S. H. SHETH, N. G. SHELAT, J. ( 1 ) THIS appeal arises out of an order passed on 9th October 1968 by Mr. K. L. Abichandani Additional Sessions Judge Baroda in Sessions Case No. 72 of 1968 whereby the appellant accused came to be convicted and sentenced to suffer imprisonment for life for an offence punishable under sec. 302 of the Indian Penal Code. ( 2 ) IN the field S. No. 222 situate in the village Boriad Taluka Dabhoi belonging to one Mohanbhai Bhagwanbhai the work of construction of a well was given to one Dahyabhai Nathabhai. Near the place where that work was going on there was a Mandva where the accused and his wife deceased Bai Hira were staying. The contractor Dahyabhai Nathabhai was also staying in the adjacent Mandva. The accused was working as a labourer in the construction of that well. On 25-3-68 witnesses Natha Ratna the father of Dahya Natha and Kanji Bapu the father of Karsan Kanji another labourer working at the well had come there to inquire about the health of Dahya and Karsan. They stayed there for the night at the Mandva of Dahya which was quire adjacent to the one where the accused and his wife lived. On the next morning at about 6-00 a. m. or so while Dahya went out for getting milk Kanji Bapu and Natha Ratna had gone for easing themselves. When they returned at about 7-00 a. m. or so they found the accused giving blows with a spade which hurt Bai Hira on her head as also on other parts of her body. In the meantime Karsan Kanji had also come up and he pursued the accused who was running away from that place. The accused however could not be caught and he returned back to the place of the incident. When those witnesses such as Kanji Karsan and Natha inquired from Bai Hira they were told that her husband had caused those injuries as she was late in giving Datan demanded by her husband. In the meantime Dahya Natha came up and seeing the condition of Bai Hira he went to the house of Mohanbhai. When those witnesses such as Kanji Karsan and Natha inquired from Bai Hira they were told that her husband had caused those injuries as she was late in giving Datan demanded by her husband. In the meantime Dahya Natha came up and seeing the condition of Bai Hira he went to the house of Mohanbhai. Mohanbhai met him on the way and he was informed about the accused having caused injuries to his wife and that he may lend his bullock cart for removing her to the hospital at Dabhoi Dabhoi is at a distance of 6 miles from Boriad. In that cart Bai Hira was removed to the Dabhoi Hospital. AS her condition became serious in the evening he referred the case to the S. S. G. Hospital Baroda by a letter Ex. 15. There she was treated by Dr. Modi Ex. 20. She came to be operated by Dr. A. C. Shah and it was at about 11-15 a. m. on 30-3-1968 that she died. In the opinion of Dr. Modi the injuries were sufficient in the ordinary course of nature to cause her death. . . . . . . ( 3 ) ON a consideration of the evidence accused in the case the learned Additional Sessions Judge found that the accused had intentionally caused those injuries to his wife Bai Hira on the morning of 26-3-68 which brought about her death on 30-3-68 and that he was therefore guilty for an offence of murder punishable under sec. 302 of the Indian Penal Code and he sentenced him as stated here above. Feeling dissatisfied with that order the accused has come in appeal in this Court. ( 4 ) THAT takes us to the consideration of the evidence of three eye witnesses such as Natha Ex. 31 Kanji Ex. 35 and Karsan Ex. 27 in the case. There is also the evidence of witness Dahyabhai Ex. 25. The first three witnesses had come to be examined in the Court of the committing Magistrate and their depositions are at Ex. 34 38 and 30 respectively. Witness Natha Ex. 31 is the father of Dahyabhai Ex. 25 who had taken the work of construction of a well in the field of Mohanbhai about 2 or 3 months before the date of this incident. Kanji Ex. 35 is the father of witness Karsan Ex. 27 in the case. 34 38 and 30 respectively. Witness Natha Ex. 31 is the father of Dahyabhai Ex. 25 who had taken the work of construction of a well in the field of Mohanbhai about 2 or 3 months before the date of this incident. Kanji Ex. 35 is the father of witness Karsan Ex. 27 in the case. Some where near the place where construction of the well was going on it appears that a Mandva which can be styled as a hut was put up presumably both by witness Dahyabhai Ex. 24 and the accused Jivan in the case. That was the only Mandva in the field and it appeared probably to have been divided in two parts. In one part was living Dahyabhai. In other one the accused and his wife Hira were living. This accused was working as a labourer and so did as it appears Bai Hira. Karsan was also working as a labourer during that time. The evidence of these three witnesses in the Court of Sessions was to the effect that both Natha and Kanji had come down on the evening of 25-3-68 and had put up for the night at the hut of Dahyabhai. In the morning they went to their respective places and therefore they did not know as to how and who caused injuries to Bai Hira. Witness Karsan has similarly denied to have seen the accused giving any blows with the spade when he came down to the place that morning. He has also stated that he did not find Kanji and Natha there that morning. The evidence of Karsan is further to the effect that finding her lying injured he and Dahyabhai had met Mohanbhai for obtaining his bullock cart so as to enable them to remove Bai Hira to the Hospital at Dabhoi. All these three witnesses were permitted by the learned Additional Sessions Judge to be treated as hostile and they were allowed to be cross examined by a reference to their police statements. Whatever they had stated before the police was brought out in their evidence and according to all of them they had given such statements in which they referred to about the accused having given two blows with a spade which hurt Bai Hira on her head and shoulder. Whatever they had stated before the police was brought out in their evidence and according to all of them they had given such statements in which they referred to about the accused having given two blows with a spade which hurt Bai Hira on her head and shoulder. But they said that they had so stated at the instance of police and that was on account of threats given to them. As we said above these three persons being eye witnesses to the incident had come to be examined at the time when the inquiry was held before the committing Magistrate and their depositions which came to be recorded by the Magistrate Mr. Keshwani Ex. 53 were sought to be brought on the record of this case as substantive evidence against the accused under sec. 288 of the Criminal Procedure Code. Before they were confronted with their depositions recorded in the committing Magistrates Court the Court took all the precautions and tried to fulfill all the requirements that would be expected of the Court before transferring that evidence in the case before him against the accused. The learned Additional Sessions Judge appears to have kept in his mind the observations made by the Supreme Court in the case or Perivasami v. State of Madras A. I. R. 1967 Supreme Court 1027. The material observations run thus:-IT is highly desirable that the Court should before the transfer of the earlier statement to the record of the Sessions Case under sec. 288 indicate in a brief order why the earlier deposition was being transferred to the records of the trial. This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him. But where the accused was questioned with reference to the statement of a witness made before the Committing Magistrate which the Judge informed him was marked under sec. 288 of the Code of Criminal Procedure and he was asked what he had to say about it alongwith the technical requirement of the section namely that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence was not complied with there was no substantive departure from the requirements of the law. There was also no likelihood of any prejudice to the accused since he was informed while he was being examined that the statement was being used under sec. 288 Criminal Procedure Code and was invited to say that he wished to say in defence. KEEPING the first part of the observations in mind the learned Additional Sessions Judge on applications made by the learned Public Prosecutor in charge of the case in the Court below has passed clear orders after hearing the advocates appearing in the case The last part of that order in all the three applications makes it clear and in fact makes it known to the advocates appearing before him that they should take notice of the fact that the depositions of these witnesses recorded in the committing Magistrates Court are to be used in the case against the accused as substantive evidence under sec 288 Criminal Procedure Code. The orders also indicate that the Court had permitted such evidence to go on record of the case as they had resiled from their earlier statements made before police as also before the committing Magistrates Court on oath. In other words they had made contradictory statements before him so as to favour the accused in the case. They were thus given opportunity to meet the evidence contained in their earlier depositions recorded on oath by the Magistrate. ( 5 ) NOW sec. 288 of the Criminal Procedure Code provides that the evidence of witness duly recorded in the presence of the accused under Chapter XVIII may in the discretion of the presiding Judge if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act 1872 Analysing this provision what is required of the presiding Judge to take note of is that the evidence of such witness must have been recorded in the presence of the accused and secondly such witness is produced and examined before him. If these two conditions are fulfilled and if the Judge in his discretion thinks that it is necessary to treat that as evidence for all purposes subject to the provisions of the Indian Evidence Act then he would be entitled to have that evidence against the accused standing his trial in his Court. If these two conditions are fulfilled and if the Judge in his discretion thinks that it is necessary to treat that as evidence for all purposes subject to the provisions of the Indian Evidence Act then he would be entitled to have that evidence against the accused standing his trial in his Court. In the present case apart from his having passed such an order intimating clearly about the use to be made of their depositions which came to be recorded before the committing Magistrates Court so as to enable them to cross examine as also to explain if they so chose in their statements recorded under sec. 342 of the Criminal Procedure Code in respect of that part of evidence he has considered it necessary in the circumstances of the case to have that evidence admitted as substantive evidence on record. He has given good reasons with which we entirely agree for having that piece of evidence brought on record of this case. ( 6 ) NOW it is no doubt clear and over which there can hardly be any dispute that the Court has to be alive to the intrinsic weakness of the evidence of any such witnesses who choose to state one thing at one place on oath and other at other place on oath. Ordinarily such persons do not deserve the credence that they would otherwise have. In this connection certain observations were made in the case of Bhuboni Sahu v. The King reported in A. I. R. 1949 P. C. 257 which have been quoted by the Supreme Court in the case of Sharnappa Mutvappa Halke v. The State of Maharashtra A. I. R. 1964 Supreme Court 1357. In that case the evidence of an approver in the committing Court was brought on record under sec. 288 of the Criminal Procedure Code and while dealing with the question as to the value that can be attached to such evidence Their Lordships of the Privy Council observed thus:-APART from the suspicion which always attaches to the evidence of an accomplice it would plainly he unsafe. as the Judges of the High Court recognized to rely implicitly on the evidence of a man who had deposed on oath to two different stories. as the Judges of the High Court recognized to rely implicitly on the evidence of a man who had deposed on oath to two different stories. THE Supreme Court has expressed its agreement with those observations and then has observed that where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other words before one decides to accept the evidence brought in under sec. 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. Then the Supreme Court has posed a question as to how can that satisfaction be reached ? The Supreme Court has then said that 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 in general but also what is said against the particular accused sought to be implicated in the crime is true. Pausing here for a moment the Supreme Court says that some support from other evidence must be forthcoming before the Court feels satisfied about the truthfulness of any such evidence in the case. Then it goes on to observe that if there be a case and there is such infinite variety in facts and circumstances of the cases coming before the Courts that it cannot be dogmatically said that there can never be such a case where even without such extrinsic support the Judge of facts after bearing in mind the intrinsic weakness of the evidence in that two different statements on oath have been made is satisfied that the evidence is true and can be safely relied upon the Judge will be failing in his duty not to do so. By this proposition the Supreme Court has taken into account some other type of cases where no such extrinsic evidence is forthcoming to support any such evidence sought to be introduced under sec. 288 of the Criminal Procedure Code and it is not that there would not be some such cases. By this proposition the Supreme Court has taken into account some other type of cases where no such extrinsic evidence is forthcoming to support any such evidence sought to be introduced under sec. 288 of the Criminal Procedure Code and it is not that there would not be some such cases. In that event the Supreme Court says that the Judge has to keep in mind the intrinsic weakness of the evidence of such people as already pointed out here above and keeping that uppermost in his mind if he considers the effect of that evidence given on oath as so satisfactory as to inspire confidence in him about the same being true there is no rule of law which says that he cannot be relied upon and in fact the Supreme Court has gone further in saying that if he does not do so he would be failing in his duty. This view of the law has been also kept in mind by the learned Additional Sessions Judge and that has been before our minds as well. It may be stated that sec. 288 of the Criminal Procedure Code no where contemplates that some corroboration from independent evidence is absolutely essential though in view of the decision referred to here above it may well be said that prudence requires before acting upon such evidence to find some support from other evidence if available and if no such other independent evidence is available it can nevertheless take into account any such evidence appreciate it properly having regard to the various circumstances disclosed in the case and if with all the weakness that it has the Court feels satisfied that such a piece of evidence discloses a true and correct picture of the incident as also about the person involved in the crime there is nothing that comes in the way of a Court to base conviction on such evidence as well. . . . . . . . . . . . . . . . . ( 7 ) AFTER having given our anxious consideration to the evidence of these three witnesses Natha Kanji and Karsan recorded in the committing Magistrates Court and produced at Ex. . . . . . . . . . . . . . . . . ( 7 ) AFTER having given our anxious consideration to the evidence of these three witnesses Natha Kanji and Karsan recorded in the committing Magistrates Court and produced at Ex. 34 38 and 30 respectively keeping in mind the ordinary principle of the risk in accepting such evidence in view of their contradictory statements made on oath we feel satisfied that what was stated in their depositions recorded in the committing Magistrates Court was true and reliable in the circumstances of this case. The learned Additional Sessions Judge has relied upon the same. That evidence as already pointed out here above not only finds support from other extrinsic evidence but also finds support from the various circumstances which justify us to think that they should be believed in the case. Their evidence amply establishes about the accused being the person who had caused those injuries to Bai Hira on the morning of 26-3-68 which resulted in her death on 30-3-68. We agree with the findings recorded in that respect by the learned Additional Sessions Judge. ( 8 ) IN the result therefore the appeal fails and is dismissed. The order of conviction and sentence passed against the accused appellant is confirmed. ( 9 ) BEFORE we part it appears clear from the discussion made here above that the three eye witnesses Natha Kanji and Karsan have intentionally given false evidence in the judicial proceeding and it appears necessary and expedient that they should be prosecuted for the offense which appears to have been committed by them. The interests of justice demand the same with a view to have eradication of the evils of perjury. We therefore direct notice to be issued against each one of them to show cause why they should not be prosecuted for the offense of perjury under sec. 479a of the Criminal Procedure Code. .