence.
10. Further, it seems to me clear that the evidence of Gosta Mondal of what Jatil Mehna told him four days after the occurrence is nadmissible as it was not a statement made by Jatil Mehna at or about the time of the offence. That evidence also Bhould not have been admitted.
11. Haripada Mondal, P.W. 4, as I have already said, stated that Jatil had told him on the morning after the occurrence that bis daughter had been abducted by Tobarak Mondal. The admissibility of this evidence is also doubtful because it may be that considerable time bad elapsed between the occurrence and the statement to Haripada Mondal. However, it is unnecessary to investigate the facts concerning this statement, because it is abundantly clear that the evidence relating to statements made by girl to Jatil and Gosta Mondal and by Jatil to GoBta Mondal was clearly inadmissible.
12. It does not follow that because inadmissible evidence has been allowed at a trial the verdict of a jury is necessarily vitiated. Section 167, Evidence Act provides:
The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, it it shall appear to the Court before which such objection ia raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify The decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
13. The inadmissible evidence is important and may well have influenced the jury in arriving at their verdict. The jury might well have thought that as the girl immediately she returned to her home related what occurred first to her father and then to Goats Mondale, her Story must have been true. Had this evidence not been admitted the jury might have felt some hesitation in acting upon the girl's evidence and that evidence-alone. In my view the admission of this inadmissible evidence might well have affected the jury's verdict in this case, and therefore it appears to me that it might have caused a miscarriage of justice. That being so the verdict of the jury in my view cannot be maintained and must be set aside.
14. The question then arises what course Should this Court follow. Sine the decision in the case Abdul Bain v. King-Emperor , it is clear that this Court could go into the facts and decide the matter for itself. It must be remembered that Abdul Bahim's case , is concerned not only with the effect of misdirection by a learned Judge, but also with the effect of the admission of inadmissible evidence, as in that case a mass of evidence had been admitted which might well have affected the minds of the jury. On the other hand, this Court is not bound to decide the matter itself, but can order a new trial. In my view the proper course to adopt in this case is to direct a fresh trial.
15. In that trial The learned Judge of course must rule out the evidence which I have found to be inadmissible and admit only such evidence as is admissible within The Evidence Act. The case is one to my mind pre-eminently fitted for a decision by a jury. For example, Mr. Sudanese Mukherjes has urged that the girl's story cannot be true because she said that she was dragged along a road on which stood a number of huts and nobody apparently endeavored to rescue her. The jury would be in a far better position to judge whether such could or could not occur. They would be far more familiar with conditions existing in an Indian village at what is said to be candle light time than Judges of the High Court sitting here. As it appears to me that this is a case which should be decided by a jury, I would, therefore, direct a retrial.
16. In the result, therefore, I would allow this appeal, set aside the verdict of the jury and the conviction and sentence which followed thereon and direct that the appellant be retried by a learned Sessions Judge and a jury upon this charge, The ease should not be heard by the learned Sessions Judge himself, but should be heard by the Assistant -Sessions Judge who is now sitting in The Birbhum District. The appellant will continue to remain on the same bail pending the retrial.
J.P. Mitter, J.
17. I agree.