Judgment : This appeal is against the conviction and sentence imposed by the learned Sessions Judge, Thanjavur in S.C.No. 84 of 1986 for the offence under Sec. 304, Part II, Indian Penal Code sentencing the appellants to undergo rigorous imprisonment for seven years to the first appellant and five years each to the appellants 2 and 3. 2. The prosecution case is as follows: The appellants 2 and 3 are the parents of the first appellant. The deceased Kodimalar, sister of P.W. 1. and daughter of P.W. 2., was married to the first appellant about five years prior to her death. At the time of the marriage the deceased Kodimalar was given some jewels and vessels and the first accused was given a Rallys cycle as marriage gift. About two years prior to this occurrence, the younger sister of Kodimalar was married to P.W. 4 and apart from the jewels to his wife, he was presented with a motorcycle. The first accused, who was given only a cycle at the time of his marriage, was insisting his wife Kodimalar to get a motor-cycle for him also as was presented to P.W. 4. Quarrel arose between the husband and wife and the deceased came to her parents’ house about 10 days prior to this occurrence on account of the misunderstanding between her and the first accused and on 19. 1985, the second accused himself came to take back his daughter-in-law. P.W. 1, his mother P.W. 2 and their first son-in-law P.W. 3 advised the deceased Kodimalar to adjust herself with her husband and the second accused took her to his house. On 19. 1985 at about 9.00.p.m. P.Ws.7 and 8, natives of Vaduvoor Pudukkottai, had been to a nearby village to purchase the seedlings for their lands and while they were passing through the occurrence village close to the house of the accused, they heard the voice of the deceased saying not to cut her. P.W. 7 and P.W. 8 paused for a while and saw these three accused and the deceased in their house but as they felt that it was a domestic quarrel in the family they did not interfere and proceeded on their way. Next day morning P.W.3., the first son-in-law to the family of P.Ws. P.W. 7 and P.W. 8 paused for a while and saw these three accused and the deceased in their house but as they felt that it was a domestic quarrel in the family they did not interfere and proceeded on their way. Next day morning P.W.3., the first son-in-law to the family of P.Ws. 1 and 2 residing in Pudukkottai Village; 2 kilometres away from the occurrence village came to know from P.W. 5 that Kodimalar died. Immediately, he sent a message through P.W. 6 and another to the family of P.Ws. 1 and 2, who immediately rushed to the house of these accused. They found the body of the deceased Kodimalar laid on the varandah and none of these accused were present in the house. They also found an injury on the head of the deceased and therefore suspecting foul-play in the death of Kodimalar P.W. 1 went to Vadalur Police Station and launched the complaint Ex.P-1 to P.W. 12, Sub-Inspector of Police, who registered the same in Crime No. 193 of 1985 and prepared the F.I.R. which was sent to the Court stating suspicious death. P.W. 18, the Inspector of Police, who received the F.I.R. took up the investigation and proceeded to the occurrence village Kattakudi. He inspected the place of occurrence and prepared the observation mahazar Ex.P-6 in the presence of the Village Officer P.W. 16 and prepared plan Ex.P-17. In the presence of the Panchayatars, he conducted the inquest and prepared the inquest report Ex.P-18. He arranged to send the body of the deceased for postmortem and seized the broomstick M.O. 5 under Ex.P-7 mahazar. He also seized the saree and jacket M.O. 6 and 7 used by the deceased, under Ex.P-8 mahazar, P.W. 14, the Medical Officer attached to the Government Hospital, Mannarkudi, conducted the post-mortem along with two other doctors, on 29. 1985 and they found a lacerated wound of 6 cm x 2 cm upto bone depth, on the back of the head 1½ cm above the occipital protuberance and correspondingly extravasation of blood beneath the scalp on the occipital region with irregual ‘V’ shaped fracture on the occipital bone. The intestine, liver and kidney were sent for chemical analysis and Ex.P.-4 report of the Forensic Laboratory proved the presence of Phosphomidon, which is a poisonous substance used as insecticide, in these organs. The intestine, liver and kidney were sent for chemical analysis and Ex.P.-4 report of the Forensic Laboratory proved the presence of Phosphomidon, which is a poisonous substance used as insecticide, in these organs. P.W.14 and the other doctors were of the opinion that the death was only due to the injury on the head and the presence of the poisonous substance was only an associate factor though the same was not the cause for her death. Ex.P-5 is the post-mortem certificate prepared by the doctors. P.W.18, the Inspector of Police altered the first information report to one under Sec. 302, Indian Penal Code and prepared the express first information report. On 110. 1985, he arrested the third accused and recorded the statement which led to the recovery of M.O. 8 in the presence of P.W.16 and another under the mahazar Ex.P.-10. The admissible portion of her statement is Ex.P-9. The other two appellants surrendered before the Court. P.W.19 the Deputy Superintendent of Police recorded the statement of some of the witnesses on 29. 1985. When the accused were questioned with regard to the incriminating circumstances found against them in the evidence of the witnesses, they denied their complicity in the crime. No witness was examined on their side. 3. The learned Sessions Judge, West Thanjavur, relying upon the evidence of P.Ws. 7, 8 and 10, accepted the prosecution case for the offence under Sec. 304, Part II and has awarded the conviction as stated above. 4. The learned counsel appearing for the appellants Mr.K. Sengottaiyan would contend that there is no eye-witness to the occurrence and even P.Ws. 3. The learned Sessions Judge, West Thanjavur, relying upon the evidence of P.Ws. 7, 8 and 10, accepted the prosecution case for the offence under Sec. 304, Part II and has awarded the conviction as stated above. 4. The learned counsel appearing for the appellants Mr.K. Sengottaiyan would contend that there is no eye-witness to the occurrence and even P.Ws. 7 and 8 have stated in their evidence that they did not see the inflicting the injury on the deceased but only heard the quarrel in the house and therefore when the prosecution relies upon the circumstantial evidence to prove the guilt of the accused, it should be brought out to establish that this offence has been committed only by these appellants/accused and there is no possibility for this occurrence having taken place in any other manner and each and every circumstances should connect only these accused without any missing link, but in this case except the suspicion in these appellants for their absence on 20.9.1985, there is no other circumstance to implicate them in the commission 1 to 3 have spoken about the demand made by the first appellant/first accused from the deceased for a motor-cycle as her sister’s husband was given with a motor-cycle at the time of his marriage. In Ex.P-1 complaint also, P.W.1 has mentioned that the first appellant was ill-treating his deceased sister Kodimalar demanding motor-cycle as her sister’s husband was given that vehicle. Even accepting that the deceased was pestered by her husband for securing a motor-cycle from her parents’ house, that alone is not sufficient to connect the appellants with the crime unless the prosecution is able to establish that these appellants alone were the perpetrators of the offence and no other person could have committed this offence. 5. Even accepting that the deceased was pestered by her husband for securing a motor-cycle from her parents’ house, that alone is not sufficient to connect the appellants with the crime unless the prosecution is able to establish that these appellants alone were the perpetrators of the offence and no other person could have committed this offence. 5. The learned Government Advocate (Criminal Side) would contend that in addition to the absence of these accused soon after the occurrence, the insecticide also was poured into the mouth of the deceased and as the deceased was in the house along with her husband and in-laws, the poison could not have been poured into her mouth without their knowledge and therefore in this case as the cut was inflicted on her head, which was a vital injury, these accused have poured the poison into her mouth to suppress the murder as though she had committed suicide and therefore the pouring of the insecticide into her mouth is a strong circumstances to connect these appellants with the crime. There is nothing to show or prove that these appellants had poured the insecticide into the mouth of the deceased. We cannot presume that these appellants alone should have done that because they were residing in the house in which the deceased Kodimalar died. It is the popular dictum that the suspicion cannot take the place of the proof. Hence, unless the prosecution is able to place the materials to connect these accused with the crime, the Court cannot infer the guilt of these accused for the reason that they had motive and they had absconded from the place of residence. 6. Three witnesses namely P.Ws. 7, 8 and 10 have provided the res gestae evidence to connect these appellants with the crime. Of these three witnesses, I shall first refer to P.W.10 for the alleged extra judicial confession of the first appellant. 7. 6. Three witnesses namely P.Ws. 7, 8 and 10 have provided the res gestae evidence to connect these appellants with the crime. Of these three witnesses, I shall first refer to P.W.10 for the alleged extra judicial confession of the first appellant. 7. P.W.10 is a resident of some other village known as Neivasal and according to him on 20.9.1985 morning when he met the first appellant in the Neivasal Bus Stand, as he was in a mood of despair he questioned him and the first appellant told him that there was a quarrel in his house on the previous night in which his wife attempted to beat his father with a broomstick, which infuriated him and he cut her with aruval causing her death and therefore he was proceeding to consult an advocate in Thanjavur. On the basis of this extra-judicial confession revealed by P.W.10, the prosecution has directed the investigation seized the broom stick M.O. 5 under Ex.P-7 mahazar. As held by the Courts that extrajudicial confession is a very weak piece of evidence and that itself cannot be a basis for conviction unless it is sufficiently corroborated by the other evidence, in material particulars. On a careful scrutiny of the evidence of P.W.10, I find that his evidence does not come unscathed and his evidence appears to be more artificial in nature. He is not related to the accused or closely associated with him except his version that the first appellant came to his house once to purchase cattle. He also says that prior to this incident, the first appellant did not reveal anything about his family affairs. It must be borne in mind that the offence alleged to have been committed by the first appellant is not a minor one to treat it leniently but a grave offence of murder from which the first appellant also was trying to extricate. When such was the circumstance, we have to think whether it would be possible for the first appellant to divulge a secret of his implication in the grave offence of murder to a person with whom he was not closely associated. It is not the case of the prosecution that the first appellant sought for any aid from P.W.10 like protection, shelter etc. It is not the case of the prosecution that the first appellant sought for any aid from P.W.10 like protection, shelter etc. Therefore, even if P.W.10 had the occasion of meeting the first appellant in the bus stand, the first appellant would not have so foolishly confessed to him that he had murdered his wife on the previous night and he was on his way to meet his advocate to escape from the prosecution. Further P.W.10 after hearing this news from the first appellant, did not respond in any manner favourably. After hearing that from him, he casually walked away from there. Therefore, the confession of the first appellant has not served any purpose to him. This is a suspicious circumstances portraying the improbability of this extra-judicial confession. There is one other important circumstance connected to this and that is P.W.10 himself volunteered before P.W.19 the Deputy Superintendent of Police to give a statement before him in respect of the extra-judicial confession, on 29. 1985. But in Sec. 161, Code of Criminal Procedure statement of P.W.10, he has stated that on 20.9.1985 itself he had been to the occurrence village. On 20.9.1985, the police officers had flooded the village with the examination of the witnesses and seizure of the articles. Therefore, when P.W.10 had known about the commission of the offence by the first appellant from his extrajudicial confession, he could have revealed this fact to the Inspector of Police on 20.9.1985 itself when he had been to the occurrence village but without divulging to anyone, only on 29. 1985, this witness says that he informed the Deputy Superintendent of Police in the village. This creates a serious suspicion as to the truth of his version because when he was in the occurrence village on 20.9.1985 itself, nothing prevented him from divulging the extra- judicial confession on that day itself when he himself had voluntarily chosen to give a statement to the police on the next day. Another aspect connected with this is that even though for the first time the investigating agency came to know about the extra-judicial confession through P.W.10 on 29. Another aspect connected with this is that even though for the first time the investigating agency came to know about the extra-judicial confession through P.W.10 on 29. 1985 and the commission of the offence by the first appellant by cutting his wife due to the sudden provocation on account of his wife’s attempting to beat her father-in-law with a broomstick, the Inspector of Police had seized the broomstick M.O. 5 under Ex.P-7 mahazar even on 20.9.1985 itself. The Inspector of Police, P.W.18 has not stated what made him to seize this broomstick even on 20.9.1985 when there was nothing incriminating with the broomstick M.O. 5 on 20.9.1985. Therefore, all these circumstances expose that this evidence of P.W.10 is a make-belief affair, which cannot be given weight to, when especially the conduct of P.W.10 is uninspiring to attach any credence to this testimony. Therefore, the evidence of P.W.10 is worth for nothing and has to be totally discarded. 8. The two other witnesses namely P.Ws. 7 and 8 as mentioned above, are not eye¬witnesses to the attack on the deceased but only by-passers hearing the noisy quarrel. They are not the resident of that area but belonging to a neighbouring village came there accidentally on their way back to their village, as they could not purchase the seedlings which they wanted to purchase for their agricultural work. They admit that they did not go to any particular person to purchase the seedlings and it had not come out from their testimony from whom they wanted to purchase. They returned empty-handed at 09.00 p.m. to the occurrence village. Therefore, the evidence of these two chance witnesses has to be scrutinised so Cautiously to rule out any blemish affecting the credibility of their version. But the learned counsel for the appellants points out the artificial nature of the evidence of these eye witnesses and the improbability of their presence during that odd hour. On a perusal of their evidence P.W.7 would say that on hearing the voice of Kodimalar, the deceased, shouting not to cut, they halted for a while and identified the house of these appellants from where the noise came. Even though now they would say that the voice ‘don’t cut" came from the deceased, in their 161 Statement before the Inspector of Police at the time of investigation, they have not stated that they heard the voice "don’t cut". Even though now they would say that the voice ‘don’t cut" came from the deceased, in their 161 Statement before the Inspector of Police at the time of investigation, they have not stated that they heard the voice "don’t cut". If such a word had drawn their attention to stop their way, certainly, it should have come in their statement before the Police but they have not revealed that they heard such a voice. Further evidence of P.W.7 is that the deceased Kodimalar was known to him well as she used to come to her sister’s house in Pudukkottai, his native village. Further, because of his closeness with the deceased, he came to attend the funeral also on 20.9.1985. When P.W.7 was so closely known to the deceased, when he heard the voice from the deceased shouting "not to cut", I do not think that P.W.7 would have ignored the voice of the deceased without even ascertaining as why she was shouting like that when especially he along with P.W.8 was standing close to the house of the deceased and proceeded thinking it was a domestic quarrel. If it was a mere wordy quarrel, they might not have given any importance and would not have stopped their way. But in this case, according to P.Ws.7 and 8, the voice raised by the deceased had drawn their attention and so they got down from their cycles and stood for a while and only thereafter they proceeded to their village. So, the voice of the deceased was so loud even to attract the attention of the passers-by and in such circumstances P.Ws.7 and 8, who are known to the deceased, could have certainly gone to the house of the deceased to find out as to why she was shouting not to cut. Therefore, the evidence of P.Ws.7 and 8 also is uninspiring to give credence to their version. When P.Ws.7 and 8 and residing in the same street in which the sister of the deceased is living in Pudukkottai, P.Ws.7 and 8 might have conveyed to P.W.3 or his wife about the quarrel they heard in the house of the appellants. But P.Ws.7 and 8 would say that only after hearing the death of the deceased they came to the village for funeral. 9. But P.Ws.7 and 8 would say that only after hearing the death of the deceased they came to the village for funeral. 9. Even accepting the version of P.Ws.7 and 8 which shows only the quarrel between the deceased and the appellants, there is no circumstance to indicate the specific overt act against these appellants in the commission of the offence thereafter. As there was quarrel between these appellants and Kodimalar, are we to presume that all these appellants had assaulted her with aruval and caused her death? Even the aruval M.O. 8 seized on the confession of the third accused did not contain any blood stain and there is no witness to say that this weapon was used for the commission of the offence. The death was due to the single cut in the occipital bone. When the evidence is totally lacking to connect this weapon with the crime, the seizure of this weapon has no significance in any manner. The evidence of P.Ws.7 and 8 is not useful to establish the guilt of the accused for which they stand charged. The single cut injury on the deceased might have been caused by anyone even taking for granted that these appellants were in the house at the time of the occurrence. Therefore, the prosecution must provide the evidence as to who was the assailant among these three appellants for having caused the injury on the head of the deceased. When such evidence is totally lacking, it is not possible for the Court to hold that all these three appellants were guilty of the offence under Sec. 304, Part II, Indian Penal Code and that the deceased was attacked in the sudden provocation. As I have already discarded the evidency of P.W.10, who alone has spoken that the first appellant was responsible for causing the death in the sudden provocation, there is no other supporting evidence to fix the responsibility for this crime on anyone of these appellants. Under those circumstances, from the mere suspicion which has been pointed out by the prosecution, the guilt of the accused cannot be accepted and therefore, giving the benefit of doubt to these appellants, the finding will be that the prosecution has failed to prove the guilt of the accused, the result of which is the setting aside of the conviction and sentence of the Court below. 10. 10. The appeal is allowed setting aside the conviction and sentence and the appellants are acquitted. The bail bonds are cancelled.