( 1 ) BALU Ramu Machhi the appellant in this appeal challenges the judgment of the learned Additional Sessions Judge Surat whereby the learned Additional Sessions Judge convicted him of the offence punishable under sec. 302 I. P. C. and sentenced him to suffer imprisonment for life.

( 2 ) THE facts of this case as alleged by the prosecution may be briefly stated as follows :-"the deceased Dineshchandra Nagindas Chauhan was having illicit relations with the sister of this Balu Ramu Machhi and on account of the same there used to be quarrels between the deceased and Balu Ramu. On 8-4-198 the deceased and the accused were seen together in a fair which was held at village Bodhan Taluka Mandvi District Surat. They were seen going towards the merry-go-round. Some time thereafter the accused gave blows to Dineshchandra by a Gupti which was with him and thereafter he ran away. Some persons who were near about the scene of the incident saw the accused giving blows to the deceased. One Bhogilal Maganlal Patel who happened to be the brothel of Police Patel Shantilal Maganlal was also there in the fair and he did not see the actual assault on the deceased but he saw the accused and the deceased going together towards the merry-go-round and sometime thereafter heard hue and cry about the murder of Dineshchandra and his attention was drawn in that direction and he saw the deceased lying dead at some distance from the merry-go-round and the accused running away towards the river side. this Bhogilal then went to the place of his brother and told him what he had seen. Shantilal contacted the P. S. I. of Mandvi Police Station who was on Bandobast duty in the fair and he gave complaint to the P. S. I. about this incident. . . . . . . . . . . . . . . . . . . "

( 3 ) THE evidence of this Bhogilal before the Court is that when he went to the fair he saw the accused and the deceased going towards the river when he was standing near the merry-go-round. His say in his evidence further is that when he went to the spot where Dineshchandra was lying dead he saw Balu running away. The evidence of the Police Officer Natvarlal Veljibhai which we have discussed a little above shows that this Bhogilal did not state before him that when he was standing near the merry-go-round. he saw the accused and the deceased going towards the riverbed or that he had seen the deceased and the accused going ahead of hint in the fair. This would naturally create an impression that the witness had not stated before the Police Officer at all about seeing the accused and the deceased before the actual incident. The learned Additional Sessions Judge in his judgment at para. 16 referred to the police statement of this witness and observed that the witness has stated therein that he had seen the accused and the deceased going together and I that he had seen the deceased lying and that he had seen the accused running away. It is not understood how the learned Additional Sessions Judge referred to the police statement of this witness. A statement of a witness which is recorded by a Police Officer during the course of investigation can be used only for a limited purpose as laid down in sec. 162 of the Criminal Procedure Code. With a view to find out whether there was any such omission altogether in the statement of the witness recorded by the Police Officer we have looked into a copy of the statement of this witness recorded by the Police Officer which is in the file of police papers in the record of the trial Court. It appears from the said statement of Bhogilal as recorded by the Deputy Superintendent of Police that the Witness has not stated therein that he saw the deceased and the accused going towards the river when he was standing near the merry-go-round and he has also not stated that before that he saw the accused and the deceased going ahead of him. It appears from the said statement that the witness has stated therein that when he was going back towards his hom