Judgment :- 1. The appellant, Lakshmanan, aged 25 stands convicted by the Sessions Judge of Palghat under S.302 I. P. C. for causing the death of his wife Devaki by strangulation, and sentenced to rigorous imprisonment for life. 2. The accused had married Devaki three years ago and while they were living as man and wife he was involved in a criminal case and was convicted and sentenced to imprisonment for one year. It was just about three months prior to the occurrence that he returned from jail. At the time of his marriage, he had presented Devaki with a gold chain weighing 11/2 sovereigns. While the accused was in jail this gold chain was pledged by Devaki's mother without the knowledge or consent of the accused. Devaki was unwilling to return to her husband without the gold chain. While so, about a week prior to the occurrence the accused went to Devaki's house and took her back. On the evening of 1111966, Devaki expressed her desire to go to her house, but the accused was not amenable. When Devaki persisted in her demand, the accused got wild and beat her twice with a bamboo stick. That night Devaki, in protest, abstained from taking any food. In the succeeding morning also she repeated her demand to go home. The accused was still adamant. Just to solve the riddle the accused's father intervened and persuaded him to take her back to her house. By way of travelling expenses he gave the accused eight annas also. The accused put the coin in his pocket and went to the paddy field to resume his work there. Devaki got restive and was seen walking to and fro in the courtyard of the house in a state of despair. Accused's sister Pw-1, happened to be in the house that day. The restlessness shown by Devaki instilled fear in the mind of Pw-1 that she would run away from the place or commit some mischief or other. She accordingly called the accused from the paddy field. He came in an agitated mood and asking Devaki "do you want to go home" pushed her by her throat and took her into the room. Pw-1 cried out to the accused "don't kill her". She accordingly called the accused from the paddy field. He came in an agitated mood and asking Devaki "do you want to go home" pushed her by her throat and took her into the room. Pw-1 cried out to the accused "don't kill her". The accused's parents were also attracted to the scene; but the accused overcome with rage asked them all to get away and after a short while he called them back saying that Devaki had betrayed him. To their astonishment they saw Devaki lying dead in the front room of the house. The accused himself went to the nearby Hemambika Nagar police station and lodged the F. I. statement Ex. P-14. His statement to the police was that Devaki had died by swallowing oleander seeds. Crime No. 5/66 was registered and the F. I. R. is Ex. P-14 (a). Postmortem examination showed that Devaki died of strangulation. 3. In the committing court the accused denying the crime stated that about 4 days prior to her death she had a quarrel with his mother and even on the day previous to her death she had quarrelled with the mother. On the morning of 12 166 while working in the fields he heard a cry from his house and on hurrying to the place he saw his parents, sister and some neighbours, all collected there and when asked what was the matter he was told that Devaki had taken oleander seeds. She was seen vomiting. On the advice of the people gathered there, Devaki was given dog's motion by way of antidote. The vomiting continued even after that. Then she wanted to lie down and so she was taken inside the room where she was allowed to rest for some time. Some people advised the accused that green-gram mixed in coconut juice would be an effective antidote and that also was tried; but before any bit of it could go in, Devaki breathed her last. In the sessions court also the same defence was put forward by the accused. He stated further that when be ran home from the paddy field on hearing the cries, Devaki herself told him she had taken oleander seeds. 4. The only material witness in the case is Pw-1, the sister of the accused. In the sessions court also the same defence was put forward by the accused. He stated further that when be ran home from the paddy field on hearing the cries, Devaki herself told him she had taken oleander seeds. 4. The only material witness in the case is Pw-1, the sister of the accused. In the committing court she stated that she had seen the accused throttling Devaki and on seeing that she herself had cried out to her brother not to kill her. The other material aspects of the prosecution case were also sworn to by her. Earlier to that, she was examined before the Sub Magistrate under S.164 Cr. P. C. and "then also the prosecution version was, in material particulars, spoken to by her. But in the sessions court she turned hostile and resiled wholly from the statements given by her before the committing Magistrate as also before the Sub Magistrate under S.164. Learned Judge invoking the aid of S.288 of the Code has accepted her statement given before the committing Magistrate in preference to the one given at the trial and has treated it as substantive evidence in the case. The conviction thus rests solely on the evidence given by Pw-1 before the committing Magistrate. 5. The two points that call for decision in this appeal are: (1) the cause of Devaki's death; and (2) whether the conviction based solely on the retracted statement of Pw-1 given in the committing Magistrate's court could be sustained. Point No. 1. From the postmortem examination the doctor has drawn the conclusion that death was due to asphyxia as a result of strangulation. The opinion was given after a long interval, i. e., on 15 31966. The postmortem was conducted as early as on 13166. The doctor had his own doubts about the cause of death and he was unable to give an opinion then and there. It was suspected that the deceased had taken poison and so the viscera was sent for chemical examination and the doctor had to wait for the result before he could finalise his opinion. The reasons given by him for his conclusion that the death was due to strangulation are: (1) Extravasation of blood under the skin over the neck and face; (2) Sub-conjunctival haemorrhage; (3) Hyoid bone broken; and (4) Passing of urine and wetting the external genitalin. The reasons given by him for his conclusion that the death was due to strangulation are: (1) Extravasation of blood under the skin over the neck and face; (2) Sub-conjunctival haemorrhage; (3) Hyoid bone broken; and (4) Passing of urine and wetting the external genitalin. It is argued for the appellant that other clearer indications like swelling on the face and change in the position of the tongue which are usually found in a case of strangulation were significantly absent in the instant case. On the other hand, learned counsel pointed out that in fact the symptoms of poisoning were present. One such symptom was the dilation of pupils. No hand mark was noticed on the neck, which according to the learned counsel is a negative symptom of strangulation. So also, cyanosis was found continuously around and above the neck, which also would rule out strangulation. Doctor's answer on this point was that cyanosis would occur at the site of strangulation as well as the area above or below depending upon the circulation of blood. He also stated that if the person was strangulated by both hands, cyanosis would be present throughout the area. But in the present case the evidence is that the deceased's throat was pressed by the right hand only. In short, barring the fracture of the hyoid bone none of the other symptoms noticed was conclusive to warrant the conclusion that it was a case of strangulation. But the doctor himself was positive that mere breaking of the hyoid bone will not result in death. It has come in the evidence that just before her death, Devaki had vomited profusely and the vomit contents, on chemical examination, were found to contain oleander poison. In this state of the evidence and especially in view of the fact that the doctor himself was hesitating to form his conclusion it cannot positively be said that the death was due to strangulation. Point No. 2. We have already seen that the only evidence in the case is the testimony of Pw-1 given in the committing Magistrate's court. Before the Sessions, that statement was retracted by the witness saying that she was compelled by police pressure to depose so before the Magistrate. Point No. 2. We have already seen that the only evidence in the case is the testimony of Pw-1 given in the committing Magistrate's court. Before the Sessions, that statement was retracted by the witness saying that she was compelled by police pressure to depose so before the Magistrate. We are not expected to launch ourselves upon a roving enquiry as to the truth or otherwise of the alleged police torture and such an enquiry is uncalled for also. All that we are concerned with is whether S.288 of the Code of Criminal Procedure has properly been applied and if so whether the statement is sufficient in itself to justify the conviction. On the former aspect, viz., the procedural requirement, we are satisfied that it was well complied with, and that the statement was treated as substantive evidence only after giving due notice to the parties, of the court's intention to do so; but we are not prepared to say that the learned judge is justified in entering the conviction solely on the said retracted statement. It is unsafe to convict an accused solely on the evidence of persons who give one version in the committing Magistrate's court and a totally different one before the sessions court, unless there is other reliable evidence in support of the prosecution. When once a statement is put in evidence under S.288 it becomes substantive evidence and is not restricted to purposes of contradiction or corroboration alone. Courts are hence advised to resort to the section only sparingly and to be extremely cautious and circumspective in its application. Prudence dictates that such a statement should not be accepted much less made the sole basis for a conviction without effective corroboration in material particulars. We have, therefore, to look in for corroboration, and in the present case we have looked in vain. The learned judge, however, would say that Pw-2 has, in a way, corroborated the statement by his evidence. We have read through the evidence of Pw-2 carefully and the only item of corroboration which one might deduce from his evidence is that he heard Pw-1 saying 'don't kill' and these words were uttered by Pw-1 immediately after Devaki was taken to the eastern veranda of the house by the accused by pushing her. We have read through the evidence of Pw-2 carefully and the only item of corroboration which one might deduce from his evidence is that he heard Pw-1 saying 'don't kill' and these words were uttered by Pw-1 immediately after Devaki was taken to the eastern veranda of the house by the accused by pushing her. In our opinion, this is too slender and flimsy a link in the chain to supply the necessary corroboration to Ex-P2 statement. In Ex-P-2 we see very many material aspects of the incident being stated. But none of them has been corroborated by Pw-2. For instance it was stated in Ex-P-2 that on turning back she saw Devaki lying flat on her back and the accused removing her blouse and bodice. This does not receive corroboration at the hands of Pw-2. The act of throttling was not seen at all by him. It has also to be remembered in this connection that Pw-2 cannot with justification be characterised as an independent witness. He was once arrested by the Hemambika Nagar police for not measuring out the levy of paddy as required by the paddy acquisition and control rules. On 12166, i. e., the date of occurrence, he had admittedly gone to the police station and had stood surety for two accused persons in another case. He is thus one, ready and willing to oblige the police and this would reflect against the credit of the witness and it is possible for the accused, in the circumstances, to contend that during the relevant period he was bridled by the police. 8. Ex-P-1 is the statement given by Pw-1 to the Sub Magistrate of Ottapalam under S.164 of the Code. That statement is, in certain respects at variance with Ex-P-2. In Ex-P-1, for instance Pw-1 has stated that 0 Devaki was pushed down by the accused before she was taken to the room. This statement is absent in Ex-P-2. So also in Ex-P-1 there is the further statement that the blouse removed from her body at the first instance, was restored by the accused and she was made to wear it again. This is also not seen stated in Ex-P-2. It has come out from her own statement, that the accused is not in good terms with her husband. So also in Ex-P-1 there is the further statement that the blouse removed from her body at the first instance, was restored by the accused and she was made to wear it again. This is also not seen stated in Ex-P-2. It has come out from her own statement, that the accused is not in good terms with her husband. It was, therefore, possible that she had given these statements to spite the accused, and later when wisdom dawned on her she thought of retracting. Pw-1 herself has admitted that both her parents (she herself is the accused's sister) were present in the house at the time; but neither of them has come forward to speak to the occurrence. The father, of course, was examined as Pw-3, but he did not support the prosecution. The victim must naturally have struggled hard before the throttling or strangulation had culminated in the death. But no such struggle is spoken to by any of the witnesses. The neighbours were attracted to the scene by the despondent cries raised by the accused that Devaki had outwitted him and not by any groan raised by Devaki. Added to all these, is the most outstanding circumstance that the vomit contents were smeared with oleander poison. Suspicion was there from the very beginning that Devaki had consumed oleander seeds and they were prompt in administering the antidote, first dog's motion and then green gram mixed with coconut juice. It was then that Devaki began to vomit. The vomit contents were scraped from the courtyard and sent for chemical examination by the police. The result, as we have already seen was positive. There is also the fact that Devaki was insistent in going home; but the accused stood in the way and he was offensively adamant. On the day previous to the occurrence he had dealt some blows on her with a bamboo stick and out of protest she abstained from taking any food that night. The next morning also she did not notice any change of attitude in him. The situation might have driven her to a state of utter despair and she might have 'thought of ending her life by taking poison. But we are confronted here, with another baffling phenomenon which would deter us from hurrying to such a conclusion, and that is, that in the night they were exceptionally happy and pleasant. The situation might have driven her to a state of utter despair and she might have 'thought of ending her life by taking poison. But we are confronted here, with another baffling phenomenon which would deter us from hurrying to such a conclusion, and that is, that in the night they were exceptionally happy and pleasant. The presence of seminal stains on her skirt is put forward as a circumstance to show that they had even sexual indulgence that night; but all on a sudden in the morning we see the accused getting rude and obstinate as before. These are mysterious circumstances obscuring a clear vision of the incident. Why did the accused tear away her blouse and bodice? Probably to relieve her of the burning sensation felt by her after taking the poison! All these are perplexing features of the occurrence and unless they are steered clear by convincing explanation, no finding of guilt is possible to be entered on the accused, and that is not feasible in the circumstances of the case. The only possible course, therefore, is to acquit the accused giving him the benefit of doubt. 9. In the result, the conviction and sentence passed on the accused are set aside and he is acquitted. He will be set at liberty forthwith, if not wanted for any other case. The appeal is allowed. Allowed.