V.P. Gopalan Nambiyar, J.
1. The appellant, Narayana Pillai aged 22, has been convicted by the Sessions Judge of Qui'lon for the murder of one Krishna Pillai by stabbing him with a tapping knife on 13-8-69 at about 7.30 p.m. and sentenced to imprisonment for life. He has also been convicted Under Section 324, Penal Code for causing hurt to P.Ws. 2 and 5 in the course of the occurrence and sentenced to rigorus imprisonment for three months and one month respectively. The sentences are directed to run concurrently.
2. Deceased Krishna Pillai was a tea-shop keeper in Yayakkala at Oommannoor Village. He was residing with his wife and 6 children in Sarojavilasom house, about half a mile from Vayakkala jucotion, where he was conducting the tea-shop. The accused was their neighbour and was friendly with the deceased's wife P.W. 2, Krishna Pillai will leave his houae on all dajs at about 7 am. and return only by about 9-30 or 10 in the night with a break at 10'clock for lunch. All the children are echool going and they will be away from 9 a.m. till 4-30 p.m. Availing himself of the absence of Krishna Pillai and his children from the house, the accused used to frequent the house and move on terms of intimacy with P.W. 2. When Krishna Pillai came to know about this, he ohastised his wife and warned her against any such association with the accused; but the warning was of no effect, and the clandestine relationship continued unabated.
On the fateful day (13.8-69), the acoused paid a visit to P.W. 2 at about 7 p.m. He went and stood at the northern oourtyard of the house and from there started talking to her. When they were thus in a happy mood, indulged in a pleasant conversation, Kriehna Pillai sprung a surprise on them by visiting the house. Time then was about 7-30 p.m. The sight of his wife in such compromising mood with the accused enraged him, and burning with rage, he caught hold of the acoused and brought him under his grip. Then ensued a souffle between the two. Hearing the hubbub and oommotion in the oourtyard, the children who were studying in their rooms rushed up with the kerosene lamp, under the light of which they were reading lessons. In the course of the souffle, the aooused whipped out M.O. 1 tapping knife, from under his waist and inflicted four stabs on Krishna Pillai, which fell on his chest and abdomen. P W. 2 and her little daughter, P.W. 5 aged 12 inter, vened to separate them and in that attempt they also sustained injuries. Theaooused then ran westwards with the knife.
Krishna Pillai in staggering steps moved the veranda and oapsized them. P.Ws. 9 and 11, two neighbours were by this time attracted to the scene on hearing the cries, and they immediately removed Krishna Pillai to the . toad eide and from there he was taken in a taxi to the Kottarakkara Government Hoe. pital. The injured Pws. 2 and 5 were also taken there and after the necessary first aid, Krishna Pillai was removed to the district hospital, Quilon for further treatment. Pw. 12, a cousin of Krishna Pillai had also arrived at the hospital by this time in a taxi. He took Pw. 1, the 16 year old daughter of Krishna Pillai to the police station, where the first information was lodged by her. The head constable who was in charge of the police station registered the crime and the Sab Inspector visited the scene of crime the next morning and prepared the necessary mahazar etc. By about 1 in the night of 15.3-69 Krishna Pillai died. The accused was reported to be absconding. On 18.8.69 by about noon, he however, surrendered before the Punalur police with the knife MO. 1. He was immediately arrested and since some injuries were found on his body he was eent to the Government hospital, Punalur for treatment
3. The case of the accused is that on the fateful night while he was returning from his workspot in the estate, heard a commotion in ' the deceased's house and on running up to tee what it was. he saw Krishna Pillai and Pw. 2 engaged in a scuffle, beating and stabbing. He held back Krishna PiUai asking him not to stab his wife and this provoked Krishna Pillai and turning against him he stabbed, him also. Following that, everything was in utter confusion. Snatching away the tapping knife from KriBhna Pillai he fled from the scene. He has a further case that Krishna Pillai and his wife used to quarrel every time and the cauee of the quarrel was Krishna Pillai's association with a Muslim woman Bubaida who had come from Nedu-mangad for coolie work in the estate. Though married she had come alone and was taking her meals and coffee from Krishna Pillai's hotel. Krishna Pillai and Subaida were re. ported to be moving on intimate terms and on one occasion Krishna'; Pillai expressed his desire to his wife that Bubaida also should be allowed to reside in Sarojavilasom. This attitude of his led to frequent quarrels between the husband wife resulting in blows being dealt on her. On the date in question also, according to the accused, the husband and wife were engaged in suoh a quarrel and the wife was beaten up. It was on hearing the ories, that he ran up to the place.
4. The eye witnesses to the occurrence are Pws. 1, 2, 5 and 6. Barring Pw. 2, who is the wife, the rest are children below the age of 16. Pw. 1, the first informant is aged 16, Pw. 5 aged 12 and Pw. 6 aged 10. Before the committing Magistrate all these witnesses seem to have supported the accused's version of the occurrence. But in the sessions oourt Pw. 2 supported the prosecution in chief examination. but resiled from that position in cross-examination and in a way came baok to the prosecution version in re-examination. Pws. 1, 5 and 6, on the other hand, supported the prosecution version in full in the eesaions court.
In this state of confusion the learned Judge had to scan the evidence in all minuteness and take into consideration also the broad Circumstances and probabilities of the case to arrive at the truth. The learned Judge has discarded the evidence of Pw. 2 almost in its entirety. A witness who givea one version in ohief examination, another in cross-examination and a third version in re-examination cannot be relied on for any purpose and no conclusion could be formed from such evi. denoe. The delicate situation in which Pw. 2 is, has particularly to be borne in mind in this connection. On the one side is her duty to her deceased husband, and on the other she is being tormented by her affeotion for her lover the accused. It is quite natural - and she her. self makes no secret of it-that her considera. tion is greater and more weighty for her lover than for her own husband who is dead. When questioned in re.examination in the sessions court she stated that in taking such an attitude in the case, she is motivated by a desire to see her paramour being extricated from the clutches of the law. The evidence coming from such an unscrupulous person cannot take us any where.
But the evidence of the children is sufficient in itself to bring home the guilt of the aocused beyond doubt. In the oase of these witnesses, the difficulty was pointed out that in view of the contradictions brought out in cross-examination it is not possible to accept their evidence; but the cross-examination, it has tote remembered has been ineffective and of no serious consequence. None of the contradictions has been proved in the way requir-ed by Section 145 of the Evidence Act. Seotion 145 reads;-
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to mat. tera in question, without such writHng being shown to him, or being proved; but if it ia intended to contradict him by the writing, hia attention must before the writing can be proved, be oalled to those parts of it which are to be used for the purpose of contradicting him.
The Supreme Oourt in dealing with a similar Situation in Tahsildar Singh v. State of U. P. : 1959CriLJ1231 has laid down the procedure as to how Section 145 of the Evidence Act is to be put into effect. Their Lordships had to consider in that case the contradictions brought in, with respect to the statements recorded Under Section 162, Criminal P.C.; but the principle is the same in respect of a statement given before the committing magistrate which is signed by the witness. Their lordships observed :
The procedure prescribed for contradicting ft witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the provison if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of B. 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of 8. 145 of the Evidence Act. without putting relevant -questions under the first part thereof cannot be accepted. The second part of Section 145 of the Evidence Act clearly indicates the :simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which con. tradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary, if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked 'did you say before the police officer that you saw a gas light?' and he answers 'yes' and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies; one is, it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could be brought on record. This procedure, therefore contravenes the express provision of Section 182 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness box. for the witness has yet not made on the stand :any assertion at all which can serve as the basis. The contradiction under the Section should be between what a witness asserted in the witness, box and what he stated before tht police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all only questions to contradict can be put and the question here posed does not oontradict; it leads to an. answer which is contradicted by the police statement.
The procedure thus is to put the material portions of the previous statement to the witness and on getting a denial from the witness it may either be left ac that and get it marked later through the person, viz., the police officer who was responsible for recording the statementi or to get it marked then and there subject to proof by the police officer, when he is examined. Of course, when the witness admits the previous statement, no further proof is necessary because of the ad. mission that it was made. Only relevant portions of the statement need be put to the witness. The essential formalities in proving the contradictions have to be complied with and if the provisions of Section 145 are not complied with the Court will be oompelled to ignore the contradictions. Only substantial compliance is insisted on and the question is essentially one of form and not of substance; but there must be substantial compliance.
In the present case, none of the contradictions except one or two in the case of Psv. 6 have been proved, as required by the latter part of Section 145. In the case of the other witnesses, viz., Pws. 1 and 5 some of the statements alleged to have been made by them before the commitfc. ing Magistrate were admitted by them: but they hastened to point out that the facts stated therein are not correct. They have, therefore, to be treated as denials and not admissions.
5. learned Counsel then stated that Under Section 288, Criminal P.C. he has the right to ask the Court to treat the previous statement as substantive evidence for all purposes. This position also is untenable. In the first place, the object of Section 288 of the oode is to confer the power.on the judge to treat the evidence given by a witness before the Magistrate as Substantive evidence if he is satisfied that the evidence given before the Magistrate is true and that given before him is not. The Section is intended to provide for the contingency that may arise when a witness who may be produced before court of sessions holds back the information and evidence, and tells a different story from that which he gave in the preliminary enquiry before the Magistrate. In other words, the Section is intended to help the prosecution when a witness deviates from his previous statement and gives a different version to help the accused: in such a situation discretion is given to the court to accept the evidence given before the committing Magistrate as substantive evidence if the court is satisfied that, that version is the correct one. This procedure is intended to prevent the attustd from tampering with tht prostoutioa witnesses
While transferring the statements of a witness Under Section 288, Criminal P.C.,the following procedure should be followed :
(1) the request by the prosecution to transfer should be made at the time the witness is making his deposition in the sessions court;
(2) if an application in writing requesting tht trial court to transfer such a statement ia made, then it should be clear from the reoord all what stage the application was made:
(3) an opportunity should be given to the iefefice for cross-examining tht witness in reference to the statement to be transferred; and
(4) if tht prosecution wishes to use the pre. vious testimony to the contrary as substantive evidence it must confront the witness as re. quired by 8. 145, Evidence Act, with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence Under Section 288. (vide Jagar Singh v. State. A.I.R. 1954 Pepsu 6).
Even if the Section is construed as one intended to help the accused also, there is the further difficulty that parts of the writing have not been put to the witness and the cEvidenceontradictions proved as required by Section 145 of the Evidence Act. It is necessary Under Section 145 of the Evidence Act that parts of the writing should be put to the witness in contradicting him with a view to dbplaoe the evidence given in the sessions court,
There is no reason why 8. 145, Evidence Aot, should' be exoluded when 8. 288 states that the previous statements are to be 'subjeot __ the provisions of the Indian Evidence Aot.' mJ 8- 145 falls fairly and squarely within the ( plain meaning of these words. More than that , this is a fair and proper provision and is in accord with the sence of fairplay to which j. courts are accustomed. On giving effect to the plain meaning of theEe words, therefore, the evidence in the committal court cannot be used in the sessions court unless the witness is confronted with his previous statement as required by Section 145, Evidence Act. If the prosecution wishes to use the previous testimony to the contrary as substantive evidence, then it must confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only oan the matter be brought in as substantive evidence Under Section 288.' (vide Tara Singh t. Statt A.I.R. 1951 S C 441).
We are therefore of the view that tht witnesses have not, in the present case, been contradicted by their prior statements in the manner required by the law.
6. Pws. 1, and 6 have given the truthful version of the occurrence in the sessions oourt and that version gets oorroboration from the other circumstances as well. The fact that the accused was on terms of illicit intimacy with Pw. 2 cannot at all be doubted. Apart from Pw. 2's own admission in respect of it and the itatement of Pvva. 1, 5 and 6, we have alao the evidence of an independent witness Pw. 9, who is a neighbour, who had occasion to know about to this illicit intimacy and even to advise the aooused with a view to dissuade him from it. Just after the occuranoe, the witness had gone to Sarojavilasom. Just then the ac eused was fleeing from the house through the northern courtyard armed with the weapon. He saw Krishna Pillai reeling and falling on the veranda. On asking Krishna Pillai he told the witness that he was stabbed by the accused. It ia the uniform version of all the witnesses that Krishna Pillai used to return home from the tea shop, only between 9-30 and 10 in the night. That day, to the surprise of Pw. 2 and the accused he made his appearance in the house at 7-30 p. m. That the occurence took place at 7-30 p. m. is not disputed. It is unlikely that Krishna Pillai would have gone home at that unusual hour without any pur. pose; the purpose could never have been to pick up a quarrel with his wife over the Subaida episode. In the F. I.R. statement whioh wa3 given by Pw. 1 just a few hours after the ooourence the version given is quite consistent with the one placed before oourt by the prosecution. Attempts might possibly have been made in the meanwhile by interested persons to confuse these children; but inspite of such persuasions they have stood their ground finally in the sessions court. We do not see any reason to reject their evidence. Except trying to create oonfuasion in the mind of the oourt, no purpose worth the name has been served by the so-called contradictions in their version. The conviction has rightly been entered by the learned sessions Judge Under Sections 302 and 324, Penal Code. Injuries happened to be sustained by Pws. 2 and 5 when they intervened to prevent the accused from inflicting further stabs on the deceased. As many as 4 incised wounds and, one abrasion were sustained by the deceased. It does not stand to reason that a person going there in the role of a peace-maker should get flared up like that and inflict such deep-seated injuries, on the other person. Two of the stabs fell right on the chest. We have no doubt in our mind that the accused had gone there for a secret interview with the woman, with the determination to face any situation if it cornea to that. Otherwise the presence of a deadly weapon like the tapping knife with him cannot be explained. His intention was. as is gatherable from the brutal attack made on vital parts of the body of the victim with the deadly knife, was to take away his life. In the circumstances, the conviction has only to be confirmed,
7. The learned sessions Judge, however, has chosen to award only the lesser sentence of imprisonment for life on the reasoning that the accused was under the feat that be would be caught and confined there. We are not satisfied with the learned Judge's reasoning; but we do not propose to interfere with the sentence in the absence of a, motion for enhancement- The sentence passed under 3. 324, Penal Code also has to be confirmed.
8. In the result, the conviction and sentence passed on the accused are confirmed and the appeal is dismissed.