Judgment :- 1. The Appellant Gopalakrishnan Nair alias Chandran stands convicted under S.302,1.P.C. for having murdered one Devaisia alias Kochu by stabbing him with a knife as also under S.324, I.P.C. for stabbing one Chacko. The sentence of imprisonment for life on the first count and the sentence of imprisonment for six months for the second are directed to run concurrently. The incident took place at about 9-30 p.m. on the 6th of December, 1964 on a public road in Bharananganam Village. 2. While Chacko (P.W. 1) was on his way home along the Kurumanoor Pykada Peedika road he happened to meet Kochu who also was returning home along the same route and the two proceeded together. When they came near the Mattathil purayidom where they had to take different paths they sat on the top of an old "kayala" (wall) with a view to continuing their conversation. When they were there for about five minutes the accused accompanied by P.W. 2 Raghavan came from the north. Raghavan had a lighted country torch which he was holding aloft. According to the prosecution when they neared the place where Kochu and P.W.1 were seated Kochu asked the accused whether he had not warned him (the accused) earlier not to frequent that place. No sooner the accused heard the remark than he drew out his "malappuram" knife and rushed at Kochu. The first stab which the accused aimed at Kochu was warded off by the latter with his left foot and this caused an injury in between the fourth and the fifth toes. The next stab hit Kochu on the right side of the neck. Then Kochu got down from the wall when a third stab was given which fell on the left eye-brow followed by the last one which pierced his chest on the right side and felled him. P.W.1 tried to support the falling man when the accused stabbed him on his back causing an injury on the left shoulder blade. When a second stab was aimed at P.W.1 he turned and knocked the knife off from the accused's hand. The accused then took to his heels and was followed by P.W. 2 who was in his company all the while. The injured died almost instantaneously. The motive put forward by the prosecution is spoken to by P.W. 3. P.W. 3 is the son of the deceased. The accused then took to his heels and was followed by P.W. 2 who was in his company all the while. The injured died almost instantaneously. The motive put forward by the prosecution is spoken to by P.W. 3. P.W. 3 is the son of the deceased. On the Sunday preceding the incident he saw the accused in a drunken state and laughed at him. The accused took offence at this and tried to assault him. He managed to escape and reported the matter to his father. The next morning when he and his father were on the way to their work spot they happened to meet the accused on the road and his father asked the accused why he abused his son and tried to assault him the previous day. The accused then abused his father as well and attempted to assault him but his father slapped the accused and pushed him away telling the accused that he should not be seen anymore on the road. 3. In the enquiry court both P.Ws.1 and 2 gave evidence in support of the prosecution case. When the Magistrate questioned the accused in detail regarding the evidence he came out with a plea of simple denial. According to him P.W. 2 was not in his company and both P.Ws.1 and 2 were giving false evidence. However when questioned in the Sessions Court he had a different version of the incident. He stated that when he was returning home he saw two persons sitting on the road near the Mattathil compound and seeing him from a distance one of them said to the other "Look ! Chandran is coming. Don't let him go" When he neared them the deceased Kochu asking him whether he was not warned that he should not be seen anywhere there began to beat him. P.W.1 who was in the company of the deceased also assaulted him and apprehending danger to his life he managed to extricate himself from their clutches somehow and escape. He had also given a motive for the deceased to have acted in that manner. P.W.1 who was in the company of the deceased also assaulted him and apprehending danger to his life he managed to extricate himself from their clutches somehow and escape. He had also given a motive for the deceased to have acted in that manner. According to him Chinnamma the sister of the deceased and one Kochu used to work along with him at a place called Thattamparambil purayidom and one day when he happened to see Chinnamma and Kochu in a compromising situation at the place he reported the matter to the owner of the compound as a result of which Chinnamma and Kochu were dismissed from work. The accused would have it that the deceased and P. W.1 were lying in wait for him at the scene to wreak vengeance. 4. It is not disputed that Kochu died on account of the injuries sustained by him on that night. The Assistant Surgeon who conducted the autopsy and issued Ex. P-6 post-mortem certificate noted a penetrating wound on the right side of the chest which had torn the pleura and pericardium and caused an incision 2" long on the right auricle. Besides there were incised wounds on the neck, the right eye-brow and on the left foot 1" below the web between the fourth and the fifth toes. According to the Doctor the first injury was a necessarily fatal one and death must have been almost instantaneous. It is also not disputed that Kochu had sustained the injuries at the time and place alleged by the prosecution. 5. Though the accused does not admit that he had caused the injuries, virtually his plea is one of private defence. So the real question to be decided is whether the injuries were caused by the accused in the circumstances alleged by the prosecution or in the manner as stated by the accused The learned Sessions judge relied upon the evidence of P. W.1 and the statement given by P. W. 2 in the Committal Court to find that the prosecution version of the incident is the true one. The evidence of P. Ws. The evidence of P. Ws. 4 and 5 who saw the accused in the company of P. W. 2, the former shortly before the incident and the latter immediately after the incident and to both of whom P. W.1 stated soon after the incident that both Kochu and he were stabbed by the accused was relied upon by way of corroboration. 6. The points urged before us by Sri Raghava Kurup the learned counsel for the appellant are : (1) that the statement made by P. W. 2 in the Committal Court should not have been used as substantive evidence since the deposition itself was not brought on record as a whole and the accused had no notice of the intention of the prosecution to use or of the court to permit such use of it and he was prejudiced by the failure to cross-examine the witness with a view to destroying that evidence ; and (ii) if that item of evidence discarded there is only the solitary evidence of P. W.1 which cannot be classed as wholly reliable in view of the interested and partisan nature of it and the departure he has made from the earlier version given by him. We agree that the first objection should prevail. It is seen that in the Sessions Court the witness had gone back upon the earlier version given by him to the police and at the enquiry before the Magistrate from the very start and had to be treated as hostile and cross-examined. He was cross-examined by the prosecutor with reference to the case diary notes and the evidence given before the Magistrate at the preliminary enquiry and specific portions of the statement where he said that he was actually in the company of the deceased and had witnessed the stabbing by the accused were brought to his notice and admitted by him though he added that he was compelled to do so for fear of the police. However no request was made by the prosecutor to the court for permission to treat the evidence recorded in the Committing Court as evidence in the case, nor did the court permit the use of it as such at that stage or mark the record. However no request was made by the prosecutor to the court for permission to treat the evidence recorded in the Committing Court as evidence in the case, nor did the court permit the use of it as such at that stage or mark the record. Hence it has to be treated as an item of evidence which has been used against the accused without notice to him at the time it was let in. It is seen that the accused was questioned with regard to each of those statements when he was examined under S.342, Criminal Procedure Code. But that cannot cure the initial defect of having brought in that item with no notice to him at the proper time. The purpose of S.342 is only to enable the accused to explain any circumstance appearing in the evidence against him and cannot validate an item of evidence that is not legally brought in. We should think the prosecutor himself had no intention at the time when the witness was in the box to use the earlier statement as substantive evidence. When he found that the witness had turned hostile in chief examination by denying that he had witnessed the stabbing he sought for permission to treat the witness as hostile and to cross-examine him. He then questioned the witness with reference to both the C. D. Notes and the statement given by him before the Magistrate with a view to contradicting him and there the matter stopped. As the witness's testimony in the Sessions Court was shown to be unreliable even on the showing of the prosecutor having given contradictory versions the defence also left it at that without perusing the matter further. If the fact that the earlier statement of the witnesses was intended to be used as substantive evidence against the accused was brought to the notice of the accused he would certainly have attempted to demolish, that evidence by cross-examining the witness effectively. Here the defence counsel practically left the witness with the question whether he was not actually shedding tears when he was examined by the Magistrate and whether that was not caused by fear of the police. 7. Here the defence counsel practically left the witness with the question whether he was not actually shedding tears when he was examined by the Magistrate and whether that was not caused by fear of the police. 7. The learned Sessions Judge has fallen into an error in taking it for granted that if the prosecutor had followed the procedure prescribed in S.145 of the Evidence Act the earlier statement automatically becomes evidence in the case under S.288 Criminal Procedure Code. S.288 Criminal Procedure Code is only an enabling provision which gives the court the discretion to treat the earlier statement as evidence and unless the accused is made aware at the proper stage, of the use of the discretion by the court, the record cannot be used against him. The scope of the Supreme Court decisions cited by the learned Sessions Judge, viz., Tara Singh v. The State (AIR. 1951 S.C. 441) and Bhagwan Singh v. State of Punjab (AIR. 1952 S.C. 214), were evidently misunderstood by him. The former was a case where two of the three eye-witnesses whose depositions before the committing Magistrate were brought on the Sessions-record under S.288 were not confronted with their statements in the manner required under S.145, Evidence Act and in that connection His Lordship Bose, J. who spoke for the Court made the observation incorporated by the learned judge in the judgment, viz. " I am of opinion that the matter is deeper than that, and, giving effect to the plain meaning of the words 'subject to the provisions of the Indian Evidence Act' as they stand, I hold 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, 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." In Bhagwan Singh v. State of Punjab (AIR. Then only can the matter be brought in as substantive evidence under S.288." In Bhagwan Singh v. State of Punjab (AIR. 1952 S. C. 214) an eye-witness who supported the prosecution case in chief examination in his testimony before the Sessions Court resiled in cross-examination and was treated as hostile and his previous statement was put to him in cross-examination and admitted. He was relied on by the court and the admissibility of his evidence was questioned by the defence on the ground that the formalities prescribed by S.288 were not observed and Tara Sing v. The State (AIR. 1951 S. C. 441) quoted as authority for that position. In dealing with that matter Bose, J. who wrote the earlier judgment as well observed that resort to S.145 would only be necessary if the witness denies that he made the former statement and that position does not arise when the witness admits the statement. In that connection His Lordship, while stating that such a statement cannot be used as substantive evidence unless S.288 Criminal Procedure Code is called in aid, observed: " But even without S.288 a court would be entitled to say in such a case, 'basing on the evidence in chief, which is substantive evidence, that, what the witness said to the police, or to the Committing Magistrate, is the true version not because those statements form substantive evidence but because they tally with the evidence in chief which'is' substantive. This is only one of the many ways in which a witness's testimony can be sifted and examined. Corroboration is as useful to test the truth of a story as any other method. In such a case, what the Court really does though it may happen to put the matter the other way round, is to say that in its opinion the substantive evidence given in chief is true because it is corroborated by an earlier statement and for that reason, namely, because the version in chief is the true one the contradictory version given in cross-examination is wrong, not because of the contradiction embodied in the former statement but because of what was said in chief a version which it is now sate to believe on account of the corroboration afforded by the earlier statement. It is true the earlier statement could also have been used for contradicting the version given in crow examination and in that event, if it is in writing, the limitations imposed by S.145 of the evidence Act would have to be observed, but the prosecution is not bound to do that. It is a choice. It can, if it so chooses, build up the version given in chief in any way it pleased and having done that use the version in chief to destroy the version in cross-examination." 8. Perhaps the learned Sessions Judge would not have fallen into the error if the decision of this Court directly relating to the matter, viz., Krishnan Nair v. State of Kerala (1965 KLT. 150) and the earlier decisions in Thommen v. State of Kerala (1957 KLT. 859) and Kochappan v. State (1959 KLT. 606) were brought to his notice. In the first case where no order was passed admitting the deposition under S.288 Criminal Procedure Code and the accused was not aware that the deposition made by the witness in the Committing Court was going to be used as substantive evidence, it was held that the conditions required by S.288 have not been satisfied so as to entitle the court to treat the previous testimony as substantive evidence. The second case dealt with an instance in which the deposition itself was marked but the Public Prosecutor stated that the particular portion to which the attention of the witness was drawn was alone proposed to be relied on as substantive evidence and the court also did not pass any order permitting the prior deposition to be used as substantive evidence under S.288. This Court observed that the result of adopting such a strange procedure has been the denial of an opportunity to the witness to explain the other statements occurring in his deposition in the Committing Court and the accused was also not called upon to cross-examine the witness regarding the other statements occurring in such evidence and held that under such circumstances it cannot be said that the conditions required by S.288 have been satisfied as to entitle the court to treat the evidence as substantive evidence. In the third case Kochappan v. State (1959 KLT. In the third case Kochappan v. State (1959 KLT. 606) Velu Pillai, J. pointed out that in applying S.288 Criminal Procedure Code, the Sessions judge must give notice of his intention both to the prosecution and to the defence in order that the cross-examination may be directed suitably. 9. The Madras High Court has also taken the view that: " If a judge wants to rely upon S.288 the whole of the previous statement should be filed and it should then be open to the Court to come to a conclusion after weighing the evidence." Vide Ayyamperumal v. Emperor (AIR. 1925 Madras 879). Though in In re Palani Mooapn (AIR. 1955 Madras 495) the court took the view that the failure to bring on record the entire deposition is only treated as a procedural defect which in the circumstances of that case (he court felt did not stand in the way of accepting and acting upon the marked portions by the learned Sessions Judge, in the later decision in In re Kumaraswami (1963 (2) Crl, L. J. 98), the court held that: " Provision of S.288 is mandatory and unless it is complied with, it will not be open to the Sessions Court to reject the evidence given by the witness in the Committal Court. The section requires whole of the evidence of the witness given in the Committal Court to be filed so that the Court can come to the conclusion whether it can exercise its discretion and treat the earlier evidence given in the Committal Court as evidence for all purposes at the Sessions trial." 10. The necessity of bringing the earlier deposition on record is emphasised in Piara Singh v. State AIR. The necessity of bringing the earlier deposition on record is emphasised in Piara Singh v. State AIR. 1963 Allahabad 19: "If, after exercise of proper discretion, the presiding judge thinks it fit to treat the statement made by a witness at the preliminary enquiry as evidence in the case, then the statement so made at the preliminary enquiry should be brought on the record as a whole and not in part which suits the prosecution, for, if the previous statement of the witness is not brought on record, obviously the court will not be in a position to judge for itself the true effect of the statement and it may as well cause prejudice to the accused for anything stated by such a witness in his previous statement of which the accused could take advantage would not be before the court." The necessity of recording an order that the statement is going to be used against the accused is also emphasised by the same court in Inder Deo v. State AIR. 1959 Allahabad 238 where two judges of that court held that: 'The actual words of the S.288, Criminal P. C. do not make it obligatory for the prosecution to tender the statements or for the judge to say that he was going to treat that evidence as evidence in the case at the very time when the witness was being faced with those statements in the witness box. But the necessity for doing so is, so vital in the interest of not only fair play but for giving the accused a proper and real opportunity to meet those statements, which otherwise were of no consequence to him in the Court of Session, that it is but proper that the trial judge should indicate by an order that he was going to treat the evidence which had been recorded in the Committing Magistrate's Court as evidence at the trial in order to enable the accused to meet that evidence." 11. We eschew from evidence the earlier deposition of P. W. 2 as it was properly not brought on record under S.288, Criminal Procedure Code. 12. It is next to be seen whether it was proper for the court to have acted on the solitary evidence of P. W. 1 to convict the accused of the charge of murder. We eschew from evidence the earlier deposition of P. W. 2 as it was properly not brought on record under S.288, Criminal Procedure Code. 12. It is next to be seen whether it was proper for the court to have acted on the solitary evidence of P. W. 1 to convict the accused of the charge of murder. The objection taken by the learned counsel is that as the testimony of the witness cannot be considered as "wholly reliable" it was not proper to have acted on it in the absence of corroboration regarding the circumstances in which the accused happened to inflict the injuries on the deceased and P. W.1. According to the learned counsel the evidence of P. W.1 is interested as he himself was a participant in the crime and there was also a conscious attempt on his part to deviate from the original version given by him in the First Information Statement as to the place where he and the deceased were seated at the time the incident started. There is no merit in either of these objections. The witness was cross-examined at very great length and all attempts made by the defence to make out that he was interested in the deceased failed. He is not in any way related to the deceased and he is also not even a close neighbour of the deceased. They were not particularly friendly either and apart from the circumstance that they used to chat when they used to meet each other on their way home after work there is nothing particular to bring them together. In the S.342 statement in spite of the lengthy explanation the accused had nothing to say about P. W.1 having any animosity towards him or any particular interest in the deceased so as to join the deceased in a pre-concerted attack on the accused. In these circumstances it is not possible to brand his testimony as interested for the mere reason that the accused happened to make a belated suggestion that the witness also was a participant in the crime. The alleged discrepancy between the First Information Statement and his evidence before court regarding the place where they were seated when the incident started is also more imaginary than real. The alleged discrepancy between the First Information Statement and his evidence before court regarding the place where they were seated when the incident started is also more imaginary than real. In the First Information Statement P. W.1 stated that it was while he and the deceased were seated at the western extremity of the road in front of the Mattathu Purayidom that the first stab was aimed and warded off by Kochu. What the witness stated in the evidence before court was that they were seated on the 'kayala' on the road. There is absolutely no contradiction in these two versions as the 'kayala' was on the western extremity of the road. While generally describing the place in the First Information Statement it was definitely specified in the evidence. The witness himself was not asked about the alleged contradiction in which case he could have easily explained the matter. Admittedly the witness was in the company of the deceased. He had himself sustained an injury at the time and as such he is the most competent person to give evidence about the incident. We have gone through his evidence carefully and we find that he has given a cogent and convincing narration of the incident from the start to the finish in all its details. The witness's evidence impressed the trial judge so well that he has emphatically stated that he would have entered a conviction even if his evidence remained solitary and uncorroborated. The witness has stated how he happened to meet Kochu on the way and what made them tarry before going is different directions. He goes on to say that while they were seated on the 'kayala' wall and chatting the accused accompanied by Raghavan was seen coming from the north. When both of them neared the place where they were seated the deceased asked the accused whether he had not warned him not to frequent the place when the accused whipped out the knife and rushed up and aimed a stab. The stab was warded off with the left foot by the deceased from the place where he was seated and caused an injury in the web between the toes. A second stab by the accused hit the deceased on the right side of the neck. The stab was warded off with the left foot by the deceased from the place where he was seated and caused an injury in the web between the toes. A second stab by the accused hit the deceased on the right side of the neck. On getting the second stab the deceased got down from the 'kayala' wall to the road when a third stab was given on the left eye-brow and the final on the right side of the chest which made the deceased drop down. As he was falling the witness tried to support him when the accused gave him also a stab on the back. A second stab was aimed at him and he turned and knocked away the knife from the accused's hand when the accused left the place followed by P. W. 2 who was there all along. The witness immediately proceeded to P. W. 5 his cousin about a furlong away from the place and informed him about the incident and came back in his company to the scene. By this time P. W. 4 who was living within a 100 feet of the scene also came up. Kochu was already dead. P. W.1 sent word to the deceased's brother and as no conveyance was available he stayed for the night with P. W. 5 and early next morning proceeded to the Police Station in a jeep and gave the statement. There his statement was recorded at 8 a. m. A searching cross-examination proved futile in discrediting him. We find that the testimony of the witness is "above reproach or suspicion of interested ness, incompetence or subornation" and is a wholly reliable one. P. Ws. 4 and 5 lend some corroboration to the witness's evidence. P W. 4 the nearest neighbour would swear that while he was sitting in his veranda after taking night meals he heard someone shouting out from the road in front of his house "whoever comes will likewise be cut to pieces" and on flashing the torch light he identified the person as the accused. Evidently this was the threat made by the accused at P. W.1 when he attempted to lend a helping hand to the deceased as spoken to by P. W.1 himself. Evidently this was the threat made by the accused at P. W.1 when he attempted to lend a helping hand to the deceased as spoken to by P. W.1 himself. P. W. 4 proceeded to the road and found Kochu lying dead and in another five minutes P. W. I came there in company of P. W. 5. The witness saw the injury on P. W.1 and asked him about it when P. W.1 told him how he as well as the deceased were stabbed by the accused. P. W. 5 who was taking his bath in his courtyard saw the accused passing by in the company of P. W. 2 holding a lighted cadjan torch and about ten or fifteen minutes later P. W.1 went to his house and told him that Kochu and himself were stabbed by the accused and Kochu was lying dead on the road. The two. of them went to the scene and found Kochu dead and P. W. 4 standing near the dead body. The motive for the incident is told by P. W. 3. The accused himself admits the deceased putting the question whether he had not warned him earlier not to be seen on that road and there is no reason why P. W. 3's evidence as to the circumstances which led up to such a question should not be accepted in preference to the belated version given by the accused which is unsupported by any other evidence. The evidence of the defence witness which would suggest that the deceased and P. W.1 were on a search after the accused that evening and was lying in wait for him at the the scene has been rightly discarded by the learned Judge. When questioned by the police about the incident he did not reveal this information to them. The witness is a jobless man of no status and there is no particular reason why the deceased should have taken the trouble of going to his house to make enquiries about the accused. 13. The prosecution version of the incident is proved beyond doubt by good and acceptable evidence and the conviction of the accused under S.302 I.P.C. for the murder of Kochu as also for causing hurt to P. W.1 has only to be confirmed. They are confirmed and the appeal is dismissed. Dismissed.