1. In connection with the murder of one Sankunni Kurup, Velayudhan, Sankaran, Arumughan and Mundan were tried by the Court of Session, Manjeri Division, for offences punishable under various sections of the IPC. The respondent herein, the 4th accused in the case, had to face a charge under S.449 and 302 IPC. On the conclusion of the trial all the accused were acquitted.

2. The State has now come up in appeal challenging only the order of acquittal of the 4th accused.

3. The accused persons are all Harijans and are mazdoors by profession. The occurrence was on June 6, 1978, sometime between 6 and 6 30p. m. from near an illicit arrack-cum-toddy shop and from inside the house of one Vettan, husband of Cheruneeli (Pw. 11) Devaki (Pw. 8) and her husband Velayudhan were conducting an illicit arrack-cum-toddy shop in a small shed situated very close to their house. While Parameswaran Nair (Pw. 1) was engaged in collecting paddy seedlings from a seed bed nearby on the southern side of the house of Velayudhan alias Appunni, Kumaran Nair (Pw. 2) came there and was standing near Pw 1. On hearing a wordy altercation from the house of Velayudhan, both pws. 1 and 2 went there, when they saw accused 1 to 3 in a drunken state making loud noise. Sankunni Kurup also came there at that time. The second accused then asked Sankunni Kurup to return back a cigarette lighter which Sankunni Kurup had taken from him some time back during the Bharani festival at Cranganore. Sankunni Kurup denied having taken any such cigarette lighter from the second accused. Following this there was exchange of words between the second accused and Sankunni Kurup pws 1 and 2 intervened and asked them not to pick up quarrel on a silly matter. Thereafter, the accused persons went to the arrack shop while Sankunni Kurup proceeded towards east. The first accused then ran after Sankunni Kurup, overtook him and wrongfully restraining him from his front side struck him with an umbrella on his neck. Sankunni Kurup then turned back and ran westwards. When Sankunni Kurup reached on the northern side of the arrack shop, accused 1 to 3 surrounded him and attacked him by beating, fisting and kicking. Sankunni Kurup then drew out a dagger and waved it, as a result, some of the accused sustained injuries. Sankunni Kurup then entered the house of Vettan and hid himself there. At this time, the 4th accused, the elder brother of the first accused, came to the house of Velayudhan with a dagger in his hand asking him where Sankunni Kurup was. Pw 8, wife of Velayudhan prevented him from entering the house. The 4th accused from there went straight to the bouse of Vettan and entered his house. pws. 1 and 2 then heard a cry from inside the bouse The 4th accused came out of the house with the dagger and disappeared Then pws 1 and 2 along with Velayudhan went to the house of Vettan with a lantern and saw Sankunni Kurup lying with a bleeding injury on his leg, inside Vettans house. Sankunni Kurup told them that he was stabbed by the 4th accused. While arrangements were being made to take Sankunni Kurup to the hospital, he succumbed to the injury. On the next day morning, Pw 1 went to the Kattiparathi Police Station and laid Ext. P1, first information statement, at 7 a.m and a case was registered on that basis Pw 19, Circle Inspector of Police, taking up investigation into the case, held inquest, made recoveries and questioned witnesses. Pw. 10, doctor, held autopsy over the dead body. The 4th accused was arrested on 13-6-1978 and in pursuance of a statement given by him. M. 0 1 dagger and M. 0.10 sheath were recovered under mahazar Ext P14.

4. While denying his guilt, when examined under S 313 Cr. P. C the accused gave a detailed statement, raising a plea in the nature of self defence of person.

5. The learned Sessions Judge after a full discussion and evaluation of the prosecution evidence acquitted the accused holding that the evidence of pws. 1,2,8,11 and 12 is unreliable and cannot be acted upon and that the whole prosecution story is improbable and unbelievable.

6. After taking us through the evidence of the eye witnesses and other material evidence in the case, the learned Public Prosecutor strongly contended that the learned Sessions Judge has committed a serious illegality in duly appreciating and evaluating the evidence of the prosecution witnesses at the stage of S.232 Cr. P. C and acquitting the accused. Ft was placing reliance on a decision of this Court in State of Kerala v. Mohammedkutty (1979 KLT. S.N. Case No. 74 at p. 37=1979 K.L.N. Case No. 34 at p 62) that the Public Prosecutor contended as above. It was argued that from the wording of S.232 Cr. P. C. as interpreted by this Court in the abovesaid decision, it is only in a case where the Presiding Officer considers that there is total absence of evidence in regard to the commission of the offence alleged, that an accused can be acquitted under S.232 Cr. P. C and that this is not a case where there was no legal evidence or there was total absence of evidence to connect the 4th accused with the commission of the offence alleged against him. The learned Public Prosecutor therefore wanted us to set aside the order of acquittal on this short ground and send back the case to the learned Sessions Judge for disposal according to law, from the stage of S 232 Cr.P.C.

7. The learned advocate appearing for the respondent, on the other hand, made a strong attempt to show that a judge is. entitled at this stage to duly consider and appreciate the evidence for the purpose of finding out whether there was sufficient evidence for convicting the accused and if he finds there is no sufficient evidence to enter a conviction, he is bound to record an order of acquittal under S.232 Cr.P.C. The counsel submitted that the expression that "there is no evidence that the accused committed the offence" does not mean total absence of evidence connecting the accused with the commission of the crime; that there is substantial change between the present section and the corresponding section in the previous Code; that it was with a view to have an expeditious trial that these provisions were amended; that while interpreting the section that should be borne in mind and finally the learned counsel canvassed the correctness of the decision of this Court and wanted us to reconsider the same and refer the matter to a Full Bench

8. After duly considering the arguments advanced on either side and carefully perusing all the relevant sections in Chapter XVII, we are of the view that the words "no evidence" in S 232 Cr.P. C cannot be construed or interpreted to mean absence of sufficient evidence for conviction or absence of satisfactory or trustworthy or conclusive evidence in support of the charge. The judge has to see whether any evidence has been let in on behalf of the prosecution in support of their case that the accused committed the offence alleged, and whether that evidence is legal and relevant. It is not the quality or the quantity of the evidence that has to be considered at this stage. If there is any evidence to show that the accused has committed the offence, then the judge has to pass on to the next stage. It is not open to him to evaluate or consider the reliability of the evidence at this stage.

9. S.225 to 237, appearing in Chapter XVIII of the Code, deal with procedures relating to trial of cases before the Court of Session. The object of S.232, no doubt, is to have a speedier conclusion of the trial and to avoid unnecessary harassment to the accused by calling upon him to enter on his defence and adduce evidence. This section substantially corresponds to sub-sections (2) and (3) of S.289 of the previous Code and there is no material change. In a trial, before a Court of Session, an accused has a right to claim for a discharge under S.227 of the Code. This is a new provision introduced in the present Code. Under this section if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording bis reasons for so doing. Under S 228, which is also a new section, if. after consideration of the record and documents referred to in S.227 of the Code, and hearing both parties, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by that court, he shall frame in writing a charge against the accused, and if the offence is not exclusively triable by that court, he may frame a charge against the accused, and, by order, transfer the case for trial to the Chief Judicial Magistrate Under the above sections, the Judge is not considering any evidence in the strict or legal sense, but it is only the record of the case and the documents submitted therewith which have to be considered by him It is not necessary that at this stage these documents must have been proved. Under S.232, what the Judge has to look into and consider is whether there is legal evidence adduced on behalf of the prosecution connecting the accused with the commission of the crime and not its quality and quantity He is not to consider at this stage the sufficiency, reliability or trustworthiness of that evidence. In other words, what the Judge has to see is whether there is any evidence on record which, if true, would amount to legal proof of the offence charged against the accused and not whether that evidence is satisfactory, trustworthy or reliable. Although direct decisions under S.232 on the point are very few, there are a number of decisions under S.289 of the previous Code, where various High Courts have considered what is meant by the, expression "no evidence" in that section. It is a salutary principle in a sessions trial that no final opinion as to the reliability or acceptability of the evidence should be arrived at by the Judge until the whole evidence is before him and has been duly considered. (See Queen Empress v. Ramalingam: ILR. 20 Madras 445) It is only after the accused is called upon to enter his defence under S.233 and after the evidence, if any. adduced on behalf of the accused and hearing the counsel appearing for both sides, the Judge hearing the case after a due consideration of the evidence decides whether the evidence adduced on behalf of the prosecution is reliable and trustworthy. In cases solely depending

upon the ocular account of the witnesses, it might sometimes happen that all those witnesses, one by one. might turn hostile to the prosecution without giving any evidence in support of the prosecution There may be a case where the only legal evidence on record in support of the prosecution case is the confession of a co-accused or the evidence of witnesses examined on behalf of a co-accused. In cases where there are a number of accused, it might happen there may not be any evidence connecting one or more of them with the commission of the offence. There may also be cases where evidence connecting the accused with the crime is only rank hearsay. All these are cases where it can be said that there is no evidence that the accused committed the offence and S 232 can be invoked. But in a case where there is some evidence connecting the accused with the commission of the crime, it is the duty of the Judge to pass on to S.233 and not to appreciate that evidence and find out whether it was reliable or not to pass an order under S 232 Cr. P.0 The expression "there is no evidence" under S 289 does not mean absence of reliable or conclusive evidence but means absence of evidence which, if believed to be true, would warrant a conviction. (See Emperor v Nawal Kishore Missir (1929) 30 Crl. L J 519 at 521). It was held in Rahamali Howladar v. Emperor (AIR. 1925 Cal 1055) that if there is any evidence, although worthless, Judge should not direct jury to return verdict of not guilty; that no evidence worth the name is under the law very different from no evidence; that if a Judge directs the jury to return a verdict of not guilty, because he holds that there was no evidence worth the name against the accused, he commits an error of law. The question what is meant by "no evidence" under S.232 came up for consideration before the Karnataka High Court in Kumar v. State of Karnataka (1976 Crl. L. J. 925) and before the Bombay High Court in 1978 Crl. L. J. 1168. In both these cases, it was held that under S.232 the Sessions Judge has to look into the prosecution evidence and the materials brought out in the examination of the accused and after hearing the counsel for both sides decide whether there is any evidence or not, to show that the accused had committed the offence and that at that stage the Judge is not entitled to evaluate the evidence and find out whether the evidence is reliable and trustworthy. In Pari Ram v. State of U P. (1970 (3) S. C. C. 703) while considering a similar question arising under S 289 of the previous Code, it was held by the Supreme Court that what S 289 requires is that if the Sessions Judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter on his defence and that the value to be attached to that evidence was not to be considered at that stage, A Division Bench of this Court also, as pointed out earlier, took the same view in State of Kerala v. Mohamedkutty and others (1979 KLT. SN. Case No. 74 p 37: 1979 KLN. Case No. 34 p. 62). We are in respectful agreement with this decision which, according to us, does not require any reconsideration. On looking into the materials on record in the light of the principles stated above, it cannot be said that this is a case where there is no evidence as contemplated under S.232 Cr. P.C.

10. It is clear from the above discussion and finding that the learned Sessions Judge has committed a clear illegality by appreciating and finding out whether the evidence was reliable and trustworthy and acquitting the accused under S.232 Cr. P. C. This being a serious illegality the order of acquittal under this section has to be set aside and the case has to be sent back to the court below, for fresh disposal.

We therefore allow this appeal, set aside the order of acquittal, without going into the merits or demerits of the evidence on record, send back the case to the trial court for disposal afresh according to law, from the stage where the illegality was committed by that court.