JUDGMENT P.S. Shah and H.B. - Cantharial, JJ.- The appellant was tried by the Sessions Judge, Kulaba, Alibag, on a charge of murdering his own wife Shakuntala on February 22, 1978. The learned Sessions Judge by his judgment and order dated October 17, 1978, found the appellant guilty and convicted him under Section 302 of the Indian Penal Code and consequently sentenced to suffer imprisonment for life. The appellant has challenged his conviction in this appeal. 2. There is no direct evidence against the accused. The prosecution rests its case on the extra judicial confession said to have been made by the accused to his father-in-law, Gopinath Krishna Thakur, coupled with the circumstance that there was motive for the accused to have his wife. The prosecution has led evidence about motive which has been accepted by the learned Judge. The accused who was a young man aged only 25 years on the date of the incident was serving for about 6/7 years as a Welder in Grindwell Company at village Mora near Uran. His marriage with Shakuntala, the daughter of Gopinath Krishna Thakur (P.W. 3) took place about years prior to the incident. For a few months after the marriage the couple stayed happily. Shakuntala gave birth to two daughters viz. Jyotsna who was aged about 6 years and Jyoti who was aged about 4 years at the time of the incident. It was the case of the prosecution that the accused was also the leader of workers union serving in the company. This led to his coming in contact with women workers and Shakuntala started suspecting her husband's conduct and behaviour, which gave rise to constant bickerings between them. It was also the case of the prosecution that the accused was under the impression that his father-in-law Gopinath is in affluent circumstances and he used to insist upon Shakuntala to go to her father's house and fetch ornaments or cash. The evidence, however, shows that Gopinath is a poor pensioner who had retired from Tata Company and was unable to meet the demands of his son-in-law. On a consideration of the evidence the learned Judge did not accept the prosecution case that the accused used to demand cash and ornaments from his father-in-law and on that court he was ill-treating his wife. On a consideration of the evidence the learned Judge did not accept the prosecution case that the accused used to demand cash and ornaments from his father-in-law and on that court he was ill-treating his wife. However, the learned Judge accepted the prosecution case that Shakuntala was suspecting her husband's behaviour and conduct towards other women and that was the reason why frequent quarrels took place between them. According to Gopinath's evidence, a couple of days prior to the incident the accused had come to his house and complained that Shakuntala was suspecting his character and unless Gopinath told her to refrain from doing so be would finish her off. According to Gopinath at that time he tried to reconcile them and advised the accused not to indulge in any such ghastly act, assuring him that he would find out some religious way to mend the matter. The evidence of Gopinath on this point has been accepted by the learned Judge, since the story finds place in the first information report lodged by Gopinath soon after he came to know about Shakuntala's murder from the accused. 3. The crucial evidence against the accused is the extra-judicial confession alleged to have been made by him to Gopinath. Now before dealing with this extrajudicial confession it is necessary to mention a few facts. The accused was residing en the first floor in a double soreyed house. There were three tenants on the ground floor one of them being Mangala Upadhya who stayed there along with her, husband and children. The accused with his wife and two children were residing on the first floor, which was exactly above the premises occupied by Mangal Upadhye and her husband (P.W. 8). The first floor premises which was in possession of the accused consists of two rooms and there is an independent staircase for reaching the first floor premises. The entire premises have been taken by Grindwell Company on rent for its employees. The premises in occupation of Gopinath is about two miles away from these premises which were occupied by the accused and his family at the time of the incident. The murder took place admittedly in the premises in occupation of the accused. The entire premises have been taken by Grindwell Company on rent for its employees. The premises in occupation of Gopinath is about two miles away from these premises which were occupied by the accused and his family at the time of the incident. The murder took place admittedly in the premises in occupation of the accused. It is the case of the accused that he was on shift duty from 4.30 p.m. on the previous day till 8 a.m. on the next day and on his return in the morning he noticed that his wife was murdered and on seeing his wife having been murdered he immediately left the house after locking it along with his two children to his father-in-law Gopinath to inform him about the incident. According to the accused, he only told Gopinath that his wife Shakuntala was finished and handed over to him the key of the house and thereafter Gopinath left his house while the accused continued to remain in the house of Gopinath with the children. According to Gopinath, however, the accused made the extra-judicial confession to him to the effect that "Mama, I have come after finishing Shakuntala" Gopinath then asked him "What non-sense you are speaking. I will myself go and verify the fact. "Gopinath has further deposed that when he started going to the quarters of the accused the accused offered him the key of the lock saying that "I have confined her and locked the door." His evidence shows that the accused and his daughters then remained in his house and he proceeded to the house of the accused on a bicycle. In the first information report (Exh. 9) lodged by Gopinath at the police station at about 9.45 a.m. it has been mentioned by him that at about 9 a.m. his son-in-law came riding a bicycle along with the two daughters and said '.'Mama, last night the quarrel took place between me and Shaku and I have come after finishing Shaku." Now, there is no reference in his evidence about the accused having told him about any quarrel having taken place between the accused and his wife. Gopinath's wife Laxmibai (P.W. 7) who was present in the house when the accused came there with the two children also speaks of the extra-judicial confession made by the accused. Gopinath's wife Laxmibai (P.W. 7) who was present in the house when the accused came there with the two children also speaks of the extra-judicial confession made by the accused. In her examination-in-chief she has deposed about the accused having said to her husband "I have come after finishing Shakuntala". In her cross-examination, however, she admitted that the accused merely said ''Shakuntala is finished." She admitted that she did not find that the accused was in a horrified state of mind nor did she have any talk with the accused after her husband Gopinath left for the quarters of the accused. According to her, the accused, however, inquired with her as to when Gopinath would return, to which she did not give any reply. Thus, in view of the admission of Laxmibai in the cross-examination that the accused had merely stated "Shakuntala is finished" a doubt arises as to what was exactly uttered by the accused. Did he say "I have come after finishing Shakuntala" or merely stated "Shakuntala is finished"? The admission of Laxmibai in the cross-examination supports the case of the accused that he had not made any extra-judicial confession, but (merely told Gopinath that Shakuntala is finished'. There is admittedly no corroborative piece of evidence' whatsoever to support Gopinath's evidence about the extra-judicial confession alleged to have been made by the accused. Mangala is silent on the question as to whether the accused was in his first floor premises on that night. There is no evidence of any other witness having seen him either in the house or outside the house in the evening or on that night. We shall presently show that there are also other serious infirmities in the prosecution case which have remained to be explained by the prosecution. 4. It is the case of the prosecution that the murder was committed by an instrument styled as a file (Kanas). The evidence shows that the length of the blade of this instrument is 14 cms. and the circumference of the blade is about 2 cms. the blade being triangular in shape. It is the Case of the prosecution that this was the instrument used for causing the injuries in question and was also found to have stained with blood of the same group as of the deceased. Dr. Dahiphale (P.W.2) who conducted the post-mortem examination has described the external injuries as under: 1. the blade being triangular in shape. It is the Case of the prosecution that this was the instrument used for causing the injuries in question and was also found to have stained with blood of the same group as of the deceased. Dr. Dahiphale (P.W.2) who conducted the post-mortem examination has described the external injuries as under: 1. Penetrating wound on the right anterior axillary line at 10th rib 2mm. in diameter and 1 cm deep. 2. Penetrating wound on the mid axillary line 3" below injury No. 1. The injury is 2 mm. in diameter and 11/2 cm. deep. 3. Penetrating wound on the right side neck 2" below the mastoid process, 2 mm. in diameter and 7 cms. deep and penetrated. 5. According to him, on dissection he did not find any internal injury or damage. In his opinion, injury No.5 was sufficient in the ordinary course of nature to cause death and the death must have occurred instantenuously. He also stated that in his opinion all the external injuries could have been possibly caused by sharp pointed weapon like article 13. 6. Now, it must be mentioned that this appeal had come up for hearing before a Division Bench consisting of Pratap and Tulpule, JJ., earlier. After hearing the counsel for the parties the Division Bench noted the discrepancies resulting from the nature of the instrument and the nature of the injuries and thought it necessary to direct the learned trial judge to record the evidence of the medical officer on the question of the possibility of the injuries having been caused by the weapon 'Kanas' (Article 13) as also with regard to the time of death from the contents of the stomach as to when the deceased must have met her death from her last meal. Besides this direction, the Division Bench also gave opportunity to the prosecution to adduce additional evidence in regard to the duty hours of the accused and also to examine Jyotsna the daughter of the accused whose statement was recorded during the course of the investigation. Accordingly, the learner' judge further examined Dr. Cahiphale and also examined Jyotsna, who however turned hostile and nothing of consequence came out of her evidence. Dr. Dahiphale, however, admitted in the cross-examination that the breadth of the injury should have been at least 2 cms. had Article 13 been used. Accordingly, the learner' judge further examined Dr. Cahiphale and also examined Jyotsna, who however turned hostile and nothing of consequence came out of her evidence. Dr. Dahiphale, however, admitted in the cross-examination that the breadth of the injury should have been at least 2 cms. had Article 13 been used. It is clear from the evidence of Dr. Dahiphale as also from the post-mortem report (Exh. 7) that the breadth of the injury is 2 cms. only. This evidence of Dr. Dahiphale casts a doubt as to whether really article 13 was used in this case which is the case of the prosecution. 7. Now, there are some circumstances, which again raise a doubt as to whether the accused had committed the crime. In this regard it is to be noticed that the clothes on the person of the accused were not found to be blood-stained. The prosecution has also not led the evidence to show that any other blood-stained clothes of the accused were seized from the house or any other place. Assuming that Article 13 was used in this case, it is highly unlikely that the clothes of the accused would not get any blood-stains. 8. Then the inquest report shows that nail scratches on the right side of the neck of the deceased were noticed. The nail couplings of the accused were sent to the C.A. for his opinion. However, the report shows that they had no blood stains. It is well-settled that the evidence about the extra-judicial confession is in the nature of weak piece of evidence. (See Jagtap v. State of Haryana1). It is true that as observed by the Supreme Court in Maghar Singh v. State of Punjab2, the evidence furnished by the extra judicial confession made by the accused to witness cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution. If the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, then in such a conviction can be founded on such evidence alone. Looking to the facts of the present case it cannot be said that the confession is deposed to by any independent witness. If the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, then in such a conviction can be founded on such evidence alone. Looking to the facts of the present case it cannot be said that the confession is deposed to by any independent witness. The only two witnesses on the point are the mother and father of the deceased and it is their case that their daughter was suspecting the conduct and behaviour of the accused. Besides, their evidence is not consistent or coherent. Much of the value of the confession imputed to the accused is lost by the admission of Laxmibai in the cross-examination where she admitted that the accused merely said that "Shakuntala is finished". By itself this statement is no confession of guilt at all. It is difficult to lightly brush aside this admission given by Laxmibai in this regard. There is, therefore, no clear evidence as to the actual utterance of the accused. The possibility of Gopinath who must be then in a confused state of mind making a mistake about the actual words used by the accused or imputing statement which has not been made by the accused out of suspicion cannot be ruled out. In the absence of clear and cogent evidence about the exact words used by the accused it cannot be hazardous to rely on the testimony of Gopinath alone which does not find any corroboration from any other source. Not only that there is no direct evidence of any eye witness, but there are circumstances which cast a doubt about the complicity of the accused. In our view, the conflicting evidence with regard to the extra-judicial confession calls for corroborative evidence in this case and we do not think that conviction in this case can be based merely on the basis of the evidence of Gopinath. 9. Now, it is true that the accused has not adduced any evidence to show that he was in the factory from 4.30 p.m. till 8 a.m. the next day. It is equally true that the burden of proving alibi lies on the accused, but in this case the prosecution itself has not been able to prove its case beyond reasonable doubt. It is equally true that the burden of proving alibi lies on the accused, but in this case the prosecution itself has not been able to prove its case beyond reasonable doubt. Some reliance was placed on the circumstance that the first information report lodged by Gopinath does refer to the extra judicial confession of the accused. However, the fact remains that it is the first information report lodged by the interested person and Laxmibai who is an equally important witness has, by her admission, greatly weakened the prosecution case on the question of extra-judicial confession. Now, the circumstance that the accused went straight to his father-in-law with the children instead of going to the police station has been relied on by the prosecution. However, it must be noticed that there was no other adult member in the family and the accused had to take his two minor children. It is not unnatural that in the circumstances the accused might have thought of first going to his father-in-law along with his children. This circumstance, on the other hand, is more consistent with his innocence. Laxmibai's evidence shows that the accused did not speak any thing after Gopinath left which may indicate that he was in reclining mood and felt sad over the incident. It is true that the learned judge has found on evidence that there were reasons for the deceased to suspect the conduct of the accused over women who were working in his factory and that provided motive for the accused to kill her. The motive by itself cannot be the basis of the conviction. It may at the most give rise to strong suspicion against the accused, but suspicion however strong cannot take place of evidence. The burden of proving the case against the accused beyond all reasonable doubts lies on the prosecution. In this case we, are satisfied that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. We are, therefore, unable to uphold the order of conviction and sentence passed by the trial court. The appeal is allowed. The impugned order of conviction and sentence is' quashed and set aside and the accused is acquitted. Bailsbonds cancelled. Appeal allowed. 1. AIR 1974, SC 1543. 2. AIR 1975 SC 1320