Judgment :- BALAKRISHNAN, J. Appellants are direct brothers and they were found guilty by the Court of Session, Thrissur for the offence punishable under S. 302, r/w. S. 34, I.P.C. for allegedly causing the death of their paternal uncle-Lonappan. Though the incident happened on 29-9-81, these appellants were tried after a period of eleven years, owing to the delay in filing final report by the investigating agency. 2. It is alleged by the prosecution that there were property dispute between deceased-Lonappan and the father of the appellants. On the date of the incident deceased-Lonappan woke up at about 6 a.m. and was proceeding to the latrine situated in a corner of the property to answer the call of nature. These appellants armed with stick, axe handle and spade handle confronted him and beat on various parts of his body. He made an outcry and PW 2, his daughter, who was then only seven years old, came to the father's side. The injured asked for water and the child got a cup of water but the injured could not gulp the same and a spoon was brought and some water was given to the injured. The child was asked to inform the matter to others. PW 2 went to her paternal uncle and informed him of the incident. PW 1 also came there and injured Lonappan was removed to District Hospital, Thrissur where he succumbed to the injuries at about 9.15 a.m. 3. PW 1 went to Peramangalam Police Station and gave Ext. P1 F.I. Statement. PW 7 the Head Constable, recorded the statement and PW 10, the Circle Inspector, took over the investigation on the same day and held inquest over the dead body. According to the prosecution there was post-mortem examination (but no report was filed in Court) by the Doctor attached to District Govt. Hospital, Thrissur. PW 10 after the investigation did not file final report in time. He took about 11 years to file final report and ultimately the case was committed to the Court of Session in 1991 and numbered as Sessions Case No. 34 of 1992 on the file of Addl. Sessions Court, Thrissur. 10 witnesses were examined on the side of the prosecution. He took about 11 years to file final report and ultimately the case was committed to the Court of Session in 1991 and numbered as Sessions Case No. 34 of 1992 on the file of Addl. Sessions Court, Thrissur. 10 witnesses were examined on the side of the prosecution. Sessions Court relied on the evidence of PW 2, the sole eye-witness and held that the accused committed the offence punishable under S. 302 read with S. 34, I.P. C. The conviction is challenged by the appellants on various grounds. 4. The main argument put on the forefront of the submissions of Shri M. N. Sukumaran Nair, counsel for the appellants is that there is no evidence in this case to prove the cause of death of the deceased and as there is no evidence to prove that the deceased Lonappan died of the injuries sustained by him on the fateful day, and, therefore, the conviction under S. 302, I.P.C. is not sustainable. Learned counsel also submitted that the manner in which the evidence of PW 2 was recorded was quite improper and there was unfair trial so far as the accused were concerned and, therefore, the evidence of PW 2 should not have been accepted as a foundation for conviction of the accused. 5. The facts of this case display certain unusual features. PW 10, the Investigating Officer, says that he had produced a post-mortem certificate and wound certificate when he submitted final report before the Court. But the final report was returned by the committal Court stating that it did not contain these certificates. Copies of the so-called post-mortem and wound certificates were also not in the C.D. file. The matter was in the cold storage for a considerable number of years and after a period of 11 years, the investigating officer filed a report without post-mortem certificate and wound certificate and the trial was conducted without these relevant documents. The learned Sessions Judge was of the view that the post-mortem certificate was not an essential document and even without there being an evidence regarding the cause of death a verdict of guilt under S. 302, I.P.C. would be sustainable. The learned Public Prosecutor supports this view. 6. Deceased-Lonappan sustained multiple injuries. He was not dead at the spot. The learned Sessions Judge was of the view that the post-mortem certificate was not an essential document and even without there being an evidence regarding the cause of death a verdict of guilt under S. 302, I.P.C. would be sustainable. The learned Public Prosecutor supports this view. 6. Deceased-Lonappan sustained multiple injuries. He was not dead at the spot. He was taken to the District Hospital, Thrissur and while undergoing treatment he died about three hours after the alleged assault. We get a rough idea regarding the nature of the injuries sustained by Lonappan from Ext. P9 inquest report. There were 19 external injuries and most of them were contusions and abrasions. Second injury was on the back of the head and another on the middle of the head. When PW 10 prepared the inquest report, the wounds were stitched and bandaged. The nature and gravity of these injuries cannot be assessed from the description given in Ext. P9 inquest report. PW 4, who was the R.M.O. working in the District Hospital during 1981 period, was examined as an expert witness. PW 4 was asked whether there would be internal injuries corresponding to the external injuries and in that event whether such injuries would have been sufficient in the ordinary course of nature to cause death. To these hypothetical questions, PW 4 gave answer in the affirmative but the fact remains that there is absolutely no evidence to show that corresponding to the external injuries there were internal injuries and the opinion expressed by PW 4 is completely valueless and no Court can attach any importance to it. In a case of this nature, the cause of death of the victim is a serious matter. 7. The definition of 'murder' given under S. 300 of the I.P.C. clearly stipulated that the bodily injury inflicted should be proved to be sufficient in the ordinary course of nature to cause death. The only plausible exceptional circumstance is given in the illustrations of Section 300, which reads : "(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. The only plausible exceptional circumstance is given in the illustrations of Section 300, which reads : "(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death. "Here, it is not known due to what cause deceased-Lonappan died. It might have been due to the serious injuries sustained by him or it might have been caused due to some other reason. The accused could be found guilty only if it is proved that they had caused injuries to Lonappan and he died as a result of such injuries. So long as the reason for death is mysterious and unknown the accused under these circumstances cannot be found guilty of murder. There may be cases where the circumstances by itself would prove the cause of death and there need not be any express evidence for that. If the assailants caused extensive injuries and the head itself was chopped off and the body of the victim was found in a truncated form there need not be any investigation regarding the cause of death as it is plain and evident from the circumstances of the case. So also in a case where the accused caused the death of a person and disposed of the body and the corpus delicti itself is not available for finding out the cause of death, the accused cannot escape from the clutches of law on the ground that there was no evidence regarding the cause of death of the victim. So also in a case where the accused caused the death of a person and disposed of the body and the corpus delicti itself is not available for finding out the cause of death, the accused cannot escape from the clutches of law on the ground that there was no evidence regarding the cause of death of the victim. But, in a case of this nature, where the injured sustained multiple injuries and died while undergoing treatement in the hospital, the question regarding cause of death looms a large and the prosecution should establish that the deceased died as a result of the injuries caused by the assailants and those injuries were sufficient in the ordinary course of nature to cause death. Such an evidence is lacking in this case. 8. Reference was made to two decisions. One of the decisions is reported in State of Kerala v. Mathachan, 1969 Ker LT 566. That was a case where the Division Bench of this Court observed that the existence of the dead body is, no doubt, a proof positive of death. But, its absence is not fatal to the trial of the accused for murder and that the Court should require the strongest possible evidence as to the fact of murder if the dead body is not forthcoming. The Court went on to add that the conviction of the accused need not necessarily depend upon the corpus delicti being found; but at the same time the prosecution can prove its case by other reliable evidence as regards the commission of murder. We do not think that the above case has got any direct application to the facts of the present case. 9. Another case is reported in Pookunju v. State of Kerala (1993) 1 Ker LT 876. In that case, the dead body was found floating in the river and the appellant-accused was found with the deceased on the previous day under suspicious circumstances. The ornaments, which were found missing from the dead body were later recovered from the appellant. The prosecution sought to rely on the inquest report which contained recitals to the effect that the right ear of the dead body was bruished showing that the ornaments worn by the deceased on the right ear must have been forcibly pulled out. The Division Bench held that the recitals in the inquest report could be relied. The prosecution sought to rely on the inquest report which contained recitals to the effect that the right ear of the dead body was bruished showing that the ornaments worn by the deceased on the right ear must have been forcibly pulled out. The Division Bench held that the recitals in the inquest report could be relied. Based on the above observation, it is contended that the injuries found on the dead body of deceased-Lonappan had been described in the inquest report and, therefore, it is sufficient and no autopsy is necessary. We already indicated that the description of the injuries in the inquest report shows only external nature of the injury. The nature and internal consequence of these injuries have not been mentioned in the inquest report. Moreover, it is difficult to find out the cause of death based on the description found in the inquest report. Therefore, the conviction of the appellants under S. 302, I.P.C. is not sustainable. 10. Learned Public Prosecutor contended that there is evidence to show that the appellants had beaten the deceased and reliance was placed on the evidence of PW2. P.W. 2 was a seven year old girl at the time of occurrence. When she was examined in Court she was aged 18. Counsel for the appellants contended that the learned Sessions Judge committed a serious procedural irregularity in not examining the witness straightway when she appeared as a witness. The Sessions Judge granted some time and she was examined only after lunch. What exactly happened is not seen recorded in the proceedings. However, in paragraph 22 of the judgment the learned Sessions Judge has noted that when the witness appeared before her in the morning and stated that she did not know who her counsel was and the Sessions Judge adjourned the case till lunch and the witness was examined in the afernoon session. The defence counsel contended that PW2 must have been tutored by the Prosecutor and the statement under Section 161, Cr.P.C. recorded from her was read over to her before she entered the witness box. The defence counsel contended that PW2 must have been tutored by the Prosecutor and the statement under Section 161, Cr.P.C. recorded from her was read over to her before she entered the witness box. This argument was repelled by the Sessions Judge in the following words : "No doubt, the memory of the witness must have been refreshed by the prosecuting agency and it must have been done with reference to her case diary statement also, but no law or rule prohibits this and there is nothing wrong or improper if her attention is drawn to her previous statement." The learned Sessions Judge also went on to observe that refreshing of memory by the prosecuting agency cannot be taken as a serious error and that cannot be treated as a sufficient ground to reject the evidence of a witness. 11. It seems that the learned Sessions Judge is of the view that the witness could be allowed to refresh his memory by reading the statement recorded by the police under Section 161, Cr.P.C. A witness could be permitted to refresh his memory only under Section 159 of the Indian Evidence Act. That also could be allowed only under restricted circumstances. Section 159 of the Evidence Act says that a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. The witness may also refer to any such writing made by any other person, and read by the witness within the time of the transaction or soon afterwards concerning the matter he is questioned. It is also necessary that the Court must consider that it in likely that the transaction was at that time fresh in the memory of the witness. So, the memory could be refreshed with reference to some contemporaneous document prepared by the witness by himself or made by any other person which the witness had occasion to read. Generally, this right is being exercised by expert witnesses such as a doctor who give evidence touching the post-mortem certificate or wound certificate prepared by him. A Commissioner deputed by the Court can also refresh his memory at the time of giving evidence by referring to the report contemporaneously prepared by him. Generally, this right is being exercised by expert witnesses such as a doctor who give evidence touching the post-mortem certificate or wound certificate prepared by him. A Commissioner deputed by the Court can also refresh his memory at the time of giving evidence by referring to the report contemporaneously prepared by him. But this special privilege given to the witnesses under Section 159 of the Evidence Act cannot be made use of by a witness in a criminal case to refresh his memory by referring to his earlier statement given to the police under Section 161, Cr.P.C. This is because Section 162 of the Code of Criminal Procedure specifically states that the statement recorded by the Police Officer uner Section 161 could only be used for certain specific purposes. Proviso to Section 162, Cr.P.C. reads as follows : "Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing, 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 Section 145 of the Indian Evidence Act, 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 explanining any matter referred to in his cross-examination." There are series of decisions to the effect that a statement recorded under Section 161, Cr.P.C. is not admissible in evidence. Such statement could only be used to contradict the maker of the statement as envisaged under Section 145 of the Evidence Act. If such a statement is put to any other use it should be deemed to have been prohibited under Section 162, Cr.P.C. So, the learned Sessions Judge was not justified in stating that a witness is competent to refresh his memory with the prior statement recorded under Section 161, Cr.P.C. As the statement made under Section 161, Cr.P.C. is expressly made inadmissible, a witness cannot be allowed to refresh his memory by reading 161 statement and give evidence accordingly. That would amount to admitting by the back door an evidence which cannot be welcomed at the front and it would definitely fly in the face of the legislative mandate given under Section 162 of the Cr.P.C. 12. That would amount to admitting by the back door an evidence which cannot be welcomed at the front and it would definitely fly in the face of the legislative mandate given under Section 162 of the Cr.P.C. 12. The evidence of PW2 is tainted with some illegality. Even according to the Sessions Judge, the witness might have opportunity to refresh her memory in view of her previous statement recorded under Section 161, Cr.P.C. The question that arises for consideration is whether for that reason her evidence is to be thrown aboverboard completely. Even if it is found that the evidence is tainted with some extraneous influence or tutoring, we do not think that such an evidence could be rejected in toto. The Court should scrutinize that evidence with great caution. P.W. 2 narrated in detail the various overt acts committed by each accused, which we do not think that, she was able to memorise at that distance of time. However, we do not think that the entire incident might have faded from her memory. P.W. 2 stated that she had seen the assailants and she immediately reached the spot and attempted to give water to her father. The father was unable to take water and she brought a small spoon from her house and gave water to him and he told that her mother and other relatives should be informed of the incident. It is quite possible that she had seen the assailants and identified them, especially when they are her near relatives. The involement of the accused in the attack of the deceased is satisfactorily proved by the evidence of this witness. 13. On the evidence of PW2, it is clear that the accused caused extensive injuries on deceased-Lonappan. In the inquest report it was noted that injury Nos. 1 to 7 were of grievous nature. The cumulative effect of these injuries would have caused the victim to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. So, in any view of the matter, the injuries were of grievous in nature and the accused have committed the offence punishable under Section 326, IPC. We set aside the conviction under Section 302, IPC and quash the sentence of life imprisonment imposed on the accused. So, in any view of the matter, the injuries were of grievous in nature and the accused have committed the offence punishable under Section 326, IPC. We set aside the conviction under Section 302, IPC and quash the sentence of life imprisonment imposed on the accused. In the alternative, we convict them under Section 326, IPC and hold that the sentence already undergone by them will be sufficient and they shall be released forthwith, if not required in any other case. Order accordingly.