JUDGMENT : ANNA CHANDY, J. 1. The accused, Kalliani has preferred this appeal against the sentence of imprisonment for life passed against her by the Sessions Judge of Kozhikode for causing the death of her four month old illegitimate child by throwing it into a pond on the morning of 3-6-1960. 2. Kalliani aged 32 is an unmarried Nair woman who illicitly consorted with one Gopala Panicker and gave birth to a female child Vasumathi now aged about six years. After separation from Panicker, she and one Thiyya called Raman, Pw-15, carried on an illegal intimacy as a result of which she gave birth to a male child on 12-2-1960. It is alleged that by giving birth to a Thiyya’s child the accused brought disgrace upon the family and Pw-5 the husband of a sister of the accused who died 12 years ago, scolded her to “improve her character” some two weeks before the date of occurrence. It is also alleged that Pw-5 (though he does not admit it) insisted upon the removal of the Thiyya’s child from the house, and that caused the accused to kill her child by throwing it into a pond near her house on the morning of 3-6-1960. On 4-6-1960 Pw-15 the putative father who does not admit the paternity of the child, got frightened because of the rumour set afloat by the accused that the child was left in his house, went to Pw-1 Haji, a rich and respectable man of the locality, who promised to do the needful in the matter. Pw-1 made enquiries by questioning some women of the locality and in the end at about mid-night on the 4th, went to the house of the accused along with Pw-9. The accused first told them that the child was taken to its father, but when Pw-1 compelled her to tell the truth, she is alleged to have confessed to Pw-1 and Pw-9 that she threw the child into the pond and drowned it on the morning of the 3rd Pw-1 then returned to his house after directing Pw-9 to go to the Village Munsiff. Pw-9 was asked by Pw-1 not to tell the Village Munsiff anything about the murder, but only to ask the Munsiff to be sure to meet him in one Unnian’s shop on Sunday morning. Pw-9 was asked by Pw-1 not to tell the Village Munsiff anything about the murder, but only to ask the Munsiff to be sure to meet him in one Unnian’s shop on Sunday morning. When the Village Munsiff did not go over as desired by Pw-1, he sent Pw-3 to the Kalikavu Police Station without asking him to mention anything about the murder of the child by the accused, so much so that on the 5th at 11 a. m. the Police had to register a case of “suspicious death” and to begin the investigation by going to the spot. Meantime the Village Munsiff getting information from Pw-16 a Kolkaran about the missing of the child sent Pw-17 another Kolkaran to the spot. Pw-17 questioned the accused who is said to have readily confessed to him that she drowned her child. Pws-17 and 18 then went to the accused’s house and took her to the pond, and recorded her confessional statement, when the Sub-Inspector reached the place and took charge of the matter. Though there was the confessional statement recorded by the Village Munsiff and the statements of four witnesses at the inquest that the accused had confessed to the crime the Sub-Inspector did not arrest the accused on the 5th itself. She was arrested only at 10 a.m. on the 6th. The child was identified by Pws-10 and 11 and others. The autopsy was conducted by Pw-7 but the body was so far advanced in decomposition that the cause of death could not be ascertained. The accused was sent to the Tirur Magistrate, who recorded her confession Ext. P-3. Completing the investigation, the charge was laid on 24-6-1960. 3. The accused pleaded not guilty and retracted every confession and stated that she did not kill her child which was left in the house of its father on 2-6-1960. 4. There is no direct or circumstantial evidence worth the name to connect the accused with the crime. The prosecution has put forward Pws-1, 10, 17 and 18 as persons to whom the accused confessed her guilt. The judicial confession Ext. P-3 is accepted as the best evidence and the court has also relied upon the evidence of motive and the fact that the child was found alive last in the custody of the accused as corroborating circumstances. 5. The judicial confession Ext. P-3 is accepted as the best evidence and the court has also relied upon the evidence of motive and the fact that the child was found alive last in the custody of the accused as corroborating circumstances. 5. We shall first deal with the so-called extra-judicial confessions to Pws-1, 10, 17 and 18. Of these the two persons who have impressed the learned Judge with their respectability and credibility are Pws-1 and 18. Pw-1 may be a rich man paying to Government Rs. 104/- as land revenue, but his conduct is strange and suspicious. He says that at midnight on 4-6-1960 when he and Pw-9 went to her house and when he insisted on the accused to tell the truth she confessed that she threw her child into the pond on the morning of 3-6-1960 and killed it. A series of circumstances prove that the accused did not make any confession. Pw-9 who was sent to the Village Munsiff after the alleged confession, is asked not to tell the Village Munsiff what really was the matter. There is no reason why the information of a murder case should be withheld from the Village: Authorities. Pw-18 says that he did not go over as Pw-9 did not disclose the matter to him. Pw-1 explains this strange conduct by saying that he did not want the Village Munsiff to send his yadast to the police without meeting him in person. Again Pw-3 who is sent by Pw-1 to inform the police on the morning of the 5th did not mention anything to the police about the accused throwing the child in the pond, on the morning of 3-6-1960. The police had therefore to register the case as a case of suspicious death and to put down the date of the missing of the child in the First Information Report as three or four days prior to 5-6-1960. Pw. 2 gives evidence that on the morning of the 5th Pw-1 questioned him as to what happened to the accused’s missing child. If at about mid-night on 4-6-1960, the accused had confessed, this enquiry by Pw-1 was unnecessary and uncalled for. Pw. 2 gives evidence that on the morning of the 5th Pw-1 questioned him as to what happened to the accused’s missing child. If at about mid-night on 4-6-1960, the accused had confessed, this enquiry by Pw-1 was unnecessary and uncalled for. Again, it is strange that Pw-1 who got excited over the missing of a four month-old child and who had taken the trouble to go out for a mid-night enquiry did not himself care to go to the pond which was very close to the accused’s house or to send Pw-9 or Pw-15 or anyone of his numerous followers to the pond to see whether the body was there. Even on the morning of the 5th Pw-1 did not go to the pond of his own accord. All these are suspicious circumstances that make the midnight confession a myth. Pw-1’s own version makes the confession to him (if there was one) not voluntary. According to him the first thing the accused told him was that she left the child with its father Pw-15 and it is only when he insisted on the accused telling the truth she said that she threw the child into the pond. The accused never went to Pw-1 for confessing and asking for his help. Pw-1 went to her for the sake of Pw-15 and that at mid-night and compelled her to tell the truth. This extra-judicial confession at midnight even if there was any such thing is not voluntary and true. The anxiety of Pw-1 to keep the information of the murder from the authorities appears to be suspicious. No responsible citizen would suppress information of a murder case nor would he think of deflecting the course of police investigation by trying to influence the authorities. If one were to do so, however rich and respectable he may be his civic consciousness’ and disinterestedness become questionable. On the whole we are not impressed with Pw-1’s impartiality. He seems to have had taken the side of Pw-15, who according to the defence is his regular coolie. The extraordinary energy exhibited by this man of sixty in making enquiries and making more than one trip to the accused’s house the last one at mid-night and extracting the confession from her indicates his anxiety to help his dependant in a difficult situation. The extraordinary energy exhibited by this man of sixty in making enquiries and making more than one trip to the accused’s house the last one at mid-night and extracting the confession from her indicates his anxiety to help his dependant in a difficult situation. It has come out in the evidence of Pw-12 that when she went to enquire about the accused at the instance of Pw-1, the mother of the accused told her that the accused had gone to the Village Munsiff. This information must have disturbed Pw-1 and others and all the anxiety evinced by Pw-2 to meet the Village Munsiff personally before the yadast is sent, perhaps might have been the result of this information. Respectability is one thing and credibility is another. Very respectable persons often take the sides of their followers and behave like biased persons Pw-1 seems to be no exception. 6. Ext. P-5 is the extra-judicial confession recorded by the Village Munsiff, Pw. 18. The learned defence counsel objects to this as an inadmissible document tainted with illegality in that it was prepared by Pw-18 in contravention of the provisions of R.72 of Madras Criminal Rules of Practice by which Village Magistrates are “absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the Police investigation has begun.” The learned Sessions Judge rejected the accused’s objection to Ext. P-5 on the grounds that the defence did not raise the objection at the proper time, and that police investigation had not begun when the Village Munsiff recorded the statement. We must say that we are not impressed with either of these reasons. It is an elementary principle that an illegality cannot be condoned because of the failure of the accused to raise the objection at the proper time. In a similar case of confession to village authorities, reported in ILR. 26 Madras 38 - Thandrava Mudaly v. Emperor - Benson and Moore, JJ., have held that “the Village Magistrate is a “person in authority” and the failure to raise any objection by the accused or his pleader to the admission of the confessional statement does not render it any the more relevant or admissible.” When the Village Munsiff was recording the statement, the Police investigation had in fact begun. Whereas Ext. Whereas Ext. P-5 is timed as 3 p. m. on 5-6-1960, the First Information Report is timed as 11 a. m. i. e. 4 hours earlier than Ext. P-5 and there is an entry in the First Information Report, “no delay, investigation begun.” Proceeding to the scene of the crime after recording the First Information Report is certainly a step in the investigation of the crime. Pw-18 himself admits that when he began to record the statement he was aware that somebody had been sent to the police and the police were expected. The indications are that Ext. P5 could not have been recorded before the police came to the scene. Pw-18 would have it that he went to the place at 3 p. m. and took ten minutes to record the statement and did not even find time to get it attested since the police had arrived at the spot by that time. The dramatic appearance of the police on the spot exactly at the moment, the illegal recording of a confessional statement was almost completed by Pw-18 looks rather suspicious. Pw-2 is definite that the Village Munsiff came to the place at 10 a.m. and the police came there at about 10-30 a.m. Pw-18 -himself admits that he did not do what he ought to have done as a Village. Munsiff. “When death of a suspicious nature was reported, he says the statement of the informant should be taken and the yadast should be prepared and sent to the police.” He did not do so in this case. “As soon as I received the information I went to the spot. This is not the rule. I thought of sending the yadast after going to the spot. I took the statement Ext. P-5 because I saw the accused. I went to the accused’s house before I went to the pond. Pw-17 told me that the dead body was found in the pond.” Admittedly the Village Munsiff violated the rule and delayed sending the information to the police for reasons of his own. The Village Munsiff as per the rule is bound to expedite police investigation by sending the yadast immediately. His was not the duty to usurp the function of the police officer by investigating into the offence, and recording the accused’s confessional statement. When the Village Munsiff purposely delayed informing the police, perhaps to oblige Pw. The Village Munsiff as per the rule is bound to expedite police investigation by sending the yadast immediately. His was not the duty to usurp the function of the police officer by investigating into the offence, and recording the accused’s confessional statement. When the Village Munsiff purposely delayed informing the police, perhaps to oblige Pw. 1, the delay of the police in reaching the spot for investigation cannot afford him a ground for violating the law. Again Pw-18 is positive that Ext. P-5 is recorded in the very words of the accused. The accused is an illiterate woman and a mere comparison of the wording of Ext. P-3 judicial confession with Ext. P-5 would convince any one that the accused could not be credited with such a thoroughly legal and grammatical statement as the latter. Two other persons who speak of the accused’s confession are Pws-17 and 10. Pw-17 is the peon of the Village Munsiff. His version naturally fits in with his master’s and is subject to the same infirmity. Further he would say that the accused made the confession to the Village Munsiff even in her house a fact which he did not tell the police. Pw-10 daughter of Pw-9 speaks of a confession made to her on the 4th. But she makes no mention of it in her police statement and admittedly discloses it for the first time in the Sessions Court. The failure of the Sub-Inspector to arrest the accused on 5-6-1960 after questioning all the witnesses to whom the accused is alleged to have confessed in the inquest and seizing Ext. P-5 casts the greatest doubt on the bona fides of the prosecution case. It is indeed hard to believe that a police officer would permit a self-confessed murderer who has come into his bands to escape in the hope that the murderer could be arrested later. The explanation offered by the Sub-Inspector makes it worse He says that he had not the sufficient number of police men with him to escort the arrested woman. The Sub-Inspector admittedly had two police men with him and the Village Munsiff had two kolkars. He could have indented on the service of any person to help the constable to escort the accused to the station if he really wanted. The Sub-Inspector admittedly had two police men with him and the Village Munsiff had two kolkars. He could have indented on the service of any person to help the constable to escort the accused to the station if he really wanted. It is strange that the Sub-Inspector’s lame excuse for not arresting the accused in a murder case has been accepted by the learned Sessions Judge. To us, it appears that there is only one inference and that is that the accused had not confessed either to the Village Munsiff or to the Police and that the record of extra-judicial confession made in the inquest and Ext. P-5 is not true. 7. The judicial confession, Ext. P-3 is singularly cryptic and devoid of details. The accused does not openly acknowledge her guilt nor does she unequivocally admit the commission of a crime. The confession Ext. P-3 reads thus: “Last Friday, I put my child into a pond on the northern part of the Thodikkavila compound. My brothers told me that the child should not be seen here. I did so because of this difficulty.” Admission of having put the child into the pond by itself is not a confession of murdering it. If the child was not alive at that time and if the child did not die of drowning, the accused cannot be charged with killing it. The utmost that can be said about Ext. P-3 is that it may be an admission of an incriminating fact. It cannot be considered as anything more, especially when it is seen that the cause of the child’s death is not known. In AIR. 1939 P. C. 47 - P. Narayanaswami v. Emperor - their Lordships of the Privy Council have defined confession: “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of itself a, confession”. Their Lordships have also added that some confusion appears to have been caused by the definition of confession in Article 22 of Stephen’s Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Their Lordships have also added that some confusion appears to have been caused by the definition of confession in Article 22 of Stephen’s Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. This definition of confession is not contained in the Evidence Act and “that in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime”. This view has been followed in several later cases. The Sessions Judge has set great store on the voluntary nature and truth of the confession. Evidently he has not carefully compared Ext. P-3 judicial confession and Ext. P-5 the confession recorded by the Village Munsiff. In Ext. P-5 the fact that the child was alive when the accused threw it into the pond and that it died as a result of what the accused did are clearly stated unlike as in Ext. P-3. This difference in the wording ought to have warned the court to be on its guard in assessing the truthfulness and voluntariness of the confession in Ext P-3. The legal formalities complied with by the learned Magistrate are no sure guarantee of the truth of the confession. We are yet to see a Magistrate expressing doubt as to the truth or voluntariness of the confession he recorded. “All judicial confessions bear the stamp of the recording Magistrate’s approval.” The truth of the confession does not depend on the mode of its recording alone. In assessing the value of a confession, the entire set up of the prosecution case and the surrounding circumstances and most of all the intrinsic value of the confession itself will have to be taken into account. Viewed in this light, Ext. P-3 confession does not appear to be a true and voluntary one. 8. We shall now consider the evidence regarding the motive for the crime. In a case based on purely circumstantial evidence the motive for the crime is of importance and it is significant that in this case prosecution had not been successful in establishing that the accused had an adequate motive to commit this unnatural crime. 8. We shall now consider the evidence regarding the motive for the crime. In a case based on purely circumstantial evidence the motive for the crime is of importance and it is significant that in this case prosecution had not been successful in establishing that the accused had an adequate motive to commit this unnatural crime. The disgrace of having given birth to an illegitimate child and the threat of Pw-5 that the child should not be seen in the house is put forward as the motive for the crime. But Pw-5 who is the best witness to speak of what he told the accused does not utter a word about it. All he says is that he “chastised”, evidently by words, the accused to improve her character. He makes no mention of the child. Even about this alleged chastisement there is a discrepancy in the date - according to the Case Diary Statement of Pw-5 which is marked as Ext: D-1 it is one and a half months back whereas according to his evidence it is two weeks back. He did not quarrel with the accused when she gave birth to an illegitimate child now five or six years old and he has not thought it fit to “chastise” her till the Thiyya’s child was four months old. In this connection it is also to be noted that in her confession, the accused had nothing to say about the “chastisement” by her brother-in-law. On the other hand, what she stated was that her brothers scolded her. The prosecution has no case that the accused has any brothers. Ext. P-5 is also significantly silent about the Thiyya being the father of the child and the consequent quarrels in the family. The accused who is described to be a woman of easy virtue leading an immoral life cannot suddenly become so desperate as to kill her four month old male child simply because her brother-in law (husband of a sister who died 12 years ago) either two weeks or one and a half months ago tried to improve her character by a wordy “chastisement”. Unless there is evidence to show that something happened at or near the date of occurrence, which radically altered the situation, it cannot be said the accused had an adequate motive to kill her own child. The alleged motive fails and the matter gets shrouded in doubts. Unless there is evidence to show that something happened at or near the date of occurrence, which radically altered the situation, it cannot be said the accused had an adequate motive to kill her own child. The alleged motive fails and the matter gets shrouded in doubts. Thus there seems to be only a semblance of a motive which has been given undue importance by the trial court. It should have been borne in mind that an alleged motive can mislead and vitiate the appreciation of evidence if that is relied upon before the other evidence is discussed and appreciated. This seems to be a typical case where such a wrong approach has been made. 9. We shall next consider the defence case. The accused’s definite case is that she did not kill her child, but it was taken to its father’s home and left there. There is nothing unreasonable or false in this defence and she was putting forward that version from the earliest moment when she was questioned by Pw-1 and her neighbours as to what happened to the child. The explanation that the child was left with the father is quite reasonable especially when some days previous to the occurrence, the prosecution admits, the accused left her child in the house of Pw-l6 and his mother had to take it back. It will also explain away the main circumstance relied upon by the prosecution to connect the accused with the crime, viz., that the child was last seen alive in ‘ the custody of the accused on 2-6-1960. The most natural thing for a woman of easy virtue in the accused’s situation is to leave her illegitimate child on the verandah of its father and refuse to leave the place till the perfidious father acknowledges his responsibility. Leaving the father scot free and exposing herself to the danger of a sentence of death for the murder of the child appears to be an action incredibly foolish. Some such thing as the accused pleaded from the beginning could well have happened and it does not appear too unreasonable to argue that the putative father, a Thiyya who has a caste wife & a child living with him, had at least an equal motive to do away with the child as the immoral mother, who brought up her illegitimate child to four months without any mishap. The undue haste with which Pw-15 moved Pw-1 to help him before anybody accused him is a guilt conscious conduct. The movements of the accused after the alleged drowning of the child have not been traced. The prosecution has not acted fairly in not examining witness No.16 Govindan Nair the permanent Village Munsiff who is cited in the charge-sheet to prove the fact that the accused went to him to complain against Pw-5 on Saturday evening, that is 4-6-1960. A material witness cited in the charge-sheet is not examined evidently to weaken the plea of the accused that the child was left with the father, Pw-15. If the accused went to the permanent Village Munsiff on the evening of the 4th to complain about Pw. 5 that circumstance probablises the defence suggestion that Pw-5 who claims to be master of the house-hold anxious to wipe out the disgrace to the family, had something to do with the tragedy. The learned Sessions Judge who indicts the accused because of her subsequent conduct seems to have overlooked the significance of the non-examination of the permanent Village Munsiff cited in the charge to prove her subsequent conduct. The defence plea gains in strength when the circumstantial evidence adduced in the case does not lead to the sole conclusion that the accused and accused alone had thrown the child into” the pond. The circumstances proved in the case are capable of being explained by more than one theory. The possibilities are many and doubts assail us from every side. Apart from the one incriminating circumstance in Ext. P-3 the confession before the Magistrate, there is nothing that proves her guilt and in our opinion that equivocal confession of hers which stands retracted and uncorroborated in any material particular, is by itself, insufficient to justify a conviction for murder. 10. In the result the appeal is allowed and the conviction and sentence entered against the accused are set aside. She will be set at liberty forthwith. Allowed.