Kanhaiya Singh, J.

1. This is an appeal from the judgment of the 2nd Additional Sessions Judge, Dumka, dated 31-1-57, convicting the appellant, Dhaneshwar Thakur, of village Saikhore under Section 366, I. P. C., and sentencing him to undergo rigorous imprisonment for two years.

2. The facts of the prosecution case are short and simple. Badamia (P. W. 5), aged 17 years, was the legally wedded wife of Aghnu Rawani (P. W. 2) of mauza Bhurandiha. On 18-9-55 she disappeared from the house of her husband. A search was instituted by the members of her family, but to no effect. On the following morning Aghnu went to the house of his father-in-law, but she was not found there also. Then he lodged sangha at the police station. On 15-10. 55 Aghnu received information that his wife had been kept by the appellant in his house- Me lodged the first information report at the Saraiyahat police station on 16-10-55. The Assistant Sub Inspector (P. W. 19) went to the house of the petitioner and recovered her from his house. The prosecution case was that she had been forcibly carried away by the appellant from the lawful possession of her husband with the intent to force her to have illicit intercourse.

3. The appellant pleaded not guilty and denied in toto the allegations of the prosecution. He admitted that Badamia was living in his house and was recovered therefrom by the police. His defence is that she came to his house of her own accord and was working there as his maid-servant.

4. The learned Additional Sessions Judge found that Badamia Was the legally married wife of Aghnu, that she was not a minor under 18 years of age and that she was recovered from the house of the appellant He further found that the appellant did not kidnap or abduct her from the house of her husband, and that it was only when she was taken to his village that he kept her there.

5. Mr. S.R. Ghosal appearing for the appellant contended that there was no evidence at all to prove that he either forcibly compelled, or by any deceit, ful means induced, Badamia to go from the place of her husband to his house. In my opinion, the contention of Mr. Ghosal is well-found and must be accepted as correct." There is total lack of evidence in this case to prove that she was taken out of the lawful possession of her husband in the manner alleged by the prosecution. On the contrary, the evidence of some of the witnesses examined on behalf of the prosecution shows that she was working as maid-servant in the house of the appellant. She herself has supported the defence version. She has denied the story of abduction and has deposed that she was working as a maid-servant in the house of the appellant of her own accord. The wife and the mother of the appellant, P. Ws. 6 and 8, respectively have also deposed that she was working in their house as a maid-servant. The evidence of Aghnu (P. W. 2) and his father (P. W. 1) is only this that on 18-9-55 she was found missing from the house and was traceless. The evidence of P. Ws. 3 and 4 is to the same effect. P. W. 16 has deposed that he had seen the appellant with a girl in the house of Kailu Jha of Bankati about a year ago. P. W. 17 has stated that he had seen a girl in the house of Kailu Jha aforesaid. He, however, did not find the appellant there. The evidence of P. W. 18 is that he had seen the appellant with a girl in the house of Kailu Jha and that the girl was always kept in the house and was not allowed to come out. The other witnesses are formal witnesses, namely the police and search witnesses, except P. W. 15 whose evidence was not accepted by the learned Judge. It will be seen that the evidence of P. Ws. 16, 17 and 18 does not prove the prosecution case at all. It may be that the appellant was living with a girl in the house of Kailu Jha. The question is whether that girl was Badamia. No evidence has been led on this point. Even assuming that both Badamia and the appellant were living for sometime in the house of Kailu Jha, it does not lead to the inference that she had been abducted by him. This part of the prosecution story is also consistent with the defence version that she was living of her own sweet-will in the house of the appellant, and it may be that he might have taken her to the house of Kailu Jha on some occasions. This is all the evidence on behalf of the prosecution, and there is no witness to say how and in what manner she was taken from the house of her husband to the house of the appellant. In reaching his conclusion, the learned Judge relied largely on the previous statements of Badamia herself, (L) recorded under Section 164, Criminal P. C. and (2) made before the investigating officer (P. W. 19). So far as her statement under Section 164 is concerned, the learned Judge utterly misdirected himself in using them as substantive evidence. This was obviously an improper use of those statements. As observed by their Lordships of the Privy Council in Brij Bhusan Singh v. Emperor : AIR 1946 P C 38 (A), a statement made under Section 164, Criminal P. C., cannot be used as a substantive piece of evidence. It can be used to cross examine the person who made it and the result may be to show that the evidence of the witness is false, but that does not establish that what he stated out of Court under Section 164 is true. In the present case there are two inconsistent statements of Badamia, one under Section 164 and the other before the Sessions Court. When there was such a conflict of evidence, the testimony has to be rejected outright in absence of any independent corroboration. A Division Bench of this Court in Babulal Mushar v. Emperor, : AIR 1947 Pat 144 [LQ/PatHC/1946/52] (B) has observed as follows :

"Ordinarily, if a witness makes one statement at one stage of the proceedings and a different statement at another stage of the proceedings, in the absence of any reasonable explanation as to why he is making two absolutely contradictory statements, the proper course would be to reject the evidence of such a witness. "Again in the case of Harnam Singh v. Emperor 38 Cri. L. J. 765 : A. I. R. 1937 Lah. 597 (C), a Division Bench of the Lahore High Court has held that where everyone of the witnesses for the prosecution has been demonstrated at the trial to have contradicted the statement he made before the committing Magistrate, it is not safe to convict the accused. Although the conflict in that case was between the statements made before the committing Court and those before the sessions Court, the ratio of that decision applies to the present case as well, when the earlier and the later statements o Badamia were at variance, her evidence must be rejected, and if her evidence is left out of consideration, then there is no evidence worth the name to establish the prosecution case. It will appear that the learned Judge did not correctly appreciate the effect of Badamias statement under Section 164, and therefore, his conclusion is vitiated.

6. Again admission of the statement of Badamia before the investigating Officer as substantive evidence has introduced another illegality in the finding of the learned Judge. Section 162 Cri. P. C. renders the statements made by any person to a police Officer in the course of an investigation under Chapter XIV of the Code wholly inadmissible in evidence, except for the limited purpose stated in the proviso thereto. Formerly, when any person whose statement had been reduced into writing by the police officer was called as a witness for the prosecution, the accused alone could use that Statement for the purpose of contradicting such witness under Section 145 of the Evidence Act. The Amending Act XXVI of 1955 has extended this privilege to the prosecution also. Now, under this section as amend ed by the aforesaid Amendment Act, the prosecution also can make effective use of such statements to contradict witnesses or to confront hostile witnesses. Since, however, prosecution is not entitled to cross-examine its own witnesses without the permission of the Court, Section 162 as amended places a limitation on| this new right of the prosecution that such statements can be used by the prosecution only with the permission of the Court. No such permission is needed in the case of an accused. Nevertheless, whether such statements are used by the accused, or by the prosecution with the permission of the Court, the purpose remains the same, namely, to contradict the witnesses in the manner provided by Section 145 of the Evidence Act. Such statements are not to be used by the accused or the prosecution for the purpose of corroboration. It is manifest that such statements can never be used as substantive evidence in favour of or against either the accused or the prosecution. Therefore, when the statements made by Badamia before the investigating officer were retracted in the committal Court and the sessions Court, and those made by her before the sessions Court rather supported the defence, the inevitable conclusion was that she was not telling the truth, assuming that the statements before the police were proved to be reliable and her entire evidence was liable to rejection. Her earlier statements before the police cannot be used for any other purpose in such a case. The conclusion of the learned Sessions Judge based upon such statements cannot but be set aside.

7. Then, there is a further infirmity in his conclusion. At best, there is only the testimony of Badamia (P. W. 5), and as she is a co-conspirator in the crime, her evidence alone cannot safely be regarded as a basis for conviction in the absence of independent evidence.

8. It follows that there is no legal evidence to establish that the appellant either abducted her, or after abduction kept her forcibly in his house against her will, for the purposes mentioned in Section 368, I. P.C. Consequently, his conviction cannot be maintained.

9. In the result, the appeal is allowed, the conviction and sentence imposed upon the appellant are set aside and he is set at liberty.