JUDGMENT Anna Chandy, J. 1. The appellant Ouseph has been convicted of the murder of his wife Rosa aged 35 and sentenced to life imprisonment by the Sessions Judge of Trichur. 2. The prosecution case is that the accused and his wife with their two young children were living amicably in Kolkunnu till the accused's brother Ayyappan after the death of his wife began to live with the accused. After some days the accused began to suspect illicit intimacy between Ayyappan and Rosa, which occasioned frequent quarrels. Due to this unpleasantness Ayyappan shifted to another house with his children. On 17-4-1958 the accused and Rosa went to the paddy field of one Thomakkutty for harvesting. The movements of Rosa and Ayyappan in the paddy field irritated the accused who on return to his house quarrelled with Rosa of that ground. Rosa refusing to prepare meals and threatening the accused with perpetual separation proceeded to the southern courtyard of the house followed by the accused. Rosa was then cut with a chopper on her face and head by the accused. Rosa fell down. Hearing the cry of the children some neighbours gathered and they saw Rosa lying with bleeding injuries. They attempted to remove Rosa to the hospital, but before they could get a cart, Rosa died at 9 P. M. One of the neighbours went to the Mala Police Station and lodged the first information. The accused appeared before the Chalakudy Police Station, when he was arrested. He gave a confessional statement to the effect that when Rosa caught hold of his testicles and squeezed, he suffered excruciating pain and his head reeled and he cut her to save himself. 3. The accused when questioned by the Sessions Judge under S.342 stated as follows: "On certain days there was quarrel between him and his wife, but he had no suspicion about her behaviour towards Ayyappan. He does not know whether his son Anthony cried out that the father cut the mother to death His wife was stronger than him. When they were eating jack fruit, a quarrel arose between him and his wife regarding house-hold affairs. A tussle ensued. Rosa caught hold of his testicles. They fell down when Rosa pressed his testicles, his eyes reeled, and he was not able to raise his tongue. In that agony he caught something in his hand. When they were eating jack fruit, a quarrel arose between him and his wife regarding house-hold affairs. A tussle ensued. Rosa caught hold of his testicles. They fell down when Rosa pressed his testicles, his eyes reeled, and he was not able to raise his tongue. In that agony he caught something in his hand. With that thing he dealt a blow on Rosa who was lying on his body. After that he got up. 4. The death of Rosa and its cause are not disputed. It is seen from the post mortem certificate that she had 7 incised wound on her head varying in length from 31/2" to 7". Six of them are on the left side of the head and face and one on the right side of the head. The only question for determination is whether it was the accused who inflicted the injury and if so under what circumstances. 5. It is stated that the accused's son Antony aged 5 is the only eyewitness. He was produced in the Magistrate's Court as well as in the Sessions Court, but was not examined, since on questioning him they were not satisfied that he was capable of giving rational answers. The confessional statement of the accused, Ext. P. 8 is also not acted upon by the learned Sessions Judge as it is of exculpatory character. The learned Sessions Judge has relied upon the decision in AIR 1952 SC 354 (Palvinder Kaur v. The State of Punjab) for rejecting the confession and he was right in doing it. 6. However the learned Sessions Judge has accepted the circumstantial evidence as sworn to by PWs 2, 3, 4 and 7 to convict the accused. PW 2 is the mother of Rosa aged 65. Her evidence is to the effect that while she was seated in her house she heard Antony crying out. She went to the house and she found Rosa lying in the courtyard with bleeding injuries. Antony as already mentioned was not examined in the court and it is not proper to draw any adverse inference from his cry since it is not possible to find out the reason which made the child cry out like that. PW 3 is the elder sister of Rosa. Antony as already mentioned was not examined in the court and it is not proper to draw any adverse inference from his cry since it is not possible to find out the reason which made the child cry out like that. PW 3 is the elder sister of Rosa. She has only stated that hearing the cry of her mother she went to her mother's house and not finding her there she went to the house of the accused and found Rosa lying in the courtyard in a pool of blood. PW 4 on whose evidence the learned Sessions Judge has placed great reliance swears that from his house he saw PW 2 running to the scene of occurrence crying out and 2 children coming from the place; seeing this he went to the scene of occurrence and when he was about to reach the place he saw the accused running towards the east. No reliance can be placed on the statement of PW 4 that he saw the accused. When he was cross examined he has admitted that what he stated in the committal court was that he saw a man going east who might have been the accused. When re-examined with a view to explain away the statement, he only added that he had stated so because he had not seen the person at close quarters. PW 6 stated that at about 5 P. M. on the date of occurrence he heard a wordy quarrel between the accused and Rosa and at about 7-30 P. M. he heard the children crying out PW 7 only says that she at about dusk heard the quarrel between the accused and Rosa and later she heard the cry of Antony from the house of the accused that the father killed the mother by cutting. The evidence of PW 8 is also about the quarrel prior to the occurrence. It is not possible to find from the above evidence that the accused is guilty of the offence for which he stands charged. Moreover in the nature of the accused's plea the real question for determination is as to who was the aggressor and under what circumstances the injuries were inflicted. The learned Public Prosecutor seeks to place reliance on the statement of the accused given in court, to support the circumstantial evidence above referred to. Moreover in the nature of the accused's plea the real question for determination is as to who was the aggressor and under what circumstances the injuries were inflicted. The learned Public Prosecutor seeks to place reliance on the statement of the accused given in court, to support the circumstantial evidence above referred to. No admission by the accused of cutting Rosa is in the statement. Instead he says that he gave a blow, with something he got at on Rosa who was lying on his body. This is not the persecution case. It is settled law that no accused could be convicted merely on his statement under S.342 which cannot be regarded as evidence. Vide Vijendrajit Ayodhya Prasad Goel v. The State of Bombay ( AIR 1953 SC 247 ). 7. Now we shall refer to the accused's version of the incident. The learned Sessions Judge describes the version as incredible, because the police and the Magistrate failed to notice any injury on the accused's private parts. It is quite possible that no external marks of injuries could be caused by suqeezing the testicles. The Sessions Judge also sets great store on the opinion of the doctor that it is not likely that the injuries could have been caused while the deceased was engaged in squeezing the testicles of the accused. The doctor's evidence as to the depth or dimensions of the injuries could be readily accepted. But when he embarks upon the speculation, his evidence is nothing better than that of a layman's opinion. It can very well happen that the cuts were inflicted by the accused when he was standing and the woman was stooping to squeeze his testicles. The fact that all the 7 injuries are on the head and face of the deceased only lends credence to such a possibility. If her hands were not engaged and were free, it is quite natural that she would try to ward off the cuts: and there would have been at least one injury on her hand. The absence of injuries on the hands and presence of injuries on the head and face only, persuades us to think that her hands were engaged in something else and her head was bent and that the accused was standing at the time. The absence of injuries on the hands and presence of injuries on the head and face only, persuades us to think that her hands were engaged in something else and her head was bent and that the accused was standing at the time. It needs no expert knowledge to think that if the accused wanted to kill his wife out-right he would have cut at her neck or other vulnerable part other than head. Here all the injuries are on the head. The accused complains that his wife was of sturdier build than himself and was lording it over him. Such a woman when driven to desperation is likely to exhibit amazing physical prowess. Though it may not be entirely correct, the accused's allegation of his wife's attack cannot be ruled out as absolutely false, for the reason that he did not have any injury on his testicles or that he failed to complain of a pain in that region. Again though the learned Sessions Judge has discarded the confession, he went on comparing the details of the version given in the confession and in the statement of the accused before the court to arrive at the conclusion that the accused's version is false. This is not proper. 8. In the absence of prosecution evidence about the origin of the quarrel, its progress and its culmination, due weight has to be given to the version of the accused. As the guilt of the accused has not been brought home beyond doubt, there is no other recourse, but to acquit the accused. 9. In the result, the conviction and sentence of the lower court are set aside and the accused acquitted. He will be set at liberty forthwith.