JUDGMENT Anna Chandy, J. 1. Criminal Appeal 72 of 1963 is by accused 1, 2 and 3 in Sessions Case No. 3 of 1963 on the file of the Sessions Court of Trivandrum. They along with three others were charged under S.147, 148, 149, 342 and S.302 I. P. C. read with S.34 for having formed themselves into an unlawful assembly armed with deadly weapons and having caused the death of one Sathian by beating and stabbing him. Accused 4 to 6 were acquitted of all the charges while accused 1 to 3 were convicted under S.325 read with S.34 arid sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 100/-. In Criminal Appeal 174 of 1963 the State has challenged the acquittal of accused 4 to 6 and the acquittal of the appellants of the charge of murder. 2. Accused 1 to 3 are direct brothers and accused 5 and 6 are their first cousins. The fourth accused is a brother inlaw of accused 1 to 3. Accused 1 to 3 were residing with their parents in Kamalalayam House by the side of the Petta - Oruvathikottah Road in Trivandrum. Sathian the deceased was staying nearby. Babu a brother of accused 1 to 3 had been on terms of illicit intimacy with Savithri the sister of Sathian as a result of which she became pregnant. Attempts to get Babu marry Savithri did not succeed. On 5-11-1962 Surendranath another brother of accused 1 to 3 filed a complaint against Sathian and his two brothers Viswan and Velappan alleging that he was assaulted by them and a case was charge sheeted by the Vanchiyoor Police on 13-11-1962. The prosecution case is that at about 7 on the evening of 13-11-1962 all the six accused in the case together with two others who are yet unidentified lay in wait in and about Kamalalayam House after having made preparations to attack Sathian when he would be passing by the lane to the north of Kamalalayam House on his way home. Accused 4 to 6 and one of the unidentified persons were seated on a bullock cart on the road side, accused 2 and the other unidentified person were standing at the gate of the Kamalalayam House and accused 1 and 3 were inside the house. Accused 4 to 6 and one of the unidentified persons were seated on a bullock cart on the road side, accused 2 and the other unidentified person were standing at the gate of the Kamalalayam House and accused 1 and 3 were inside the house. When Sathian reached the place in the company of P. W. 1 the accused are alleged to have blocked his way, pushed him down and lifted him bodily into the courtyard of the Kamalalayam house. There all of them attacked him mercilessly with the weapons they had kept ready there and one of the unidentified persons also stabbed him with a knife. When Sathian cried out that he was being killed, P. W. 1 who had been accompanying him is alleged to have proceeded to the work spot of Viswan a brother of Sathian and after appraising him of the brutal attack on his brother proceeded to the Vanchiyoor Police Station to make a report. He returned in the company of the police to the Kamalalayam House where they found Sathian lying injured on the verandha of the house with hands and legs tied. Sathian was removed to the Medical College Hospital where he succumbed to the injuries the same night. 3. All the accused pleaded not guilty to the charge. Accused 1 to 3 added that they had shifted their residence from the Kamalalayam House some days prior to the incident and were living at Pettah. They said that they went over to the Kamalalayam House that night on hearing about the attack against Sathian and were taken to the police station along with Sathian in the same van. 4. Seven witnesses were examined to prove the occurrence. Of these P. Ws. 5 and 6 failed to support the prosecution case to any extent and had to be declared hostile and cross examined. P. W. 7 is an old man of 75 with defective eyesight who could not identify the accused in the court even in broad day light. The evidence of P. Ws. 3 and 4 was also not accepted by the court rightly on account of the inherent infirmities. The conviction rests on the evidence of P. W. 1 and Ext. P. 3 the statement given by P. W. 2 in the Committing Court. 5. The evidence of P. Ws. 3 and 4 was also not accepted by the court rightly on account of the inherent infirmities. The conviction rests on the evidence of P. W. 1 and Ext. P. 3 the statement given by P. W. 2 in the Committing Court. 5. P. W. 2 is a student in the S. M. V. School who said that he happened to witness the occurrence when he was listening to the radio music in the tea shop of Krishnan after his return from school. He began by saying that he is living with his father in the Kattil House near the scene of incident, but when further questioned he had to admit that his father is residing with his mother at a place one and a half miles off from the place and he used to stop at Kattil House with his uncle only off and on. He further admitted that on Tuesdays, Thursdays and Saturdays when he used to attend the N. C. C. Training Classes, it was possible for him to return home only by 8' O Clock. It is seen that 13th happens to be a Tuesday. When he was confronted with that fact he said that on that day there was no parade as the school master was laid up with small pox. He says he waited at the place till the police came to the scene and returned in the van with the injured and accused 1 to 3. However he was questioned only on the 17th and no satisfactory explanation is given for the delay. He was standing by the side of P. W. 1 and witnessing the occurrence and it is strange why P. W. 1 who gave the names of persons who witnessed the incident failed to note his presence or mention his name. He is admittedly" an accused in a case of illicit distillation charged by the same Vanchiyoor Police which was then pending. He is admittedly" an accused in a case of illicit distillation charged by the same Vanchiyoor Police which was then pending. It is in this background that the evidence of the witness who spoke to the prosecution case in all its details except the implication of accused 4 in the Committing Court and came out in the Sessions Court with the version that there was a riot on the road in which about fourteen persons - he is sure accused 1, 3 and 4 were not among them - had taken part and in which Sathian as well as two or three others had sustained injuries has to be appreciated. It is patent that the witness was prevailed upon by the defence to come forward with the version given in the Sessions Court; but the question still remains whether he was prevailed upon by some one interested in the prosecution to give the earlier version as well. There should be no presumption that the earlier version given by such a witness is true and the later one alone is the result of external influence. Admittedly the witness is one who could be prevailed upon to swear to a false case and before accepting the evidence of such a witness the court has to consider whether his evidence could be acted upon for any purpose. What the learned Sessions Judge has done is to accept the earlier statement given by the witness in preference to the subsequent one without bestowing a moment's thought as to the truth or acceptability of the evidence. It would appear as though the earlier statement was presumed to be true for the mere fact that the witness purposely went back upon it to help the accused. This would be placing the evidence of a witness who makes two discrepant versions on oath on a higher pedestal than that witnesses who give a consistent version throughout. Courts will do well to bear in mind the observations made by the Supreme Court in the recent decision in Shrenappe Mutyappa Halke v. State of Maharashtra, reported in (1963) Supreme Court Notes 164 (Vol. V No. 14): "Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicity on his evidence. Courts will do well to bear in mind the observations made by the Supreme Court in the recent decision in Shrenappe Mutyappa Halke v. State of Maharashtra, reported in (1963) Supreme Court Notes 164 (Vol. V No. 14): "Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicity on his evidence. In other words, before one decides to accept the evidence brought in under S.288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so." Their Lordships went on to state: "How can that satisfaction be reached ? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence is generally but also what is said against the particular accused sought to be implicated in the crime is true." In this case it is not possible to call in aid the evidence of P. W. 1 to serve the purpose of corroboration as it is equally unacceptable. 6. We also find that in this case Ext. P. 3 has not been properly admitted in evidence. The witness was not confronted with all the relevant portions of his previous statement as required by S.145 of the Evidence Act. The controversy as to whether S.145, Evidence Act is attracted when the previous statement given by a witness becomes admissible under S.288 Criminal Procedure Code has been set rest by the Supreme Court in the case of Tara Singh v The State (AIR 1951 Supreme Court 441) where Vivian Bose J. who spoke for the court held that: "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 S.145, Evidence Act. Of course, the witness can be cross examined about the previous statement and that cross examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness 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 S. 288." 7. Now it remains for us to assess the evidence of P. W. 1. His story is that he met Sathian by 8' O Clock in the morning accompanied him to find out a customer for his buffalo and remained with him till 7 in the evening when the incident took place. Even on his own showing the errand on which they started was over by 2' O Clock and he has no acceptable explanation for not parting company with Sathian then. The narration of their movements during the day gives one the impression that there was no occasion at all for them to be together. The version of the incident as narrated by the witness also sounds highly improbable. The witness would have it that as soon as he and Sathaian came near the place three of the assailants who were waiting in a bullockcart obstructed Sathian and bodily removed him to the courtyard of the Kamalalayam House where he was assaulted by all the eight of them. He says he was coolly watching the deadly attack on his brother inlaw even without attempting to attract the attention of the host of neighbours who could have come to his rescue. He cried out only after the entire occurrence was over. He was watching with such calm and composure that he was able to note and describe with photographic precision the weapon used by each of the assailants and the parts of the body where the blows fell. The witness would say that he was witnessing the assault and noting all the details from the road through the open gate and admits that had the gate been closed he would not have been in a position to see anything. He also says that soon after the assault the accused closed the gate from inside. This is rather strange. The witness would say that he was witnessing the assault and noting all the details from the road through the open gate and admits that had the gate been closed he would not have been in a position to see anything. He also says that soon after the assault the accused closed the gate from inside. This is rather strange. Presumably the accused had removed Sathian from the road into the courtyard to avoid the attention of the public and it is not likely that they would have left the door open to effectively frustrate their object. The evidence is that the occurrence was witnessed mostly with the aid of a tube light burning on the verandah of the house. It is in evidence that the house was unoccupied on the date of incident and at least for two or three days prior to it and if so it is rather strange that the accused or the assailants should have switched on the light before they started the attack to enable the public to have a clear vision of the assault. When everything was over he proceeded to inform the brother of Sathian whom he met at a place which is just within two or three furlongs. Earlier in his cross examination he said that when he reported the matter to Viswan he mentioned the name of the second accused alone as the assailant though later he improved upon it by saying that he told Viswan that it was an assault by the second accused and others, and he did not mention their names as Viswan did not ask him for the information. It is strange that on getting the information Viswan did not care to run up to his brother's rescue. He vanishes from the scene as it were and he is not found either at the police station or in the hospital or at the scene when the police came there. According to P. W. 1 after informing Viswan about it he proceeded to the police station and gave the first information statement. There again he mentions only the name of accused 1 to 4 and fails to give the names of accused 5 and 6. According to P. W. 1 after informing Viswan about it he proceeded to the police station and gave the first information statement. There again he mentions only the name of accused 1 to 4 and fails to give the names of accused 5 and 6. Even if he did not know their names, he knew that they are the first cousins of accused 1 to 3 and that information could well have been supplied by him to the police. It is highly doubtful whether he had actually witnessed the incident at all. Admittedly he is a relation and a friend and associate of the deceased even in criminal activities. It is quite possible that having found his friend lying injured in the verandah of the Kamalalayam House he rushed to the inference that the accused who were the erstwhile occupants of the house and who had some grievance against Sathian must have been responsible for the crime and then reconstructed a story and put it before the police with all possible speed. The learned Sessions Judge attempts to explain the admission made by the witness that he mentioned accused 2 alone as the assailant to Viswan as well as another disturbing admission that he saw accused 1 to 3 in the police station the same day whereas the records show that the accused were arrested only three or four days later by suggesting that they are the result of a conscious attempt on the part of the witness to help the accused. There is absolutely no justification for such an inference. There can be no presumption that whenever an inconvenient admission is made by a prosecution witness in cross examination it was prompted by a desire to help the accused. If such a view is to prevail it would defeat the very purpose of cross examination. We do often find tactics being adopted by prosecution witnesses but there should be no difficulty to mark out such dubious admissions from the genuine ones. In this case the witness is admittedly a friend and relation who was out to support the prosecution case in all its details and there is absolutely no justification for the inference drawn by the Sessions Judge. 8. The inherent improbabilities in the prosecution story also enhance the difficulty experienced by the court in accepting the witness's evidence. In this case the witness is admittedly a friend and relation who was out to support the prosecution case in all its details and there is absolutely no justification for the inference drawn by the Sessions Judge. 8. The inherent improbabilities in the prosecution story also enhance the difficulty experienced by the court in accepting the witness's evidence. According to the prosecution it was not an unpremeditated attack but a preplanned one. The accused had collected all the weapons and made all the necessary arrangements. If that is so certainly they would not have selected the courtyard of their own house as the scene of incident so as to concentrate all suspicion on them, unless it be that they were prepared for an open attack flouting the public in which case they could as well have done it in the lane where they met the deceased and not taken the trouble to carry him to the courtyard. Again having removed him to the courtyard to avoid public attention it is strange still that they left the gate open and switched on the electric light before they indulged in the attack. It appears even doubtful whether the assault was made in the courtyard as P. W. 1 would have it. According to the evidence there was profuse bleeding from the injuries and blood had fallen in the courtyard. There are five incised injuries and the medical evidence is also definite that there must have been bleeding. However when the police appeared at the scene within an hour of the assault they found absolutely no marks of blood in the courtyard. The learned Judge tried to explain the absence of blood in the courtyard by saying that the assailants must have tampered with the signs to put the police off the track. If the accused were the assailants and if the courtyard was the scene of the attack and they had actually obliterated the marks in the courtyard they could never have placed the injured on the verandah of the house which could only serve the purpose of bringing their guilt nearer home. On the other hand it gives one the impression that Sathian who had some enemies might have been assaulted elsewhere and was brought hands and legs tied by the assailants and placed on the verandah of the Kamalalayam House to put the police off the track. On the other hand it gives one the impression that Sathian who had some enemies might have been assaulted elsewhere and was brought hands and legs tied by the assailants and placed on the verandah of the Kamalalayam House to put the police off the track. Two of the assailants according to the prosecution could not be identified even at this distance of time and it is quite possible that they were responsible for the mischief. We are aware that there is no legal impediment to base a conviction on the evidence of a single witness, but in this case we are unable to act on the evidence of P. W. 1 which cannot be said to be above reproach or free from taint. Ext. P. 3 yields no corroboration to it either. 9. In the result the acquittal of all the accused is the only course open to us. Their bail bonds are cancelled and they are set at liberty forthwith. The appeal by the accused is allowed and that of the State is dismissed. 10. I agree with the reasoning and the conclusions reached by my learned brother that the conviction entered against accused 1 to 3 be set aside and the appeal filed by the State be dismissed. I would however add a few words. 11. On the finding of the learned Judge that accused 1 to 3 and others in furtherance of their common intention armed themselves with dangerous weapons and beat the deceased mercilessly when he was lying prostrate in the courtyard and caused his death, the offence committed can only be murder and nothing short of it. P. W. 1, whose evidence has been accepted by the learned Judge, has categorically stated that the accused had beaten the deceased with M. Os. 1 to 6 which we have seen, are very heavy and formidable weapons. The learned Judge for no understandable reasons distrusts the evidence of the recovery of these weapons from the scene proved by the Circle Inspector of police. Merely because the attesting witness was not examined is no reason to brush aside the disinterested evidence of the Inspector. The evidence has not been seriously challenged by the defence and no reasons are given why the evidence of the Inspector cannot be believed. The report of the chemical examiner reveals human blood on M. Os. 5 and 6. Merely because the attesting witness was not examined is no reason to brush aside the disinterested evidence of the Inspector. The evidence has not been seriously challenged by the defence and no reasons are given why the evidence of the Inspector cannot be believed. The report of the chemical examiner reveals human blood on M. Os. 5 and 6. There can, therefore, be no doubt that these weapons must have been used by the assailants. 12. The medical evidence shows that the deceased had sustained as many as twelve ante mortem injuries, most of them on the legs and hands causing fracture of the bones; but injury No. 6 is on the head and injury No. 9 is on the chest. Cause of death, according to the doctor, was shock and haemorrhage due to the multiple injuries. No doubt the doctor has given his opinion that the injuries were not by themselves fatal. But the doctor has stated that such extensive haemorrhage as he found in this case might result in the death of the injured. Both the chambers of the heart were empty which also clearly indicate haemorrhage. 13. Thus if the numerous injuries found on the body of the deceased had been inflicted in the manner deposed to by P. W. 1 there can be little doubt that the assailants must have intended to cause his death. Even if the medical evidence does not show that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary course, it is open to the court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailant must have intended to cause the death of the deceased. Even if none of the injuries were by themselves sufficient in the ordinary course of nature to cause death, cumulatively they may be sufficient in the ordinary course of nature to cause death, and death in fact, took place soon after the assault. Even if none of the injuries were by themselves sufficient in the ordinary course of nature to cause death, cumulatively they may be sufficient in the ordinary course of nature to cause death, and death in fact, took place soon after the assault. Every sane person must be presumed to intend the result that his action normally produces and if a person hits another so indiscriminately on different parts of the body with such great force so as to cause fracture of the bones, with weapons that normally produce fatal results and death occurs as a result of the blows it is idle to contend that the intention was something other than to take the life of the victim. It is difficult to imagine how any human being would have survived the ferocity of such an attack. Therefore, if the prosecution case is, accepted, as has been done by the learned Judge, the accused would be guilty of the offence of murder under S.302 I. P. C. and not under S.325 I. P.C., as found by the learned Judge.