Judgment :- 1. Appellant Ibrahim alias Imbayi is the sole accused. PWs 2 and 4, Mohammedkutty and Abdul Majeed, are his elder brothers. PW 10, Sainaba, aged 50 is their widowed mother. Deceased Avutty aged 26 was their close neighbour. Ever since the death of her husband, PW 10 had a fascination for the deceased to satisfy her lust. The affair went on continuously for about nine years. To enable the sexual liaison, she used to sleep alone in the kitchen under some false pretext. The kitchen has an exit door through which entry from outside without being noticed by others is easy. PWs. 2 and 4 were aware of this liaison and they had to acclimatise and swallow their protest. But the appellant, who was aged only 17 at the time of incident, was unaware of this. On 20-11-83 he had a confrontation with the deceased inside the kitchen at about 11.00 or 11.30 in the night after his sexual liaison with his mother was over. PW 2 interfered and prevented the appellant. Deceased was sent away to his house with an assurance that the matter could be talked over the next morning. Appellant was caged in a room. Within five minutes, the deceased re-appeared near the lane in front and called PW 2. While PW 2 asked him to go away, the appellant rushed near him and stabbed him to death. These are the allegations, on which he was tried and convicted for murder and sentenced to imprisonment for life. 2. Defence is a denial of the second part of the incident. It is said that the' incident started when the deceased forced open the door and committed rape on PW 10 by gagging her and showing a knife inside the kitchen. Contention is that the deceased sustained the fatal injury inside the kitchen with his own weapon in the fight with the appellant who tried to rescue the mother. 3. The only occurrence witness is PW. 2. He turned hostile and supported the defence version. That is the case with PWs.4 and 10 also. Barring their evidence and the medical evidence, which unmistakably indicate that Avutty had a homicidal death, the relevant evidence gets confined to the testimonies of PWs. 1,3, and 5. If the prosecution case is established, it is definitely murder punishable under S.302. 4. On the first information given by PW. That is the case with PWs.4 and 10 also. Barring their evidence and the medical evidence, which unmistakably indicate that Avutty had a homicidal death, the relevant evidence gets confined to the testimonies of PWs. 1,3, and 5. If the prosecution case is established, it is definitely murder punishable under S.302. 4. On the first information given by PW. 10, a case was registered and investigated. It was referred as false on the conclusion that there was no rape and she was a willing party who was continuing the liaison with the deceased for several years. The doctor, who dealt with her and issued the certificate, was not examined. The certificate was marked only through the investigating officer. Anyhow, PW 10 herself admitted that the deceased had completed sexual intercourse with her that night and medical evidence proved this fact. The defence version that there was sexual assault on her by the deceased by gagging and show of dagger is evidently a manipulation. The door was in tact with the latch and breaking open is an invention. Possibility is PW. 10 opened the door and allowed the deceased entry. 5. But the fact remains that consequent on the sexual affair between the deceased and PW. 10 inside the kitchen, there was confrontation between the appellant and the deceased, which was prevented by PW.2. This fact is clear not only from the testimonies of PWs 2, 4 and 10, but also from PWs.3 and 5. PW.3 was not at all declared hostile. The defence version of the incident in the sense that the injury was in the first encounter itself appears to be more probable and true. If the prosecution version and its evidence regarding the first encounter is accepted, the deceased had no reason for any complaint justifying his re-appearance in the lane to call PW.2. He must have gone home with a guilty conscience and with the satisfaction that he escaped unhurt and unpunished for his wrong. If he escaped unhurt, he could only be expected to keep quiet at home. 6. If we go by the evidence of PWs.2, 4 and 10, there was only one incident which is the first one admitted by the prosecution. It is true that they are hostile witnesses interested in the appellant. If he escaped unhurt, he could only be expected to keep quiet at home. 6. If we go by the evidence of PWs.2, 4 and 10, there was only one incident which is the first one admitted by the prosecution. It is true that they are hostile witnesses interested in the appellant. But they were not confronted, contradicted or discredited with the statements given by them under S.161 of the Code of Criminal Procedure. The prosecutor seems to have resorted to an unusual and irregular method, in violation of S.162, to get the entire case diary statements of these witnesses marked en bloc as Exts.P2, 3 and 7 without any objection from the court or the defence counsel. The case diary statements in full were not incorporated in the depositions. Instead, the beginning and end were put in inverted comas with dotted lines in between. Case diary statements contain contradicted and uncontradicted portions. The portions sought to be contradicted were not put to the witnesses. They were not duly proved by putting to the investigating officer also. Instead, he was made to swear generally that they said "as stated in Exts.P 2,3 and 7". Neither S.162 of the Code of Criminal Procedure nor S.145 of the Evidence Act was complied with in form. But it cannot be said that there was no compliance in substance or that prejudice resulted. This court had occasion to remind judicial officers of the irregularity of resorting to such method of whole-sale marking of case diary statements. What is required to be done is when a witness is called for the prosecution in the inquiry or trial consequent on the investigation during which his statement is recorded under S.161 and when occasion arises, any part of his statement necessary should be put to him for contradiction as provided in S.145 of the Evidence Act and duly proved through the investigating officer who recorded the same. The witness must get an opportunity of admitting or denying that statement or to give his own explanation which will have to be considered by court. If denied the statement will have to be duly proved also. The witness must get an opportunity of admitting or denying that statement or to give his own explanation which will have to be considered by court. If denied the statement will have to be duly proved also. Then only it becomes admissible though the admissibility is only to be used for contradicting, discrediting or considering the veracity of that witness and not otherwise to be used as substantive evidence, A contradicted and denied statement, even if duly proved, cannot be used as substantive evidence against the accused. 7. It cannot be said that the said admission of the case diary statements is an illegality which vitiates the trial. It is only a curable irregularity which will vitiate the trial only if there is prejudice. Anyhow, the portions of the statements with which the witnesses were not specifically contradicted nor properly proved through the investigating officer cannot be used even for discrediting the witnesses because they were not specifically confronted with these statements thereby denying an opportunity for admission, denial of explanation. In this case, the statements denying the second incident and alleging that the injury was during the first incident were not contradicted with the case diary statements to the contrary. Therefore, the veracity of these statements could be considered only independent of the case diary statements. That does not mean that their improbable version regarding rape or their evidence as to how the incident took place will have to be accepted as true. But that part of their evidence also will have to be considered in appreciating the other items of evidence and the probabilities to decide whether the prosecution presented a true story or whether there is any scope for a reasonable doubt as to how the incident happened. 8. As we already indicated, the remaining items of evidence are only (1) the dying declaration spoken to by PW.1, and (ii) the alleged res gestae evidence of P Ws.3 and 5. Dying declaration, if duly proved and found reliable, could be the sole basis of conviction even without corroboration. In this case, even if the dying declaration spoken to by PW.1 is accepted, it could only prove that the deceased sustained the stab injury from the appellant. That is not practically disputed. Dispute is only regarding the circumstances under which and the time and place at which the injury was received. 9. In this case, even if the dying declaration spoken to by PW.1 is accepted, it could only prove that the deceased sustained the stab injury from the appellant. That is not practically disputed. Dispute is only regarding the circumstances under which and the time and place at which the injury was received. 9. PW.3 was a guest in the house of the appellant and PW.5 is a neighbour. Their evidence is that at the time of the first encounter, P W.2 held the appellant and sent away the deceased with an assurance that the matter could be talked over and settled next morning. They also said that when asked, PW.2 said that his mother was raped by the deceased. Meanwhile, the deceased came again and called Pw.2 and PW.2 repeated his original statement. It was then that the appellant came out of the room and ran towards the deceased followed by pw. 2. What they next saw was only the deceased lying the lap of PW.2 with a bleeding inury. They do not know what transpired in between. It is only a matter for guess. If actually the mother was raped after breaking open the door by the show of dagger and gagging as is alleged to have been claimed by PW.2 and the appellant was prevented before he could do anything against the deceased, there was nothing to be talked over and settled with the deceased the next morning as is said to have been assured by PW.2 to the deceased in order to send him away twice. The evidence of Pws.3 and 5 in this respect look artificial. 10. Nobody said that the appellant ever possessed any weapon or he stabbed with it. It could only be inferred. The only evidence regarding possession of knife is from, PWs. 2,4 and 10. They said that it was possessed by the deceased who sustained injury with it in the melee. Whether that version is believable or not, there is no other evidence. I do not think that it is safe to accept the improbable evidence of PWs.3 and 5 which do not at all explain the circumstance under which the deceased sustained the injury. 11. Whether that version is believable or not, there is no other evidence. I do not think that it is safe to accept the improbable evidence of PWs.3 and 5 which do not at all explain the circumstance under which the deceased sustained the injury. 11. The only other aspect on which the evidence of P Ws.3 and 5 could be considered is their statement that in answer to their queries as to what happened PW.2 told them that the appellant stabbed the deceased. That was after the incident and after the assailant went away and the injured was placed in the lap of PW 2. It was only then that PWs. 3 and 5 claimed to have come and asked the question and elicited the answer. There is no evidence as to how much time elapsed between the incident and these queries and answers. PW.2 denied having made such a statement which is improbable also if the incident was in the manner spoken to by PWs. 3 and 5. Apart from the genuineness of such a version, it also involves the further question whether the evidence could be treated as res gestae as claimed on behalf of the prosecution. 12. The term res gestae may be defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. It is a term of protean significance. The rule has been declared to be incapable of any precise definition. The collection of primary facts constituting the necessary and immediate field of judicial enquiry may be designated as the resgestae. Within this field of immediate enquiry the court will receive evidence of all the facts. In a general way res gestae could be defined as meaning and including the circumstances, facts and declarations which grow out of the main fact and serve to illustrate its character and which are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabrication, and it has been made to embrace all facts which are relevant to the principal fact in any degree as tending to establish the existence of a claim or a liability in dispute between the parties which directly arises, if at all, from the primary fact. It includes things left undone and things done. 13. It includes things left undone and things done. 13. The essential elements are: (i) The statement or declaration must relate to the main event and must explain, elucidate or in some manner characterise that event; (ii) It must be a natural declaration or statement growing out of the event, and not a mere narrative of a past completed affair; (iii) It must be a statement of fact and not the mere expression of an opinion; (iv) It must be a spontaneous and instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not a product of pre-meditation, reflection or design; (v) Though the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; (vi) It must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. The real test is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event which it characterises as Jo be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony. Unsworn declaration as part of resgestae depends not on the credibility of the declarant, but derives their probative force from the close connection with the occurrence which they accompany and tend to explain and are admissible as original evidence, although it is frequently stated that they are received under an exception to the hearsay rule. 14. As observed in Bhaskaran v. State of Kerala (1985 K.L.T. 122) and the decisions relied on therein, the declaration must be substantially contemporaneous with the fact and not merely narrative of a prior event. Remarks made by persons other than eye witnesses is only hearsay. Denial of the remark by the maker or his denial of being an eye witness by itself may not exclude evidence regarding res gestae if it is otherwise acceptable. The statement must be at the time of the transaction or so shortly before or after it so as to form part of the transaction. Denial of the remark by the maker or his denial of being an eye witness by itself may not exclude evidence regarding res gestae if it is otherwise acceptable. The statement must be at the time of the transaction or so shortly before or after it so as to form part of the transaction. If the transaction terminated and thereafter the statement is made to a third person in answer to a query made by him as to what happened, it is irrelevant though the query by itself will not make it inadmissible. Admissibility depends upon continuity. The statement must be the spontaneous reaction of the person witnessing the crime and forming part of the transaction. Narration of what transpired to third parties will not come within res gestae though admissible under S.157 of the Evidence Act as corroborative. Evidence as to what eye witnesses said or did at the time of the incident or even evidence of their cries and proof of collateral statements so connected with the facts in issue as to form part of the same transaction are admissible, whether made by witnesses or participants (see Pratapsingh and another v. State of Madhya Pradesh - AIR. 1974 S.C. 778 and Smt. Chander Kala v. Ram Kishan and another - AIR. 1985 S.C.1268) Considered in the light of these principles the evidence of PWs 3 and 5 as to what PW. 2 said (PW. 2 denies the statement and denies even having seen such an incident ever)is not admissible as res gestae, apart from the question of it being improbable. It is only hearsay evidence. Even accepting the evidence, it will not discharge the prosecution of the burden of proving the circumstances under which the injury was inflicted especially in view of the other items of evidence. The fact that pw. 2 turned hostile cannot absolve prosecution from the burden of presenting the entire facts. 15. Then what remains is only the dying declaration spoken to by PW.1. He is none other than the direct uncle of the deceased. Even op his own showing, he is "residing 250 ft. away. He was fast asleep and was woken up by his wife after the incident. He got out and waited for some time. Then only he went to the scene. He says that to his query the deceased, said that he was stabbed by the appellant. Even op his own showing, he is "residing 250 ft. away. He was fast asleep and was woken up by his wife after the incident. He got out and waited for some time. Then only he went to the scene. He says that to his query the deceased, said that he was stabbed by the appellant. Even if that statement is accepted, it will not prove the circumstances under which the injury was received. His presence was not spoken to by any witness. Whether the deceased was alive and capable of making such a statement at that time itself is in doubt as the medical and other evidence goes. He could have reached the scene only much after PWs. 3 and 5 were there. None of them heard such a statement. The dying declaration could be swallowed in the circumstances only with a pinch of salt. 16. It follows that the prosecution failed in establishing beyond doubt as to how the incident took place. We are not satisfied that the entire facts were truly presented before court. The benefit of the reasonable doubt arising therefrom must go to the accused. The appeal is allowed and the conviction and sentence are set aside. The appellant is given the benefit of doubt and acquitted. He is ordered to be set at liberty, if not wanted in any other case.