JUDGMENT: Bhat, J.: At about 7 P.M. on 4.12.1983, now deceased George, husband of P.W.1 sustained fatal injuries and succumbed to the injuries on the way to General Hospital, Thiruvalla at 11 P.M. P.W.1 went to the Thiruvalla police station and gave information on the basis of which case was regostered against eight persons under Secs.143 , 147 , 148 , 341 , 323 and 302 , I.P.C. read with Sec.149, I.P.C. Ultimately, P.W.23 Circle Inspector of Police, Thiruvalla laid charge against these eight persons for the aforesaid offences. The trial Court convicted them under Secs.143, 147, 148 and 341 read with Sec.149 , I.P.C and Sec.304 read with Sec.149 I.P.C. For the offence under Sec.302, I.P.C. they were sentenced to undergo imprisonment for life. No separate sentence was awarded under the other counts. Second accused was further convicted under Sec.323, I.P.C. Accused have filed the above appeals challenging the conviction and sentence entered against them. 2. Prosecution can be summarised as follows: George had an affair with P.W.7, wife of the third accused on account of which he incurred enmity of the third accused. Accused are mutually related to each other. P.W.1 is a vegetable vendor and George a fish vendor, both conduction their business in the Koottoor market. On the evening of 4.12.1983, P.W.1 was doing business in the market. At about 7 P.M. George rushed to her and asked her to collect vegetables in the basket and suggested that they should leave the place since accused persons were coming there and he did not know why they were doing so. P.W.1 began to collect vegetables. By that time the eight accused reached the scene. First accused was armed with M.O.5 sword stick. Third accused was armed with M.O.8 iron rod. Further accused was armed with M.O.6 dagger. Fifth accused was armed with M.O.9 spring stick. Other accused were not armed. Third accused beat George above the left eye brow with M.O.8. First accused hit him with sword stick on his chest, right elbow and left hip. Second accused snatched a tapioca stump which was being used by P.W.1 for hanging the balance and beat George on his left shoulder and the stump broke into M.O.7 series. Second accused beat P.W.1 on her neck with his hand. Fourth accused stabbed George with M.O.6 dagger on his back and left finger. Second accused snatched a tapioca stump which was being used by P.W.1 for hanging the balance and beat George on his left shoulder and the stump broke into M.O.7 series. Second accused beat P.W.1 on her neck with his hand. Fourth accused stabbed George with M.O.6 dagger on his back and left finger. Fifth accused beat him on the back of his head. Accused 6 to 8 pushed George down and dragged him to and fro on the ground. When people rushed to the scene accused left with their weapons. P.W.1 helped George to stand up and he took a few steps and fell down. P.Ws.1, 6 and others took George to General Hospital, Thiruvalla in a car driven by P.W.9. P.W.13 Civil Surgeon attached to the hospital examined George at 7.30 P.M. and found him dead. At 11 P.M., P.W.1 went to Thiruvalla police station and gave Ext.P1 information on the basis of which P.W.22, A.S.I. registered the case. The next day P.W.23 took over investigation. He held inquest over the body and questioned witnesses. Postmortem was conducted by P.W.14. P.W.23 prepared scene Mahazar and seized M.O.7 tapioca stump. He arrested accused 2, 5, 6 and 8 on 27.12.1983 and on the information given by them he recovered M.O.8 as per Ex.P8 mahazar attested by P.W.16. He arrested accused 3 and 7 on 7-1-1984 and on the information given by the third accused he seized M.O.8 under Ext.P9 mahazar attested by P.W.7. He arrested accused 1 and 4 on 22-1-1984. On the basis of the information given by the first accused he recovered M.O.5 under Ext.P10 mahazar attested by P.W.18. On the basis of the information given by the fourth accused he recovered M.O.6 dagger under Ext.P11 mahazar attested by P.W.18. Material objects were caused to be sent and plan of the scene was got prepared. He laid the charge after completing investigation. 3. Accused told the Sessions Court that they originally belonged to Marxist Communist Party but left the party and formed a new group and therefore the local marxist entertained ill-feeling towards them and foisted a false case. They denied their complicity in the occurrence, denied the evidence regarding motive and the occurrence. He laid the charge after completing investigation. 3. Accused told the Sessions Court that they originally belonged to Marxist Communist Party but left the party and formed a new group and therefore the local marxist entertained ill-feeling towards them and foisted a false case. They denied their complicity in the occurrence, denied the evidence regarding motive and the occurrence. Sixth accused who had a shop near the scene stated that George went to his shop broke his petromax and when a crowd gathered George went eastwards followed by the groups and he was involved in a fight. 4. There is no doubt that late in the evening of 4-12-83 George sustained serious injuries and succumbed to the same. The evidence of P.W.14 who conducted autopsy shows that George had as many as 12 external injuries. Of them injuries 1 and 7 were lacerated injuries on the lateral end of the left eye brow and dorsal aspect of the right elbow, injuries 4, 8, 11 and 12 were incised injuries, above the left anterior superior iliac spine, on the left side of the root of the nect, below the right nipple and between 7th, 8th ribs left to the midline, injuries 2, 3, 5, 6 and three injuries in item 9 were abrasions near the right eye, over left shoulder, on the dorsum of left forearm, on the dorsum of root of left index finger and lateral to tenth spine on the back side and right side. Injury No.10 was a contusion on the scalp at the occipital region in the midline. Thoracic cavity contained dark fluid blood. Vital organs were pale. Corresponding to external Injury No.11 there was an incised wound at the centre on the anterior aspect of the right lower lobe and corresponding to Injury No.12 there was an incised would on the posterolateral aspect of the lower lobe. According to P.W.14 death was due to internal injury haemorrhage and shock and Injuries 11 and 12 could be fatal. 5. In order to establish the guilt of the accused prosecution on (a) eye witness testimony of P.Ws.1 to 5, (b)evidence regarding motive provided by P.Ws.1, 3, 5, 7, 8, 10 and 21 and (c) medical evidence. 6. Before dealing with the evidence we would ike to deal with the manner in which case diary contradictions have been brought on record and proved. 6. Before dealing with the evidence we would ike to deal with the manner in which case diary contradictions have been brought on record and proved. Our attention is invited to the decision of a Division Bench of this Court in Puthenthara Mohanan v. State of Kerala Puthenthara Mohanan v. State of Kerala (1989)1 K.L.N. 462. In that case only the beginning and the end of the portions of statements with some dotted lines in between them were put in inverted comas and attention of the witnesses was drawn to these portions. Prosecutor must have read the relevant portions, but for the purpose of reducing the burden of writing, the learned Sessions Judge wrote only the beginning and the end of the portions of the statements with dotted lines in between in inverted comas. The court observed that this practice has been deprecated by this Court. The objection pointed out was “In the instant case, the entire portions of the statement with which the witnesses were sought to be confronted were not seen put to the witness. The inverted comas contained only the beginning and the end of the statements with dotted lines in between.” The Bench further observed: “So also portions of the statements with which the witnesses were sought to be confronted with were not put to P.W.13, investigation officer and he was only asked whether P.Ws.2 to 4 had stated as contained in Exts.P2, P3 and. P4. This can be hardly treated as proof of the statements”. In the present case P.W.7, wife of the third accused, refused to support the prosecution and she was cross-examined by the prosecutor with permission of the court. She was confronted with her C.D. statement with permission of the court. The deposition shows that practically the entire C.D. statement was read over to her, this was obviously because she denied each and every one of those statements and the statements are relevant for the purpose of cross-examination. The learned Sessions Judge did not extract the entire statement in the deposition but wrote only the portions in the beginning and at the end and connected the two portions with dots. At the same time the learned Sessions Judge noted that the statement has been read over and marked Ext.P2. The learned Sessions Judge did not extract the entire statement in the deposition but wrote only the portions in the beginning and at the end and connected the two portions with dots. At the same time the learned Sessions Judge noted that the statement has been read over and marked Ext.P2. Thus we find that the procedure followed in the present case is to some extent different from the procedure followed in (1989)1 K.L.N. 462. 7. We do not think any hard and fast rule can be laid down in regard to the procedure to be adopted in following Sec.145 of the Evidence Act, with particular reference to case diary statement. Case diary statements are recorded under Sec.161(3) of the Code of Criminal Procedure. Sub-section(1) of Sec.162 states, inter alia, that such statement shall not be used for any purpose, save as provided in any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso permits use of the statement, if duly proved, by the accused, and with the permission of the court by the prosecution, to contradict such witness in the manner provided by Sec.145 of the Evidence Act. Sec.145 of the Indian Evidence Act is in two parts. The first part permits cross-examination of the witness as to his previous statement in writing when such writing being shown to him or being proved. The second part requires that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts which are to be used for the purpose of contradicting him. Reading Sec.162(1) proviso and Sec.145 together, it is clear that a witness may be cross-examined as to his case diary statement without such statement being shown to him or being proved; however if the intention is to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of contradicting him before the writing can be proved. Sometimes objection is raised regarding making the entire C.D. statement or large portion of it. There cannot be a universal rule against such a procedure. Whether in a given case it amounts to substantial compliance of Sec.145 depends on the situation in each case. 8. Sometimes objection is raised regarding making the entire C.D. statement or large portion of it. There cannot be a universal rule against such a procedure. Whether in a given case it amounts to substantial compliance of Sec.145 depends on the situation in each case. 8. In Bhagawan Singh v. State of Punjab Bhagawan Singh v. State of Punjab A.I.R. 1952 S.C. 214: 1952 S.C.J. 284: 1952 S.C.R. 812: 53 Crl.L.J. 1131 it was seen that the entire previous statement (it was not a case diary statement) was put to the witness point by point and passage by passage. One of the passages was reproduced in inverted comas and the Supreme Court concluded there from that the passage in inverted commas must have been read out from the statement. Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted the same. The Supreme Court observed: “Now this procedure may be opened to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction that may, in given case, confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every material passage in it point by point. Accordingly, the procedure adopted here was in substantial compliance with what Sec.145 requires. There can be no hard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that that was done here. The matter is one of substance and not of mere form”. In Tahsildar Singh v. State of U.P. Tahsildar Singh v. State of U.P. (1959)2 MLJ. (S.C.) 201: 1959 MLJ. (Crl.) 759: (1959)2 An.W.R. (S.C.) 201: 1959 S.C.J. 1048: A.I.R. 1959 S.C. 1012 the Supreme Court observed: “If he admits his previous statement, 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.” 9. (S.C.) 201: 1959 MLJ. (Crl.) 759: (1959)2 An.W.R. (S.C.) 201: 1959 S.C.J. 1048: A.I.R. 1959 S.C. 1012 the Supreme Court observed: “If he admits his previous statement, 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.” 9. In (1989)1 K.L.N. 462, reliance has been placed on the decision in Krishnan Nair v. State of Kerala Krishnan Nair v. State of Kerala 1971 K.L.T. 326. That was a case in which statements themselves were not proved or marked and there was nothing to show that the witness were confronted with the recorded statements as such or the relevant portions thereof. Witnesses were asked whether they had not made certain statements to the police. These statements put to them were recorded in inverted commas in the depositions. They denied having made the statements. These very statements, again in inverted commas, were put to the Investigating Officer and he was asked whether the witnesses had not made them in the course of investigation under Sec.162 of the Code of Criminal Procedure. Dealing with this situation the court observed: “This appears to us to be scant compliance with the requirements of Sec.145 of the Indian Evidence Act and of Sec.162 of the Criminal Procedure Code…………..if it is intended to contradict the witness under the second part of Sec.145 of the Indian Evidence Act, he should be confronted with the concerned portions of the writing……..The Investigating Officer did not even offer formal evidence that the statement within inverted commas put to him and to the witnesses were taken from the recorded statements under Sec.162 of the 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.” [Emphasis supplied] Obviously in the above case relevant portions of the statement had been fully extracted in the deposition within inverted commas. But witness's attention was not drawn to the fact that these statements appeared in his case diary statement recorded in writing. Relevant portion was also extracted within inverted commas in the deposition of the Investigating Officer. But he did not state that that portion was taken from the recorded statements. Portions of the recorded statements themselves were not marked. But witness's attention was not drawn to the fact that these statements appeared in his case diary statement recorded in writing. Relevant portion was also extracted within inverted commas in the deposition of the Investigating Officer. But he did not state that that portion was taken from the recorded statements. Portions of the recorded statements themselves were not marked. The court objected to this procedure obviously because there was nothing on record to show that the portions appearing within inverted commas were as a matter of fact found in the recorded statements. This decision will not help us in the particular controversy arising in this case. 10. In George v. State George v. State [1988]1 K.L.T. 256 Padmanabhan, J. observed that “The exact portion sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the Investigating Officer”. When the learned Judge referred to “marking” the reference obviously was to marking statement in writing as a document. The learned Judge had no occasion to consider whether there was any way of bringing the statement in the deposition without recording the relevant portion of the statement. In Sethumadhavan v. State Sethumadhavan v. State [1988]1 K.L.T. 9 (S.N.) statements given by the witnesses were straightaway marked as exhibits and were later relied on by the Court. One of us (Balakrishnan, J.) noticed that “sometimes the statements which have been denied by the witness are provisionally marked for convenience to be later proved through the investigating officer who recorded the same” and held that “the cross-examiner must read out to the witness the relevant portion of the statement recorded which is alleged to be contradictory to his statement in Court and give him an opportunity to reconcile the same”. In Imbayi v. State Imbayi v. State [1989]1 K.L.T. 956 the Prosecutor brought the entire case diary statement marked though the statements in full were not incorporated in the depositions. Only the beginning and end were put in inverted commas. Significantly the case diary statements contain contradicted and un-contradicted portions and the portions sought to be contradicted were not put to the witnesses and were not duly proved by putting to the Investigating Officer. He was made to swear generally that the witness stated as seen in such and such exhibits. Significantly the case diary statements contain contradicted and un-contradicted portions and the portions sought to be contradicted were not put to the witnesses and were not duly proved by putting to the Investigating Officer. He was made to swear generally that the witness stated as seen in such and such exhibits. Nevertheless the Court took the view that it was not a case of non-compliance in substance or that prejudice had resulted. 11. One of us (Bhat, J.) in A.H. Abdulla v. State of Kerala A.H. Abdulla v. State of Kerala I.L.R. (1981)1 Ker. 508 held that: “This does not mean that there is only one way of bringing on record a contradiction contained in a previous statement recorded under Sec.161(3) of the Code. There may be several ways of doing it. One way would be to read out the specific portion from the statement to the witness and incorporate that portion specifically within inverted commas in the deposition. That would be the ideal way of doing it. Some Courts adopt the method of extracting only first few words and the last few words of the previous statement and marking the relevant passage. Some other Courts, instead of extracting the portion in the deposition, merely mark the portion in the document containing the statement and allow it to be read out or shown to the witness”. However, in that case when the Investigating Officer was examined specific portions of the statement were not read out and extracted in the deposition, nor were portions marked and put to him. Therefore, it was held that there was non compliance. 12. On a careful consideration of the above decisions, we are unable to find any differences in approach. As observed by the Supreme Court in A.I.R. 1952 S.C. 214, whatis really necessary is substantial compliance of the requirements of Sec.145 of the Indian Evidence Act and the purpose of the second part of Sec.145 is to treat the witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The Court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in Court. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The Court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in Court. When that portion has been brought to the attention of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portion of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the relevant portion has been read out to the witness. There is no reason why the same procedure should not be adopted when the previous statement is attempted to be proved through the investigating Officer; there is nothing wrong in the officer deposing that the witness had stated to him as seen in such and such exhibit (already marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing. We are satisfied that in this case the procedure followed is in substantial compliance with the requirements of Sec.145. [Paras 13 to 22 omitted being appreciation of evidence]. 23. In the light of the above discussion, we have no hesitation to agree with the learned Sessions Judge that the prosecution version regarding to overt acts of accused 1 to 5 have been proved. [Paras 13 to 22 omitted being appreciation of evidence]. 23. In the light of the above discussion, we have no hesitation to agree with the learned Sessions Judge that the prosecution version regarding to overt acts of accused 1 to 5 have been proved. The overt act attributed to accused 6 to 8 does not appear to be natural or probable and therefore we are not prepared to accept the evidence which attributes such overt act to accused 6 to 8. 24. The prosecution evidence is that the eight accused came there. There is no evidence to show that in what manner they approached the scene, whether all of them came in a group or not. Accused 1, 3, 4 and 5 no doubt came armed with deadly weapons and they committed specific overt acts against George, using the deadly weapons. But the same cannot be said of accused 2 and 6 to 8. They came unarmed. Second accused is alleged to have used a stump used to set up the balance belonging to P.W.1 and inflicted a beating on the left shoulder of George. If really accused 2 and 6 to 8 had shared any common intention or common object with the other accused, it is reasonable to expect that they would have come to the scene with suitable weapons. We have already indicated doubt about the overt act attributed to accused 6 to 8. In these circumstances, we cannot uphold the finding of the learned Sessions Judge that there was any unlawful assembly with the common object to commit the murder of George. Therefore, conviction under Secs.143, 147 and 148 and the conviction regarding the substantive offences read with Sec.149, I.P.C., cannot stand. So also offence under Sec.341 is not seen made out. 25. The fatal injuries were inflicted by the fourth accused. Injuries inflicted by accused 1, 3 and 5 are simple injuries. We have already held that accused 2 and 6 to 8 cannot be held to have shared any common intention or common object with the other accused. But the manner in which accused 1, 3 and 5 came armed with deadly weapons and attacked George would clearly establish common intention on their part to cause his death. We have already held that accused 2 and 6 to 8 cannot be held to have shared any common intention or common object with the other accused. But the manner in which accused 1, 3 and 5 came armed with deadly weapons and attacked George would clearly establish common intention on their part to cause his death. Accused 1, 3 and 5 can certainly be held to be guilty of the offence of murder in the light of Sec.34, I.P.C. The evidence on which prosecution relied to establish unlawful assembly with the common object to commit the murder of George is sufficient establish the applicability of Sec.34, I.P.C. In these circumstances we have to confirm the conviction of accused 1, 3, 4 and 5 under Sec.302, I.P.C. The conviction of accused 1, 3 and 5 for that offence cannot be under Sec.149, I.P.C. it could be only by virtue of Sec.34, I.P.C. Second accused could be convicted only for the offence under Sec.323, I.P.C. 26. We set aside the conviction and sentence entered against accused 6 to 8 under Secs.143, 147, 148 and 341 read with Sec.149 I.P.C. and 302 read with Sec.149, I.P.C. We acquit them of all the charges. The conviction and sentence entered against the second accused for the aforesaid offences are set aside. Instead he is convicted under Sec.323, I.P.C., with sentence of simple imprisonment for six months. However, considering his extreme youth we suspend the sentence and put him on probation with Supervision under the concerned Probation Officer in regard to which he is directed to appear before the Sessions Court within three weeks and execute a bond. 27. We set aside the conviction and sentence entered against accused 1, 3, 4 and 5 under Secs.143, 147, 148 and 341, I.P.C. The conviction and sentence entered against the fourth accused under Sec.302, I.P.C., are confirmed. The conviction and sentence of accused 1, 3 and 5 under Sec.302 read with Sec.149 , I.P.C. are altered to one under Sec302 read with Sec.34, I.P.C. The appeals are disposed of accordingly. Accused 6 to 8 will be set at liberty if their custody is not required in connection with any other case. B.S. ----- Appeals disposed of.