The accused's right to access the main witness's statement for cross-examination and the necessity for clarity regarding the specific charge in cases involving distinct offences.

JUDGMENT

Cuming, J. - 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 u/s 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 u/s 366 Indian Penal Code. The jury in delivering their verdict found the accused person guilty u/s 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 u/s 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 u/s 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 u/s 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 u/s 162, Criminal P.C., and a statement recorded u/s 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 u/s 172. It is quite immaterial whether the statement is labeled as recorded u/s 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 s