[1] The appellant has been convicted of the murder of his daughter, with whom he is alleged to have been on bad terms. They were living together in the French portion of a village which is partly in French and partly in British territory. The appellant, it is said, went away with his daughter on 15th or 16th July, 1926, and returned the next day alone. On 18th P.W. 1 complained to the French police that the appellant had murdered his daughter and at about the same time the appellant reported her disappearance. The appellant was arrested and at once made a confession to a police officer, who has since been dismissed for torturing prisoners in order to extract confessions from them. After this the appellant was placed before the Juge d Instruction, to whom he made a statement (Ex. J-l) that his daughter was tired of life and that he assisted her to commit suicide. Though it was by then obvious that the murder...if it was a murder...was committed in British territories, a French Sub-Inspector, accompanied by a British Constable took the appellant to the river where his daughter had been drowned. The body was not found at the place indicated by the appellant. On the next day it was found a considerable distance away on information furnished by a shepherd boy. That death was not due to natural causes is clear. For the hands had been tied together and the cloth weighted with bricks. At the same time, there was nothing to show that the woman had been stunned or that there had been a struggle between her and her father before her hands were tied and her cloth was filled with bricks. The Juge d Instruction, who is a sort of committing Magistrate, with power to commit or discharge a prisoner, but not to convict, continued his enquiries till January, 1927, when he sent the appellant up to the Chambre des Mises on accusation at Pondicherry. The Court in April held that it had no jurisdiction as the crime had been committed in British territory and the appellant was a British subject. What happened after that is not clear, but it was not till October, 1928, that the appellant was tried by the Sessions Judge of East Tanjore.

[2] A great part of the exhibits consists of the record of the French investigation, of statements made by witnesses and of admissions extracted from the appellant, Mr. Ganapathi concedes that most of it is inadmissible in evidence. He, however, excepts E. J-l, the statement made by the appellant to the Judge Instruction, which appears to us to be admissible under Section 26 of the Evidence Act. The appellant was, no doubt, in police custody at the time, but he was in the immediate presence of a judicial officer and if that officer is a Magistrate within the meaning of Section 26, the statement is admissible provided, of course, that there is no other legal objection to its validity. We are clear that the Judge Instruction is a Magistrate within the meaning of the section. The definition of Magistrate in the General Clauses Act is not confined to Magistrates exercising jurisdiction under the Criminal Procedure Code; it merely includes them. As pointed out in Queen-Empress v. Nagla Kala (1896) I.L.R. 22 Bom. 235 it can scarcely have been the intention of the Legislature to exclude from the consideration of our Court s confessions made by prisoners in police custody to Magistrates in England or in a foreign country. We therefore hold that Ex. J-l is admissible in evidence.

As evidence that the appellant murdered his daughter it is worth very little indeed; for it amounts to no more than a statement that he helped her to make away with herself. The rest of the evidence is devoted, to proving that the appellant and his daughter went away together and he returned alone, that they were on bad terms that he made various statements to various people from which his guilt may be inferred and that he led the police to the river where his daughters body was found. The evidence of ill-feeling between, the appellant and his daughter is worthless. P. W. 1 (the appellants nephew) speaks to it, but he is clearly on bad terms with his uncle and admits, more or less, that he charged the latter because he thought that he himself and his father might be suspected. As they were not on bad terms with the woman, it is not apparent why they should have been afraid of being suspected. Probably the womans death was attributable to some motive other than that set up by the prosecution. It is significant that some of the admissions attributed to the appellant are quite inconsistent with his having deliberately murdered his daughter on account of a dispute about money. Another witness on the point is P.W. 1

1. The Sessions Judge says that he speaks to the ill-feeling between the father and the daughter. That is incorrect. What the witness said is this that P.W. 1 tried to get a document out of him in order to file a suit against the appellant on behalf of the daughter and that he refused to give it up. Questioned about the alleged quarrel between her and her father, he admitted that he knew nothing about it. On this evidence, we find it quite impossible to say that the motive alleged by the prosecution has been proved.

As to the admissions made by the appellant we have first P.W. 5 a man who concedes that they are on the worst of terms. He says that, when he was passing the appellants house, he heard the appellant say:

Oh! my daughter, my eye, you wanted roe to let you go and you said you would disappear from my sight. I have pushed you down.

Assuming that this is true, it can hardly be described as being consistent with the story of a deliberate murder of a detested daughter. It is much more consistent with Ex. J-

1. The next witness is P.W, 7 another admitted enemy of the appellant. He heard the appellant say to his wife: I did what you wanted and the latter reply O sinner, you have done it simply because I said so. Like P.W. 5 he happened to be passing by the appellants house at the time. We decline to accept the evidence of this deeply interested witness. A man who has committed a deliberate murder does not talk about it in a voice that can be overheard by people passing his house.

P.Ws. 9 and 10 are two small children who were living with the appellant and probably gave evidence at the instigation of P.W.

1. They say that, when the appellant returned without his daughter, he told them that he had given her as a prey to the crocodiles. It is quite incredible that a man who had deliberately made away with his daughter would have come back and told his whole household what he had done. P.W. 12 says that having heard from P.W. 5 what the appellant was saying he went and questioned hi m and was met with the remark; What is it to others if I kill my daughter. The witness is obviously a friend of P.W. 5 and we doubt very much whether he would have ventured to go and question the appellant at all.

So far, we consider that the prosecution has made out no case against the appellant. There remains the evidence that he led the police to the river where his daughters body was found. We see no reason to doubt its truth, but it proves no more than that the appellant knew where his daughter had been drowned. No doubt the fact that the hands had been tied together and the body was weighted with bricks is most suspicious, but it is not entirely inconsistent with the story told by him in Ex. J.-1.

In the result, we disbelieve the motive set up by the prosecution. During the investigation by the Juged Instruction a different motive was disclosedthat the woman who was a widow was intriguing with a man. Possibly that was the real motive that led to her death. The admission attributed to the appellant by P.W. 5 is consistent with the view that she wished to make away with herself and was helped by her father. The words spoken to by P.Ws. 9 and 10 are not inconsistent with that view which commended itself to one of the assessors. It is supported by the fact that no injuries or signs of a struggle were found on the womans body. We consider it unsafe to convict the appellant of murder. He may be guilty of another offence but that is not the offence with which he was charged. We set aside the conviction and sentence and direct that the appellant be set at liberty.