Anna Chandy, J.- This appeal by the accused and the reference for confirmation arise out of the order of the Sessions Judge, Tellichery sentencing the appellant to death for murdering Vasu a thirteen year old boy. The case against him is that on the night of 12th June, 1961 he entered the louse of P.W. 1 Narayani and stabbed to death her thirteen year old son Vasu who was sleeping in the house. It may be noted in passing that the terse charge framed against the accused by the learned Sessions Judge merely states “that you on or about the 12th day of June, 1961 at Koodaliamsom, Tellichery Taluk, did commit murder on Bittan Vasu” omitting such necessary details as the time and the place. The boy Vasu and the twenty-three old accused were weavers in the Solar Weaving Factory and are said to have been very intimate friends. Vasu lived with his widowed mother P.W. 1 and an unmarried sister Janaki in Koodali amsom. The accused Raghavan used to visit Vasu in his house even at nights which gave rise to scandals. P.W. 2 the uncle of Vasu took offence at this and remonstrated with the accused. Thereupon he stopped his visits. Janaki was married on 7th June, 1961. On the previous day there was a feast in the house of P.W. 1 for Vasu’s co-workers. It is alleged that though the accused was present in the gathering he left the place without partaking in the feast. On 12th June, 1961 at about 2 p.m. it is alleged that the accused went to Vasu’s house when he was taking meals. Vasu without taking notice of the accused’s presence in his house left the house immediately. Vasu’s mother to whom the accused complained about Vasu’s indifference, pacified the accused. At about dusk Vasu accompanied by his friend P.W. 3. Balan came home and by 9 p.m. they went to sleep using the same mat. At about mid-night, P.W. 1 woke up hearing the cries of Vasu and she saw blood coming out from his neck. Vasu is alleged to have named the accused as the assailant and P.W. 3 is alleged to have actually seen the accused escaping from the place. Their cries brought P.W. 2 and others to the spot. Vasu was immediately taken to the Government Hospital, Cannanore, where he died at 5-10 p.m. the next day. Vasu is alleged to have named the accused as the assailant and P.W. 3 is alleged to have actually seen the accused escaping from the place. Their cries brought P.W. 2 and others to the spot. Vasu was immediately taken to the Government Hospital, Cannanore, where he died at 5-10 p.m. the next day. There is no eye-witness to the occurrence. The prosecution attempted to prove the case by the statement alleged to have been made by the deceased, the judicial confession, Exhibit P-9, two extra-judicial confessions, Exhibit P-4 a letter recovered from a box in the accused’s house and alleged to be written by him and the subsequent conduct of the accused of having attempted to commit suicide. The accused denied the deed, but admitted that he attempted to commit suicide on the night of 12th June, 1961 because of a chronic stomach trouble. He stated that he was not unfriendly with Vasu and denied having visited Vasu in his house on 12th June, 1961 at 2 p.m. He denied the authorship of Exhibit P-4 letter and the extra judicial confessions to P.Ws. 5 and 8. P.W. 1 is the mother of Vasu, P.W. 2 is her brother, P.W. 3 is the friend of Vasu, who is alleged to have slept near him on 12th June, 1961 and P.W. 4 is a neighbour. All these witnesses were not believed by the learned Sessions Judge when they stated that Vasu mentioned the name of Raghavan as his assailant. P.W. 1 the in other, said (hat she went to sleep at 11 p.m. and woke up hearing the deceased crying “Raghavan has stabbed me” . She got up and cried out when she found him bleeding from his neck. Then P.W. 3 got up. Their cries brought P.W. 2 the brother of P.W. 1 and several others and Vasu told all of them that it was Raghavan who stabbed him. P.Ws. 2 to 4 also said that all of them heard Vasu naming the accused Raghavan as his assailant. This attempt made by P.Ws. Then P.W. 3 got up. Their cries brought P.W. 2 the brother of P.W. 1 and several others and Vasu told all of them that it was Raghavan who stabbed him. P.Ws. 2 to 4 also said that all of them heard Vasu naming the accused Raghavan as his assailant. This attempt made by P.Ws. 1 to 4 to get at a dying declaration from Vasu as to the identity of his assailant was rightly turned down by the learned Sessions Judge in the face of the significant failure to mention he accused as the assailant in Exhibit P-1, statement given by P.W. 2 and the positive evidence of P.W. 6 the Doctor to whom Vasu had said that he did not know who stabbed him. The learned Judge has also disbelieved P.W. 5 to whom the accused is said to have confessed his guilt. P.W. 5 gave evidence that on hearing about the occurrence the next morning he searched for the accused and found him hiding in a deserted house with marks of injury on his neck when the accused confessed to him that he stabbed Vasu and then made an infructuous attempt to commit suicide by hanging. The learned Judge who examined him characterises his evidence as too artificial and improbable. He has further observed that the conduct of the witness at the investigation stage makes no doubt that he was a mere tool in the hands of the police. The witness had nothing to say about the accused’s admission of having stabbed Vasu in his statement recorded by the Magistrate under section 164, Criminal Procedure Code. He was rightly disbelieved by the learned Judge. We shall next examine the items of evidence on which the learned Judge has taken the decision that it was the accused who stabbed Vasu to death. Great reliance was placed by the Judge on the evidence of P.W. 8 the doctor who treated the accused and to whom the accused is said to have confessed that he attempted to commit suicide because he killed one of his friends. The said confession is inadmissible in evidence as it is hit by section 26 of the Evidence Act. The accused was sent in the company of Police Constables for medical examination and the Doctor says that they were actually present outside the room when the accused made the statement. The said confession is inadmissible in evidence as it is hit by section 26 of the Evidence Act. The accused was sent in the company of Police Constables for medical examination and the Doctor says that they were actually present outside the room when the accused made the statement. Section 26 bars a confession made by any person whilst he is in the custody of a Police Officer being proved against him unless it be made in the immediate presence of a Magistrate. It is well settled that when once an accused is arrested by a Police Officer and is in his custody and is temporarily left in charge of a private individual, that does not terminate the police custody and the accused shall be deemed to be in police custody. (Vide Haroon v. Emperor1, Emperor v. Mt. Jagia2, Hassan Pari v. Emperor3 and Ram Singh v. State4). In the Peshawar case the facts were identical. There the accused was sent in charge of a Police Head-Constable for medical examination made a confession to the Doctor during examination though not in the Head-Constable’s immediate presence. Exhibit P-4 letter is denied by the accused. It is alleged to have been recovered from a box in the accused’s house. P.W. 5 who has attested the mahazar gives contradictory version about the place from which the letter was recovered. In one place he would say that it was recovered from the box in the accused’s house and in another that it was recovered from the accused’s shirt pocket. Of course if the accused had written the letter with the idea of proclaiming to the world his intention to kill his friend and end his life, the shirt pocket should have been the proper place for the letter and evidently the version given by the witness as suggestive of some attempt in that direction. The recovery itself was not effected on the day of the accused’s arrest when the accused is said to have made a clean breast of the whole matter to the Sub-Inspector of Police and the Sub-Inspector 1 ad actually searched the accused’s house for the knife alleged to have been used by him. A box is certainly not a strange place to look for the knife. However the letter is not recovered that day. A box is certainly not a strange place to look for the knife. However the letter is not recovered that day. It turned up only the next day when searched for by the Circle Inspector who says the accused was questioned afresh by him. However he does not swear that it was on the information given by the accused that he happened to search for the letter again, in the accused’s house. The letter is also not referred to in the confession recorded by the Magistrate. The mention in it of several details which have no direct bearing on the case and which are not likely to lave come to the knowledge of ‘others is urged as a circumstance indicating the genuineness of the letter and militating against the theory of concoction. No such inference is possible in the total absence of any evidence to substantiate the truth of those details. The letter is sought to be proved by P.W. 10 a maistry in the Solar Factory He gave evidence that he is acquainted with the handwriting and signature of the accused and that the accused has written his name and signed in Exhibit P-11 a book maintained in the factory for payment of wages to the labourers. The accused stoutly denied the genuineness of Exhibit P-11. It appears to be a brand-new exercise book bearing no impress of a book maintained in a factory. P.W. 10 says there are other records in the office containing the handwriting and signature of the accused, but none were produced. The witness would say that he came to be acquainted with the accused’s handwriting and to have seen the accused signing Exhibit P-11 because he was the person responsible for the disbursement of the pay. However in cross-examination he had to admit that he had nothing to do with the payment of wages. Even the alleged handwriting and signatures of the accused on different pages of the book do not bear any striking similarity. A comparison by an inexpert agency and that of handwriting and signatures neither admitted nor properly proved is also not a safe test in a case of this nature. The conduct of the accused in attempting to commit suicide is another circumstance relied on by the lower Court. The accused admits having attempted to commit suicide but according to him he did so because of a chronic stomach trouble. The conduct of the accused in attempting to commit suicide is another circumstance relied on by the lower Court. The accused admits having attempted to commit suicide but according to him he did so because of a chronic stomach trouble. When the accused says that he thought of committing suicide because of a chronic stomach trouble, it is not for the Court to split up the statement and discard the portion favourable to the accused and use only the portion favourable to the prosecution. The explanation offered by him is a plausible one. There is nothing stranger if a patient suffering from gastric trouble attempts to end his life due to the constant pain and misery and consequent desperation. It may not be possible for the accused to positively prove the fact, nor is he expected to do so. The prosecution has to adduce acceptable evidence to connect the two incidents to enable the Court to find that one is a consequence of the other. The evidence of P.W. 8 has to be eschewed as inadmissible and the evidence of P.W. 5 has been found to be definitely false. No doubt the judicial confession made by the accused describes one as the consequence of the other but as we shall show presently, that confession is also of little value. The learned Public Prosecutor relies upon the evidence of P.W. 5 that the accused was found hiding in the ceiling of a deserted house the next day. According to him this also is conduct which would point to the accused’s guilt. P.W. 5 is rightly suspected as a creature of the police the most material portion of whose evidence is found to be false. It is therefore not safe to rely on his evidence except to the ex tent that it is admitted by the accused. When the accused was asked about the evidence of the witness he admitted that the witness met him in the house next morning when he told him that due to chronic stomach pain he attempted to commit suicide by hanging in the house itself. It is not proper or permissible to read into it an admission that he was hiding in the ceiling of the house. Even otherwise such conduct on the part of one who had made an infructuous attempt to commit suicide need not necessarily be connected with the commission of murder. It is not proper or permissible to read into it an admission that he was hiding in the ceiling of the house. Even otherwise such conduct on the part of one who had made an infructuous attempt to commit suicide need not necessarily be connected with the commission of murder. The attempt to commit suicide on that particular night is no doubt a strange coincidence which would give room for a strong suspicion. But law does not permit of neither the strangest of coincidences, nor the gravest of suspicions being substituted for proof. The existence of motive for the accused to put an end to the life of his friend that day is sought for as another link in the chain of circumstantial evidence. It is the prosecution case that Vasu and the accused who were the best of friends became estranged due to the obstacle put in the way of the accused’s nocturnal visits by P.W. 2 some time back and the indifference Vasu evinced towards the accused thereafter. The accused is alleged to have shown his resentment by not partaking in the marriage feast of Janaki though he was present on the occasion. An immediate provocation is sought to be provided by the visit of the accused to Vasu’s house the same day at about 2 p.m. and the insult offered by Vasu in leaving the house without talking to him. No one except the mother speaks about the accused’s presence in the house on that day or about the accused’s refusal to take part in the marriage feast which she admits was only a guess made by her. The accussed deniedboth these incidents. Similarly P.W.2’s evidence about his objecting to the accused’s nocturnal visits near about the marriage of Janaki is also denied by the accused. When out of spite born of grief the mother of Vasu and her brother were ready to create false evidence against the accused with regard to the alleged dying declaration it may not be safe to rely on this part of their evidence also. Moreover the reasons for estrangement mentioned in the two documents relief upon by the prosecution Exhibit P-4 and the confession are at variance. Moreover the reasons for estrangement mentioned in the two documents relief upon by the prosecution Exhibit P-4 and the confession are at variance. While the judicial confession says that Vasu’s feelings were estranged because of the scandals connecting the accused with his sister Janaki, the letter refers to the attempt of four or five persons addicted to evil ways to separate the accused and Vasu because they failed in their attempts to win them over to their evil ways and the accused being driven to a state of desperation on account of that. Whatever that be it cannot be said that the indifference or unfriendly behaviour of a friend would normally provide an exasperating cause for killing one’s friend and ending his own young life. We shall now advert to the adverse inference drawn from the fact that the accused answered the questions put to him by the Committing Magistrate by saying “I have nothing to say.” From this the learned Judge has drawn a very prejudicial inference that the accused did not deny his guilt in that Court. The accused was not questioned by the Magistrate regarding the judicial confession, the extra-judicial confessions, the attempt to commit suicide or Exhibit P-4 letter so as to enable him to deny or offer an explanation. The questions put to him are mostly about what happened to Vasu on that night and what Vasu said and naturally the only reply, which the accused whose case is that he had nothing to do with the murder, could give was the one he gave. The commitment order in this case shows that the Magistrate had actually relied upon those items of evidence to find that a case was made out for committal and in fairness to the accused the accused should have bee 1 afforded an opportunity to offer his explanation. The accused is certainly not 10 be prejudiced because of the failure of the Magistrate to put all the necessary questions. The only other item of evidence that calls for consideration is the judicial confession. The learned Sessions Judge was of the view that the confession is voluntary and true and sufficiently corroborated. Though the Magistrate who recorded the confession has taken care to conform strictly to all the formalities there arc some suspicious circumstances which would induce one to doubt its truth and voluntariness. The learned Sessions Judge was of the view that the confession is voluntary and true and sufficiently corroborated. Though the Magistrate who recorded the confession has taken care to conform strictly to all the formalities there arc some suspicious circumstances which would induce one to doubt its truth and voluntariness. Though the accused was arrested on the 13th and is said to have made a clean breast of the crime promptly no application to record the confession is made by the police till 17th June, 1961 and the confession was actually recorded only on 23rd June, 1961. Though there may be some justification for the delay after filing the requisition there is absolutely none for the earlier delay. The failure 1o disclose the whereabouts of the weapon of offence is a highly suspicious circumstance. TheSub-Inspector who questioned the accused on the 13th failed to get any in formation about the knife and he had to make an infructuous search of the houseof the acused. The Circle Inspector who questioned him afresh the next day also failed to get the information and even the judicial confession is silent about it. One would have expected the accused who was bent upon confessiong his guilt to all and sundry to have surrendered the knife before the police when he was arrested if he were really remorse-stricken. The confession is also devoid of a “wealth of details” generally seen in voluntary and true confessions. The accused does no1 say how he got into the room at the dead of night and mentions nothing about P.W.3who was sleeping on the same mat with Vasu. There is no mention of Exhibit P-4 letter or the motive indicated therein. There is also no reference to the alleged visit made by the accused to Vasu’s house on that fateful day and the immediate provocation for the murder. The accused has retracted the confession at the earliest opportunity afforded to him and it is significant that instead of putting forward the usual reason of police threats and use of force he states that he made it in a state of desperation. The explanation does not look strange when the working of his mindis said to be so strange. The accused has retracted the confession at the earliest opportunity afforded to him and it is significant that instead of putting forward the usual reason of police threats and use of force he states that he made it in a state of desperation. The explanation does not look strange when the working of his mindis said to be so strange. If it is argued that the accused’s mind was so unbalanced and perverted that he decided to murder his intimate friend and put an end to his own young life merely because of his friend’s indifference to him it can equally well be argued that such a perverted man brooding over the death of his friend could have decided to take on the responsibility for the death even if he had nothing to do with it. Suffice it to say that in the nature of this case the explanation given by the accused cannot be ruled out as false. If the confession does not appear to be true and voluntary no question of corroboration or the sufficiency of it arises. Even otherwise we do not feel that there is the necessary corroboration. The learned State Prosecutor laid stress on the observations made by the Supreme Court in Balbir Singh v. Punjab State1 and Subramania Goundan v. State of Madras2, that “The rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused person in the crime must be separately and independently corroborated,” and that “In the case of the person confessing who has resiled from his statement, general corroboration is sufficient.” and contended that the conduct of the accused in having attempted to commit suicide the same night can afford such “general” corroboration. In the cases cited there was the recovery of blood-stained clothes or the ornaments worn by the victim or similar circumstances connecting the accused directly with the crime. In this case where any such circumstance is conspicuous by its absence we do not feel that the subsequent conduct for which the accused has offered a plausible explanationwould be sufficient corroboration. Before closing we shall advert to a significant doubt-creating circumstance that exists in this case. The prosecution case is that the accused got into the house and stabbed Vasu who was sleeping on the same mat with P.W.3. Before closing we shall advert to a significant doubt-creating circumstance that exists in this case. The prosecution case is that the accused got into the house and stabbed Vasu who was sleeping on the same mat with P.W.3. There are only two doors of entrance to the house one to the east and the other on north. The mother gives evidence that she had closed both the doors before going to sleep and that the northern door was open when she got up on hearing Vasu’s cry. There is no knowing how the accused managed to open the door and gain entry. There is no evidence that it was possible to open the door from outside. There was no sign of anybody having broken open the door from outside. In answer to a pointed question put to her by the defence whether the door could be opened from outside the mother replied she could not say. In the Sessions Court the matter was left at that. But aquestion put to the accused by the committing Magistrate regarding the evidence of P.W.1 (vide Exhibit P-25) shows that P.W.1 tried to explain the accused’s presence by suggesting he must have got into the house before she closed the door and was hiding in the kitchen. This lacuna in the evidence assumes importance when we find the strange coincidence of P.W. 3 coming to spend the night in the house for the first time and sleeping with Vasu on the same mat and the stabbing takes place on that identical night. In the circumstances of this case it could as well be suggested by the accused that P.W.3 had something to do with the crime. Perhaps it was after comprehending the inconvenience caused by this intriguing circumstance that an attempt appears to have been made at the early stages to make P.W.3 himself say that he actually saw the accused escaping through the northern door (tide col. 11 (a) of the inquest). [* * * *] A similar attempt was also made by P.W.1 who said that he heard Vasu himself saying that he saw the accused escaping by the northern door. Having given our earnest consideration to the evidence in the case we: find it extremely unsafe to sustain the order of conviction. 11 (a) of the inquest). [* * * *] A similar attempt was also made by P.W.1 who said that he heard Vasu himself saying that he saw the accused escaping by the northern door. Having given our earnest consideration to the evidence in the case we: find it extremely unsafe to sustain the order of conviction. There are suspicious circumsces but not an iota of legal evidence and there is not a single clinching circumstance to connect the accused with the crime. The accused was seen nowhere rear the place of occurrence before or after the occurrence. The question as to the manner in which the accused gained entry into the house is left in doubt. No stain of blood was noticed on the clothes worn by the accused. The non-recovery of the weapon of offence at the instance of the readily confessing accused is also a highly suspicious circumstance. In the case of an accused who appears to be of a weak mind obsessed with a sort of sex perversion a false confession is not an impossibility. There are also decided attempts to create false evidence by putting forward imaginary dying declarations as to the identity of the assailant and the manner in which he managed to enter the house. In the total absence of legal evidence to warrant a hiding that it was the accused who caused the death of Vasu we are constrained to acquit him. The appeal is hence allowed and the conviction and sentence passed against the accused are set aside. He will be set at liberty forthwith. M.C.M. ----- Appeal allowed.