Judgment :- 1. Accused 1 and 2 are the appellants in criminal appeals 30 and 31 of 1954. The State has filed criminal appeal 52 of 1954 for entering a conviction against the 2nd accused under S. 307 I.P.C., for he had been convicted by the court below for the offence under S.307 read with S. 114 I.P.C., Pw. 1, the complainant is the elder brother of the 2nd accused and the brother-in-law of the 1st accused. The prosecution was that with the object of murdering Pw. 1, the 1st accused, with the aid of the 2nd accused, stabbed him. The 2nd accused had married a Christian girl against his father's wish and so he was disinherited by his father in the settlement deed Ext. M executed by him. On account of this, the 2nd accused had a grudge against Pw. 1. The 1st accused had also a grievance against Pw.1 because of some dispute regarding the identity of the property left to his wife under Ext. M. Accused 1 and 2 used to threaten Pw.1 and this forced the latter to file a complaint against both of them. A case M.C. 26 of 1951 filed under S. 103 of the Crl. Procedure Code was pending against the accused on the date of the occurrence. On the morning of the 24th September 1951, Pw.1 and his brother who is Pw. 13, went to work in their field. At about 7.30 A.M. Pw.1 came over to the adjoining road leaving his brother Pw. 13 in the field. When he passed by the tea-shop of Pw. 12, the two accused who were sitting on a bench in front of the shop abused him in vulgar language. Pw.1 retorted by saying that on account of mischief-mongers like the accused, it was becoming difficult for people to go about. Pw.1 then proceeded towards the north of the road. Both the accused followed him calling him to stop and overtook him at a distance of about 80 feet from the tea-shop, Pw.1 stopped to a side of the road at which time both his hands were caught hold of by the 2nd accused. The 1st accused then stabbed Pw.1 with a knife. Pw.1 ran to the other side of the road pursued by the 1st accused who inflicted on him more stabs. The 1st accused then stabbed Pw.1 with a knife. Pw.1 ran to the other side of the road pursued by the 1st accused who inflicted on him more stabs. When Pw.1 fell down the 1st accused sat on his body and repeated the stabs. Both the accused then proceeded towards Pw. 12's shop saying that Pw.1 was finished. But seeing Pw.1 turning on his side they came back and gave him a few kicks. After some time Pw. 13 got information that his brother was lying wounded on the road. He hurried to the place and removed Pw.1 to the Kattakkada Police Station, in a car. The information given by Pw. 13 was noted by the Police in the General Diary Ext. O. Pw.1 was then not in a position to give any statement and so he was sent to the General Hospital, Trivandrum for treatment. Pw. 16 the Circle Inspector of Police went to the Hospital and recorded Ext. A statement from Pw. 1. A case was registered against accused 1 and 2 and investigation started. The 1st accused appeared at the police station on the day of occurrence itself and was arrested there. The 2nd accused who was absconding surrendered before the Magistrate's court after the police had filed the charge-sheet. After enquiry the Magistrate committed both the accused before the sessions court to stand their trial for the offence under S. 307 as regards the 1st accused and for the offence under S. 307 read with S. 114 I.P.C. as against the 2nd accused. 2. The court below found that Pw.1 had sustained the injuries as alleged by the prosecution, that the injuries were caused by the 1st accused stabbing Pw.1 with a knife, that the 1st accused did so with the intention of murdering Pw. 1, that the 2nd accused had abetted the 1st accused in the commission of the crime, and that the 1st accused was therefore liable to be convicted under S. 307 and the 2nd accused under S. 307 read with S. 114 I.P.C. The 1st accused was sentenced to undergo rigorous imprisonment for seven years and the 2nd accused to undergo rigorous imprisonment for two years. 3. Ext. F is the wound certificate issued by the medical officer one Dr. Bhaskara Menon, for the injuries found on Pw. 1. 3. Ext. F is the wound certificate issued by the medical officer one Dr. Bhaskara Menon, for the injuries found on Pw. 1. This medical officer left for England for higher studies and so his signature in the wound certificate was proved by Pw. 3, another medical officer, attached to the same institution. Pw. 8, a surgeon attached to the General Hospital was examined with reference to the injuries noted in Ext. F. Ext. F mentioned eight injuries on the person of Pw. 1. Two of them were linear abrasions, and the rest were incised wounds. Pw. 8 stated that these injuries could be caused by stabbing with a knife. According to him, the fifth injury noted in Ext. F which was an incised wound 1" x 1/2" "x 1/2" on the right side of the front of the neck in a vertical direction, communicating with the pleural cavity, was a serious wound which was likely to prove fatal. Pw.1 was treated as an in-patient in the hospital till 21.10.1951, when he was discharged cured, as seen from Ext. G discharge certificate. He had been admitted in the hospital at 12 noon on 24.9.1951 when he had all the injuries noted in Ext. F. It was thereof evident that Pw.1 sustained the injuries on the 24th of September 1951 as stated by the prosecution. 4. The next question is as to how he sustained those injuries. Besides Pw. 1, the independent witnesses relied on by the prosecution are Pws. 2, 6, 9,10,11 and 12. Pw.1 supports the prosecution in its entirety. He stated that on the date of the occurrence himself and Pw. 13 had gone to the paddy land to pursue agricultural operations, that at 6.30 A.M. he finished his work and was returning home, that he had his tea from the tea-shop of one Sanku Panickar, that the two accused who were sitting on a bench in front of Pw. 13 had gone to the paddy land to pursue agricultural operations, that at 6.30 A.M. he finished his work and was returning home, that he had his tea from the tea-shop of one Sanku Panickar, that the two accused who were sitting on a bench in front of Pw. 12's shop abused him, that he walked away remarking that because of headstrong persons it was becoming difficult to walk unmolested, that the accused followed him asking him to stop, that at a distance of about 30 feet from the tea-shop the 1st accused confronted him with an open knife, whereupon he stepped to the turf by the side of the road, that the 2nd accused caught hold of his hands from behind and asked the 1st accused to stab, that he was stabbed by the 1st accused and pushed to the other side of the road, that the 1st accused repeated the stabs and pushed him down, that when he fell down the 1st accused sat on him and inflicted several stabs till the knife was broken, that he thereupon became unconscious, and that he regained consciousness only in the General Hospital. Pw. 2 supports Pw.1 in all material details. Pw. 6 is a labourer whose house was only about 90 feet away from the place of occurrence. He had witnessed the whole occurrence. Pw. 9 had his house about 200 feet from the place of occurrence. He came to the road when he saw Pw.1 being followed by the accused and assaulted. Pw. 10 was staying about seven miles away. But his relations were living near the place of occurrence. He had come here the previous day. He gave details about the occurrence which he saw from the road. Pw. 11 who was another witness standing close by had witnessed the stabbing by the accused. Pw. 12 is the tea-shop keeper who says that the accused had their morning tea from his shop. They were sitting on the bench in his shop, but he did not see the accused following Pw. 1. Hearing some cries from the direction of the scene of occurrence, he looked that side and saw Pw.1 lying on the ground with the 1st accused sitting on his body. The sight of blood frightened him and he went inside his shop. These are the persons who speak to the occurrence. 1. Hearing some cries from the direction of the scene of occurrence, he looked that side and saw Pw.1 lying on the ground with the 1st accused sitting on his body. The sight of blood frightened him and he went inside his shop. These are the persons who speak to the occurrence. The 2nd accused would say that at the time of the occurrence, the 1st accused was attacked by Pws.1 and 13 and another person, that he tried to intervene to save the 1st accused and that the occurrence took place then. The 2nd accused would further say that Pw.1 aimed a knife at the 1st accused which he wrested from him and brandished and that it was not known how Pw.1 sustained the injuries, and that in all probability these injuries might have been sustained by Pw.1 in the act of the 1st accused brandishing the knife. 5. There are certain minor discrepancies in the evidence given by the occurrence witnesses. But as observed by the learned judge they are not very material. The serious objection taken was regarding the manner of recording the statement of witnesses in the case diary by the police. It was stated that it did not contain details of the statements made by certain witnesses, particularly Pw. 2 and that the provision contained in Cl. 3 of S. 161 of the Criminal Procedure Code had been offended. It was therefore argued that those witnesses, whose full statements did not appear in the case diary were not to be relied upon. Under this sub-section a police officer is not bound to record the statements of witnesses examined by him during the course of investigation but if he exercises his discretion in favour of reducing the statements into writing he is bound to make a separate record of the statement of each witness. As observed in Jageswar Sow v. The King, 1950 Cal. 565, the effect of the amendment is to abolish the practice or recording joint statements which are incapable of use as the statement of any individual witness. Investigating Officers should comply with the mandatory provisions of this sub-section. A failure to do so very often results in the earlier statements of these witnesses not being made available to the accused and the court is not in a position to test the veracity of the witnesses. Investigating Officers should comply with the mandatory provisions of this sub-section. A failure to do so very often results in the earlier statements of these witnesses not being made available to the accused and the court is not in a position to test the veracity of the witnesses. As observed in Bejoy Chand Patra v. The State, A.I.R. 1950 Cal. 363, the fact that the statements of the witnesses have been recorded in a boiled form will not make the evidence of these witnesses inadmissible at the trial, though it may become relevant for considering their credibility. The non-observance of the provisions of this section will not make the trial irregular if the accused does not make any request for copies of statements to the police, but sufficient caution must be exercised in dealing with the evidence of such witnesses. 6. Pw. 2 is the brother-in-law of Pw. 11. What is seen in the case diary is that Pw. 2 gave a statement in accordance with what was stated by the previous witnesses whose statements had been recorded in full and that Pw. 2 witnessed the occurrence after he had left the bullocks in the paddy field of his brother-in-law, Gopalan. This is certainly not a proper form of recording the statement of Pw. 2. But there are other witnesses who give direct evidence relating to the occurrence. So even if the evidence of Pw. 2 is ignored there would be ample material in this case to enter a conviction against the 1st accused. It was stated that Pw. 6 and his brother were witnesses in the miscellaneous case that had been filed against these accused by the police. Ext. P is the charge in that case. It was charged on Ext. C petition filed by Pw.1 on 30.7.1951. Pw. 10 is the son of Pw. 9's uncle. Apart from the fact of this relationship nothing inherently incredible has been brought out in the evidence given by the prosecution witnesses. The lower court had relied on these witnesses in respect of the part played by accused 1 and 2. That court did not however believe that the stabs were inflicted by the 1st accused at the instance of the 2nd accused, though the 2nd accused aided the 1st accused by holding back both the hands of Pw.1 to facilitate the stabbing by the 1st accused. That court did not however believe that the stabs were inflicted by the 1st accused at the instance of the 2nd accused, though the 2nd accused aided the 1st accused by holding back both the hands of Pw.1 to facilitate the stabbing by the 1st accused. It is held that the 2nd accused held together both the hands of Pw.1 when the 1st accused inflicted on Pw.1 the first four stabs mentioned in Ext. F. The 1st accused had inflicted all the six incised injuries noted in Ext. F. Abrasions mentioned as numbers 7 and 8 could have been caused by Pw.1 falling down on the road. The first injury was an incised wound above the left shoulder blade in an oblique direction. The second injury was above the outer half of left collar bone in a horizontal direction. The third and the fourth injuries were in front of the neck and the sixth injury was above the middle of the right collar bone. All the stabs were therefore inflicted on vital parts of the body and injury No. 5 had even penetrated into the pleural cavity. The intention of the assailant is the be gathered from the nature of the weapon used and the parts of the body where the injuries are inflicted. It could safely be inferred from the circumstances mentioned above that the 1st accused had intended to cause the death of Pw.1 by inflicting these injuries on him. He is therefore liable for the offence under S. 307 I.P.C. for which we think that a sentence of rigorous imprisonment for five years would be sufficient. 7. As regards the 2nd accused, what he did was to hold back both the hands of Pw.1. There is no case that there was any conspiracy between accused 1 and 2 to do away with Pw.1. The 2nd accused could not have committed the offence under S.114 I.P.C. S.114 is only brought into operation when circumstances amounting to abetment of a particular crime have been proved and when the presence of the accused at the commission of that crime is proved in addition. This section would apply to a case where a person abets the commission of an offence, some time before it takes place and happens to be present at the time when the offence is committed. This section would apply to a case where a person abets the commission of an offence, some time before it takes place and happens to be present at the time when the offence is committed. It is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission. When a person who abets the commission of an offence is present and helps in the commission of the offence, he is guilty of the offence and not merely of abetment except in a few cases like rape or bigamy. There is absolutely no suggestion in this case that the abetment had been completed before the commission of the offence. There was no case that accused 1 and 2 conspired together and waited on the bench in Pw.12's shop to assault Pw.1. Thus S. 114 I.P.C. cannot be invoked to aggravate the gravity of the offence said to have been committed by the 1st accused. No doubt, the 2nd accused had by his act facilitated the inflicting of the injuries on Pw.1 by the 1st accused. Explanation 2 to S. 107 I.P.C. provide that whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, aids the doing of that act. Viewing the second accused's act with reference to this explanation, he must be deemed to have abetted the commission of the act. But it is provided in the case that while the 2nd accused was holding back the hands of Pw.1, the first four injuries mentioned in Ext. F were alone inflicted by the 1st accused. Those were not serious injuries and so the 2nd accused could be made liable only for the first injuries in Ext. F inflicted by the 1st accused. The offence would come under S. 109 I.P.C. which states thus: "Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence." He could therefore be convicted only for the offence under S. 324, read with S.109. We therefore change the conviction entered by the lower court and convict the 2nd accused for the offence as mentioned above. His sentence is therefore reduced to rigorous imprisonment for one year. There is no merit in the appeal filed by the State and so that is dismissed. 8. In the result we confirm the conviction entered against the 1st accused under S. 307 I.P.C. and sentence him to rigorous imprisonment for five years. The conviction under S. 307 read with S. 114 I.P.C. entered against the 2nd accused by the lower court is converted to one under S. 324 read with S. 109 I.P.C. and he is sentenced to rigorous imprisonment for one year. Thus Criminal appeals 30 and 31 are partly allowed as indicated above. Criminal appeal 52 of 1954 filed by the State is dismissed. The appellants will be taken to custody forthwith and sent to the Central Prison to serve out the remaining portion of the sentence.