JUDGMENT Banerji, J.
1. The appellant, Musammat Jeochi, was charged with having torn off an earring from the ear of a boy named Muneshar, and has been convicted under Section 394 of the Indian Penal Code. The evidence adduced in the Court of Session did not at all prove the guilt of the appellant. On the contrary, that evidence showed that the ear of the boy had been torn by a mere accident. The witnesses examined in the Court of Session had all of them, with the exception of Sukhu, made statements before the Committing Magistrate which were diametrically opposed to those made in the Court of Session. The learned Sessions Judge purporting to act under Section 288 of the Code of Criminal Procedure, admitted in evidence the statements made by the witnesses in the Court of the Committing Magistrate, and has convicted the accused on that evidence alone. I must observe that, beyond the evidence which was so admitted, there was no other evidence before the learned Sessions Judge which proved the guilt of the accused. It is contended that the learned Sessions Judge was not justified in convicting the appellant on the evidence given by the witnesses in the Court of the Committing Magistrate and retracted in the Court of Session. The contention of the learned vakil is supported by the ruling of the Calcutta High Court in The Queen v. Amanulla (1874) 12 B.L.R. App. 15, which was followed by the Madras High Court in Queen-Empress v. Bharamappa (1888) I.L.R. 12 Mad. 123, and by this Court in Queen-Empress v. Dhan Sahai (1885) I.L.R. 7 All. 862. In the case last mentioned, it was observed by Straight, J., that "Section 298 was never intended to be used so as to enable a Court trying a ca3e to take a witness'' deposition bodily from the Magistrate's record, as the Judge has done here, and treat it as evidence before himself." With these observations I fully concur. As remarked by Morris, J., in Queen v. Amanullah (1874) 12 B.L.R. App. 15, a Court of Session may admit in evidence the statements made by witnesses before the Committing Magistrate when such evidence "is to a certain extent corroborated by independent testimony before himself." There was no such testimony in the present instance. It is true that the attention of the witnesses was called to the statements made by them before the Committing Magistrate, and that those statements were read to them; but the fact of that being done was not alone sufficient to justify the learned Sessions Judge in basing the conviction solely upon evidence no part of which was given before him. Further, having regard to the fact that the witnesses had in two Courts made diametrically opposite statements, it was unsafe to found a conviction on their testimony. I accordingly allow the appeal, and setting aside the conviction and sentence, I acquit the appellant of the offence of which she was convicted, and direct that she be at once released.