1. This is an appeal by one Mafizaddi against the order of the learned Additional Scions Judge of Dacca, Mr. K.N. Roy who agreeing with the verdict of the jury found the accused Mafizaddi guilty under Section 366, Indian Penal Code, and sentenced him to four years rigorous imprisonment.
2. I may here point out that one of the difficulties with which we are confronted in dealing with this case is that it is impassible to ascertain what is the offence of which the appellant has been found guilty. For this reason he was charged that he on or about the 26th day of November 1925 at Rahapara kidnapped or abducted Jamila Khatoon and thereby committed an offence punishable under Section 366 Indian Penal Code. The jury in delivering their verdict found the accused person guilty under Section 366 Indian Penal Code; whether, therefore, he was found guilty of kidnapping or whether he was found guilty of abduction it is impossible to say. I need hardly point out that kidnapping is an entirely distinct offence from abduction the necessary ingredients being entirely different.
3. The first point raised by Mr. Talukdar, which point I think must succeed, is as follows : The main witness in the case was the girl Jamila Khatun. When this witness was put into the box and was examined in chief the defence pleader desired to cross-examine this witness with the object of breaking down her testimony by putting to her certain statement which it is alleged she had made to the Sub-Inspector who investigated the case. The learned Additional Sessions Judge held that this statement was recorded by the Sub-Inspector under Section 172 Criminal P.C., and therefore it was privileged.
4. Speaking for myself I have always been of opinion that Section 172, Criminal P.C., does not deal with the recording of any statement by witnesses. Nor do I understand that a statement can be said to be recorded under Section 172, Criminal P.C. Section 172 (I recite merely the material portion of it) runs as follows:
Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation.
5. No mention whatever is made there of recording of any statement by a witness. Sections 161 and 162, Criminal P.C., properly deal with the different portions of the investigation. What is intended to be recorded under Section 172, Criminal P.C., is what the Sub-Inspector did - the places where he went, the people he visited, what he saw &c.; I do not think that any statement can be said to be recorded under this section and so would be a privileged one. Be that as it may, it is quite clear now that there is no distinction between a statement recorded under Section 162, Criminal P.C., and a statement recorded under Section 172, Criminal P.C., if a police officer purports to record a statement under the latter section. Section 162 now reads as follows:
No statement made by any person to a police officer in the curse of an investigation under this chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any enquiry or trial in respect of any offence under investigation at the time when such statement was made.
6. It is quite clear that the object of amending the section is that the police should no longer claim any privilege in respect of any statement on the ground that it is a statement recorded under Section 172. It is quite immaterial whether the statement is labeled as recorded under Section 172, Criminal P.C.
7. The learned Deputy Legal Remembrance contends that in any way Section 162 contemplates only what he describes as a complete statement and that if the statement is not a complete statement recording every word uttered by the witness then the statement cannot be used under Section 162 for the purpose of contradicting. I am not prepared to accept this contention. It seems to me immaterial whether the statement as recorded is the actual record of the words used by the witness. It is suffient, I think, even if the statement is recorded in the form of a memorandum of what the witness had said to the police officer; it is available for the purpose of contradicting the witness. It is not necessary, in order that an accused person may be allowed under Section 162 to contradict the witness, that the statement must contain the very words used by the witness.
8. In the present case the police diary unfortunately is not before us. But we have been able to ascertain from the evidence of the Sub-Inspector which was given in the enquiry Court but which was not allowed to be used in the Court of Sessions that the witness in question, Jamila Khatun, had made a long and detailed statement to the police officer. He states:
I examined the girl. She told me that she had run away from her mother's custody at her own will as she was ill-treated by her mother.
9. Then on consulting the diary the witness further stated that the girl said that she was beaten by her mother so she had left home. She further said that she met Mafizaddi, at Dhamrai Railway station and with him she came to Dacca. She said that her mother had coma to Dacca next day and had consented to marry her to Mafizaddi. She said that later she was married by Mafizaddi and that a deed of divorce was prepared of her elder sister and a kabinnama was drawn up at that time with consent of both the parties. She then said that she married Mafizaddi giving her own ijin as her mother and brother were not present at the time. She said that she had attained her puberty two years before. In concluding his examination the Sub-Inspector said:
I examined her at the Mitford hospital. I asked her to tall her story and she stated.
10. It is quite clear from the Sub-Inspector's evidence that what was recorded by the Sub-Inspector was the statement made by the witness. Whether that statement was or was not recorded under Section 162 or Section 172 the accused person was entitled to a copy of it in order that he might cross-examine Jamila Khatun with the intention of breaking down her evidence.
11. Proviso No. 1 to, Section 162 states as follows:
Provided that, when any witness is called for the prosecution in such enquiry or trial whose statement has been reduced to writing as aforesaid the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement, if duly proved, may be used to cantradict such witness.
12. The learned Sessions Judge was therefore wrong in refusing to allow the defence to have a copy of the statement of this witness made to the Sub-Inspector. It is quite clear looking at the statement that the accused had been seriously prejudiced by not being allowed to use the statement in cross-examining Jamila Khatun. On this ground alone it is necessary to sat aside the conviction and sentence.
13. There is a further point which has been brought to our notice, namely that the accused has been seriously prejudiced because he did not know what charge he had to meet. He has been charged in one head under one charge with kidnapping or abduction. The ingredients of the two offences are obviously different and the accused was entitled : to know which of the charges he was asked to meet. No doubt the two offences are referred to is the same section Section 366, Indian Penal Code, but they are distinct offences and separate charges should have been drawn up if it was desired to charge him with both offences.
14. We therefore set aside the conviction and sentence of the appellant Mafizaddi. We leave it to the District authorities to consider whether in the circumstances of the case the appellant should be retried or not. The accused will remain on the same bail pending the order of the District authorities as to retrial.
15. I agree.