1. The appellants have been convicted under Sections 457 and 366, I.P.C. In our opinion, the verdict cannot be sustained, because on a material point in the case the jury was allowed to consider evidence which was wholly inadmissible. It would appear that a main plank in the defence case was that the complainant was a girl of bad character. The defence witness 1 who was Vice-Chairman of the Local Board was actually examined to prove this point. Subsequently however the learned Judge recalled a police officer who was a prosecution witness and allowed him to give evidence after consulting his case diary to the effect that no such statement had been made to him during investigation by the defence witness 1.
2. It is perfectly clear that no such use of a statement made to a police officer during investigation is warranted by the provisions of Section 162, Criminal P.C., and as this evidence was in the present case used to demolish the most important portion of the defence case, it must be held that its admission prejudiced the accused to such an extent that the verdict of the jury cannot be upheld. That verdict, and the conviction and sentence passed thereon on the appellant, must accordingly be set aside.
3. The only other question is whether we should or should not direct a retrial in the case. On a perusal of the record we find that the direct evidence on one charge consists of the statement of the woman herself; and the direct evidence on the second charge consists of the statement of the woman and her husband. We note also that the learned Judge in recording his findings expressed himself as constrained to agree with and accept the verdict of the jury. We must admit that we appreciate the feeling which led to his expressing himself in this way, and that, in view of the record in the present case, we do not consider it necessary to direct a retrial. In this view of the matter the convictions of the appellants and the sentences passed upon them are set aside. We direct that they be released and discharged from bail.