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 874 of the Code of Criminal Procedure. With it is coupled an appeal from jail (No. 43 of 1924). 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.

The Judicial Commissioner was assisted by four assessors all of whom were of the opinion that the appellant was guilty. The case, however, is far from simple for reasons to which I shall presently refer.

The evidence which was given at the trial before the Judicial Commissioner by the witnesses was of a character which, although it might have given rise to some sort of suspicion against the appellant, would not I think, have been, by itself, in any way conclusive of the appellant's guilt.

The first important witness was one Lila; he was the father of the appellant who is the younger of his two sons. He deposes that on the night of the occurrence the appellant and he slept outside the house in which the family lived; inside the house by herself in one room the deceased wife of the appellant was sleeping alone. In another room the elder son whose name was Mitan with his wife and three small children slept. The witness deposes that in the early morning the appellant got up and took his bullocks out to graze; he was away for about 1½ hours and on his return he went into the house. The witness went to get some water and on coming back to the house saw the appellant standing at the entrance of the room where his wife had been sleeping: he had some blood on his clothes. The witness enquired why he had blood on his clothes and the appellant then asked him to go into the room and see what had happened. The witness thereupon went into the room and there he saw: the appellant's wife lying dead under the bed with a knife in her right hand; there was much blood upon the floor. The witness also added that the evening before the occurrence the deceased had been upset and angry and would not eat any dinner; he also stated that sometimes the appellant used to sleep outside the house but often used to sleep in the room with, his wife. The witness had heard no noise or disturbance during the night.

The next witness was the appellant's brother Mitan. He also deposed to the effect that, on the evening prior to the deceased's death, the deceased did not eat any dinner; all the family were on very good terms and the deceased woman was liked by them all. This witness states that on the night of the occurrence the appellant did not sleep in the room with his wife but outside: that, before it was daylight, on the morning in question he (the witness) went out to case himself and, on his return, found the appellant weeping; he then saw the deceased lying dead in her room and close by her right hand lay a knife. The witness says that the deceased woman was rather a bad tempered girl of powerful physique.

The next witness was the wife of the appellant's brother Mitan: all that she says is that, shortly after sunrise, whilst she was sleeping with her children in the house, she heard an alarm and came out. She then found that the Sub-Inspector of Police had coma. This witness speaks kindly of the deceased woman and states definitely that the appellant did not sleep with her (the deceased woman) on the night in question.

The next witness was one Ganga Teli who was a nephew of the appellant's father. He deposes that on the night in question the appellant and he slept on some straw outside the house; the appellant's father also slept near them on a bed; the witness states that early in the morning the appellant took his bullocks out to graze and on coming back, sometime afterwards, he (the appellant) went into the house and came out again weeping. The appellant's father then asked the appellant what was the matter and the appellant told his father to go inside and see what had happened. This conversation, however, was not, so the witness says, actually overheard by him but was told him, on his return from obeying a call of nature, by the appellant's father. He also speaks well of the deceased woman and says that he saw the dead body.

There seems to have been some sort of suggestion of a motive, which might have been regarded as implicating the appellant, to the effect that the deceased girl had an intrigue with one Ramdhani: but this man, who was called as a witness, indignantly denied any such idea.

The medical evidence was not very satisfactory. The medical practitioner who made the post mortem examination was not a very experienced doctor; and he was not, apparently, able to express (even if he was very clearly asked) any very decided view as to whether the wounds which were found upon the deceased could have been self-inflicted. Apparently the woman had five injuries: the principal of these were two cuts on the throat which severed the wind pipe and the carotid artery; there was a third little cut connected with the first cut on the trachea; a little cut on the right hand (on the thumb) and a little bruise on the back. In his evidence given at the trial the witness states that the cuts on the throat could have been self-inflicted. The appellant has always taken up the same position and, both before the Magistrate and the Judicial Commissioner, has maintained that, he had no idea how his wife met with her death; he has stated that he was not sleeping with her that night but outside and that when he went into the room in the early morning he found his wife dead; he took her in his arms and in that way got blood upon his clothes. He stated that he was on very good terms with his wife and had no quarrel with her. The appellant on the 30th of November was examined at the hospital and it was found that he had four little scratches: one on his neck, another on his shoulder blade, another near the navel and the fourth on the back of the neck; but the Sub-Assistant Surgeon states that the appellant had a rough skin and that these scratches might have been caused by the appellant's scratching himself. Indeed the appellant himself states that he did so scratch himself. It will thus be seen that, on the evidence of the witnesses as it was given at the trial, there was really nothing to bring home to the appellant any guilt; and, whilst it does not seem likely, on the evidence, that any one else could have got into the room and killed the deceased girl, yet, at the same time, if the evidence given by the witnesses was true that the appellant did not sleep with his wife that night, there is nothing to show that he killed his wife; and one is faced with the possibility that the case might have been one of suicide. It will, of course, at once be asked how it came about that the Judicial Commissioner and the assessors, notwithstanding the position of the case as I have shown it to be on the evidence given at the trial, came to the conclusion that the appellant should be convicted. The fact is that the witnesses had changed their story at the trial. The appellant's father had laid a first information report at the thana implicating the appellant and he and other family witnesses before the Committing Court gave evidence which certainly was seriously adverse to the appellant. The main question therefore arises as to whether it was legally possible under these circumstances for the Judicial Commissioner in the Sessions Court to convict the appellant upon the evidence which was given before the Magistrate and to reject entirely the evidence given by the witnesses at the trial itself. It is desirable, in order to appreciate the differences in the evidence, to refer first of all to the First Information Report. In this report, which was given on the 30th of November, the appellant's father says that, early on the morning in question, after he had got up from his bed in the outer verandah, he went inside the courtyard of the house and there saw the appellant standing at the door of his sleeping room with blood-stains on his jacket. The informant asked the appellant how he had got these blood-stains on him but the appellant did not reply. The informant then rushed into the appellant's sleeping room and there saw the appellant's wife lying dead with profuse bleeding from her neck. The informant asked the appellant why he had killed the girl but the appellant kept silent. The informant adds that there had been no quarrel between the two but that on the previous evening, when they were having food, the appellant had said to the deceased woman: “It was all because of your depravity; you are incontinent.” The informant then at that time asked the appellant to what depravity he referred but the appellant did not answer. There was a knife lying close to where the deceased lay. The informant laid, therefore, a definite charge against his son of having killed his wife.

Now it will be observed that the assessors simply stated that in their view the story told by Lila at the thana was true and that the appellant was guilty. It is obvious however that the appellant could not be convicted upon a first information only. Now it should be observed that the Judicial Commissioner did not base his conviction upon the first information but he does base it upon the evidence which was given by the witnesses at the Magisterial enquiry and the depositions at which he has under the provisions of section 288 of the Code of Criminal Procedure brought upon the record and treated as evidence. I need not at great length dilate upon this evidence but may merely point out that the appellant's father (who at the trial was allowed to be treated by the Public Prosecutor as a hostile witness) there stated that on the night in question the appellant had slept with his wife in the room where she was found dead; that he (the witness) had gone into the courtyard and there found the appellant standing in front of the room in which he had slept; his clothes were stained with blood; the witness enquired why his clothes were bloodstained but got no reply. The witness then entered the room and found the deceased woman dead with wounds on her throat. The witness stated that there had been no quarrel between the appellant and his wife. The appellant's brother Mitan deposed that after he had obeyed a call of nature he came back to the courtyard of the house and there he was told by the appellant's father that the deceased was dead. The witness then went into the room and saw the body. He also states that the appellant and the deceased were on good terms. The evidence which was given by the Sub-Assistant Surgeon, Mr. K. Dalippa, before the Magistrate was that the cuts on the woman could not have been self-inflicted. But I have already pointed out that at the trial he materially modified this opinion. 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. 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.”

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.”

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 utilized. 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 witnesses may at the trial make statements inconsistent therewith.”

Section 288 of Act X of 1882 was the same as 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. 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 expenses which under the circumstances of the case appears to the Court unreasonable are 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. 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 witness' evidence by a former statement under certain circumstances. 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. 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:—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.

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 a 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.

In the case of Queen-Empress v. Amanullah 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 under section 249 of the Code of Criminal Procedure 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. 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 thing 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.

In Queen-Empress v. Dan Sahai 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 witness's deposition bodily from the committing Magistrate's 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 Judge's conduct in the case of Queen-Empress v. Dan Sahai has here no application.

In Queen-Empress v. Jadub Das it was held that it is not safe to convict an accused person on his retracted confession standing by itself uncorroborated; or on the statements of witnesses brought in as evidence under section 288, without independent corroborating testimony; nor can these two be joined together and held as mutually corrobarating each other so as to justify a conviction based on them.

In Queen Empress v. Dorasami Ayyar 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 under section 228 of the Criminal Procedure Code.

In King-Emperor v. Bhut Nath Ghose it was held that where the Sessions Judge used as evidence under section 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.

In the case Emperor v. Dwarka Kurmi 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 Session 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 A other evidence sufficient to the minds of the learned Judges to prove that the accused had committed the murder.

In Emperor v. Maruti Joti Shinde 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. 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.

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.

Now, in this case, the learned Judicial Commissioner thinks that the principal witnesses (who are, of course, the accused's 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 have been given by the witnesses: there is no other testimony either one way or the other.

The Judicial Commissioner seems to attach considerable importance to the little scratches which were found on the appellant's body and thinks that they might have been caused by a struggle between him and the deceased woman; of course this is possible but the medical evidence is to the effect that they might just as well have been caused by the appellant's scratching himself on account of his rough or irritable skin. The Sessions Judge, also, does not seem to believe the story which is told by the appellant as to his having got blood on the back of his clothes when lifting up the deceased woman's body; but, when a person has died from a severed carotid artery, there would be a great deal of blood about spouting from the wound and it would be extremely difficult to venture to predict as to upon what part of his clothes a person lifting up the still bleeding body might or might not get blood-stains. Then, again, the Judicial Commissioner does not believe that some third person murdered the woman as he thought it was impossible for any one to have got into the room except through the ordinary entrance without traces of such entry being noticeable; and there were no such traces I do not, however, think that this suggestion was really put forward by the defence and, indeed, so far as I can ascertain from the record the real suggestion, made was that the woman committed suicide. I have already had occasion to state that the medical evidence was not very satisfactory; one thing, however, is quite clear (I have examined the original deposition) and that is that the doctor states in his evidence given before the Judicial Commissioner that the cuts on the throat could have been self-inflicted.

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 the accused released.

Adami, J.:— I agree.

Conviction and sentence set aside.