Judgment :- 1. The accused in Sessions Case No. 42 of 1124 on the file of the Sessions Court of Kottayam is the appellant. She was tried in the court below for the offence of murder under S.301 of the Travancore Penal Code. The charge against her was that she threw her own child, five months old, into a well in a compound not frequented by anybody at about 7.30 p.m. on 22nd Karkadagam 1123. The evidence disclosed the fact that she was a married woman. Her husband had abandoned her eight or ten years before the date of occurrence. She gave birth to an illegitimate child, after which her own people disowned her. The result was that she had to maintain herself and her little child by begging in the streets. The suggestion made on behalf of the prosecution is that she found the child an encumbrance in these circumstances and, therefore, she resorted to this drastic method of putting an end to the life of the child and thus getting rid of that encumbrance. 2. The evidence adduced at the trial did not establish the offence alleged to have been committed by the accused. This is made clear by the learned judge in his judgment. He divides the evidence into two wide classes. One set of witnesses referred to the fact that shortly before dusk on the date of occurrence, the accused was seen going by the side of the well with the child in her arms. Later on she was seen alone without the child. There was no person who witnessed the child being thrown into the well by the mother. The other evidence consisted of alleged extra judicial confessions made by her when questioned as to what had happened to her child. With regard to both these classes of evidence the learned judge makes the following observations: 'As regards the first set, even if their evidence is accepted it will only lead to some sort of suspicion. As regards the second set, I am not inclined to place any reliance on it'. With regard to both these classes of evidence the learned judge makes the following observations: 'As regards the first set, even if their evidence is accepted it will only lead to some sort of suspicion. As regards the second set, I am not inclined to place any reliance on it'. Then the learned judge gives his reasons for disbelieving the testimony of the witnesses who have spoken to the second phase by saying that if she was so careful as to select a well in a compound that was not frequented by anybody for destroying her child, it is hardly likely that she would go about publishing the fact that she had killed her child in this manner subsequently. We are in agreement with the view expressed in the judgment of the trial court that the evidence adduced at the trial did not bring the guilt home to the accused. 3. What the leaned judge seems to have done after hearing the prosecution evidence is this. According to the provisions of S.282 of the Travancore Code of Criminal procedure, after the witnesses for the prosecution have all been examined and before the accused is called on for his defence, the court has the power of asking questions to the accused. But the opening words of the section indicate what the object of this provision is. According to the opening words. "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may question him generally". Therefore the object is clearly laid down in the section that it should be to enable the accused person to explain any circumstances appearing in evidence against him. The object is not to supplement the evidence adduced by the prosecution to prove the guilt of the accused. The object is not to fill in gaps in the story given by the witnesses for the prosecution. The corresponding provision of law in Union of India is to be found in S.342 of the Code of Criminal Procedure the wording of which corresponds to the wording of S.282 of the Travancore Criminal Procedure Code. In India, the English practice has been followed. Courts have always taken the view that the condition mentioned in the opening words of S.342 of the Code of Criminal Procedure, must be strictly observed by courts when questions are put under this section. In India, the English practice has been followed. Courts have always taken the view that the condition mentioned in the opening words of S.342 of the Code of Criminal Procedure, must be strictly observed by courts when questions are put under this section. In other words, the view taken has been that if there are no circumstances established against the accused person by the evidence adduced on behalf of the prosecution, then no question should be asked to the accused person. If in such circumstances questions are put there is danger of the accused person making a statement which may incriminate him. That is not the object of asking questions under the section. Therefore, if there are no incriminating circumstances established by the evidence for the prosecution and in spite of that the trial court asks questions under this provision of law the answers given by the accused person cannot be regarded as evidence in the case and cannot be construed against him for supporting a conviction. One of the leading case on the point is Re Abaibulla Rowthan ILR 39 Mad. 770. The head-note contains the substance of the decision. It is as follows: "If in a criminal case the prosecution has not let in any evidence implicating the accused or some of the accused in the crime charged, the Magistrate is not entitled under S.342 of Criminal Procedure Code to put questions to such accused or to invite them to make a statement; and this rule equally applies to trials before the Sessions Court. Answers to questions received by the committing Magistrate in contravention of S.342 of the Criminal Procedure Code are not admissible in evidence against the accused in the subsequent trial before the Sessions Court". In the judgment the learned judges states as follows: "S.342 of the Code of Criminal Procedure only gives the Magistrate the right to question the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. We think that where no evidence has been given implicating the accused, the Magistrate has no right under the statute to put questions to the accused or to invite him to make a statement. We further think that if a statement is made by the accused in such circumstances it is not admissible evidence against the accused on his subsequent trial. We further think that if a statement is made by the accused in such circumstances it is not admissible evidence against the accused on his subsequent trial. This is in agreement with the decision of White, C.J. in Mohideen Abdul Kader v. Emperor (ILR 27 Mad. 238) and the same principle was applied by Erle, J. in Reg. v. Berriman (1854) (6 Cost Cr. C. 388) to a statement elicited from a prisoner improperly questioned by an examining Magistrate. The same objection applies to the answers elicited from the accused by the learned judge at the trial". This was referred to and followed in a number of subsequent decisions. It is enough to refer to two of them. One is In re Grandha Sarabayya A.I.R. 1943 Mad. 408 and the other Emperor v. Kuppammal AIR 1941 Mad. 1, where the learned judge in similar circumstances held that there was no case to go to the jury and that the statement made by the accused in that case could not be acted upon for basing a conviction. 4. In the present case, it is quite clear from the judgment of the learned Sessions Judge that the evidence called for the prosecution to prove the charge against the accused did not establish a case under S.301. There was no evidence to show that the accused threw the child into the well, although there was ground for suspicion that she might have done it. But suspicion is not proof and a conviction cannot be based upon suspicion. That principle has been realised by the learned trial judge in the present case, because he says in his judgment that the evidence merely creates a suspicion in the mind of the judge and does not amount to proof of the offence. Then the learned judge describes what the accused said in the course of the trial in the following words: "The charge was explained to her and with great remorse she admitted that she has committed the crime. At the close of the prosecution case also, she was asked whether she had anything to state and then also with remorse and tears she admitted that she did so and prayed for forgiveness. Now she feels repentence for committing a crime thoughtlessly. I accept her statement before this court, and accordingly find that she threw the child alive into the well". Now she feels repentence for committing a crime thoughtlessly. I accept her statement before this court, and accordingly find that she threw the child alive into the well". From the last sentence read above, there cannot be any doubt that the conviction of the appellant under S.301 of the Travancore Penal Code was based solely upon the statement made by her at the trial, that is to say, the statement made by her when questions were asked under S.282 of the Travancore Criminal Procedure Code which corresponds to S.342 of the Indian Criminal Procedure Code. The answer given by the accused at that stage of the proceeding according to a strict construction of the section and of the decisions under the corresponding section in the Union of India, should not have been used against her and we must hold that the conviction cannot be based upon the statement. If that statement is deleted then the evidence called by the prosecution did not establish that the accused had committed the offence with which she was charged. 5. According to the provisions of the Travancore Criminal Procedure Code, at the commencement of the trial the charge has to be read out and explained to the accused and at that stage it is open to the accused to plead guilty or not guilty. But where the accused pleads guilty, the court is not bound to accept that plea and pass sentence on the accused forthwith, although the court will be within its rights in acting in this manner. It is open to the court even when the accused has pleaded guilty, especially when the charge is of a serious crime like murder, to order that the trial shall commence and arrive at a conclusion on the evidence adduced at the trial. This is what the learned Sessions Judge chose to do in the present case. He was within his rights in directing the trial of the accused ignoring the plea of guilty and at the trial the evidence was clearly insufficient to support the charge. It is clear that the conviction was based purely upon the statement made by the accused in response to the questions put to her under S.282. This is not warranted by the provisions of that section and consequently the conviction cannot stand. 6. It is clear that the conviction was based purely upon the statement made by the accused in response to the questions put to her under S.282. This is not warranted by the provisions of that section and consequently the conviction cannot stand. 6. One other feature was brought to the notice of this court by the learned counsel appearing for the accused appellant, who has discharged his duties with ability. He invites the attention of the court to the fact that the medical officer who granted the post mortem certificate Ext. C was not called at the trial or even in the committing Magistrate's Court. He was available, although he was at the time of the trial, undergoing special training in an institution in Calcultta. He certainly could have been produced if the prosecution wanted to cite him as a witness. Instead of doing that, another medical man was called who did not see the dead body of the child and who was not present at the time autopsy was performed. He is P.W. 11 and the first thing that he said was that he could recognise the signature in the post mortem certificate as that of Sub-Assistant Surgeon Abraham. As soon as he said that, the trial court admitted the document in evidence. Later he was asked what his opinion was about the cause of death. He read through the document and said that the death must have been caused by drowning. It will be seen on a perusal of Ext. C the post mortem certificate that the doctor who performed the post mortem examination and granted the certificate was not sure of the cause of the death. He stated in the column "opinion as to the cause of death" "would appear to have died of asphyxia probably due to drowing". This was essentially a cause in which the Doctor who gave the certificate should have been called and asked about the opinion expressed by him in this halting manner in the column "opinion as to the cause of death". This also is a material defect in the case for the prosecution. 7. This was essentially a cause in which the Doctor who gave the certificate should have been called and asked about the opinion expressed by him in this halting manner in the column "opinion as to the cause of death". This also is a material defect in the case for the prosecution. 7. In any event, for the reason that the conviction is based upon the answers given by the accused to the questions put to her under S.282 of the Travancore Criminal Procedure Code which ought not to have been asked, we are satisfied that the conviction cannot be supported. There is no other evidence to prove the guilt of the accused. The conviction in other words is based upon inadmissible evidence. We are therefore, constrained to interfere in appeal and to set aside the conviction and sentence passed by the court below. The accused shall be set at liberty, if she is not already undergoing imprisonment for any other crime. Appeal allowed and conviction set aside.