1. The appellant was unanimously found guilty by the jury of offences under Sections 147 and 325, I.P.C.; and he has been sentenced to rigorous imprisonment for two years and a fine of Rs. 100, and in-default to further rigorous imprisonment for two months. The ground on which this appeal must succeed is that the learned Judge who tried the case did not give the appellant an opportunity of cross-examining a certain. witness named Abbas with reference to statements made by that witness during the investigation by the police. The learned Judge has recorded in his order that the statements of this witness were recorded by the police under Section 172, Criminal P.C. That section does not provide for the recording of statements of witnesses. Any statements of witnesses that are recorded, in whatever form those statements may be recorded, are recorded under Section 161, Criminal P.C., and the defence have the right to ask for a copy of such statements and to use the statements for the purpose of contradicting the witnesses for the prosecution. How far the statements made by this Abbas would be material it is impossible to say, but it is quite conceivable that the defence may have refrained from making use of the other portions of the diary thinking that having once been refused they would be refused again.
2. For these reasons we allow this appeal and set aside the conviction and sentence and order that the case be retried with a fresh jury.
3. The appellant who is on bail will remain on his present bail until further orders of the Sessions Judge.