JUDGMENT Surajbhan, J. This is an appeal by Shyama @ Shyamlal son of Ramprasad of district Hoshangabad against his conviction under section 304 Part II and sentence of four years rigorous imprisonment. The facts of the prosecution case lie in a narrow compass. The appellant and the deceased Babu had adjacent fields at the relevant time. It is alleged that both of them were mending fencings of their respective fields at about 9 A. M. on 10-7-1970 when there arose a dispute between the two about the boundary of the lands. It is further alleged that the appellant had given a blow to the deceased on his head with a Dhasva wooden stick Art. A-1 with the result that the deceased Babu died on the way when he was being taken to the hospital. A report of this incident was made by Babulal son of Nathuram vide Ex. P-18 and the appellant was prosecuted for an offence under section 302 of the Indian Penal Code. At the trial, the accused-appellant abjured his guilt and his defence was that he has been falsely implicated. He also said that he was working on fencing of his field on the date of the incident and had left for his house at about 8 30 A. M. He has, however, examined no witness in defence. The learned Judge, relying on Ex. P-6, the statement of Ramkaran (P. W. 7) made before the committing Magistrate, coupled with the statement of Gorelal (P. W. 4) came to the conclusion that the accused-appellant was guilty of an offence under section 304 Part II of the Indian Penal Code and convicted and sentenced him as aforesaid. It is not in dispute nor can it be disputed that Babu deceased met a homicidal death. This fact is otherwise amply proved by the evidence of Gyanibai (P. W. 1.) Gorelal (P. W. 4) and Dr. Agarwal (P. W. 6). Dr. Agarwal (P. W.6) conducted the post mortem examination on the body of the deceased Bubu on 12-7-1970 and found one contusion 3"x 1" with lacerated wound l"x" skin deep over the left frontal region scalp. On dissection, he found a depressed comminuted fracture of the skull. The doctor opined that the injury was ante mortem and it was sufficient in the ordinary course of nature to cause the death. His post mortem report is Ex. P-4. On dissection, he found a depressed comminuted fracture of the skull. The doctor opined that the injury was ante mortem and it was sufficient in the ordinary course of nature to cause the death. His post mortem report is Ex. P-4. Now, the only question that requires decision in this appeal is whether the appellant was the person who had caused the injury to the deceased which ultimately culminated in his death. There is no eye-witness to the scene of the occurrence. The case of the prosecution rests on the circumstantial evidence. Shri. R.C. Rai, learned counsel for the appellant, has taken me through the statement of Ramkaran (P. W. 7) made before the committing Magistrate and which has been brought on record of the Sessions case, vide Ex. P-6, and also to the statement of Gorelal (P. W. 4) and contended that this evidence is not sufficient to conclude that the accused and the accused was the only person who was responsible for the death of the deceased. Shri. J.M. Sood, on the other hand, has urged before me that the conviction of the accused-appellant is proper and it needs no interference. Having given my careful attention to the contentions raised before me, I am of the view that the accused appellant is entitled to the benefit of doubt for the reasons I presently show Section 288 of the Code of Criminal Procedure says that 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. It is true that the evidence given before the committing Magistrate's Court can be brought on sessions record under this section and is treated as a substantive evidence. It is pertinent to note that section 288 of the Code of Criminal Procedure has to be very carefully used. The discretion is exercisable by the Judge alone, judicially when he is convinced that the witness is not telling the truth, and as aforesaid, the object of this section is to enable the Court, in the interest of justice, to make use of his former statement if that statement is found to be more reliable. The discretion is exercisable by the Judge alone, judicially when he is convinced that the witness is not telling the truth, and as aforesaid, the object of this section is to enable the Court, in the interest of justice, to make use of his former statement if that statement is found to be more reliable. In the instant case, the proceedings dated 25-2-1971 show that the learned Judge has nowhere said that the statement of Ramkaran (P. W. 7) recorded in the Committing Magistrate's Court be taken on sessions record for the purpose that he was not telling the truth in the sessions Court and whatever he has stated in the committing Magistrate's Court was true. The learned Judge, while recording the statement of Ramkaran (P. W. 7) in paragraph 4 of his statement, has said that the P. P. was allowed to cross-examine the witness and the relevant portion is as follows: .... It is quite clear that the learned Judge has not exercised his discretion. It must be noted that the prosecution or the defence has no right to put the statement in the record unless the Judge alone is convinced that the witness was not telling the truth. Furthermore, the statement of Gorelal (P. W. 4) also is not convincing. In paragraph 2 of his statement, he has deposed that the accused, while running, had passed by his side, but in paragraph 8 of his statement, he has deposed as given below: From a perusal of the above statement, it is quite clear that he himself had not seen and recognised the person who was running away to be the appellant. He had only named him as he was told by Ramkaran. It is manifest that he himself had not made a mental note to the effect that the person running away was the accused-appellant and none else. Even the weapon of offence found by the side of the deceased was not found blood-stained. Ramkaran (P. W. 7) has admitted in his statement that the relations between him and Shyama appellant were strained for the last 20 years. It is also pertinent to note that the statement of Ramkaran (P. W. 7) was recorded under section 164 of the Code of Criminal Procedure which means that at one time, it was expected that he may not tell the truth. It is also pertinent to note that the statement of Ramkaran (P. W. 7) was recorded under section 164 of the Code of Criminal Procedure which means that at one time, it was expected that he may not tell the truth. Looking to the evidence on record, as aforesaid, it cannot be conclusively said that the appellant and the appellant was the only person who had caused injuries to the deceased which resulted in his death. Therefore, I do not find safe to convict the appellant on the above statement and he is given the benefit of doubt. The result, therefore, is that the appeal is allowed. The conviction and sentence under section 304 Part II of the Indian Penal Code are set aside and he is acquitted and the bail bond executed by the appellant shall (stand) discharged. Appeal allowed