JUDGMENT DEBABRATA MOOKERJEE, J : Ten persons were tried by the Extra Additional Sessions Judge of Howrah with the aid of a jury on a charge under Sec. 306 of the Indian Penal Code. The trial concluded with a diminished jury of eight who by a majority of 7 to 1 found in favour of three accused men who were accordingly acquitted; the remaining seven having been found against by the same majorty, the learned Judge, in agreement with the verdict, convicted them of the offence of committing dacoity with murder. Of these one was sentenced to imprisonment for life and the rest to ten years' rigorous imprisonment each. 2. Of the seven convicted persons four have appealed from jail; the remaining three have appealed in the regular way. The two appeals have been heard together and are disposed of by this judgment. 3. The case for the prosecution presents the familiar features of dacoity with murder. On the 26th of August, 1957 at about 11-30 p.m. the ten accused persons with another called Sudha Bag raided the house of one Khagen Bangal of village Basudebpur within police station Uluberia. The inmates were asleep when the raid began; some of them were roused by the flashes of torch and sounds of foot-steps. One of the raiding party was armed with a gun and the others with tangis, ballams, and bamboo poles. A female inmate having raised an alarm some of the miscreants came up and tied up her hands. A demand was made for money and keys. The cry of another inmate Nemai Bangal, attracted notice and a scuffle ensued with some of the raiders. A room was forced open and the female occupant with her baby in arms rushed out and her husband Khagen had a tussle with some of the dacoits. The child was snatched away from its mother's arms, put into a bag and jettisoned into a shrubbery close-by. A sum of Rs. 100/- in cash, a gold ring, some clothing, bronze churis and other trinkets were removed. When Khagen intervened he was fired at. The first shot missed its target; Khagen was fired at again and he died almost instantaneously. A sum of Rs. 100/- in cash, a gold ring, some clothing, bronze churis and other trinkets were removed. When Khagen intervened he was fired at. The first shot missed its target; Khagen was fired at again and he died almost instantaneously. After the miscreants had retreated, the neighbours arrived and an account of what had happened was given to them by the inmates some of whom stated that they had been able to recognise some of the miscreants. An information was lodged with the police at about 7-30 in the morning and an investigation followed which resulted in a charge-sheet. 4. After the usual preliminary enquiry the appellants with their co-accused were committed to take their trial before the Court of Session to answer a charge under Sec. 396 of the Code. 5. At the trial the said Sudha Bag was tendered pardon and examined as a witness for the prosecution. 6. The appellants and their co-accused pleaded not guilty and their defence was that they had been falsely implicated. They asserted that there were rival parties in the village and it was at the instance of some of their opponents that they had been falsely accused in the case. The defence suggested that there was no dacoity with murder and that Khagen was accidentally killed by his younger brother Nemai, who, in order to divert suspicion engineered the present prosecution with the assistance of a local doctor and others. 7. In view of the order which we propose to make it is unnecessary to refer in detail to the facts of the case. We are persuaded that there has not been a proper trial and the verdict of the jury cannot be sustained in view of the grave error which vitiated the proceedings of the Judge below. 8. On behalf of the appellants who are represented by Counsel, it has been argued that the learned Judge misdirected the jury in several ways. It is said that the Judge erred in telling the jury that for a charge under Sec. 396 to succeed, it was necessary that murder should be proved to have been committed by one of the persons forming the gang of dacoits. It is said that the Judge erred in telling the jury that for a charge under Sec. 396 to succeed, it was necessary that murder should be proved to have been committed by one of the persons forming the gang of dacoits. The contention is that it is not enough that a murder should have been committed when the dacoity was in progress, it is necessary that one of the five or more persons who were conjointly committing dacoity, should be proved to have committed murder in so committing the crime. It is said that the mere fact that one of the miscreants killed an inmate while loot of property was going on, is not sufficient to make every member forming the party of dacoits guilty of a charge of offence under S. 396. As an abstract proposition, something perhaps might be said in its favour. But on the facts alleged, we do not think that any misdirection has occurred in this regard. It cannot be said that the murder of Khagen in this case was an isolated act severable from the act of looting property and carrying it away which was the purpose the miscreants had in view. Taking the Judge's directions in the context of the facts of the case, we are unable to say that this has resulted in an erroneous verdict. 9. It has been argued that the learned Judge misdirected the jury by telling them that "the corroboration of the approver's evidence should not be of a kind which proves the offence against the accused, it is sufficient if it connects the accused with the crime." Taking the passage divorced from the context in which it appears, there may be scope for thinking that this was likely to cause some confusion; but what the learned Judge really said was that it was dangerous to convict on the evidence of the approver alone and he gave elsewhere in his summing up adequate directions as to how to regard an approver's evidence. The direction to which exception has been taken, may have been unhappily expressed; but taking it with the instructions he gave earlier along with those that followed it, we have no manner of doubt that the jury were not misled by what the learned Judge had said. 10. The direction to which exception has been taken, may have been unhappily expressed; but taking it with the instructions he gave earlier along with those that followed it, we have no manner of doubt that the jury were not misled by what the learned Judge had said. 10. It is then contended that the learned Judge gravely erred in allowing Sudha Bag to be treated as an approver in the case. The contention is that in view of the evidence he gave which indicated that he was an unwilling participant in the crime, he could not be dealt with, as an approver and examined as a witness in the case. There are passages here and there in the cross-examination of this witness which may suggest his initial unwillingness to commit the crime; but his evidence, read as a whole, indicates that he tarred himself as much as he tarred others against whom he deposed. In this view the witness properly fills the character of an approver. 11. While we are not prepared to uphold the contention that the verdict has been vitiated by any of the alleged misdirections brought to our notice, we must say that we are unable to uphold the Judge's proceedings on the ground of a grave error which in our view was bound to have improperly influenced the Jury's verdict. The error went to the root of the trial and the verdict that followed could not possibly have escaped the mischief. 12. After the close of the case the Public Prosecutor addressed the jury on the 25th of March, 1959. The hearing then stood adjourned to the 26th when an application was filed on behalf of the defence praying that the deposition of several witnesses examined before the Committing Court be treated as evidence under Sec. 288 of the Code of Criminal Procedure. It appears from the Judge's order-sheet that the question of admission was debated before him. He heard the parties and allowed the petition. In the order-sheet it was observed : "Defence files an application praying that the depositions of certain P. Ws in the Committing Court as named therein be put in under Sec. 288 of Cri. P. C. Heard. The depositions of those witnesses as prayed be put in under Sec. 288 of Cri. He heard the parties and allowed the petition. In the order-sheet it was observed : "Defence files an application praying that the depositions of certain P. Ws in the Committing Court as named therein be put in under Sec. 288 of Cri. P. C. Heard. The depositions of those witnesses as prayed be put in under Sec. 288 of Cri. P. C. and read as evidence." Thereafter the defence Counsel addressed the jury, the Judge summed up and the trial proceeded to verdict. 13. There is on the record the petition referred to in the Judge's order-sheet in which prayer was made for admitting the evidence of as many as eleven witnesses under Sec. 288 of the Code of Criminal Procedure. Many of these witnesses were inmates of the house and had given before the Committing Court a version largely supporting the case for the prosecution. In order to be able to appreciate why the prayer was made for admitting their evidence under Sec. 288, we took pains to acquaint ourselves generally with the evidence they gave. The main reason for the request to treat their evidence before the Examining Magistrate as substantive evidence seems to be that the witnesses made certain statements before the Court of session which they had not made before the Committing Court. These omissions alone appear to be the ground on which the application for admission of evidence under Sec. 288 was made. 14. Section 288 says that the evidence of a witness duly recorded in the presence of the accused by the Committing Court, may, in the discretion of the trial Judge, be treated as evidence in the case for all purposes, subject to the provisions of the Indian Evidence Act. The pivotal consideration in allowing a statement to be brought on the record under Sec. 288 is whether the interests of justice require admission of such evidence. Accordingly the legislature left it to the discretion of the presiding Judge to determine whether the evidence of a witness before the Committing Magistrate should be admitted under Sec. 288. The pivotal consideration in allowing a statement to be brought on the record under Sec. 288 is whether the interests of justice require admission of such evidence. Accordingly the legislature left it to the discretion of the presiding Judge to determine whether the evidence of a witness before the Committing Magistrate should be admitted under Sec. 288. The Judge may be assisted in the exercise of his discretion by Counsel for the State or Counsel for the defence; but it is neither the right of the prosecutor nor the right of the accused to have the evidence of a witness recorded under Chapter XVIII of the Code, to be translated to the records of the court of session as substantive evidence. It is the duty of the Judge to decide whether such evidence should be allowed to be brought on the record. It is wholly wrong to say that the evidence of a witness recorded by the Committing Court has been put in by the defence or by the prosecution. Neither the accused nor the prosecutor has been given the right to have such evidence engrafted on the record. The Judge is required to exercise his discretion in every instance and arrive at his own decision as to whether such evidence should be allowed under Sec. 288. In this case we are constrained to observe that the learned Judge does not appear to have considered that it was only his duty to decide whether the prayer made before him should be allowed or refused. There is nothing to indicate that he ever exercised his judicial discretion in the matter. An application for wholesale admission of statements of as many as eleven witnesses was made; and after having heard the parties he straightway directed the translation of the entire body of evidence recorded before the Committing Court to the record of the sessions case. It is not that the learned Judge was unaware of the effect of such admission. Indeed, in the course of his summing up he directed the jury as follows: "The entire evidence of the witnesses before the Committing Magistrate has already been read over to you. It has been put in evidence under Sec. 288 of the Code of Criminal Procedure at the instance of the accused. It is evidence for all purposes. Indeed, in the course of his summing up he directed the jury as follows: "The entire evidence of the witnesses before the Committing Magistrate has already been read over to you. It has been put in evidence under Sec. 288 of the Code of Criminal Procedure at the instance of the accused. It is evidence for all purposes. You should also bear in mind that the evidence of a witness who states one thing before the Committing Magistrate and another thing in this court should be regarded with great caution. In effect, you may choose between the two statements or you may disbelieve one or accept another or reject both". The effect of admission of evidence under S. 288 appears to have been present to the mind of the learned Judge and yet he directed wholesale admission of such evidence. 15. The procedure to be followed before the evidence of a witness recorded by the Committing Magistrate could be admitted under Sec. 288 was clearly indicated by the Supreme Court in the case of Tara Singh v. The State, 1952 SCA 458 : ( AIR 1951 SC 441 ). It was observed a "witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required; but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under S. 288". As we have indicated in the present case there was in most instances no conflict between previous statement and present evidence. What happened was that many of the witnesses had omitted to state certain facts before the committal court about which they spoke in the Court of Session. Omissions per se are not contradictions. There may be cases of omission which may amount to contradiction. A witness may have been silent on a point before the Committing Magistrate; the silence may in certain cases be significant. But generally speaking it cannot be the basis of a contradiction. Surely a witness cannot be contradicted with reference to an unmade statement. 16. There may be cases of omission which may amount to contradiction. A witness may have been silent on a point before the Committing Magistrate; the silence may in certain cases be significant. But generally speaking it cannot be the basis of a contradiction. Surely a witness cannot be contradicted with reference to an unmade statement. 16. If in any case the omission appears to the trial Judge to be vital, the witness's attention may be drawn to the evidence he has given before the Committing Court and then asked whether he made such a statement. When he admits that he had not made any, that admission would be enough and there would be no need to have recourse to Sec. 288. But the procedure adopted in this case was strikingly novel. Long after the witnesses had left the box, a prayer was made on behalf of the accused for admission wholesale of the entire deposition of the witnesses before the Committing Court. The prayer was at once acceded to and no indication was left on the record that the learned Judge had ever exercised his judicial mind in the matter. As we have said a Judge presiding over a trial cannot surrender his discretion in favour of either party; it is his duty and his responsibility to admit or refuse to admit statements made by witnesses under Sec. 288. 17. This Court had occasion to disapprove of the practice of admitting readily statements under Sec. 288. In the case of Gopal Khaitan v. The King, AIR 1949 Cal 597 it was observed that "the prosecution have no right to put in the deposition of a witness taken in the Court of the Committing Magistrate, under Sec. 288 and the deposition can only be admitted if the presiding Judge in exercise of his discretion permits the deposition to go in as part of the evidence. Where the deposition is put in merely because the Public Prosecutor required that it should be put in evidence and there is nothing to show that the Judge ever considered the matter or ever thought that he had to decide whether the deposition should be admitted or not there is no exercise of the discretion by the Judge at all. Where the deposition is put in merely because the Public Prosecutor required that it should be put in evidence and there is nothing to show that the Judge ever considered the matter or ever thought that he had to decide whether the deposition should be admitted or not there is no exercise of the discretion by the Judge at all. The discretion must be exercised judicially and further must be exercised very sparingly and very carefully and for very good reasons." This was indeed a case where evidence was wrongly admitted under Sec. 288 at the instance of the prosecution. It makes little difference whether such evidence is admitted improperly at the instance of the prosecution or the defence. 18. If the evidence was inadmissible, the learned Judge had no right to admit it although he might have been requested to do so by Counsel for the accused. As was observed in another case (Criminal Appeal No. 179 of 1951) the Court cannot allow the accused to be prejudiced by the failure of their Counsel to appreciate the full effect of what he was doing in inviting it to admit such evidence. The obvious effect of the admission of this body of evidence under Sec. 288 was that the jury might well have thought that the case for the prosecution was true inasmuch as the witnesses not only said in the court of session that the appellants had committed the crime charged but had also said so on a previous occasion in the court of the committing Magistrate. For the very doubtful advantage obtained by proof of omission of certain statements, more or less of an inconsequential nature, the jury were invited to consider a mass of evidence against the appellants and it is only reasonable to think that the impact of such evidence on the jury's mind could not but have prejudiced the accused. 19. The question of prejudice apart, we think the Judge's procedure cannot be upheld. He allowed evidence to be brought in under Sec. 288 without exercising his own judicial discretion as to whether such evidence should at all be admitted. As is well known, recourse can be had to Sec. 288 only in exceptional cases. 19. The question of prejudice apart, we think the Judge's procedure cannot be upheld. He allowed evidence to be brought in under Sec. 288 without exercising his own judicial discretion as to whether such evidence should at all be admitted. As is well known, recourse can be had to Sec. 288 only in exceptional cases. That section is not a device for the prosecution to reinforce the evidence-in-chief, nor a means to destroy the legitimate effect of cross-examination; nor can it be availed of by the defence to obtain the doubtful advantage of proof of mere omissions to impeach credit. The provision is designed to be employed by the Court to advantage the requirements of justice. When, for example, a witness completely resiles from his previous testimony and shocks the conscience of the Court, the provision enables the Court to step in and bring on the record in the manner prescribed such previous evidence in order that it may be treated as substantive evidence in the case. 20. If the evidence thus wrongly admitted was confined to unimportant witnesses we might have ignored the defect in the proceedings; but the evidence of the inmates and of others who came to the scene of dacoity immediately after the occurrence and to whom some of the miscreants were actually named, was evidence of a material kind upon which the prosecution case depended. We think, therefore, that the jury were asked to consider a mass of evidence which could not properly be considered. Such evidence could not possibly be the basis on which the appellants' guilt or innocence could be determined. In the circumstances we hold that the verdict has been vitiated and the trial has resulted in miscarriage of justice. 21. We accordingly allow the appeal and set aside the convictions and sentences based on the jury's verdict. We direct that the appellants be retried in accordance with law by another Judge to be nominated by the Sessions Judge. 22. D. N. DAS GUPTA, J. : I agree. Appeal allowed. Retrial ordered.