1. This case See 92 Ind. Cas. 439 : 27 Cr. L.J. 263--[Ed.] came up once previously before this Court on which occasion the conviction of the appellants was set aside and the case sent back for re-trial on the ground of erroneous admission of inadmissible evidence. The Court gave also certain directions as regard the framing of charges on the re-trial. On this occasion also the appellants have been convicted on the unanimous verdict of the Jury under Section 366 and 376, Indian Penal Code, and sentenced to ten years rigorous imprisonment, each under each section, the sentences to run concurrently.
2. On behalf of the appellants it has been contended by their learned Vakil that the present trial has also been vitiated on account of the use made by the Sessions Judge of the statements made by witnesses to the Police Officer during the course of investigation under Ch. XIV, Cr. P.C., in contravention of Section 162 of the Code. The learned Judge was of opinion that he was entitled to put question with regard to those statements in the exercise of the power conferred upon him by Section 165 of the Indian Evidence Act, in the order to show that the witnesses had made contradictory statements to the Police Officer and before the Court. We have no doubt that the Judge was clearly wrong in making such use of the statements The power conferred on the Judge under Section 165, Evidence Act, cannot be exercised for the purpose of introducing evidence in contravention of the law. The last para of Section 2 of the Evidence Act leaves the provisions of the Cr. P.C. unaffected. Under Section 162, Cr. P.C., statements made to a Police Officer are prohibited from being used for any purpose save as provided in the section; and there is no provision for allowing the Judge to use such statements for confronting the witnesses with them. To use the statements for this purpose was to contravene the provisions of Section 162 of the Code. The learned Deputy Legal Remembrancer is unable to support the procedure adopted by the Sessions Judge.
3. The use of which the learned Vakil complains is primarily that of the statements made by Sukhlal (P.W. No. 13) to the Police Officer which was introduced with the evidence by a question put to the Sub-Inspector by the Judge, that on the night of the occurrence Joyhari and Kailash came to the witness and informed him that Belat, Keramat (the two appellants before us) and a few others had forceably taken away Adhar's wife from Adhar's bari, while he stated in Court that on the night of the occurrence Kailash and Jaihari came to him and said that they suspected Belat and Keramat of having taken away the woman. It is contended that this has occasioned a failure of justice, for if the Jury thought that Sukhlal was a truthful witness in the absence of this contradiction, the verdict might have been in favour of the accused. It is urged that the verdict must, therefore, be set aside and the case sent back for fresh trial. We are not prepared to accept this contention. The statement was with regard to such an unimportant matter and had such a remote bearing on the question in issue, and the contradiction not being at all vital. We are unable to hold that the admission of the evidence could have affected the verdict of the Jury in any way. Jaihari and Kailash were not eye-witnesses to the occurrence. They only purported to state what they had heard from another witness Radhapyari. Whether they stated that the accused had committed the act or that they had been suspected to have done that act on the night of the occurrence seems to have a very little bearing on the positive evidence given as to the occurrence itself.
4. It is next urged that Sukhlal had given evidence that Binodini had immoral relations with the appellant Belat and that if this witness had been believed the verdict would have been otherwise. We are unable to accept this contention also for assuming that Binodini was a woman of immoral character, there was no reason whatsoever for her leaving her home for the whole night and leaving a child five months old uncared for as there was nothing to prevent her from carrying on the intrigue in the maimer as was suggested she used to do before the day of occurrence; nor is there any reason why she should have been found next morning at a distance from the village attempting to find her way home, in the condition in which the witnesses depose to have seen her hair dishevelled, eyes blood-shot and her body and cloth all muddy. There is no doubt, therefore, that she did not leave her home with the object of keeping an assignation even assuming that Sukhlal's evidence is true. But against this man's evidence, which is merely hearsay, there is the evidence of a large number of co-villagers who swore that Binodini was of good character, and we have no doubt that the suggestion as to her bad character is unfounded. On the whole we are unable to hold that there has been any failure of justice on account of the erroneous proceeding of the Judge. In this view we are not disposed to reverse the verdict of the Jury.
5. Before parting with this case, we must express our regret that the Sessions Judge has committed this lamentable error which was due to his not considering the recent amendments of the Code more carefully. This has caused us a great deal of trouble and much waste of time and might have caused further waste of public time and money and also harassment of witnesses if we had found lit necessary to reverse the verdict of the Jury and direct fresh re-trial. The course adopted by the Judge is all the more regrettable because there was adequate and proper evidence in support of the case for the prosecution and the contradiction as the statement sought to be introduced was of no practical value. In introducing evidence in a trial with the aid of a Jury the Judge must be very careful in order to avoid miscarriage of justice. With these observations we dismiss the appeal.