Bucknill, J.This was a reference made by the Judicial Commissioner of Chota Nagpur (sitting at Palamau) under date the 5th instant (No. 6 of 1924) under the provisions of Section 374 of the Code of Criminal Procedure. With it is coupled an appeal from jail (No. 43 of 1924).

2. The matters relate to a man named Jehal Teli, of about 20 years of age, who was convicted of having murdered his wife by cutting her throat on the night of the 29th-30th of November last. He was sentenced to death by the Judicial Commissioner on the 27th February last. (His Lordship dealt with the facts of the case and the evidence therein and proceeded). Now it has been urged by the learned Counsel who appears for the appellant: firstly, that under the provisions of Section 288 as it at present exists, it is not possible for the evidence of a witness duly recorded before a Magistrate to be used at a trial except in such cases as are specifically provided for by the Indian Evidence Act of 1872.

3. He further maintains that, even if such evidence could be utilized, it cannot be depended upon by itself for the purposes of a conviction. Section 288 was the subject of certain alterations by the Code of Criminal Procedure Amendment Act of 1923. It used to read,

The evidence of a witness duly taken in the presence of the accused before the committing Magistrate may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case.

4. It now 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 of 1872.

5. What Mr. Yunus urges is that the addition at the end of the section prohibits the use of evidence taken before a Magistrate as evidence at a trial except in such cases as are specifically provided for by the Indian Evidence Act. On the other hand the learned Government Advocate (who appears here for the Crown) was inclined to urge the opposite view; namely that the addition of the words in question meant that evidence taken before a Magistrate can always be utilized at a trial except where the Indian Evidence Act specifically prohibits its being so utilised. It is certainly difficult to understand exactly what the amendment of the section intended to effect; but it may be interesting to observe that Section 249 of Act X of 1872 (the old Criminal Procedure Code) ran as follows:

When a witness is produced before a Court of Session or High Court, the evidence given by him before the committing Magistrate may be referred to by the Court if it was duly taken in the presence of the accused person, and the Court may, if it thinks fit, ground its judgment thereon, although the witness may at the trial make statements inconsistent therewith.

6. Section 288 of Act X of 1882 was the same as to the present section without the amendments introduced by the Act of 1923. In my opinion neither of the suggested constructions which are tentatively put forward by the learned Government Advocate and by Mr. Yunus can properly be accepted. There were, as will be shown by the cases to which I will refer presently in dealing with the second legal point, difficulties felt by the Courts with regard to how far the evidence taken before a Magistrate should be relied upon. There were also difficulties which were in the minds of legislators as to whether the evidence of a witness given before a Magistrate in cases in which there had been no cross-examination should be capable of being utilized at a trial as a substitute for the contradictory evidence which he gave at the trial.

7. To suggest, however, that evidence duly taken before a Magistrate can only be utilized at a trial in case where the Indian Evidence Act specifically authorizes its use is, to my mind, a mistake. There are only certain sections in the Evidence Act which could in any way be regarded as even remotely dealing with this subject, but none have any direct bearing. Section 32 deals only with certain instances where statements made by a person who is dead or cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced without an amount of delay and expense which under the circumstances of the case appears to the Court unreasonable, or admissible. This section clearly has no connection with Section 288 of the Code of Criminal Procedure because one of the terms of Section 288 is that the witness is produced and examined at the trial.

8. The same remarks apply substantially to Section 33 of the Evidence Act. Section 145 of the Evidence Act only refers to the utilization in his cross-examination of a previous statement made by a witness and has clearly no bearing on Section 288 of the Code of Criminal Procedure. Similarly too, Section 155 merely contemplates the impeachment of the credit of a witness by proof of a former statement whilst Section 157 only contemplates the corroboration of a witnesss evidence by a former statement under certain circumstances.

9. There is indeed in the Indian Evidence Act nothing at all which permits the use of evidence taken before a Magistrate as evidence at a trial. The suggestion, therefore, made by Mr. Yunus that Section 288 can only be utilized in such cases as the Indian Evidence Act specifically provides cannot be maintained; for the Indian Evidence Act has no such special provisions. Similarly too, with regard to the suggestion of the learned Government Advocate that Section 288 can be utilized in all cases except those in which the Indian Evidence Act directly prohibits such use; here, again, if this is the proper construction, the amendment of 1923 was quite useless; for there is no such prohibition in the Evidence Act at all.

10. What, however, I think is really meant by the amendment introducing the Indian Evidence Act is that evidence duly taken before a Magistrate can be used for all purposes in a trial Court so long as the evidence is evidence within the meaning of the Indian Evidence Act or, in other words, that Magisterial depositions can be utilized in a trial Court as of evidential value only if the matter contained therein is, according to the rules of evidence, laid down in the Indian Evidence Act, of evidential value. For example, to give a simple concrete illustration:

11. If mere hearsay evidence was contained in a magisterial deposition it would not, simply because it was so contained, be capable of being utilized by a Sessions Judge as of evidential value at the trial. Mr. Yunus further suggests that the amendment may also contemplate that the evidence taken before a Magistrate can only be used at the trial subject to the procedure laid down in the Indian Evidence Act. I should think that this contention is probably correct, but it is after all, merely an expression in other terms of the construction which I have already indicated as being the proper one to be placed upon Section 288 as it now stands. I am, therefore, of opinion that Section 288 as it now stands does not prevent the Sessions Judge in this case from utilizing the magisterial depositions to which I have already referred.

12. The next and more important question which arises is as to how far it is possible to base a conviction upon evidence given before a Magistrate when the evidence given at the trial differs from it and is exculpatory of the accused. This question gave rise to an interesting discussion but, after perusal of several cases, the principle emerging appears to be quite clear; and the learned Government Advocate and the learned Counsel who has appeared for the appellant are now practically in agreement with regard to this principle. It is perhaps desirable to refer to these cases in some short detail.

13. In the case of Queen-Empress v. Amanullah [1874] 21 W.R. 49 the accused was charged with murder; the Sessions Judge however considered that the evidence given before him by the witnesses for the prosecution was false; but he nevertheless, convicted the accused, acting u/s 249, Criminal P.C., and relying on the evidence which had been given by the same witnesses before the committing Magistrate. It will be observed that the section of the Code as it then stood (I have given it in extenso above) was a good deal more explicit than it is at present. But, even so, it was held that the discretion conferred by that section should only be exercised upon substantial materials rightly before the Court and reasonably sufficient to guide the judgment of the Court to the truth of the matter and not upon mere speculation or conjecture; and that, although, under the section, a Judge might base his judgment on the evidence given before the Magistrate in the presence of the accused, it is only in cases where there are special and particular reasons for considering the evidence given before a Magistrate to be honest and true, and when that evidence is to a certain extent corroborated by independent testimony before himself, that the Judge should act upon the section.

14. This case gives the basis of the principle which has always afterwards been applied by the Courts, and the reason for the principle is not far to seek. If a witness is prepared to swear before one Court one thing and then swear before another Court another contradictory to the first, it is obvious that he is not a person upon whose word any reliance can really be placed, and it would, equally obviously, be impossible and unsafe to convict an accused upon the testimony of such an untruthful individual unless there was in existence some other evidence of material value which would go to show clearly which of the conflicting statements made by the witness was in fact true.

15. In Queen-Empress v. Dan Sahai (1885) 7 All 862 it was held that Section 288 of the Code of Criminal Procedure is not to be used so as to enable a Court trying a cause to take a witnesss deposition bodily from the committing Magistrates record and to treat it as evidence before the Court itself without putting to the witness whom the Court proposes to contradict by his statement made before the committing Magistrate the whole or such portions of his deposition as will afford him an opportunity of explaining his meaning or denying that he had made any such statement. In the case before us it will be observed that the witnesses concerned were allowed to be treated as hostile in the trial Court; sO that the animadversion upon the Judges conduct in the case of Queen-Empress v. Dan Sahai (1885) 7 All 862 has here no application.

16. In Queen-Empress v. Jadub Das (1900) 27 Cal. 295 it was held that it is not safe to convict an accused person on his retracted confession standing by itself uncorroborated: or on the statement of witnesses brought in as evidence u/s 288, without independent corroborating testimony; nor can these two be joined together and held as mutually corroborating each other so as to justify a conviction based on them.

17. In Queen-Empress v. Dorasami Ayyar [1901] 24 Mad. 414 it was held that Section 288 was intended to enable the Court to read the previous evidence given by a witness before a committing Magistrate as substantive evidence in a case at the trial, where, for the purposes of justice, the adoption of such a course is found necessary by a Judge. In that case, however, it may be pointed out that there was independent evidence sufficient to warrant the conviction apart from the evidence brought in u/s 288 of the Criminal Procedure Code.

18. In King Emperor v. Bhut Nath Ghose 7 C.W.N. 345 it was held that where the Sessions Judge used as evidence u/s 288 the statement which a witness made before the committing Magistrate but which he repudiated at the Sessions and attributed to improper influence in the course of the investigation, and the circumstances were such that the Sessions Judge could not properly rely on either of these statements, he did not show a proper discretion in allowing the former statement made before the Magistrate to be treated as evidence. This case, although expressed in somewhat different language, proceeds substantially upon the same lines. In that case the witness concerned was the only person who testified to certain facts; this he did at the Magisterial enquiry; but he repudiated that evidence at the trial; it was held that the Judge should not have relied upon either of his statements as neither was corroborated by other testimony.

19. In the case of Emperor v. Dwarka Kurmi [1906) 28 All 683 the same principles are again applied. In that case the accused was sentenced to death for the murder of his uncle. Certain witnesses, who had stated before the committing Magistrate that they had seen the accused striking the deceased, withdrew their statements before the Court of Sessions and gave evidence exculpating the accused. The Sessions Judge, however, admitted in evidence the statements of these witnesses made before the committing Magistrate and it was held that he was right in so doing. There was there, however, also other evidence sufficient to the minds of the learned Judges to prove that the accused had committed the murder.

20. In Emperor v. Maruti Joti Shinde AIR 1922 Bom. 108 , the circumstances and the positions were again very similar. In that case two boys, when examined before the committing Magistrate, stated that they saw the accused committing the offence for which he was tried. At the trial, however, before the Sessions Judge they gave an entirely different version of the affair. It was held that it was open to the Sessions Judge to use the statements made before a Magistrate as substantive evidence.

21. It was, however, pointed out that before the evidence taken before the Magistrate can be substituted for that given in the Sessions Court there must be very good reasons shown why it should be preferred; and, in that particular case, there was other evidence which was of corroborative character.

22. I think, therefore, that the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilized in support of a conviction.

23. Now, in this case, the learned Judicial Commissioner thinks that the principal witnesses (who are, of course, the accuseds relatives) are now endeavouring to shield him; this may be so, and is very likely so, but it is still a matter of conjecture. One of the crucial points is, of course, whether the appellant slept with his wife in the room where her dead body was found or whether he slept outside; but certainly, on that point, there is no evidence at all other than the two conflicting stories which has been given by the witnesses: there is no other testimony either one way or the other. (His Lordship then referred to the evidence and proceeded.) Sinister though this case is, and although there lies some ground for suspicion against the appellant, I am bound to say that it does not appear to me that there is sufficient evidence to justify a conviction. The appeal must be allowed, the conviction and sentence set aside and accused released.

Adami, J.

24. I agree.