Judgment :- N.K. JAM, J. ( 1 ) THE appellant/accused Selvam Pandal Selvam. stood charged (1) for allegedly committing cruelty to his wife Chitra (2) for instigating the said Chitra to commit suicide by consuming poison and (3) for murdering the said Chitrao under Sections 498 (1) 306 and 302 of I. P. C. respectively. He was tried by the learned Principal Sessions Judge Kanyakumari Division at nagercoil who by judgment dated 18-8-1997 in S. C. No. 41 of 1997 convicted the accused under Sections 498 (A) and 302 I. P. C. and sentenced the accused to undergo three years rigorous imprisonment and death sentence respectively. The accused was acquitted of the offence under Section 306 I. P. C. The sentence of rigorous imprisonment under Section 498 (A) was ordered to be merged with death sentence. ( 2 ) LEARNED Principal Sessions Judge. Nagercoil referred the matter for confirmation and it was numbered as R. T. No. 2 of 1998. Accused had preferred an appeal in C. A. No. 304 of 1998. Thus both the reference and the Criminal Appeal are before us. ( 3 ) THE case of the prosecution in brief is as follows: (a) Chitra the deceased is the daughter of P. W. 2 Thangam and P. W. 6 Natarajan. P. Ws. 2 and 6 are balloon sellers. Chitra is their fourth daughter. Chitra and Selvam, the accused fall in love with each other and they got married about four months prior to the date of the occurrence. They lived happily. (b) Three months after marriage. Chitra came to her parents house telling that the accused and his mother demanded jewels by selling the 3/4 cent of the land belonging to the parents of Chitrao She was convinced and sent home. (c) On 26-4-1995. Chitra was admitted at J. J. Hospital, Nagercoil. She was unconscious and in state of shock. P. W. 12 Dr. Josaiah gave first aid and administered LV. to her. She was asked to be taken to Government Hospital. At 10 p. m. Chitra died. P. W. 12 sent the dead body to Government Hospital. (d) On 27-4-1995. P. W. 1 Sreedhar Village Administrative Officer at 2. 00 p. m. wrote the statement Ex. P. 1 stated by P. W. 2 and P. W. 6 who are the parents of Chitrao. He was taken to the place of occurrence. At 10 p. m. Chitra died. P. W. 12 sent the dead body to Government Hospital. (d) On 27-4-1995. P. W. 1 Sreedhar Village Administrative Officer at 2. 00 p. m. wrote the statement Ex. P. 1 stated by P. W. 2 and P. W. 6 who are the parents of Chitrao. He was taken to the place of occurrence. He came to Kottar Police Station at 2. 30 p. m. on 27-4-1995 and gave Ex. P. 2 report, along with Ex. P. 1 statement. (e) P. W. 14, Thangadurai while he was working as Head Constable on 27 4-1995 on receipt of Exs. P. 1 and P. 2 registered a case under Sections 498 (A) and 306 I. P. C. in Crime No. 334 of 1995. He forwarded F. I. R special report and the statements to Judicial Magistrate and also to his superiors and also to R. D. O. (f) P. W. 15 Mariadoss, Gr. I Constable was deputed to guard the dead body of Chitra. (g) P. W. 17, while he was working as R. D. O. Nagerkoil on 27-4-1985 on receipt of Ex. P. 9 F. I. R. had visited Isankanvilai Pallithoppu and made an inquest. Ex. P. 13 is the inquest report. He recorded the statement of accused, Ex. P. 14. (h) After conducting inquest the corpse of Chitra was sent to Government Hospital for conducting post mortem. (i) P. W. 15 along with requisition Ex. P. 6 handed over the corpse of Chitra for conducting post mortem. (j) P. W. 13, Dr. Tmt. Somam, along with Dr. Saradha. conducted the post mortem on the corpse of Chitra, on 28-4-1995 at 11. 30 a. m. and opined that the deceased would appear to have died of Phorate poisoning and issued Ex. P. 7 report. She also issued final report Ex. P. 8. (k) P. W. 19, Sandeep Rai Radhore is the investigating officer. On 27-4-1995 while he was working as Assistant Superintendent of Police. Nagercoil on receipt of Express F. I. R. he proceeded to the place of occurrence. He saw the dead body of Chitrao He prepared Ex. P. 15 observation mahazar he prepared Ex. P. 16 rough sketch and he seized M. O. 1 tiffin carrier with smell of poison and M. O. 2. He saw that the body was dropped in M. Os. 3 and 4. He saw the dead body of Chitrao He prepared Ex. P. 15 observation mahazar he prepared Ex. P. 16 rough sketch and he seized M. O. 1 tiffin carrier with smell of poison and M. O. 2. He saw that the body was dropped in M. Os. 3 and 4. Since Chitra died within 7 years from the date of her marriage, R. D. O. held inquest. P. W. 19 examined witnesses P. Ws. 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 and one Kannan. He altered the Section into 498a and 302 I. P. C. and sent a report to Judicial Magistrate. On 15-5-1995 P. W. 19 arrested the accused and handed him over to centry with instruction to produce him before the concerned Magistrate with a remand report. (I) On 3-3-1996 while P. W. 20 was working as Inspector of Police after receipt of report from Forensic science department examined Doctors and Nagercoil R. D. O. and after completing investigation on 30-4-1996 submitted the final report before the Judicial Magistrate under Section 498 (A ). 417 and 302 I. P. C. (m) Learned Judicial Magistrate No. 11. Nageroil on receipt of the case has taken it on file as p. R. C. No. 15 of 1996 and after completing formalities as the case was exclusively triable by Sessions Court committed t he case for trial to Sessions Court. (n) Learned Principal Sessions Judge, Nagercoil on trial examined 20 witnesses and marked 18 exhibits. No witness was examined on the side of accused and no exhibit was marked. ( 4 ) THE accused was questioned under Sec. 313. Cr. P. C. against the incriminating circumstances found in the evidence of the prosecution witnesses. He has further stated that Natarajan. Rathinam, Chellappan are all arrack sellers and that as they laid some local restrictions a dispute arose and due to dispute and enmity the case had been filed against him deceitfully. ( 5 ) LEARNED Principal Sessions Judge on considering the evidence and. on perusing the materials placed before him and upon hearing the counsel on either side rendered the judgment convicting and, sentencing the accused as stated above. ( 6 ) LEARNED counsel for the appellant submits that the conviction and the sentence awarded by the trial Court are based only on the circumstantial evidence of P. Ws. on perusing the materials placed before him and upon hearing the counsel on either side rendered the judgment convicting and, sentencing the accused as stated above. ( 6 ) LEARNED counsel for the appellant submits that the conviction and the sentence awarded by the trial Court are based only on the circumstantial evidence of P. Ws. 2 and 6 who are the parents of the deceased Chitra. He submitted that there is no eyewitness to the scene of occurrence that there is no evidence for the cruelty and that the alleged demand of dowry also has not been proved beyond reasonable doubt. Learned counsel pointed out that there is abnormal delay in the arrest of the accused whereas his presence was very much spoken to by many of the witnesses the invited our attention that the parents of the deceased Chitra. P. Ws. 5 and 6 on hearing the news that their daughter had died instead of visiting the place of occurrence and even without going to the police station or Court which were placed within a short distance of a kilometre had gone to the house of Village Administrative officer on the advise of one Rathinam which would, reveal the innocence to the incident. He also pointed out that there is a dealer in giving the complaint which is a fat alto the prosecution case. Learned Counsel further submitted that according to the extra judicial confession of the accused Ex. P. 14 which had been marked subject to objection the accused cannot be convicted for offences for which he stood charged. Learned counsel drew our attention that this is not a case of murder and certainly it will not attract the fact of the rarest of rare cases to award capital punishment rather it will be one of the cases of acquittal. He invited our attention to the relevant portions of the evidence of prosecution witnesses. ( 7 ) LEARNED Additional Public Prosecutor submitted that the deceased herein had died within seven years of her marriage for non-fulfilling the demand in consequence thereof an enquiry by R. D. O. was conducted. He further submitted that though interested witnesses turned hostile, the evidence so culled out from the prosecution case would prove the case beyond doubt. He further submitted that the purchase of insecticide by the accused was proved by the evidence of P. W. 8 the seller. He further submitted that though interested witnesses turned hostile, the evidence so culled out from the prosecution case would prove the case beyond doubt. He further submitted that the purchase of insecticide by the accused was proved by the evidence of P. W. 8 the seller. He further submitted that an innocent girl was made to believe that she and her husband both are going to die by consuming poison and that the husband/accused pretended to do so making her believe that he consumed whereas the girl consumed the poison and died. In such circumstances the award of capital punishment alone would meet the end of justice. ( 8 ) BEING a murder reference we consider it necessary and appropriate to appreciate the entire evidence of the prosecution case, independently afresh and therefore we propose to deal with the same. ( 9 ) P. W. 1 Sreedhar on 27-4-1995 at about 2. 00 p. m. while as Village Administrative Officer at Vadiveeswaram village; P. W. 2 and. P. W. 6, the parents of the deceased girl gave a statement. He reduced the same in writing, got the signatures and alongwith his report submitted the same to Kottar police station. In their statement the parents of the deceased spoke about the demand of dowry. They told that their daughter visited twice and she cried stating that the accused and his mother demanded money by selling 3/4 cent of land belonging to her parents and also jewels. According to P. W. 2, at that time, Chitra was weak. It is seen that P. W. 3 grandmother of the accused. P. Ws. 4 and 5, relative of the accused and P. W. 7 a relative of the mother of the deceased turned hostile. P. Ws. 9 and 11. mahazar witnesses also turned hostile. P. Ws. 9 and 11, mahazar witnesses also turned hostile. So it is clear that the prosecution case rests only on the circumstantial evidence of the parents of the deceased and the evidence of doctors and investigating Officers and also by the recovery of poison and the containers. ( 10 ) IN a case of circumstantial evidence, circumstances from which the conclusion of the guilt to be traced should be in the first instance and it should be fully established and all the facts so established should be cogent only with the hypothesis of the guilt of the accused. ( 10 ) IN a case of circumstantial evidence, circumstances from which the conclusion of the guilt to be traced should be in the first instance and it should be fully established and all the facts so established should be cogent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and should be consistent only with the hypothesis of guilt. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In the light of the above legal position we discuss the relevant evidence. P. W. 2 is not an eye witness. She is only a hearsay witness. She deposed that about the death of Chitrao one Tmt. Parvathi and Kamalam told that at 2. 00 p. m. in the afternoon on 26-4-1995 the accused told her wife that both of them would consume poison and die and pouring the poison he posed as if he was drinking it and that believing him, she consumed poison. The said Parvathi and Kamalam turned hostile. P. W. 2 deposed that she even does not know the existence of the marriage of the accused and her daughter. According to P. W. 17. R. D. O. in, the enquiry conducted by him, both P. W. 2 and P. W 6 had said that their three sons and informed about the incident at Thovalai bus stand at 7. 00 p. m. on 26-4-1995. On consideration it is seen that according to the evidence of P. Ws. 2 and 6, before the Court they came to know about the incident through Tmt. Parvathi and Kamalam who turned hostile on 27-4-1995 at 7. 00 a. m. whereas according to P. W. 17 in the inquest enquiry they had stated that they came to know about the incident through their sons on 26-4-1995 at 7. 00 p. m. at Thovalai bus stand. P. W. 6 Natarajan in his cross-examination deposed that from the morning, they were thinking as to how to give a complaint. It is stated that the house of the accused is at about 1/2 km. that the police station is situated at 1-1/2 kms and that the village officer is nearer to police station. P. W. 6 Natarajan in his cross-examination deposed that from the morning, they were thinking as to how to give a complaint. It is stated that the house of the accused is at about 1/2 km. that the police station is situated at 1-1/2 kms and that the village officer is nearer to police station. There was also a specific question about the enmity between the accused and one Rathinam who is a brother of P. W. 6 who does the business of arrack selling. It was also suggested that only on his instigation the case has been falsely foisted against the accused It had been denied by the parents of the deceased. In such circumstances were of the view that the delay which took part in giving the complaint, had not been properly explained by the prosecution. ( 11 ) REGARDING the demand of money for the purchase of jewels by selling 3/4 cent land. P. Ws. 2 and 6 only deposed. According to them their daughter visited their house twice and at that time she was weak. It is stated that she cried stating that both the accused and his mother demanded money for getting jewels by selling cent land which they possessed. In their evidence itself they have stated that they did not disclose this fact to any body in, the village. Learned trial Judge on the basis of the aforesaid evidence came to the conclusion that Chitra had been harassed by the accused observing that the outsiders may not be knowing about the conversations between the husband, wife and the father-in-law and mother-in-law. When the case rests only on the circumstantial evidence in the absence of any corroboration by any independent witness in our view it cannot be appreciated that the above evidence that there was a demand for dowry and for that the deceased Chitra was harassed. As such the finding of the trial Judge is not sustainable on this aspect. ( 12 ) REGARDING the arrest of the accused learned counsel for the appellant submitted that the accused was arrested already and only after some days he was produced before the Judicial Magistrate. He also stated that the police originally took the mother of the accused also to police station and later they asked her to go home. Ex. ( 12 ) REGARDING the arrest of the accused learned counsel for the appellant submitted that the accused was arrested already and only after some days he was produced before the Judicial Magistrate. He also stated that the police originally took the mother of the accused also to police station and later they asked her to go home. Ex. P. 14 is the extra judicial confession of the accused before R. D. O. Though it is inadmissible in evidence, it is certain that the accused was available on 27-4-1995, Learned trial Judge also mentioned about the presence of the accused near the corpse of Chitra. According to the evidence of P. W. 19, Superintendent of Police he was present in the scene from 4. 00 p. m. to midnight on 27-4-1995. Inquest was held from 5. 00 p. m. to 7. 00 p. m. on that day. On a perusal of these it is not known at what time, the accused had given the statement Ex. P. 14. In the chief-examination, P. W. 19 had spoken to the effect that was the inspector had not shown any progress. I investigated the case and on 15-5-1995, at 10. 00 a. m. I arrested the accused Selvam Panthal Selvam at Yanai Palam, Edalakudi. T This statement, in our view, reveals that knowingly about the incident fully, the investigation was not properly conducted, since the accused was arrested after 19 days. ( 13 ) P. W. 19, the Superintendent of Police was very much available at the scene of occurrence from 4. 00 p. m. on 27-4-1995. He did not enquire any neighbours. Except the interested witnesses, he had not examined any independent witnesses. As such when the said witnesses turned hostile, everything stopped at that place itself. No corroboration could be taken positively. The investigating officer had not examined any witness as to the conduct of the marriage between the deceased and the accused. He further deposed, was sitting in my jeep from 5. 00 p. m. to 7. 30 p. m. Between 7. 30 and 8. 30 p. m. I did not examine any witness. I was discussing with my Inspector, Sub-Inspector as to how to proceed with the case because of this the prosecution could not be taken as proved beyond any reasonable doubt. 00 p. m. to 7. 30 p. m. Between 7. 30 and 8. 30 p. m. I did not examine any witness. I was discussing with my Inspector, Sub-Inspector as to how to proceed with the case because of this the prosecution could not be taken as proved beyond any reasonable doubt. ( 14 ) P. W. 8, who is doing business in selling insecticide, had been examined about the purchase of the insecticide by the accused, from his shop. P. W. 8 admitted that the insecticide should not be sold without bill. He also mentioned that the accused did not get the receipt and submitted that the original receipt was given to the police. But the same was not produced, P. W. 8 further stated that the insecticide was purchased by the oral request of the accused. ( 15 ) ON consideration, we find that there is no chain of link in the evidence and also the unexplained facts, as stated above. This case will not fall under the category of the rarest of rare cases, in the absence of any aggravating circumstances. Learned Additional Public Prosecutor frankly conceded. So in our considered view, the sentence of capital punishment is not sustainable. ( 16 ) NOW it is to be seen whether in the given facts of the case, the accused can be convicted for the offence of murder. So far as the legal position is concerned, it is well settled that the prosecution is bound to prove its case by cogent, reliable and positive evidence. There is a long distance between the word may be true and must be true and even if it had been held by the trial Court that the prosecution story may be true, the same cannot be held as proved unless the guilt had been proved beyond reasonable doubt. On the material evidence available on record and also in view of the legal position as stated above, there is no sufficient and substantial evidence, nor on the basis of the evidence available on record, only the conclusion/inference can be drawn that the accused is guilty. The prosecution has not been able to prove its case beyond reasonable doubt. Learned Additional Public Prosecutor has also not been able to sustain the order of conviction or otherwise and fairly conceded. The prosecution has not been able to prove its case beyond reasonable doubt. Learned Additional Public Prosecutor has also not been able to sustain the order of conviction or otherwise and fairly conceded. So the order of conviction passed under Section 302 I. P. C. is also not sustainable. However learned Additional Public Prosecutor submitted that the guilt will fall under Sections 304-B and 498-A I. P. C. ( 17 ) WE have considered this aspect also, though there is no charge under Section 304-B I. P. C. It is an admitted fact that Chitra lived happily with Selvam/accused for 3 months. Thereafter she died, because of the consumption of poison, as per the medical report. It is, no doubt true, that Section 304-B I. P. C. is more stringent than Section 498-A I. P. C. For attracting Section 304-B I. P. C. it is necessary to prove that soon before her death the deceased was subjected to cruelty or harassment by her husband or relative of her husband for any demand of dowry. In the instant case, the prosecution has not produced any evidence that there is demand/constant demand, from the husband. We have already stated that the evidence of P. Ws. 2 and 6 on this aspect, is not sufficient to prove the guilt. As already stated the case rests only on the circumstantial evidence of interested witnesses. P. Ws. 2 and 6 deposed that they never told anybody the detail that their daughter came and told about dowry. Nor there is any evidence to show that she has been subjected to cruelty harassment by her husband. There is no evidence for the demand of dowry. The investigating officer also admitted that he has not examined any witness for the conduct of marriage. P. W. 2s evidence would run as under: i do not know directly about the accused having called Chitra and the marriage having been performed between them. I did not tell either the R. D. O. or in the statement given to the police at which place the accused and Chitra got married. I did not give a complaint to the police when the accused at first called Chitra. The evidence of P. W. 6 is also to the effect, we were planning/thinking since morning from 7 a. m. to 2 p. m. as to how to give complaint. I did not give a complaint to the police when the accused at first called Chitra. The evidence of P. W. 6 is also to the effect, we were planning/thinking since morning from 7 a. m. to 2 p. m. as to how to give complaint. In such circumstances, we are not able to agree with the contention of the learned Additional Public Prosecutor that this case will come under the category of Section 304-B or 498-A I. P. C. In the trial Court itself the accused was acquitted of the offence of 306 I. P. C. ( 18 ) ON overall consideration, as stated above we hold that the prosecution has failed to prove its case by cogent and reliable evidence, beyond reasonable doubt. Accordingly, we set aside the conviction and sentence imposed by the trial Court. The criminal appeal is allowed. Reference is answered in the negative. The appellant/accused is acquitted of all the charges framed against him. ( 19 ) SINCE the accused is in solitary confinement, he is directed to be set at liberty forthwith, if he is not required in any other case. ( 20 ) BEFORE parting with this case, we are constrained to observe that in a case like this, the prosecution has not conducted the investigation fairly and properly, as it is expected. Appeal allowed.