Norman Macleod, Kt., C.J.
1. The three accused were charged before the Acting Sessions Judge of Belgaum with having committed the murder of one Sakreva on the night of April 6, the third accused being charged in the alternative under Sections 502 and 109 of the Indian Penal Code with abetment of the murder. Accused Nos. 1 and 2 were found guilty under Section 302 and accused No. 3 was found guilty of abetment under as. 302 and 109 by the Sessions Judo-e disagreeing with the assessors. All were sentenced to transportation for life. The case for the prosecution was as follows. Sakreva was a Jogti woman living alone. Close by lived Motiappa a carpenter and his wife accused No. 3. Monappa became too intimate with Sakreva with the result that accused No. 3 finding her remonstrances of no avail instigated accused Nos. 1 and 2 to murder Sakreva.
2. Sakreva was last seen alive on the evening of April 6. On the evening of the 8th her dead body was discovered in a tank a short distance away from her hut. It was stripped of clothes and tied by a rope and weighed down by two stones. When her hut was searched a quilt upon a charpoy and two baskets were found stained with blood. Apart from the evidence of Tangeva, wife of accused No. 1, which I shall deal with hereafter, two witnesses implicate accused Nos. 1 and 2.
3. Shivlinga Kempanna (Exh 6) stated that on the evening of the 6th he saw accused No. 1 at the door of his hut and accused No. 2 at the door of the hut of the deceased. He asked them what they were doing and accused No. 1 said that Sakreva was ill and as he could not assist on account of his caste accused No. 2 who was a Lingayet was giving her milk and rice. Shivbasappa (Exh. 7) was watching his field that night. He heard a noise and called out when accused Nos. 1 and 2 answered him. They each took a stone and went away. The Judge considered there was no reason why these witnesses should not be believed. Ganappa Basappa (Exh. 12) was called by the Patel on the morning of the 9th to a Panchnama over the dead body. The nest day he attended at the hut of the deceased when a quilt and two baskets stained with blood were attached. Accused No. 2 then took the Panch to the field of the Police Patel and pointed out the place where there were marks of two stones having been removed. He took them to the tank, went into the water, and brought out a Sari which had been hidden in the silt That Sari was identified as belonging to the deceased. Exhibit 8, the Patil, said that he compared the marks where two atones had been removed with the stones found tied to the body and they tallied. Accused No. 2 also produced Us. 19 which he said he had collected for building a house. The prosecution suggests that the money was given by accused No. 3 as a reward for committing the murder.
4. I now come to the evidence of Tangeva.
5. Before the committing Magistrate she said that Mallava had instigated accused Nos. 1 and 2 to murder Sakreva on account of her intimacy with Monappa. Accused No. 3 was represented by a pleader who declined to cross-examine Tangeva. The Magistrate, however, examined her further on her statement at considerable length. Before the Sessions Judge she denied everything she had stated before the Magistrate. She admitted that Mallava and Sakreva used to quarrel but when she was asked what was the reason for the quarrel she said she left the village on the Sunday morning and did not return until after the dead body had been found. Later on she said there was a rumour that accused No. 3's husband was in criminal intimacy with the deceased but she did not know why Mallava quarrelled with Sakreva. She (Sakreva) was in the keep of accused No. 3's husband for two years. Questioned on her previous statement she said that although no one had threatened her, and both the Fouzdar and the Magistrate merely asked her to tell the truth she told lies through fear.
6. The question whether Tangeva's statement before the Magistrate could be admitted as substantive evidence in the case under the provisions of Section 288 of the Criminal Procedure Code has been argued at considerable length both before the Sessions Judge and before us. When the Code was amended the words ' subject to the provisions of the Indian Evidence Act' were added to Section 288.
7. Mr. Kelkar contends that the only provisions of the Indian Evidence Act to which this amendment referred were Sections 155 and 157 which enact that previous statements can be proved to contradict or corroborate a witness. If this argument were to hold good, Section 288 would be rendered superfluous, since a statement made before the committing Magistrate could already be used for limited purposes under the Indian Evidence Act. The Government Pleader asked the Sessions Judge to refer to the proceedings of the Legislative Council or at least to the statement of the objects and reasons of the amendment as contained in those proceedings, but I think the Sessions Judge was clearly right in holding that such a reference was not permissible. It is difficult to see how the word 'provisions' in Section 288 as amended can be limited to particular provisions in the Indian Evidence Act. We are asked to accept the proposition without a single argument being brought forward to support it, and the simple answer is that the amendment merely makes clear what might possibly have been uncertain without it, that the Judge must scrutinise the statement in the same way as any other evidence which is tendered, he must strike out what on one ground or another is inadmissible according to the law of evidence, and consider whether that part which is admissible can be believed or not, always having regard to the fact that 1924 the witness before him has contradicted it. I am of opinion that the Judge in this case has exercised all proper precautions before deciding that ha could believe the statement of Tangeva recorded by the Magistrate. He says : 'I do not think the statement the whole truth. It is clearly influenced by the desire' of the woman to shield her husband, but it appears to be inconceivable that the whole should be a fabrication.' It must be remembered that Tangeva did not suggest that she had been in any way intimidated by the Fouzdar or the Magistrate before she made her statement, and the Judge remarks at the close of her evidence : 'The woman seems to have her wits very much about her and I should say it is certainly unlikely she would be intimidated by the Mamlatdar or the Fouzdar'. I think the conviction of all the accused was correct and that the appeals should be dismissed.
8. It cannot, I think, be doubted that the learned Sessions Judge has correctly appreciated the meaning and scope of Section 288 of the Code of Criminal Procedure. Under the section as it stood before the recent amendment it was well settled that the evidence of a witness taken before the committing Magistrate could, in the discretion of the Judge, be treated as substantive evidence in the case. The recent amendment adds to the section the words (for all purposes subject to the provisions of the Indian Evidence Act.' There does not appear to be any possible obscurity as to the meaning. The evidence is evidence for all purposes' and is therefore evidence for the purpose of determining the guilt or innocence of the accused. But had the section ended there it would have been possible to argue that such evidence is exempt from any of those provisions of the Indian Evidence Act which would otherwise render it inadmissible, The legislature, therefore, deemed it necessary to safeguard the use of that evidence by declaring expressly that like any other evidence it was 'subject to the provisions of the Indian Evidence Act.' Among those provisions are many which exclude or limit the use of evidence. The record of the statement of a witness might, for instance, incorporate the statement of another person not called before the Court or might disclose the fact that the accused person had been previously convicted, or had made a confession to a police officer. Without the limiting words there would be no direct provision excluding those matters. That is the true intention of the added words. The Sessions Judge was, therefore, justified in his discretion in using the statement of Tangeva as evidence in the case. It is not, in my opinion, either necessary or expedient to attempt to lay down any general rule as to the effect to be given to such evidence beyond saying what is indeed obvious, that such evidence must, in the nature of things; be accepted with more caution, than the evidence of a witness who adheres in the Sessions Court to what he deposed before the committing Magistrate.
9. In this case the conviction of accused Nos. 1 and 2 rests not on Tangeva's statement alone but on other evidence also. There can be no doubt that Sakreva was murdered, and it is highly probable that she was murdered in her hut on the night of April 6. The two accused were seen at or about that hut by Shivlinga on the night in question, and accused No. 1 gave an explanation of their presence which, in the light of the undoubted fact that the woman was murdered, appears to be false. The next night Shivbasappa saw them remove from a field two stones, and after the corpse was found in the tank the stones, which had been used to weigh it down, were compared with the marks at the place shown by Shivbasappa and were found to tally. Accused No. 2 further pointed out the Sari of the deceased which was buried in the mud of the tank. If this evidence be considered in the light of Tangeva's first story there is no reasonable doubt of the guilt of accused Nos. 1 and 2:
10. As regards accused No. 2 there is evidence which seems credible that the deceased was in the keeping of her husband, and that this intrigue had caused bitter quarrels, and even violence between the two women. Sakreva's circumstances were such as to exclude any ether conceivable motive for the crime. In the circumstances I feel no doubt that Tangeva's earlier story was true, and that accused No. S was a party to the crime. Had Tangeva given any rational explanation of her first evidence the matter might have been more doubtful but it is plain that before the Sessions Court she was not telling the truth. This being so I see no reason to refuse to believe her earlier story.
11. I would confirm the convictions and sentences and dismiss the appeals.