K. Subba Rao, C.J. - (1.)THE accused, Gurramkonda Chinnabba, who was convicted by the Sessions Judge, Chittoor, under Section 302, IPC and sentenced to imprisonment for life has preferred this appeal.
(2.)THE prosecution version of the incident is as follows. The accused and the deceased were husband and wife and had four children. After their house in Divitivaripalle was destroyed by fire, the accused, along with the members of his family, migrated to Erlampalle, took on rent the house of P.W. 14 and resided therein. During their stay in that house, the mother of the deceased and a grandchild of the accused died and the deceased for sentimental reasons was pressing her husband to go back to Divitivaripalle.
The accused not only did not like that idea but was contemplating to buy the house of P.W. 14. His attitude led to ill -feelings between the couple and there were frequent quarrels on that account. On the evening of 13 -3 -1957, the husband and wife quarreled is the street but some of the villagers intervened and separated them. Thereafter, the deceased entered her house followed by the accused who bolted the door from inside. The accused beat her with M. O. 1 which resulted in her death.

The accused absconded and he was arrested on 16 -3 -1957, at about 10 P.m. The learned Judge accepted the evidence of the 13 year old young son of the accused, P.W. 3, given by him in the committing Magistrate's Court which he had marked as substantive evidence under Section 288, Cr.PC and that of P.W. 2 a neighbour of the accused, and held that the prosecution had brought home the guilt to the accused.

Learned Counsel for the accused contends that the Learned Judge went wrong, in the circumstances of the case, in accepting the evidence of P.W. 3 given in the committing Magistrate's Court as substantive evidence and that, if that evidence be excluded, there is no other acceptable evidence on the basis of which the accused can be convicted. He further argues that the confessional statement of the accused, Ex. P -3, records the true state of facts and that, if that is accepted, it should be held that the accused committed the act in self -defence.

(3.)THE first question, therefore, is whether the learned Judge was justified in accepting the evidence of P. W -3 given in the committing Magistrate's Court as substantive evidence. P. W -3 is 13 years old. He is son of the accused. Ex. P -2 is the evidence given by this witness before the committing Magistrate. After narrating the circumstances under which his parents were quarrelling and after stating that his mother went inside the house followed by his father, who bolted the door from inside, he described had had taken place inside the house thus:
A tin lamp was burning. There was light inside the house. The house is one room. My father was beating my mother. He was beating her with something that was black and stouter than the size of hand. I cannot say what it was. My mother shouted "I am dying. Then a blow was dealt on my mother's head. Thereafter, another blow was given on her cheek. My mother fell down. My father opened the door and came out. I questioned him "why, father, you are going away after beating?'' My father went away without talking.

He stated that he saw the entire incident by peeping inside the house through the caves. If this evidence is accepted, it would establish that the accused beat the deceased with a black object and that she met her end on account of the beating given to her. Before the Sessions Judge, this witness went back on what he had stated before the Committing Magistrate. In -deed, he denied the entire incident.

He would say that, on 13th March, 1957, he went to the shandy and returned after lamp lighting time when he found his mother dead, that he did not see the dead body of his mother, that he did not see his father in the house, that the police did not examine him at the inquest and that he did not give a statement before the Magistrate. It is therefore, clear that this witness, obviously to save the life of his father, disowned the entire version given by him at the earlier stages of the proceedings. At the request of the Public Prosecutor, this witness was treated as hostile and the Public Prosecutor was given permission to cross -examine him.

During the cross -examination, the Public Prosecutor put him some questions with reference to the earlier statements made by him under Section 164, Cr.PC and presumably also with reference to the evidence given by him before the committing Magistrate. But it does not appear that either the entire evidence given by him before the Committing Magistrate or the relevant passage therein was put to him specifically with a view to contradict him. The tenor of the cross -examination is in general terms.

After practically finishing the cross -examination, the evidence of this witness recorded by the stationary Sub -Magistrate, Chittoor, was read out in extenso. The Judge, having satisfied himself that the witness was not telling the truth, treated the evidence as evidence in the case under the provisions of S, 288, Cr.PC The short question is whether, in the aforesaid circumstances, the learned Judge was justified in treating the evidence as substantive evidence. Section 288, Cr.PC reads:

The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.