IMPORTANT POINTS :
• Statement recorded by the Magistrate in terms of S.164(5) can only be used for the purpose of contradiction- The statement recorded u/s 164(5) cannot have any validity as such and cannot be treated as evidence before a Court- It has the same characteristic of a statement recorded by the police u/s 161 and can be utilized only for the purpose as provided in the proviso to S.162 r/w S.145 of the Indian Evidence Act, 1872-No prejudice will be caused to the accused even if there is any irregularity in recording the statement u/s 164 by the learned Magistrate-
• If a witness is a child under 12 years of age, if the child does not understand the nature of an oath or affirmation, the provisions of the Act shall not apply to the said witness-In the absence of oath or affirmation, it shall not render inadmissible any evidence given by such witness and it will not affect the obligation of the witness to state the truth.

SHAFFIQUE V., J.

1. Appeal under consideration has been preferred by the appellant, who is the sole accused in S.C.No. 282 of 2011 challenging the verdict of the 4th Additional Sessions Judge, Ernakulam in the said case dated 19/06/2014 by which he was found guilty for offences under Section 302 and Section 323 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of Rs.25,000/-(Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for three years for offence under Section 302 of I.P.C. and further to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-(Rupees One Thousand only) with one month rigorous imprisonment on default to pay the fine amount for offence under Section 323 of I.P.C. Substantive sentences were directed to run concurrently. Fine amount, if realized, was directed to be paid to PW2 as compensation under Section 357(1) of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.').

2. Prosecution case is that, on 14/02/2008, at about 08.45 A.M., the appellant murdered Hairunnisa @ Nissa, W/o Kadavilan Veettil Jabbar by stabbing her with a knife. During the commission of the same, he had voluntarily caused hurt to Ashna @ Surumi, who is the daughter of the victim. The incident took place at the northern end of Koovappadam-Mathruchaya Junction MLA Road.

3. Prosecution examined PW1 to PW25 as witnesses, produced and marked documents Exts.P1 to P27 and identified MO1 to MO24 objects. During 313 examination, the appellant denied all incriminating circumstances levelled against him and he pleaded innocence. No evidence was let in by the defence. They marked Exts.D1 to D5 contradictions while examining prosecution witnesses.

4. Learned counsel appearing for and on behalf of the appellant Smt.C.Bobby Raphael argued that there is no credible legal evidence against the appellant. Court below relied on the deposition of a child witness and that too a highly interested witness, the daughter of the deceased (PW2). The evidence of PW2 is full of omissions and contradictions and it could not be relied on. She did not witness the incident. She is tutored by the police to falsely implicate the appellant herein. There are serious investigation and procedural lapses. No oath was administered to the witness while recording statement under Section 164 of the Cr.P.C. S.157 of the Cr.P.C is not complied with. The incident allegedly occurred in an open place accessible to anybody. The appellant/accused was not medically examined. Prosecution did not even cite key independent witnesses who could give clarity to the actual occurrence. The alleged incriminating articles do not belong to the appellant nor he has any connection with any of them. Motive for the crime is not proved by the prosecution. According to her, the Court below committed serious mistake in holding the appellant guilty for grave crime like murder without the back up of any convincing evidence. She pleaded for an acquittal.

5. On the other hand, learned Senior Government Pleader Sri.K.B.Udayakumar contended that prosecution proved the case against the appellant beyond reasonable doubt and the Court below is justified in arriving at its conclusion. PW2 is the daughter of the deceased. She is an injured eyewitness. She deposed the overt acts done by the appellant herein in unequivocal terms. Her evidence is reliable and credible. Medical evidence, recovery evidence and forensic evidence corroborate the ocular version completely. All materials available unerringly point to the guilt of the appellant alone. He murdered the wife of his own brother in front of her daughter. The act was so cruel that the head of Hairunnisa was almost severed. Court below is completely justified in arriving at its conclusion and hence no interference is called for by this Court, he pleaded.

6. Evidence adduced in this case, in brief, are as follows:-

PW1 Hassanul Basari gave