Judgment :- 1. The accused who is the appellant in this Criminal Appeal was tried before the Additional Sessions judge at Trivandrum in Sessions Case No. 35 of 1950. The charge against him was that he had committed murder by killing his elder brother Vasudevan Pillai on the night of 27.1.1124. On hearing the evidence the learned judge reached the conclusion that the charge under S. 301 of the Travancore Penal Code is made out against the accused. He accordingly convicted him under that Section and sentenced him to undergo rigorous imprisonment for life. In respect of this conviction and sentence, the records are submitted to this court for confirmation as required by law. x x x x 2. The case for the prosecution was that the father of the accused and the deceased who died a few weeks prior to the incident, had properties belonging to him, that the deceased was from his child-hood exhibiting undesirable tendencies and as he grew up he was leading a wayward life. There were occasions when he had assaulted his parents and for these reasons the father when he executed his will did not make any provision for the deceased. He had a wife who is P.W. 7, but the evidence shows that he was neglecting the wife and his children by her. On the 27th of Chingom the prosecution case is that the deceased had gone to the house where his mother P.W.1 and the accused were residing and he asked for cash because he did not have money with him. The suggestion is that he contemplated filing a suit for setting aside the will executed by his father and he wanted the money to start legal proceedings. Another suggestion made is that the day following was Onam day and he wanted cash in order that he may make purchases for himself and his family. The accused who was then present told him that he could not spare any cash. As a result the accused was assaulted by the deceased and they were engaged in a scuffle in the verandah of the house. Then the mother came out and pacified the deceased and told him that she would see that some cash was paid to him the following day. As a result the accused was assaulted by the deceased and they were engaged in a scuffle in the verandah of the house. Then the mother came out and pacified the deceased and told him that she would see that some cash was paid to him the following day. There is also evidence to show that Sukumara Pillai P.W. 11 who is another younger brother of the deceased was also attacked by him on the same day in the house when he accosted him on his arrival there. After going away from the house, the deceased returned late in the night. At that time, the accused was sleeping on the verandah of the house. Before he went to bed, he had a talk with his mother who reminded him about the request made by the deceased for cash and also reminded him of the fact that he would be arriving on the following day for getting it. He does not seem to have paid any heed to this advice, but took a chopper from inside the house and keeping it under his mat went to sleep in the verandah. Some time later the deceased also arrived in the house. He took his bed at the northern end of the verandah. The accused was sleeping at the southern end. After some time P.W.1 the mother of the accused and the deceased and P.W. 2 who as already stated is described as a servant working in the house heard the sound of groans in the verandah. They opened the window through which they could see what was happening in the verandah and their evidence is that they saw the accused attacking the deceased with M.O. IV the chopper. The post mortem certificate shows that the neck of the deceased was almost completely severed from the body. The main blood vessels, the eosaphaegus and the wind-pipe all these were cut in front on the neck and there is no doubt that death must have followed soon after this gruesome attack. Subsequent to the attack, the accused as already stated called P.W. 2 out of the house and after threatening him with instant death if he did not comply with his request, he compelled him to assist him to carry the dead body to the other property belonging to the family and there both these people interred the body. Subsequent to the attack, the accused as already stated called P.W. 2 out of the house and after threatening him with instant death if he did not comply with his request, he compelled him to assist him to carry the dead body to the other property belonging to the family and there both these people interred the body. There was no information given to the Police until the 31st of Chingom. But in the interval there were ugly rumours afloat in the locality and the suggestion is that P.W. 11 Sukumaran Pillai induced the accused to go and make a clean breast of what he had done in order that there may not be further trouble in the matter. Accordingly, the accused went to the Police Station at 6 P.M. on the 31st of Chingom and reported all that had happened and surrendered himself. He was placed under arrest. He also expressed his desire to make a confession and thereupon the police officers in the Police Station took him to a competent Magistrate who recorded his confession at 11 P.M. on the same night. On the following day, namely, the 1st of Kanni, as a result of information given by the accused, the Police went to the place where the body was burried and had it exhumed and the prosecution case is that P.Ws.1 and 2 identified the body as the body of the deceased. The body was sent for post mortem examination. The post mortem certificate has been produced and it indicates that death must have been caused as a result of the violent attack made on the body. The doctor says that death was due to syncope as a result of the attack. 3. The evidence given by P.W.1 the mother of the accused and the deceased in the committing Magistrate's court has been marked as Ext. A at the trial. The statement recorded by a competent Magistrate under S.162of the Criminal Procedure Code when she was produced before him was marked as Ext. C. These had to be looked into by the learned trial judge because in the Sessions Court she went back upon the evidence which she had given in the committing Magistrate's Court. A at the trial. The statement recorded by a competent Magistrate under S.162of the Criminal Procedure Code when she was produced before him was marked as Ext. C. These had to be looked into by the learned trial judge because in the Sessions Court she went back upon the evidence which she had given in the committing Magistrate's Court. The learned judge refers to the fact that it was elicited in evidence at the trial that it was she who was paying for the defence of her son who is the accused in the case and that she must have changed her mind after the order of commitment was made by the committing Magistrate. But if Ext. A which has been properly admitted in evidence at the trial is looked into the prosecution case has been spoken to by this witness and the learned trial judge has relied upon this evidence. The evidence which P.W. 2 the servant had given in the committing Magistrate's court has been marked as Ext. H at the trial. His sworn statement recorded by a competent Magistrate under S.162 which was also used at the trial has been marked as Ext. G. There was occasion to refer to these documents, because at the trial in addition to narrating what he witnessed on the night of the occurrence, in answer to a leading question put by the learned counsel who cross-examined him, he stated that at the time the murder was committed by the accused his elder brother Sukumaran Pillai also rendered assistance to him by catching hold of the legs of the deceased. This was something new. He had not referred to any such incident either in the committing Magistrate's Court or in the sworn statement which he gave under S.162 before a competent Magistrate. Therefore at that stage leave was asked on behalf of the prosecution to cross examine this witness. From the manner in which this request was made it was obvious that the intention of the Public Prosecutor who was in charge of the prosecution was not to discredit the evidence of the witness in its entirety, but to probe into the motive for the witness introducing a new incident in the course of his cross examination at the trial before the learned Sessions Judge. No useful purpose however was served by asking those questions. No useful purpose however was served by asking those questions. All that the witness said was that he knew at the time that Sukumaran Pillai also rendered assistance in bringing about the death of the victim, but that he was afraid that Sukumaran Pillai might use violence and cause serious injury to him if he disclosed this at an earlier stage of the proceedings. That was the only explanation that was obtained from the witness in answer to the questions put in cross examination with the leave of the Court by the learned Public Prosecutor. The appellant's learned counsel before us commented upon this aspect of the case and he started arguing that when a witness like P.W. 2 is permitted to be cross examined on the ground that he was turned hostile, the whole of his evidence becomes unworthy of credit and that it is not open to the prosecution to rely upon any part of his evidence. This is not supported by authority. On the other hand there is positive authority that if a witness on the ground that he is suspected to have turned hostile is permitted by the Court to be cross examined by the party who called him the whole of the evidence of that witness does not become worthless. It is open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused. In the present case as already stated the version given about the acts done by the accused which resulted in the death of the victim in the committing Magistrate's Court and before the Magistrate who recorded his statement under S.162 and in the Sessions Court is consistent. All that P.W. 2 did in the Sessions Court was that after narrating the events as he had narrated them on prior occasions. He gave as additional piece of evidence by saying that at the time of the murder P.W. 11 Sukumaran Pillai also rendered assistance to the accused. With regard to the value to be attached to the evidence of a witness in such circumstances we may refer to a few decisions which were cited at the Bar. The case reported in Profulla Kumar v. Emperor (AIR 1931 Cal. With regard to the value to be attached to the evidence of a witness in such circumstances we may refer to a few decisions which were cited at the Bar. The case reported in Profulla Kumar v. Emperor (AIR 1931 Cal. 401) is a decision of a Full Bench of the Calcutta High Court which had overruled the earlier view that prevailed in Calcutta that the evidence of a witness permitted to be cross-examined by the party calling him should be discredited altogether. In first instance it is enough to quote part of the headnote which we find is accurate in its wordings: "The fact that the witness is dealt with under S. 154, Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross examined him can take no advantage from any part of his evidence. The evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness, nor is it to be rejected so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both parties favourably or infavourably must go to the jury for what it is worth." In the course of an exhaustive judgment the learned Chief Justice (Rankin, C.J.) comments on the fact that the earlier view that prevailed in Calcutta was based upon certain observations of Lord Campbell in Faulkner v. Brine (1858) I.P. & F. 254). The learned Chief Justice states as follows in his judgment: "As it appears however that Lord Campbell's observation in Faulkner v. Brine have very seriously disturbed recent practice in Bengal it is perhaps right that they should be examined. Under S.154, Evidence Act, as under English practice a party who is given leave to cross examine his own witness may cross examine him to credit. This is sometimes necessary in order to contradict or get rid of a particular statement already sworn to by the witness and in such cases the witness is sometimes cross examined to show that he has previously made a statement inconsistent with his present evidence. This is sometimes necessary in order to contradict or get rid of a particular statement already sworn to by the witness and in such cases the witness is sometimes cross examined to show that he has previously made a statement inconsistent with his present evidence. It is here that the old English principle that a party cannot be allowed to impugn the general credit of his own witness and the principle that he may be allowed to cross examine a 'hostile' witness called by himself may be thought to come into conflict. x x x x" The learned Chief Justice then comments on the observation of Lord Campbell accepted as laying down the correct rule by some of the learned judges in Bengal and he concludes his judgment in these words: "In my opinion the fact that a witness is dealt with under S. 154, Evidence Act, even when under that section he is cross examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say." As already stated, the view is uniform in the other High Courts in India. It is enough to refer to the following decision: Ammathayarammal v. Official Assignee (AIR 1933 Mad. 137), Sohrai Soa v. Emperor (AIR 1930 Pat. 247), Emperor v. Jehangir (AIR 1927 Bom. 501). The learned Public Prosecutor points out that a similar view has taken by the erstwhile High Court of Travancore in the cases reported in 16 TLT 392 and 14 TLT 160. Therefore, there cannot be any doubt that merely because one particular statement made by Pw. 2 in the course of his cross examination referred to a matter which was never mentioned by him in his earlier depositions either before the committing Magistrate or before the Magistrate who recorded his evidence under S.162 of the Travancore Criminal Procedure Code, his evidence cannot be excluded in its entirety. 2 in the course of his cross examination referred to a matter which was never mentioned by him in his earlier depositions either before the committing Magistrate or before the Magistrate who recorded his evidence under S.162 of the Travancore Criminal Procedure Code, his evidence cannot be excluded in its entirety. The conviction can be based upon his evidence, especially in the present case where he has not gone back on any of the statements made by him in his earlier depositions when he was examined in the trial court but had only furnished an additional piece of information which has no bearing on the merits of the case and which is not concerned with the guilt or innocence of the accused appellant before this court. The evidence of this witness has been rightly acted upon by the learned trial judge and no exception can be taken to such procedure in view of the authorities already referred to. 4. The appellant's learned counsel then comments upon the fact that the confession was retracted by the accused. The records show that the accused had voluntarily surrendered himself to the Police, that he transmitted information to the Police as the result of which the body was traced, that he expressed a desire to make a confession and that was the reason why on the same night on which he was apprehended he was taken at 11 P.M. to a competent Magistrate for recording the confession. All the prescribed formalities had been followed by the Magistrate before he recorded the confession. No exception can be taken to the manner in which the confession was recorded. The comment made by the learned counsel is that this recording of the confession at 11 P.M. is not consistent with a circular in Travancore according to which confessions should not be recorded at night. But it must be borne in mind that the accused surrendered himself at 6 P.M. on that day and if he was not taken to the Magistrate in response to his special request on the same night a comment might have been made that he was influenced during the night by the Police officers while he was in their custody. But it must be borne in mind that the accused surrendered himself at 6 P.M. on that day and if he was not taken to the Magistrate in response to his special request on the same night a comment might have been made that he was influenced during the night by the Police officers while he was in their custody. Therefore, in the present case we are not satisfied that there is any valid reason for criticising the conduct of the Police Officer in sending the accused to the Magistrate at 11 P.M. on the night on which he was apprehended, seeing that it was done at his special request. 5. This confession was not retracted by the accused while the preliminary enquiry was going on in the committing Magistrate's court. But when the trial in the Sessions court began he retracted it. In the committing Magistrate's court the Magistrate who recorded the confession was examined as a witness. The accused had the opportunity of cross examining him but no questions were asked in cross examination. Subsequent to the order made by the committing Magistrate, this gentle man who recorded the confession who was then only officiating as Magistrate, seems to have vacated office and to have left the State for some place in Northern India and it was stated that his whereabouts were not known. On that evidence that his whereabouts were not known the evidence given by the witness in the committing Magistrate's Court was admitted as evidence in the trial and marked as Ext. AB. No doubt in the case of a retracted confession a great deal of caution has to be exercised in deciding what value should be given to the statements contained in the confession. But here the other circumstances already adverted to, especially the fact that the body was traced as a result of information furnished by the accused we are not satisfied that the trial court has erred in law in taking notice of the admissions made by the accused in Ext. AB which was the confession marked at the trial. 6. Another objection raised on behalf of the accused appellant by his learned counsel is that the doctor who performed the autopsy and who gave the post mortem certificate although he was examined in the committing Magistrate's Court was not called in the trial court. AB which was the confession marked at the trial. 6. Another objection raised on behalf of the accused appellant by his learned counsel is that the doctor who performed the autopsy and who gave the post mortem certificate although he was examined in the committing Magistrate's Court was not called in the trial court. Here again the Police reported that the doctor had gone out of India for higher studies in England. The records show that certificate to that effect was produced from the Surgeon General, Trivandrum. In these circumstances we are satisfied that the evidence of the doctor was properly admitted at the trial. 7. The learned counsel for the accused appellant has argued this appeal with ability and has taken us through the relevant evidence in the case. He has touched upon every possible point that can be taken in support of his contention that the conviction should not be upheld. But on looking into the evidence in this case and considering the probabilities of the case especially the circumstantial evidence we have no doubt that the conclusion reached by the learned trial judge that the accused is guilty under S. 301 of the Travancore Penal Code is correct. On that conviction there is only one sentence that could have been passed namely rigorous imprisonment for life, and that punishment has been awarded by the court below. We confirm the conviction and the sentence. The appeal must accordingly be dismissed. Dismissed.