Judgment :- 1. The appellant, the accused in Sessions Case No. III of 1970 of the Sessions Court, Kottayam, has been convicted and sentenced to life imprisonment under S.302 IPC. for causing the death of one Mathai alias Raju by stabbing him with MO.1 malappuram knife at about 4 p.m. on 10 91970 at the southern court yard of a shop-buliding in Poovarani kara. 2. pw. 7 Mathew conducted small trade, in the shop-building and pw.1 Kunjupillai Asari, a rubber tapper, used to conduct some carpentry work in the eastern room adjacent to the room in which pw. 7 conducted the trade. On 10 91970, pw.1 was engaged in his room making toys. While so, the appellant came there before 4 p.m. and he stood leaning to the southern wall of the shop-building watching the carpentry work of pw. 1. Immediately thereafter, pw. 2 Kuttappan accompanied by the deceased Raju arrived at the place. Seeing the appellant standing on the verandah in front of the room in which pw.1 conducted carpentry work, pw. 2 asked him whether he would like to smoke a cigarette. The appellant declined the offer and he also stated that he would no longer have his friendship continued with him. pw. 2 then purchased two cigarettes from the shop of pw. 7 and after lighting them both, he offered one of the cigarettes to the appellant. The appellant brushed aside the cigarette which was offered to him and also caught hold of pw. 2 by his neck, as a result of which there was a 'tussle between the two and during the tussle both moved themselves to the western side of the verandah of the shop. On seeing the tussle, the deceased Raju caught hold of the left hand of the appellant, when the appellant took MO.1 malappuram knife from his waist and brandished it, with the result that it struck on the left shoulder of the deceased Raju as a result of which he sustained a bleeding injury. By that time, pw. 6 happened to come to the scene when he tried to catch hold of the knife. But, the appellant wriggled out of the hold of pw. 6 and stabbed deceased Raju on his neck, as a result of which Raju fell down dead on the south of the verandah in the courtyard of the shop-building. By that time, pw. 6 happened to come to the scene when he tried to catch hold of the knife. But, the appellant wriggled out of the hold of pw. 6 and stabbed deceased Raju on his neck, as a result of which Raju fell down dead on the south of the verandah in the courtyard of the shop-building. The appellant thereafter went away from the spot carrying MO.1 in his hand. 3. pw.1 made the first information statement at 6 p.m. on the same day before pw. 9, the Head Constable, Palai. Ext. P1 is the statement. On the strength of the statement, a crime was registered against the appellant. pw. 10, the Inspector took up the investigation. The appellant appeared at the Police Station on 16 91970, when he produced MO.1 which was then seized under Ext. P10 mahazar. On chemical analysis, stains of human blood were seen on MO. 1. pw. 3 Assistant Surgeon, Palai, conducted the autopsy on the dead body and issued Ext. P4 post-mortem certificate. On completion of the investigation a charge was laid against the appellant. 4. The appellant stated in answer to the questions under S.342 Cr. PC. that he was present at the shop-of pw. 7 in the company of many persons who assembled there, when pw. 2 and the deceased Raju came there. He admitted that pw. 2 asked him to smoke a cigarette which he declined. Afterwards, Pw. 2 and Raju had some secret talk between them, when he found a malappuram knife in the hands of pw. 2. Thereafter, pw. 2 again came to him with a lighted cigarette and asked him to smoke it. And he also put the cigarette into his mouth. The appellant was then said to have brushed aside the cigarette. It was then, according to him, that pw. 2 caught him and as a result of which there was a tussle on the verandah of the shop. Then, the deceased Raju also came and caught hold of him. While so, the appellant cried put that he was being killed. It was then that Raju fisted him with his elbow and pressed it against his neck. He was then under the impression that he would be killed. However, he escaped from the clutches of pw. 2 and Raju. 5. While so, the appellant cried put that he was being killed. It was then that Raju fisted him with his elbow and pressed it against his neck. He was then under the impression that he would be killed. However, he escaped from the clutches of pw. 2 and Raju. 5. The evidence was conclusive that Raju died as a result of a serious stab injury which he sustained on the left side of his back. The injury was about 5 cm. long and 1 cm. wide, obliquely going downwards and inwards over the lower part of the left side of the neck. On dissection, it was found that the lungs had been pierced and the death was due to syncope as a result of the haemorrhage and shock on account of the injuries sustained by Raju. 6. The only question that arises to be considered in the circumstances of the case is whether the appellant caused the injuries and, if so, whether the appellant is guilty of murder. The case of the appellant, however, is that he caused the death of Raju in self-defence of his 'person. 7. The only eye witnesses, who sought to prove the prosecution case, were pws.1 and 2. pw.1 was then conducting carpentry work in the eastern room of the shop-building while pw. 2 was a colleague of Raju. The evidence of pws.1 and 2 was conclusive that it was due to the stab injury inflicted by the appellant on the left neck of Raju that he died at the spot. There was also no difficulty in holding that if the appellant was not successful to make out a case of self-defence of person, the act would constitute murder. So, it is sufficient in the circumstances of the case to consider whether the appellant was protected in self-defence of his person by causing fatal injury to Raju. 8. pw. 2 and Raju were friends from childhood. Raju had also worked as a tapper under pw. 2. They came together to the shop of pw. 7 at about 4 p m. on 10 91969, when they met Raju, who was then standing on the southern verandah of the shop-buliding. It was clear from the evidence that prior to the incident there was a confrontation between the appellant on the one side and Raju and pw- 2 on the other. 7 at about 4 p m. on 10 91969, when they met Raju, who was then standing on the southern verandah of the shop-buliding. It was clear from the evidence that prior to the incident there was a confrontation between the appellant on the one side and Raju and pw- 2 on the other. Though the prosecution had no such case, the suggestion as well as the admission made by pw. 2 during cross-examination revealed that at a previous instance, there was some confrontation between the two. As soon as pw. 2 made an offer of a cigarette to the appellant, not only that he declined the offer, but also stated that he would no longer continue the friendship with pw. 2. The indication was that there would have been some serious incident, as a result of which the relationship between the two became strained. Anyway, the attitude of pw. 2 towards the appellant as soon as he came to the shop was not pleasant. The evidence of pw.1 as well as pw. 2 was not consistent in material particulars. The case of the appellant was that Raju intervened when a tussle was going on between the appellant and pw. 2 on the verandah of the shop. The prosecution case as it emerged during the investigation as well as in the committal court was that Raju held the left hand of the appellant, when there was a tussle between him and pw. 2. But, in the Sessions Court, pw.1 stated that Raju not only held the left hand of the appellant, but he also throttled the appellant with the other hand. pw 2 stated in the Sessions Court that Raju caught hold of the appellant with both his hands, when the tussle was going on between the appellant and pw. 2. So, both pws.1 and 2 gave inconsistent version in the Sessions Court as contrary to their evidence in the Committal Court. Ext. P2 is the deposition of pw.1 and Ext. P3 is the deposition of pw. 2 in the Committal Court. If the contradiction which pws.1 and 2 made as against their depositions in Exhibits P2 and P3 was taken into account, it would be clear that the appellant would be protected in the right of self-defence to cause injury to Raju. P2 is the deposition of pw.1 and Ext. P3 is the deposition of pw. 2 in the Committal Court. If the contradiction which pws.1 and 2 made as against their depositions in Exhibits P2 and P3 was taken into account, it would be clear that the appellant would be protected in the right of self-defence to cause injury to Raju. The prosecution would have it that the above contradiction in the evidence of pws.1 and 2 was not material as the reliance had to be placed on Exts. P2 and P3 evidence as substantive evidence since the depositions had been transferred to the records of the Sessions Court under S.288 Cr. P. C. and on the basis of that evidence a conviction could be entered against the appellant. 9. In this connection, it is necessary to point out that the learned Sessions Judge did not comply with the provisions of S.288 Cr. P. C. before the lower court depositions of pws.1 and 2 were transferred to the Sessions case. Before the deposition is transferred to the records of the Sessions case, it is incumbent upon the Sessions Judge to indicate in a brief order why the deposition was being transferred to the records of the Sessions Case. It is also necessary that the Sessions Judge should confront the witness with those parts of his previous statement which was to be used for the purpose of contradiction. It was then only could the matter be brought in as substantive evidence under S.288 Crl. P. C. It is also necessary that notice of the transfer of the deposition of the witness should be given to the accused. Dealing with this aspect of the question, the observation in Tara Singh v. The State (AIR. (38) 1951 Supreme Court 441) is very significant. At page 446, the relevant observation is seen. It runs as follows: "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 contradict ing 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 contradict ing him. Then only can the matter be brought in as substantive evidence under S.288." 10. Even in the later decision reported in Periyasami v. State of Madras (AIR. 1967 SC. 1027), the Supreme Court did not dispense with the necessity of making an order as to why the earlier deposition of the witness was being transferred to the records of the Sessions case. In that particular case, the Supreme Court held that the technical requirement of S.288 that an order should be passed to indicate that the statement was being transferred so as to be read as substantive evidence could be deemed to have been complied with as in that case the accused was questioned under S.342 Cr. P. C. as regards the evidence which was brought on the record of the Sessions Court. It was held that at least by putting such questions under S.342 Cr. P. C., there was no substantial departure from the requirements of law and that there was also no likelihood of any prejudice to the accused since he was informed while he was examined in court that the statement was being used against him under S.288 Cr. P. C. But, in the instant case, there had been no attempt to bring to the notice of the witnesses the earlier statements they made in Exhibits P2 and P3 before they were brought to the records of the Sessions case. Evidently, it would not be necessary in the circumstances of this case to bring Exhibits P2 and P3 to the records of the Sessions case as it would appear that these witnesses could have been contradicted under S.145 of the Evidence Act on the basis of their previous statements made in Exts. P2 and P3. Anyway, if the learned Sessions Judge wanted to make use of the earlier depositions by bringing it to the Sessions trial under S.288 Cr. P. C., he should have followed the procedure followed by law. It was true that the learned Sessions Judge marked Exts. P2 and P3. P2 and P3. Anyway, if the learned Sessions Judge wanted to make use of the earlier depositions by bringing it to the Sessions trial under S.288 Cr. P. C., he should have followed the procedure followed by law. It was true that the learned Sessions Judge marked Exts. P2 and P3. But, he did not pass a brief order to the effect that the evidence of pws.1 and 2 in the Committal Court shall be treated as substantive evidence after it was brought to the records of the Sessions Case. Neither was the appellant questioned under S.342 Cr. P. C. that the evidence in Exts. P2 and P3 shall be treated as substantive evidence against him. The learned counsel of the appellant argued that even questions put to the accused under S.342 Cr. P. C. bringing on record the previous depositions of the witnesses would not be sufficient compliance of law if that evidence is to be treated as substantive evidence unless there is a specific order in writing by the Sessions Judge after notice to the accused that the evidence shall be treated as substantive evidence against the accused. There is some force in this contention. The Supreme Court decision referred to above (AIR. 1967 Supreme Court 1027) did not dispense with the necessity for the brief order to be made by the Sessions Judge bringing the earlier depositions of witnesses to the records of the Sessions trial. It is, therefore, necessary and incumbent upon every Sessions Judge who wants to bring to the Sessions trial any previous depositions recorded in the Committal Court to make a brief order to the effect that he intends to treat the evidence as substantive evidence under S.288 Cr. P. C. giving notice of the order to the accused concerned. In the circumstances of the present case, we are of the opinion that the learned Sessions Judge did not comply with the requirement of law. 11. Assuming that the law had been complied with, we have to consider whether the evidence of pws.1 and 2 could be relied upon. The cross-examination of pws. I and 2 revealed that the appellant was victim of an attack both from deceased Raju and pw. 2. pw. 2 provoked the appellant first by the offer of a cigarette and then he got one of the cigarettes lighted. Thereafter, pw. The cross-examination of pws. I and 2 revealed that the appellant was victim of an attack both from deceased Raju and pw. 2. pw. 2 provoked the appellant first by the offer of a cigarette and then he got one of the cigarettes lighted. Thereafter, pw. 2 put the lighted cigarette in the mouth of the appellant. It was then that the appellant brushed it aside and held pw. 2 by his neck. Between pw. 2 and the appellant there was a tussle. Raju had no right to interfere when the tussle was going on. He did not go to help the appellant, but he went and caught hold of him. The evidence of pws.1 and 2 was that Raju not only caught him by his hand, but also throttled him by his neck. The prosecution did not establish that when Raju intervened pw. 2 had released the appellant from his hold. The evidence of pws.1 and 2 in the cross-examination showed that pw. 2 was also holding the appellant, when Raju intervened and held the appellant. It was under these circumstances that the appellant made use of M. 0.1 knife against Raju. The veracity of the evidence of pws.1 and 2 was in doubt. It may be noticed that pws.1 and 2 gave two versions, one in the Sessions Court and the other in the Committal Court. When they gave two versions of the same incident, it would be difficult to rely upon their testimony though Exts. P2 and P3 statements were not admitted as substantive evidence. With regard to the evidence brought on record under S.288 Cr. P. C, it is relevant to point out the effect of such evidence as reported in Raizada Topandas and another v. Mis. Gorakhram Gokalchand (AIR. 1964 Supreme Court 1348). At page 1359, the following observation was made: ' 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 S.288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? 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. 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 in general but also what is said against the particular accused sought to be implicated in the crime is true. 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." 12. But, this Court in a Division Bench ruling reported in Lakshmanan v. State of Kerala (1966 KLT.1038) had gone further and held as follows: "H is unsafe to convict an accused solely on the evidence of persons who give one version in the committing Magistrate's Court and a totally different one before the Sessions Court, unless there is other reliable evidence in support of the prosecution. When once a statement is put in evidence under S.288, it becomes substantive and is not restricted to purposes of contradiction or corroboration alone. Courts are hence advised to resort to the section only sparingly and to be extremely cautious and circumspective in its application. Prudence dictates that such a statement should not be accepted much less made the sole basis for a conviction without effective corroboration in material particulars." 13. Though this Court had gone beyond the scope of the opinion expressed in the Supreme Court decision, it does not appear in the circumstances of this case, the truth of the evidence of pws.1 and 2 could be relied upon. There was no other circumstance also in the case to hold that the evidence of pws.1 and 2 was acceptable. It may be understood that the substantive evidence brought on record to the Sessions case under S.288 Cr. There was no other circumstance also in the case to hold that the evidence of pws.1 and 2 was acceptable. It may be understood that the substantive evidence brought on record to the Sessions case under S.288 Cr. P. C. is net by itself sufficient to enter a conviction. It would depend upon the facts and circumstances of each case as to whether the sole testimony based upon the substantive evidence could be relied upon or not. Anyway, in the circumstances of the present case, it is difficult to rely upon the evidence of pws.1 and 2. There was every reason to think that both pw. 2 and Raju held the, appellant in such a way that he was not in a position to escape from their clutches and that it was then that he made use of M. 0.1 in self-defence of his person. There is serious doubt in the version of pws.1 and 2. When there is such a doubt, the benefit of the same should go to the appellant to support his case that it was in self-defence of his person that he caused injury to Raju. The appellant is, therefore, protected in self-defence of his person to cause the death of Raju. The appellant is not guilty of any offence. 14. In the result, the appeal is allowed. The conviction and sentence are both set aside and the appellant is acquitted. He is set at liberty and will be released forthwith. Narayana Pillai, J. 1A. What is the appellant's explanation of his conduct? When he was standing on the courtyard of the shop building leaning on the wall pw.2 and the deceased Raju came. When they offered him a cigarette he declined it. Then they went to the shop. At that time pw. 2 took from his waist a knife and placed it there itself. With a lighted cigarette pw. 2 came back to the place where the appellant stood and asking him to smoke it placed in his mouth. He threw it away. Immediately pw. 2 cauhgt hold of him and there was a tussle between them. In the tussle they moved up to the verandah of the shop. Then Raju also caught hold of the appellant and throttled him. He feared at that time that he would be killed and cried aloud. He said that from that dangerous situation he somehow managed to escape. 2 cauhgt hold of him and there was a tussle between them. In the tussle they moved up to the verandah of the shop. Then Raju also caught hold of the appellant and throttled him. He feared at that time that he would be killed and cried aloud. He said that from that dangerous situation he somehow managed to escape. 2A. There were only two injuries on Raju and they were a punctured wound 5cm. x 1 cm. on the left side of neck and a linear incised wound 8 cm.x 5 cm. x 5 cm. on back on the left shoulder blade. If the appellant's statement is to be accepted pw. 2 and Raju were the aggressors. He was throttled by Raju and pw 2 had a knife with him. If it was then that he stabbed Raju it was perfectly justified because he reasonably apprehended at that time that he would be killed by them if he did not act in the manner he did. 3A. Is the appellant protected by the right of private defence? The only occurrence witnesses are pws.1 and 2. Both of them were declared hostile and cross-examined by the Public Prosecutor. Their depositions in the committal court were admitted in evidence under S.288 of the Criminal Procedure Code and freely made use of by the Sessions Judge for convicting the appellant. It was without even putting those depositions to him when he was questioned under S.342 of the Cr. PC. that they were used against him. That was unjustified. 4A. Both pws.1 and 2 deposed in trial that at first the appellant had declined the offer of a cigarette and that it was when a cigarette was attempted to be thrust upon him that the trouble started by the appellant throwing it away. That was followed by a tussle between them. At that time Raju came and separated them. pw. 2 deposed that thereafter there was a tussle between Raju and the appellant during which Raju throttled the appellant. He also deposed that it was then that the appellant after imploring Raju who was stronger than him not to cause any harm to him waved the knife. His evidence shows that the knife was waved by the appellant not immediately when Raju caught hold of him but only after pw. He also deposed that it was then that the appellant after imploring Raju who was stronger than him not to cause any harm to him waved the knife. His evidence shows that the knife was waved by the appellant not immediately when Raju caught hold of him but only after pw. 2 had also joined in the tussle on the side of Raju and the tussle had lasted about 10 minutes. It was a dangerous situation and the appellant must reasonably have apprehended then that Raju and pw. 2 would kill him. Therefore if the depositions of pws 1 and 2 at the trial are believed the appellant is completely protected by the right of private defence. Realising the consequence of the acceptance of the evidence of pws,1 and "2 at the trial the Public Prosecutor requested the judge to admit in.evidence their depositions in the committal court wherein they had not mentioned about the throttling of the appellant by Raju and the judge allowed it without assigning any reason for the same. That was also unjustified.' ' 5A. The general rule is that a court can act only on the evidence given before 'it and S.288 of the Cr. PC. which provided that if a witness is examined during trial evidence given by him in the committal proceedings can in the discretion of the judge be treated as evidence in trial is an exception to it. The witness in such a case is one who makes during trial statements contrary to what he said in the committal court. When once admitted the statement made in the committal court becomes substantive evidence during trial and so cannot be discarded also. Therefore the aid of S.288 should be invoked only sparingly and with great caution and before admitting it in evidence the judge should be satisfied that the statement made by the witness before him was not true and that that made in the committal court was substantially true. He need not make an elaborate enquiry about it. But he should be satisfied that the witness has intentionally gone back on the statement he gave in the committal court and that the statement given at trial was not true and the records should disclose it. There need not be that satisfaction if the purpose is only to corroborate or contradict a witness. But he should be satisfied that the witness has intentionally gone back on the statement he gave in the committal court and that the statement given at trial was not true and the records should disclose it. There need not be that satisfaction if the purpose is only to corroborate or contradict a witness. Those objects can be attained by the provisions of S.145 and 157 of the Evidence Act., But the object of S.288 of the Criminal Procedure Code is different. It is to treat the statement in the committal court as substantive evidence on transfer to the records in trial. On transfer it is as good evidence as that given at trial. 6A. The power under S.288 is discretionary and where, as here, the transfer of the previous statement is made merely because the Public Prosecutor required that it should be put in evidence there is no exercise of the discretion at all by the Judge. Although the Section does not specifically say so it is desirable that the transfer of prior statement under S.288 is preceded by an order stating the reasons for transfer for, that would enable the superior court to scrutinize whether the discretion has been exercised wisely. 7A. S.288 does not specifically say that the witness should be confronted with his previous statement before it is accepted as substantive evidence-Nevertheless interests of justice require that an opportunity should be given to him to explain his position. His explanation is necessary for considering the questions regarding the weight to be attached to the previous statement and his liability for prosecution for perjury. 8A. It is not sufficient if extracts of previous statement alone are transferred to the records in trial. The whole of that statement 'should be transferred on record as otherwise the judge would not be in a position to judge for himself the true effect of that statement and there is the risk that the accused may be prejudiced in that anything stated by the witness in his prior statement to the benefit of the accused may not be before the judge. 9A. After the transfer under S.288 although the previous statement of the witness becomes a piece of substantive evidence it cannot be forgotten that it is a statement of a witness who has given two contradictory versions. 9A. After the transfer under S.288 although the previous statement of the witness becomes a piece of substantive evidence it cannot be forgotten that it is a statement of a witness who has given two contradictory versions. Therefore before it is acted upon prudence requires that it should be corroborated in material particulars. 10A. The Law Commission has recommended abolition of preliminary enquiries preceding sessions trials and in the Code of Criminal Procedure Bill of 1970 as introduced in the Rajya Sabha committal proceedings have been omitted. If that becomes law the question as to whether the statement made by a witness during preliminary enquiry can be used as substantive evidence during trial may not arise at all in future. I agree in setting aside; the conviction and sentence of the appellant and acquitting him. Allowed.