1. The two appellants before us have been convicted of constructive. murder on a charge framed that they committed an offence punishable under Section 302 read with Section 149, Indian Penal Code. On that conviction they have been sentenced to transportation for life. They were also convicted of rioting but no separate sentence was passed under Section 147, Indian Penal Code.
2. It is unnecessary to state the facts of the case. It is conceded by the learned Deputy Legal Remembrancer that he cannot resist one point urged on behalf of the appellants that evidence was admitted that was not admissible under the law. One of the witnesses for the prosecution was a man named Kokari. It is in evidence that this witness before the Police made statements supporting the case for the prosecution. Before the Committing Magistrate he resiled from those statements and his evidence before the Sessions Judge was substantially to the same effect as that given in the Committing Court.
3. If anything, it was even less favourable to the prosecution. The learned Sessions Judge appears to have overlooked the alteration in the law effected by the recent amendment of Section 162, Cr. P.C. Under that section, as it now stands, statements made by any person to a Police Officer in the course of an investigation under Ch. XIV shall not be used for any purpose except to contradict a witness at the request of the accused in the manner provided in the second paragraph of the section. The admission of this evidence as to the statements made by Kokari to the Police was likely to seriously prejudice the appellants for we find further that though the learned Sessions Judge did not positively draw attention to these statements as evidence against the appellants, he did not. as he should have done, warn the Jury that the statements made by this witness to the Police were no. evidence at all in support of the case for the prosecution. Under the present law it was the duty of the Judge to withhold from the Jury's knowledge the statements made by this witness to the Police unless they were proved in the manner provided by law at the request of the accused.
4. We must accordingly allow this appeal. We set aside the conviction and sentence passed on the appellants and direct that they be re-tried according to law.