JUDGMENT : KAUL, J. 1. Bhavarlal, the appellant, before us was convicted by the learned Sessions Judge of Mandsaur for an offence under S. 302, Penal Code, and sentenced to transportation for life. He comes up in appeal. 2. We may state at once that the appellant's conviction cannot stand as the learned Judge committed a serious error of procedure which wholly vitiates the trial. 3. A charge under S. 302, Penal Code, is triable by a Sessions Judge with the aid of assessors. Under S. 284 of the Cole, when the trial is to be held with the aid of assessors not leas than three and, if practicable, four should be chosen from the persons summoned to act as such. Obviously, such a mandatory provision of the Code cannot be disregarded without vitiating the trial. In the present case we find from the record that after the commitment by the Magistrate the record was received in the Court of Sessions on 7-10-1949. On 26-11-1949 the Sessions Judge summoned five persons to act as assessors. Their names are Ibrahim, Madanlal, Iftikaruddin, Samrathmal and Umashankar. 12-12-1949 was fixed for commencement of the trial. On that date, it was noticed that two of the persons summoned to act as assessors viz. Ibrahim and Samarthmal were not served with summonses. Umashankar and Iftikaruddin did not attend though served with summons. Only one of the five persons named above Madanlal was present. So far as appears from the record and the learned Government Advocate has not been able to invite our attention to anything which would show it was otherwise-the trial commenced with only one assessor Madanlal. On that date, the charge sheet was read out to the accused and his plea of not guilty was recorded. The Public Prosecutor opened his case and the evidence of five prosecution witnesses was recorded. On the next date, that is, 13-12-1949 only Madanlal assessor was present but the case could not be taken up as the presiding Judge was unwell. It was adjourned to the next day. But unfortunately even on that day the case could not be taken up owing Co Session Judge's illness and the trial was adjourned to 3-1-1950. On that date though no assessor was present the trial continued. Eight witnesses were examined and the case was adjourned to 18-1-1950. It was adjourned to the next day. But unfortunately even on that day the case could not be taken up owing Co Session Judge's illness and the trial was adjourned to 3-1-1950. On that date though no assessor was present the trial continued. Eight witnesses were examined and the case was adjourned to 18-1-1950. It appears that having committed the first error at the commencement of the trial, the learned Sessions Judge was guilty of another error in ignoring the clear and mandatory provisions of S. 285, Criminal P. C., in proceeding with the trial without the aid of any assessor. Section 285 runs thus: "If in the course of a trial with the aid of assessors, at any time before the finding, any assessor is, from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. If all the assessors are prevented from attending or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors." 4. We are surprised to find that the learned Sessions Judge should have been oblivious of the general law on the subject and that the mandatory provisions contained in sub-s. 2 of S. 285 of the Code were disregarded. The last witness for the prosecution was examined on 18-1-1950. On 19-1-1950 the statement of the accused was recorded in the absence of any assessor. On that day the defence evidence was also recorded. The case having closed, judgment was pronounced by the learned Sessions Judge on 6-2-1950 without recording the opinion of the assessors. As no assessor was present naturally it was impossible to do otherwise. The learned Sessions Judge has made no reference to this subject in his judgment. Nor does he say anything as to the opinion of the assessors. We cannot believe that the learned Sessions Judge was not aware of these provisions of the law and at the same time we cannot understand how it was that he ignored them and proceeded with this trial as if no such provision existed in the Code. 5. The result therefore is that the order of conviction passed by the learned Sessions Judge is an order which cannot be said to have been passed at a legal trial. 5. The result therefore is that the order of conviction passed by the learned Sessions Judge is an order which cannot be said to have been passed at a legal trial. The appellant's conviction is therefore set aside. We considered whether in these circumstances we should order a retrial but having regard to the considerations to which we will refer presently we refrain from doing so. 6. The appellant was convicted of the murder of a child which was born to his wife Mt. Bhawari about the 18 or 19-8-1949. The appellant and his wife who had not been married many months before the present occurrence lived in the village Diken 8 or 10 days before the occurrence to which the trial relates; the appellant went with his wife to village Kurla where his maternal uncle and aunt resided. It appears that his aunt Mt. Ganga worked as a midwife. A few days after the appellant went to Ganga's house with his wife, Bhawari was delivered of a male child. The child was living when it was born. On 23-8-1949 Dhalla Bhil went to a well in the village known as for a wash and noticed the dead body of a child floating in the well. He carried the news to the numbardar of the village. The numbardar and other villagers had the dead body of the child taken out of the well and the matter was reported to constable Narayansingh at the police out-post in Kurla. The village choukidar Bhawarsingh was sent to make the first information report at police station Batangarh (ten miles distant). A report was recorded at Batangarh police station at 10 P. M. on 23-8-1949. The dead body of the child was taken by constable Narayansingh and Benia choukidar to Batangarh. They were met on the way by Head Constable Asgarali. Being aware that there was no surgeon present in Batangarh that day Asgarali asked Narayansingh and Benia choukidar to take the dead body of the child back to Kurla. It was mentioned in the first information report made by Bhawarsingh that the child born to Bhawari had been thrown into the well by the present appellant. It was further mentioned that Bhawarlal did so as it was an illegitimate child his wife having conceived it before her marriage. On what basis this assumption was made is not clear. It was mentioned in the first information report made by Bhawarsingh that the child born to Bhawari had been thrown into the well by the present appellant. It was further mentioned that Bhawarlal did so as it was an illegitimate child his wife having conceived it before her marriage. On what basis this assumption was made is not clear. It was alleged however that the child who was born at night lived for one day and died (or was killed) some time the next evening; that the dead body was placed in an apartment adjoining that into which the confinement took place; that Bhawarlal wrapped the child's body in a cloth in which he tied two stones and thereafter carried the corpse and threw it into the well and that he disappeared from the village thereafter. We have it from Police Nayak Vijayasing that on 23-8-1949 he met oonstable Sarwansing in village Pawali and was informed by him that inasmuch as Bhawarlal had thrown the child born to his wife into the well he had been taken into custody. Nayak Vijayasing thereupon directed Sarwansingh to bring the accused to Kurla. Investigation was taken in hand and after the usual magisterial inquiry the case was committed to the Court of Sessions. 7. We may mention at this stage that the next day after the first information report was made at Thana Batangarh the accused was said to have confessed his guilt. His confession was recorded by a Magistrate of First Class. This confession was produced at the magisterial inquiry. Bhawarlal, however, retracted it and stated that he had made it under pressure of the police. He stuck to this statement that the confession was extracted from him by the police even in the Court of Session. Evidence was led at the trial to show that shortly after Bhawarlal and his wife reached Kurla, Bhawarlal informed his aunt that the child conceived by his wife was illegitimate. He further said to his aunt that he would kill the child with a dose of opium. Evidence was led at the trial to show that shortly after Bhawarlal and his wife reached Kurla, Bhawarlal informed his aunt that the child conceived by his wife was illegitimate. He further said to his aunt that he would kill the child with a dose of opium. It was sought to prove that his aunt dissuaded him from doing so; that the child was born alive; that it was thrown into the well by the accused; that some opium which was in the house and of which the appellant was aware disappeared from the place where it was kept; that the dead body of the child was disposed of in the manner already stated; that the accused was seen taking the dead body of the child wrapped in a cloth to which he had tied two stones before throwing it into the well and that the accused suddenly disappeared from Kurla. 8. Besides other witnesses examined at the trial the prosecution examined Bhawari (the accused's wife), Ganga his aunt and Narayan his maternal uncle. The accused's aunt and uncle who appeared to support the prosecution case in the Magistrate's Court went back upon their statements and Ganga definitely stated that the child died the next day on which it was born. She could say nothing as to how it died. Bhawari the mother of the newly born child was medically examined by a Lady Doctor who was called as witness at the trial. She stated that after having examined Bhawari she was of opinion that "it was a full term delivery." The learned Sessions Judge accepted the confession made by the accused as a true confession. Besides the confession he was of opinion that the circumstantial evidence to which reference has already been made above established the guilt of the accused beyond reasonable doubt. 9. We have examined the confession, and are satisfied that it was not recorded in the manner provided by the law and, therefore, cannot be admitted in evidence under S. 164, Criminal P. C. A confession should be recorded and signed in the manner provided in S. 364 of the Code. 9. We have examined the confession, and are satisfied that it was not recorded in the manner provided by the law and, therefore, cannot be admitted in evidence under S. 164, Criminal P. C. A confession should be recorded and signed in the manner provided in S. 364 of the Code. Section 364 requires that the whole of the examination of the accused including every question put to him and every answer given by him shall be recorded in full in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English. We find that in the present case the Magistrate who recorded the confession did not note therein the specific questions he put to the accused and the answers that were given by him by which the Magistrate was satisfied that the statement made by the accused was voluntary. He has made a general statement at the commencement of the record of the confession that he had explained to the accused that it was not necessary for him to make a confession: that his statement was being made before a Magistrate and that the statement which he made could be read in evidence against him. We do not know how this was explained to the accused. We take it that the Magistrate was satisfied that he had sufficiently explained the points mentioned in his note to the accused and that the accused understood them. But that is not sufficient. The law requires that every question put to the accused and every answer given by him should be recorded in full. It is not sufficient that the Magistrate who recorded the confession should be satisfied with regard to certain matters. It is considered essential that the material on record should show to the Judge holding the trial or to the Court of Appeal that the questions put to the accused on the subject were understood by him and were of a nature which could satisfy a reasonable person that the requirements of the law in this behalf were complied with. The learned Government Advocate frankly conceded that the Magistrate has not complied strictly with the requirements of the Code in this behalf. The provisions relating to the manner in which confession should have been recorded contained in the Code are imperative. The learned Government Advocate frankly conceded that the Magistrate has not complied strictly with the requirements of the Code in this behalf. The provisions relating to the manner in which confession should have been recorded contained in the Code are imperative. The failure to observe them strictly, vitiates the record of the confession. Under S. 533 of the Code, if any Court before which the confession or other statement of an accused person recorded under S. 164 or 364 is tendered or has been received in evidence, finds that any provisions of either of such section has not been complied with by the Magistrate recording the statement it shall take evidence that such person duly made the statement recorded. The learned Sessions Judge, as he was of opinion that the confession was duly recorded did not naturally take any action under this section. We have considered whether we should do so now. However having regard to the long interval that has elapsed since the confession that was recorded it is not likely to serve any useful purpose to examine the Magistrate who recorded this confession. It is in the highest degree unlikely that he has any recollection of the case. Under the circumstances, we must proceed with the record as it stands and in view of the defect with which the record of this confession suffers we have to exclude it from our consideration as a piece of evidence against the present appellant. 10. If the confession is disregarded, there is hardly any material on which it can be held that the appellant's guilt is proved. In fact there is no direct evidence that the appellant murdered the newly born child. We are in doubt whether the child died a natural death or if it was murdered. The learned Sessions Judge brought on the record the statements of Narayan and Ganga recorded by the Magistrate during the inquiry and believed them in preference to the statements made by these witnesses at the trial. He was of opinion that these witnesses had after the statements made by them before the Magistrate bad resiled from them as they tried to save the accused. That may be so. It shows that the witnesses were persons who were amenable to pressure and were ready to change their statements made on oath from time to time. He was of opinion that these witnesses had after the statements made by them before the Magistrate bad resiled from them as they tried to save the accused. That may be so. It shows that the witnesses were persons who were amenable to pressure and were ready to change their statements made on oath from time to time. In these circumstances there is no guarantee that the earlier statements made by them were true. 11. There can be no doubt that the circumstances give rise to a suspicion against the present appellant. But suspicion can be no substitute for judicial proof. Under the circumstances even if we were of opinion that the appellant's trial was not vitiated by illegalities which rendered it void, we would not have upheld his conviction on the evidence before us. But as there has been no trial it is not possible for us to record an order of acquittal. We accordingly set aside the appellant's conviction and discharge him. He shall be set at liberty forthwith. 12. Even if after what we have said the State considers it necessary that there should be a retrial the appellant might be re-arrested. 13. A. H. Khan, J. :-I agree.