1. Karamshi Vasara had for sons Arjan, Nathu, Laxman and Jeran, who were living separate from each other. However Karamshi Vasaram with his wife was living with his son Nathu. Since last 4 or 5 years before the day of the incident which took place on 7-7-1963 at the village Kanatalay, Karamshi and one Bai Uji a widow had developed illcit intimacy to the extent that the fact had become the talk of the village. About 8 or 9 months before the incident Bai Uji had left Kanatalay and had gone to stay at the village Nital where she used to work in the fields about 3 or 4 months before the incident Karamshi also had left the village and went to live in Jesar where he had started a shop with one other person. They used to visit each other and sometime after both of them entered in a marriage styled as "Gharagharna marriage" with the result that Bai Uji left Natal and began to live with Karamshi at Jesar three or four days before 7-7-1963 when the incident took place Karamshi had come to Kanatalay.

At about 12 noon the appellant, a son of Bai Uji and accused No. 2 armed with axes, are said to have given some blows as a result of which Karamshi fell down bleeding from the injuries on his head, etc, just at the corner of the house of one Valab Premji. Both the accused then ran away from that place Jeran, who was sitting on a chabutra nearby heard a shout "run, save" and saw the accused running away. He then went near his father and in the meantime his brother Laxman had come there from the side of their house. On Laxman inquiring of him as to who had beaten their father, he named those persons and old him about their having run away. Thereupon Laxman asked Jeram to wait there by the side of their father and he went to the place of the Sarpanch. Laxman told the Sarpanch Jayantilal about his father lying in blood shed and asked him as to what he should do. He advised him to take him home and give him some treatment. While he was at the house (Bethak) of the sarpanch, he had seen Vaghji, the accused No. 1 entering that place and sitting by the side of Sarpanch. He was found to have a Parsi-Kuhed stained with blood. Laxman thereupon returned back and finding his father serious he came to be taken to the home of Nathu within a short time Nathu had also come. The Laxman Ex. 6 and Nathu Ex. 4 went to give information about the incident to the Sarpanch both of them then informed the Sarpanch about the death of their and requested him to give a report.

A report was lodged at the police station at Kundi. In the investigation by the police the person of Vaghji accused No. 1 was examined and was found to have one injury on his hand, and since some stains of blood were notice on the Paheran and Chorni, articles 4 and 5 respectively, they came to be attached. After completing the investigation of the case, the charge-sheet against both the accused was sent to the Court of the Judicial Magistrate, 1st Class, at Bhavanagar, on 22-7-1963 who after making the necessary inquiry committed both of them to stand their trial in the Court of Session at Bhavnagar for an offence punishable under section 302 read with section 34 of the Indian penal Code. The charge against both the accused was common, and it was, that in furtherance of their common intention on or about 7th day of July 1963 in village Kanatalay in Kundla Taluka, they had committed murder by intentionally causing the death of Karamshi Vasaram so as to be liable under section 302 read with section 34 of the Indian penal Code. No alternative charge was framed against any of them. Both the caused pleaded not guilty to the same.

On a consideration of the evidence adduced in the case the Sessions Judge found that it was accused No.1 who had committed the murder of Karamshi in the noon of 7-7-1963. Against that part of the order the accused No. 1 appellant preferred an appeal. The Sessions Judge did not find the evidence sufficient to hold the accused No. 2 guilty of the offence of murder and hence he passed an order of acquittal in respect of accused No. 2. Against that order of acquittal the State had come in appeal.

(In the appeal before the High Court after elaborately considering the evidence on record and the objections thereto raised by the Asst. Govt. Pleader, his Lordship reached the conclusion that the evidence was not enough to connect the accused No. 1 with the crime in question and proceeded:-) Shelat, J.

The other circumstance sough to be relied upon by him, (i.e., the Asst. Govt. Pleader, Shri B. R. Shah) was bout some swelling found on the left-hand thumb and finger of accused No. 1 when his person was examined as per the panchanama Ex. 22. The panch witness Amritlal has also spoken about it in his evidence. It was pointed out that a stick was found lying by the side of deceased Karamshi, and it was picked up by Jeram and later on produced by him as belonging to Karamshi. It was a cane-stick with iron shed, and was attached as per panchanama Ex. 24 in the case. The suggestion further is that in the scuffle between deceased Karamshi and accused No. Vaghji, the latter must have received some injury resulting in that swelling on his finger and thumb at that time. To connect that, evidence of witness Jivanlal Ex. 9 was sought to be relied upon. Jivanlal was then the Secretary of the Panchayat of Kanatalay and his evidence in that respect is that when he went to the Panchayat Office with the Chokidar Bhagwan, he met the Sarpanch, who was taking Vaghji to the Panchayat Office and he was told by the Sarpanch that

"there was 'Takarar' between Vaghji and Karamshi, and they had to keep Vaghji in the Panchayat Office"

. So he opened the office, and Vaghji was made to sit in one room by the Sarpanch. He has then said that when Vaghji and Sarpanch were coming he had a seen Vaghji carrying an axe which was stained with blood. This latter part of the statement cannot mean to suggest that Vaghji was found with the axe. All that it meant was that when they left the house of Sarpnach since Vaghji was suspected in the crime, he must have been asked to pick up that axe as it was also to be taken in one of the rooms of the Panchayat Building. The Sarpanch would not pick it up, and it is natural that he would ask Vaghji to take it to that place.

(2) With regard to the other part of evidence of Jivanlal, a strong objection was raised by Mr. D. K. Shah, the learned advocate for the accused, saying that apart from considering the reliability or otherwise, or effect of that statement in the case, it is inadmissible in evidence, in law it is essential, therefore, to examine the point of law raised by him, and more so, as it often comes up for consideration in criminal cases it was contended that such a piece of evidence can only be of any consequence if the Sarpanch in the present case is shown to have spoken to him an d has given evidence in that respect, as otherwise it would be in the nature of hearsay type of evidence which is inadmissible in law. Now, evidence can either be oral or documentary, as contemplated in section 3 of the Indian Evidence Act . Chapter III of Evidence Act relates to oral evidence. All facts except contents of documents may be proved by oral evidence, and under Section 60 of the Act, oral evidence must, in all cases, whatever be direct, that is to say, if it refers to a fact which would be seen, it must be the evidence of a witness who saw it; and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. It is no doubt true that if Jivanlal's evidence was a particular fact, viz, about Sarpanch having told that there was a scuffle between Karamshi and Vaghji, and if that fact about Sarpanch saying so, were at issue, it can be taken as proved as he had heard the Sarpanch saying so, in view of section 60 of the Indian Evidence Act. But if Sarpanch had referred to a talk he had with some other person such as the accused No.1 saying that he had scuffle or fight with deceased Karamshi, the person who heard it so said, viz, the Sarpanch can speak about it and that would be direct oral evidence in respect of that fact, and if he then spoke to some third person and the third person so saying in Court, would become hearsay type of evidence as it would not fall under section 60 of the Indian Evidence Act with regard to the fact sought to be established in the case. Now such evidence can become admissible under section 157; of the Indian Evidence Act, inasmuch as it is sought to corroborate the testimony of a witness who had so told him as in this case to Jivanlal. Bu that can arise only if the Sarpanch's evidence of such fact is to be corroborated. If, therefore, the Sarpanch does not refer to any such talk he had with accused No. 1 in his evidence before Court, there cannot arise any question of corroboration, and Section 157 of the Indian evidence Act, cannot come into play for admitting such evidence. Now, in this case the Sarpanch is said to have spoken to witness Jivanlal about his having learnt from the accused No. 1 that there was a scuffle between accused No. 1 and deceased Karamshi. Unfortunately, the Sarpanch has not been asked any question about his having spoken what Jivanlal has said in his evidence. It is the evidence of Sarpanch which would primarily be the evidence of a person who heard about the scuffle having taken place between Karamshi and Vaghji , and when he does not say any such thing the evidence of Jivanlal in that respect would become inadmissible, as neither falling under Section 60 nor under Section 157 of the Indian evidence Act, inasmuch as that fact is concerned. Besides, in absence of any evidence given by that Sarpanch in respect of any such statement made by Jivanlal in his evidence, it can have no evidentiary value. In a case of Awadh Behari Sharma v. State Of Madhya Pradesh., AIR 1956 SC 738, a similar question had arisen. In that case one witness Guard averred about this haying been informed by another witness Mukadam that the new porter had lowered the signals and that the down train had collided with the stationary up train. The witness Mukadam who had so informed witness Guard was not asked any such questions about his having so spoken to witness Guard, and as to what would be the effect of such evidence given by witness Guard, and as to what would be the effect of such evidence given by witness Guard. Their Lordships of the Supreme Court held that in absence of such evidence, and at any rate, in absence of such opportunity being given to that witness Mukadam for giving evidence in that direction, it would be inadmissible in evidence. They also held that no evidentiary value can attach to such evidence of that witness as the very source from which it emanated was not asked about it. No attempt was made to ask the Sarpanch in that direction, and in fact, it was not attempted to have that Sarpanch recalled as he was already examined before Jivanlal and to speak about it. If that part of the evidence of Jivanlal was a considered to be of importance as is sought to be relied upon, the prosecution should have attempted to get such evidence from hi would render that part of the evidence inadmissible and would take away he effect of the evidence of such a witness in the case.

(3) Apart from that consideration, the accused was not examined by the Medical Officer soon after his arrest to ascertain the nature and age of that injury found on his person and in absence of as to how old it could have been, it cannot be held that he received that injury in the scuffle between him and Karamshi. In fact, there is no evidence and even Jeram does not say that he had seen his father having caused injury to accused No. 1 at the time of that incident the accused No. 1 has also explained it by saying that he had got that injury while ploughing his filed that circumstances has neither the basis nor any substance to suggest any scuffle having taken place between them as suggested in the case.

(4) Another point raised by Mr. Shah was that this witness towards the end of his deposition has admitted that his police statement was read over to him during the recess time, and when his evidence was recorded after recess on that very day by the learned Sessions Judge such evidence, according to him, would not only become inadmissible by reason of being hit by the provisions of section 162 of the Criminal Procedure Code, but at any rate no value whatever can be attached by the Court to the same. In support of that proposition he invited a reference to an unreported judgment delivered on 22-11-1963 in Criminal Appeal No. 543 of 1962 (Guj) by a Division Bench of this Court where such a question had come to be considered. In that case, one eye-witness Ladhn Jivraj had admitted before the Court in cross-examination that on the morning of the day on which he was examined before the Sessions Court, one Head Constable Jillubha had read over his complaint and his statement before the police. A point was raised in that appeal that the evidence of such a witness was not admissible in law, and even if it was, very little value could be attached to his evidence in the case. While considering that aspect of law, Divan J., speaking for the Court, upheld that contention after referring to section 162 of the Criminal Procedure Code, and agreed with the principle laid down in two cases- one of Zahiruddin v. Emperor, 49 Bom LR 521 = (AIR 1947 PC 75) and another unreported judgment of the Bombay High Court in Criminal Appeal No. 480 of 1952, delivered by Vyas, J., as he then was, on September 29, 1953 (Bom) speaking for the Court. The point has considerable importance and it affects the evidence of witnesses given in criminal cases before different Courts. Section 162 provides that "no statement made by any person to a police officer in the courts of an investigation under this Chapter shall, if reduced into writing be signed by the person making it; nor shall any statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Broadly speaking, it prohibits signing of a statement by the person ..... it, and no use of such a statement arises in this case. If further prohibits the use of any statement recorded by the police in any inquiry or trial, and the question is whether it contemplates forbidding a person to refresh his memory be reading any such statement, before he gave evidence in Court. In other words, whether it can be said to be a use made of a statement by the person making in the trial, so as to render his entire evidence inadmissible an did not whether it loses its evidentiary value in any manner. Since the decision derives its force from the Privy Council case, we would refer to it first in 49 Bom LR 521 = (AIR 1947 PC 75) which was a trap-case a witness to the search was one Mr. Roy, a magistrate and his statement was recorded by the police. It was signed by him in spite of a prohibition contained in section 162 of the Criminal Procedure Code. Then while giving evidence in Court he refreshed his memory by actually looking into that statement and in that it was urged that section 162 of the Criminal Procedure Code was contravened inasmuch it was signed by him, and secondly, he had actually made use of it in a trial while giving evidence before the Court, and that ,therefore, his evidence was inadmissible in law- it being hit by section 162 of the Criminal Procedure Code. Their Lordships of the Privy Council took the view that as to first prohibition, that if the contravention consists in signing of a statement made in writing to the police, the evidence of the witness who signed it does not become inadmissible as there are no words either in the section or elsewhere, to the statute which express or imply such a consequence they further observed that :

"the value of his evidence may be seriously impaired as consequence of the contravention of this statutory safeguard against improper practices."

Then their Lordships have observed as under:

"The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations. The categorical prohibition of such use would be merely disregarded if reliance were to be placed on the evidence of a witness who had made material use of the statement when he was giving evidence at the trial. When, therefore, the Magistrate or presiding Judge discovers that a witness has made material use of such a statement, it is his duty under the section to disregard the evidence of that witness as admissible."

Those observations have the bearing in respect of Mr. Roy using his police statement while actually giving evidence in Court - obviously that basis, as a note was made below his evidence by the Court that he had made substantial and material use of signed statement given by him to the police. In those circumstances, it was held that it was not a case of irregularity curable under Section 537 of the Criminal Procedure Code as found by the High Court in appeal, but since it was impossible to say what Mr. Roy's evidence would have been if he had not used the statement to aid his memory as also that prejudice may not have been suffered by the accused, and in view of the statute ..... prohibiting any such use of the statement, his evidence was inadmissible in law. That judgment came to be considered by the Division Bench of the Bombay High Court consisting of Bavedekar and Vyas, JJ., in Criminal Appeal No 480 of 1952 (Bom). In that case, the witness in question had her statement before the police read out to her by the police officer before her evidence was recorded in the Court of Sessions. That witness also stated in her evidence that even before she was taken in the Court of the Committing Magistrate as a prosecution witness her police statement had been read out her by the police. Her statement was recorded by the Magistrate under Section 164 of the Criminal Procedure Code and even at that stage her police statement had been read out to her. It was held by the Division Bench in that case that the fact that the police statement of the witness had been read out to her before she stopped into the witness box in the Court of sessions would render her evidence inadmissible in law and in this connection the Division Bench relied upon the judgment in 49 Bom LR 521 = (AIR 1947 PC 75). The Division Bench has then observed:-

"In order that the observations of their Lordships made by them in the above mentioned case may be attracted, the police statement of a witness need not necessarily be in his hands or before his eyes at the time of giving evidence in the Court, speaking for myself, I have no doubt that their Lordships' observations would apply with equal force even if a witness made a mental use of his police statement, which was just previously read out to him, because by reason of such mental use, the witnesses evidence was bound to be moulded by or modelled on his police statement."

After taking support of those two decisions, the Division Bench of this Court observed as under:

"We agree with what has been observed in the above two cases even if it is held that the evidence of a witness whose police statement has been read out to him a short time before he steps onto the witness box, does not become inadmissible, the value to be attached to such a witness would be very little, because when the witness deposes to the particular incident from the witness box he or she would not be deposing from the recollection of that incident but from what has been read out from the police statement a short time before the deposition started. Under these circumstances in the first place the entire evidence of Ladhu Jivraj becomes inadmissible in evidence and even if it be held that it is admissible in evidence no value whatsoever can be attached to the word of this witness Ladhu Jivraj."

Now, Mr. D. K. Shah , the learned advocate for the accused, does not want us to go to an extent that the evidence of such a witness whose police statement was read over to him before he gave evidence in Court will be inadmissible in law in the sense that it is hit by the provisions contained in section 162 of the Criminal Procedure Code and we think, rightly so, as it would be a question as to how for such use of a statement made before the police can be said to be that use in any trial before the Court, so as to be hit by section 162 of the Criminal Procedure Code, and more particularly as the Privy Council case on which support is taken in the Bombay case, shows that the witness in that case had in his hand statement before police and used in while giving evidence before the Court. Besides, as he decision of the Division Bench of this Court goes, we feel, that the Division Bench did not perhaps intend to lay down a rule of law that evidence of such a witness would be inadmissible in law, and it is that way they have observed as to what effect can be given to evidence of such a witness the evidence of such a witness may be shaken, as the witness is likely to depose to the particular incident on the basis of what he had just read his statement made before the police, and not so much in the basis of what the actually recollected about what he had said in respect of that incident before the police. Even the consideration of evidence of such a witness would depend upon the circumstances of the case. We, therefore, hold that the evidence of Jivanlal suffers from that infirmity on that basis as well and in view of other circumstances in the case, we do not attach importance to his evidence in this case.

(5) [After further consideration of evidence his Lordship concluded:] In the result, Criminal Appeal No. 82 of 1964 is allowed . the order of a conviction and sentence passed against the appellant accused No. 1 is set said. He is acquitted and directed to be set at liberty forthwith.

Criminal Appeal of No. 190 of 1964 preferred by the State against the acquittal of respondent accused No. 2 is dismissed.

Criminal Revision Application No. 33 of 1964 does not survive and it is also rejected.

(6) Orders accordingly.