Judgment :- 1. The appellant was charged before the Session Judge, Trivandrum of the offence of murder for having caused the death of one Atheef by stabbing him with a knife on 7-4-1969, at about 8.15 P.M. in front of the shop of one Sasi, marked in Ext. P-5 plan, and has been found guilty and sentenced to imprisonment for life. On the day of occurrence, PWs. 3 and 4 father and son, both fish mongers were returning at about 8 P. M. after vending fish. The accused (appellant) was standing by the side of the ration shop at Koppam. PW.4 was previously known to the accused, and at least on few occa-sions, he bad helped the accused with small cash or by treating him to tea. The accused desired PW. 4 to go southwards with him, and as PW. 4 appeared unwilling, the accused put his arm around his shoulder and took him along for some distance, PW. 3 following closely. When they reached in front of Sasi's shop, PW. 4 refused to go any further, with the accused. The accused then caught hold of him by the waist and beat him. One Basheer, and Soman brother of Sasi, interceded, but were also beaten. PW. 3 cried out that his son was being killed. The deceased who was a few feet away, came up, followed by PW. 2 his bullock-cart-driver and asked the accused to release his hold on PW. 4. The accused then took out a bichuva and stabbed the deceased and left the scene with the weapon. The injured was removed to Vithura hospital but by the time he reached the hospital, he died. PW. 6 is the Doctor who issued the post-mortem certificate (Ext. P-2). PW.11, the Sub Inspector received a letter at about 9.05 P.M. from the Vithura Hospital intimating the death of the deceased. He proceeded to the hospital and recorded the First Information Statement Ext. P-1 from PW.1, the elder brother of the deceased (not an eye witness) at 9.15 PM. Ext. P.8 is the First Information Report prepared on the basis of Ext. P-1. PW. 11 received information that the accused was at Koppam Mele Mukku and proceeded to that place with a police party. P-1 from PW.1, the elder brother of the deceased (not an eye witness) at 9.15 PM. Ext. P.8 is the First Information Report prepared on the basis of Ext. P-1. PW. 11 received information that the accused was at Koppam Mele Mukku and proceeded to that place with a police party. He saw the accused standing in the western courtyard of Pappan Chellappan, more than a furlong away from Sasi's shop, with bleeding injuries on different parts of his body. The accused was taken to the Nedumangad Hospital for treatment. The accused's statement given to PW. 11 at 1 A.M. on the night/morning on 7/8-4-69 is.Ext. P9. On the basis of Ext. P-8, Crime No. 70/69, and on the basis of Ext. P-9 Crime 71/1969, were charged. The investigation was taken over by PW. 12 the Circle Inspector. 2. Ext P-9 discloses that the appellant and the deceased were on inimical terms. A case under 341, 324 and 34 of the IPC. was pending on the day of the occurrence, in which the appellant was the 1st accused, and the deceased was the person injured. Ext. P-12 is the judgment in the case. This has been put forward as the motive for the crime. 3. In support of the prosecution story, PWs. 2 to 4 have given consistent evidence. Their evidence has been attacked on the ground that PW. 4 had received beating from the accused, and was therefore interested implicating him; that PW. 3 was the father of PW. 4, interested in supporting the son, and that PW. 2 was a dependent of the deceased, being his bullock-cart-driver. None of these infirmities appear to us sufficient to discredit their testimony. The learned Sessions Judge who had the advantage of seeing and observing the witnesses believed them and we see no sufficient ground to reject their evidence. It was said that certain contradictions in the evidence of some of these witnesses detract from their credibility. We shall deal with this later. 4. Counsel for the appellant argued that there was a scuffle between the appellant and the deceased and others, in the course of which, in exercise of the right of private defence, the appellant had to stab the deceased. We shall deal with this later. 4. Counsel for the appellant argued that there was a scuffle between the appellant and the deceased and others, in the course of which, in exercise of the right of private defence, the appellant had to stab the deceased. In support of this, strong reliance was placed on the bleeding injuries on the person of the accused as disclosed by the wound certificate, Ext; D-4 and the evidence of the doctor (DWI) who issued the same, which, counsel would have it, have not been explained by the prosecution. PWs. 2 to 4 do not speak of any scuffle, or even 328 KRiHNAN nair v. state OF KERALA (Gopalan Nambiyar, J.) 1971 anything, to give rise to a right of private defence on the part of the accused. The appellant's case is that the incidents disclosed by Exts. P8 and P9 are inextricably linked together as parts of the same transaction, and that the injuries received by him, could not be divorced from the stabbing inflicted by him on the deceased. But there is sufficient evidence to show that the incidents reflected in Exts. P-8 and P-9 were sufficiently separated in time and space, and could not be regarded as parts of the same transaction. The occurrence for which the appellant herein was charged and convicted, took place at 8.15 p. m. Ext. P-9 was recorded at 8-30 p. m. Even leaving some margin on the ground that the time stated may not be precise or accurate, the fact remains that the incident which was the subject-matter of Ext. P-8 took place in front of Sasi's shop, and the one which gave rise to Ext. P-9, in the courtyard of Pappan Chellappan, a distance of more than a furlong from Sasi's shop. PW. 11 deposed that the two incidents were separate and that Ext. P-9 incident took place subsequent to that disclosed by Ext. P-8. In Ext. P-9, while the accused implicates Atheef, the brother of the accused, his brother-in-law, and others, it is significant that he does not mention the name of the deceased. And although the accused would disclaim that Ext. P-4 is a faithful record of what he stated, it bears an endorse-ment that it was read out to the accused and acknowledged by him to he correct. And although the accused would disclaim that Ext. P-4 is a faithful record of what he stated, it bears an endorse-ment that it was read out to the accused and acknowledged by him to he correct. The Sessions Judge stated that on an application filed by the accused that Crime No. 70/1969 and 71/69 should be tried simultaneously, both of them were tried one after the other. It is seen from the judgment under appeal that both were disposed of the same day. We have little material to hold that the two complaints evidenced by Exts. P8 and P9 were parts of the same transaction and arose from the same incident. 5. It is then easy to dispel the charge that the prosecution has made no attempt to explain the injuries on the body of the accused. For, the case of the prosecution is that the accused did not have any injuries in the course of the incident which is the subject-matter of the charge, and it has no duty, in this case, to explain the injuries sustained in an unconnected incident. On the material before us, we think that this stand taken by the prosecution is correct. 6. It was contended that material witnesses had been deliberately or unfa-irly withheld by the prosecution and that" this circumstance should adversely reflect on the prosecution story. It was stressed that Sasi the owner of the shop in front of which the occurrence took place, his brother Soman, and one Basheer cited as charge-witness No. 7 were not examined. Going by the record, we see that Soman was examined as PW. 4 in the committal court. It does not appear on the record that Sasi was also examined in the committal court. We will assume as we were told, that he was. Basheer was not examined, either in the committal court or in the Sessions Court. The question then is: Are they material witnesses, and does their non-examination result in miscarriage of justice or reflect adversely on the prosecution? We are satisfied that this must be answered in the nagative. The evidence of PWs. 3 and 4 is clear that when Basheer and Soman tried to interfere after the accused beat PW. 4, they were both beaten by the accused. Basheer got inside the shop of Sivarajan, and Soman, into the courtyard of Sasi's shop. We are satisfied that this must be answered in the nagative. The evidence of PWs. 3 and 4 is clear that when Basheer and Soman tried to interfere after the accused beat PW. 4, they were both beaten by the accused. Basheer got inside the shop of Sivarajan, and Soman, into the courtyard of Sasi's shop. There is nothing to show that either of them witnessed any material part of the incident thereafter, in regard to which they could have given any useful evidence. In other words, we are not satisfied that they are material witnesses, in the sense of those whose presence before the court was essential for the unfolding of the narrative on which the prosecu-tion relies. Besides, both Sasi and Soman were examined in the committal court. There is nothing to show that the prosecution was not ready and willing to examine them in the Sessions Court, if desired, either by the court or by the accused, and to tender them for cross-examination. No complaint of any unfair practice by the prosecution in deliberately or unfairly withholding these witnesses seems to have been made before the Sessions Judge. On the other hand, the learned Sessions judge dismissed the complaint generally made, of non-examination of the witnesses, with the following abrupt remark. "The witnesses who turned hostile in the committal court were not examined here and this non-examination cannot be said to be a deliberate withholding of these witnesses with an ulterior motive." The non-examination of material witnesses was not sufficiently pursued in cross-examination. PW. 12 was asked whether Soman in his examination in the committal court had not stated that the accused sustained injuries at the scene of the occurrence. He said he did not know and had not read his evidence! The matter was allowed to rest there. No similar question was put in respect of Sasi, who is also stated to have been examined in the committal court. It was only brought out that he was an eye witness. We do not think that the material witnesses were either deleberately or unfairly withheld by the prosecution, or that the same had resulted in any miscarriage of justice. 7. The prosecution attempted to prove through the evidence of PW. It was only brought out that he was an eye witness. We do not think that the material witnesses were either deleberately or unfairly withheld by the prosecution, or that the same had resulted in any miscarriage of justice. 7. The prosecution attempted to prove through the evidence of PW. 5 that he had seen the accused at about 9 P. M. sitting by the side of the Vithura Nandiyode Road, that he flashed his torch and recognised the accused's face, and that he had no injuries at the time. Despite the respectability of PW. 5, who is a teacher, there are certain improbabilities in believing his version, and difficulties in accepting the same; and the suggestion of the defence that his evi-dence marks an attempt to dress up the frills and flourishes of the prosecution story, is not altogether without force. But in view of our conclusion that the appellant did not sustain injury in the course of the incident in this case, we need not either scan the testimony of PW. 5 any further, or lean too heavily on it. 8. We reserved for consideration certain contradictions which are said to detract from the testimony of some of the prosecution witnesses. Pws. 2 and 5 were sought to be contradicted when they were examined in the Sessions Court with reference to their previous statement made during the investigation under S.162 of the Crl. P. C. The statements themselves were not proved or marked, and there is nothing to show that the witnesses were confronted with the recorded statements as such, or the relevant portions thereof. Pws. 2 and 5 were asked whether they had not made certain statements to the police. These statements put to them appear in inverted commas in the deposition. They denied having made the statements. These very statements, again in inverted commas, were put to the Investigating Officer, Pw. 12, and he was asked whether the witnesses had not made them in the course of interrogation under S.162 of the Criminal Procedure Code. This appears to us to be scant compliance with the requirements of S.145 of the Indian Evidence Act and of S.162 of the Criminal Procedure Code. We may extract both these provisions. 12, and he was asked whether the witnesses had not made them in the course of interrogation under S.162 of the Criminal Procedure Code. This appears to us to be scant compliance with the requirements of S.145 of the Indian Evidence Act and of S.162 of the Criminal Procedure Code. We may extract both these provisions. S.145 of the Evidence Act reads: "A witness may be cross-eximined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." S.162 of the Criminal Procedure Code reads: "162(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record there of, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as herein-after provided) at any enquiry or trial in respect of any office under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S.145 of the Indian Evidene Act, 1872 (I of 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling with in the provisions of S.32, Clause (1), of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of S.27 of that Act." From a reading of the two provisions it is clear that the statement made by a witness in the course of investigation may, if duly proved, be used to contradict that witness; and if it is intended to contradict the witness under the Second part of S.145 of the Indian Evidence Act, he should be confronted with the concer-ned portions of the writing. Whether this means that the entire statement under S.162 of the Criminal PC. should, in all cases, be proved and marked, and the witness confronted with portions thereof, or whether oral evidence of a state-ment reduced to writing, can and should be admitted, and if so, under what cir-cumstances, are matters into the niceties of which, we need not at present enter. As observed by the Supreme Court in Bhagwan Singh v. The State of Punjab (AIR. 1952 SC. 214),what matters in the matter of compliance with these provi-sions is the substance and not the form. In Tara Singhy. The State (AIR. 1951 SC. 441) the Supreme Court stressed the need for confrontation of a witness with his previous testimony if the same is to be used for contradicting him. Again in Tahsildar Singh and another v. State of U.P. (AIR. 1959 SC. 1012), the procedure prescribed for condradiction is described, as follows: "The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S.162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S.145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S.145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can.be drawn to that part of the statement made before the police which condradicts his statement in the witness-box. If he admits his previous state-ment, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer." In the instant case, we have no doubt that neither in form nor in substance have the provisions of S.145 of the Indian Evidence Act been complied with. The Investigating Officer did not even offer formal evidence that the statements within inverted commas put to him and to the witnesses were taken from the recorded statements under S.162 Criminal Procedure Code. The statements themselves were not marked. We are satisfied that this was a serious defect committed by the prosecution and by the Sessions.Judge. We wish to impress upon both, the need to comply strictly with the provisions of S.145 of the Evidence Act. In view of this serious defect there is no material for us to hold that any contradi-ctions have been established in regard to Pws. 2 and 5. We have of course not discussed in detail nor relied on the testimony of Pw. 5. But the serious mistake made in attempting to contradict these witnesses with reference to their statements under S.162 of the Criminal Procedure Code has made it necessary to express our view. 9. The learned Sessions Judge rightly noticed that the injury inflicted by the accused was serious, having penetrated into the thoracic cavity about 9 c. m -deep, and injured the anterior surface of the right auricle of the heart. According to the doctor (Pw. 6) the injury was necessarily fatal. 9. The learned Sessions Judge rightly noticed that the injury inflicted by the accused was serious, having penetrated into the thoracic cavity about 9 c. m -deep, and injured the anterior surface of the right auricle of the heart. According to the doctor (Pw. 6) the injury was necessarily fatal. We have no doubt that the accused intended to cause death. There are no extenuating circumstances. The conviction for murder was therefore right and we see no ground to interfere with the sentence imposed. 10. We dismiss this appeal.