Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) KULANDAI Ammal, the unfortunate mother was convicted in S. C. No. 59/ 88 on the file of the Court of Sessions. Coimbatore for the offences under Section 302 I. P. C. (3 Counts) and 309 I. P. C. for having committed the murder of her own three children and attempted to commit suicide by throwing herself into the River Bhavani near Alancombu due to poverty and ill-treatment meted out to her by her drunkard husband. ( 2 ) THE brief facts are as follows: The appellant. Kulandai Ammal is the wife of one Palanisamy residing at Kallipalayam. They belonged to Dhola community. They got three children namely, Rajammal aged about 8 years, Sudha aged about 3 years and Bhuvaneshwari aged about 8 months. The husband of the appellant being a drankard often used to beat her and did not used to pay any amount for the household expenses. Though she was able to bear this suffering at the hands of her husband, for some years on 15-12-1987 night, she took a decision to go to Bhavani river for committing suicide. She also thought that it is better to kill her children also, so that they may not lead a suffering life at the hands of her husband in future. On 16-12-1987, the appellant left her village at 11 am along with her children and reached Alancompu by about 12 noon. On reaching the river bank, the appellant began to throw her, children one after another into the running stream of Bhavani river. Thereafter, she herself jumped into the river. P. W. 6, Govindaraj who is working as an agricultural coolie in the garden belonging to one Narayanan Chettiar at Alancombu happened to witness this unfortunate incident. Immediately. P. W. 6 ran to the office of P. W. 1, the village Administrative Officer and informed him about the incident. It was about 12. 30 pm. P. W. 1 rushed to the scene of occurrence along with P. W. 2 and P. W. 3. P. Ws. 2 and 3 jumped into the river and brought the appellant alive to the river bank. Out of the three children. P. Ws. 2 and 3 were able to recover only two dead bodies of Rajammal and Sudha. After first aid was given to the appellant, in a few minutes, she regained her consciousness. Then. P. Ws. 2 and 3 jumped into the river and brought the appellant alive to the river bank. Out of the three children. P. Ws. 2 and 3 were able to recover only two dead bodies of Rajammal and Sudha. After first aid was given to the appellant, in a few minutes, she regained her consciousness. Then. P. W. 1 obtained her confession statement. Ex. P-1. She had stated in that statement that she wanted to commit suicide unable to bear the torture given by her husband in a drunken mood and due to abject poverty. After recording-the same. P. W. 1 sent the village Thalayari P. W. 8 along with Ex. P-1 statement and Ex. P-2, his report to the Sirumugai Police Station. The appellant also was sent along with him. At 2. 45 p. m. P. W. 9, the Sub Inspector of Police registered the case on receipt of these documents in Crime. No. 11/87. The printed F. I. R. is Ex. P-10. Thereafter, these documents were forwarded to the Judicial Magistrate. Mettupalayam and to the higher officials. At 4 pm. P. W. 9 the Inspector of Police received the F. I. R. and reached the scene village at 4. 20 p. m. By that time P. W. 9 the Sub Inspector reached the village. ( 3 ) P. W. 11, the Investigating Officer prepared the observation Mahazar and the sketch. He conducted inquest on the dead bodies of Rajammal and Sudha. The inquest reports are Exs. P-3 and P-4 respectively, P. W. 1 to 4. P. W. 6 and P. W. 8 were examined during the inquest. Thereafter, he sent the dead bodies for conducting post mortem. In the meantime P. W. 5 the Doctor examined the appellant at 9. 30 p. m. on the same day and issued Ex. P-5 the wound certificate. On 17-12-1987, the Doctor; P.W. 5 commenced post mortem over the dead body of Sudha and issued Ex. P-8, the post mortem certificate. At 7. 15 a. m. P. W. 5 commenced post mortem on the body of Rajammal and issued Ex. P-9, the post mortem certificate. The Doctor, in both the certificates gave opinion that Rajammal and Sudha died to asphyxia due to drowning. After finishing the investigation. P. W. 11 filed a chargesheet on 11-3-1988. P-8, the post mortem certificate. At 7. 15 a. m. P. W. 5 commenced post mortem on the body of Rajammal and issued Ex. P-9, the post mortem certificate. The Doctor, in both the certificates gave opinion that Rajammal and Sudha died to asphyxia due to drowning. After finishing the investigation. P. W. 11 filed a chargesheet on 11-3-1988. ( 4 ) ON committal the trial court examined 11 witnesses on the side of Prosecution through whom 12 Exhibits and 12-M. Os. were marked. In her 313 Statement, the appellant would state that she was innocent and she went to Alancombu temple in order to worship and pray for her children for recovery from their illness and that when one child went for stools she took that child in order to wash the faecal matter near the river and accidentally the appellant fell into the river along with the child and that she did not know what happened to the other children. ( 5 ) ON a thorough scrutiny of the materials placed before the court the trial court convicted the appellant for offence under Section 302 I. R. C. (3 Counts) to undergo life sentence and for 309 I. P. C. to undergo R. I. For three months. While rendering the judgment the trial court recommended the Government under Section 432 Cr. P. C. for remitting the life sentence into three years. Having not satisfied with the said judgment the appellant is before this court through this appeal. ( 6 ) MR. Ravindran, the counsel representing Mr. Parthiban appearing for the appellant took us through the entire evidence and contended that the evidence let in by the Prosecution is not sufficient to impose conviction for the offences referred to above and in any event, the appellant could be convicted not under Section 302, but at the most, she could be convicted only for the offence under Section 304 (1) I. P. C. , in view of the act committed by the appellant was under sustained provocation. He would further request this court to invoke the G. O. for remittance of the entire sentence that would be imposed for the offence under Section 304 (1) I. P. C. ( 7 ) PER contra. Mr. He would further request this court to invoke the G. O. for remittance of the entire sentence that would be imposed for the offence under Section 304 (1) I. P. C. ( 7 ) PER contra. Mr. Elango the learned Government Advocate appearing for the respondent would submit that the materials are sufficient to conclude that the appellant alone has committed this inhuman act of infanticide and that therefore the trial court is correct in holding that she is liable to be convicted for the act of homicide in respect of three children and attempt to commit suicide. However, he would fairly submit that on the basis of the decision given by a Division Bench of this court in Suyambukkani v. State of Tamil Nadu this offence under Section 302 I. P. C. could be converted into 304 (1) I. P. C. ( 8 ) WE have given our anxious thought over the respective submissions made on either side. This is a case where the prosecution mainly relies upon two pieces of evidence. One is the extra judicial confession made by the appellant to P. W. 1, the village Administrative Officer. The second one is the evidence of P. W. 6, Govindaraj the eyewitness who is working as a gardener in Alancombu in the field belonging to one Narayanan Chettiar, situated nearby. As pointed out by the learned Government Advocate the extra judicial confession recorded by P. W. 1 in the presence of P. W: 4 could be acted upon inasmuch as the same was recorded before the investigation commenced. In Muthan and Nambtan v. State this court held that if the extra judicial confession was recorded in the presence of the Police Officer then the same cannot be acted upon in view of Rule 72 of the Criminal Rules of Practice. The Prosecution case is that the extra judicial confession was recorded before the investigation began. One thing to say that the extra judicial confession can be acted upon, though it is a weak piece of evidence but it is entirely different to say whether the evidence adduced by P.W. 1 and P. W. 4 relating to extra judicial confession could be relied upon in the light of the suspicious features being noticed in this case. One thing to say that the extra judicial confession can be acted upon, though it is a weak piece of evidence but it is entirely different to say whether the evidence adduced by P.W. 1 and P. W. 4 relating to extra judicial confession could be relied upon in the light of the suspicious features being noticed in this case. P. W. 1 would state that after the appellant gained consciousness within ten minutes from her being rescued, P. W. 1 obtained a statement from her, attested by P. W. 4 and another. He would further state in the cross-examination that he prepared two sets, and along with Ex. P-1 the statement of the appellant, one set was sent to the Police Station and another set was sent to the Tahsildar. P. W. 8, the Village Thalayari, through whom these records were sent, would admit that only one set was given to him to be given to the Police and he was not asked to go to the Tahsildar office and to the Magistrate along with the other set of documents. Besides that, P. W. 1 would state that after handing over the documents to the Police through P. W. 4, he did not receive any receipt from the Police. On the other hand, P. W. 6 would say that he handed over the documents to the Police and then obtained a receipt which, in turn, was a given to P. W. 1. P. W. 4, who, attested in Ex. P-1 would admit in the cross-examination that within one hour, the Police came to the scene. It is also admitted by P. W. 1 that after recording the statement he did not read out the contents of Ex. P-1to the appellant and obtained her signature. Even in Ex. P-1there is no reference of reading over of the said document to the appellant. The admission of P. W. 8 that he has not taken the Tapal to the Tahsildar or to the court even though P. W. 1 would state that the documents were sent to the Tahsildar also, would create a doubt as to whether those documents were prepared at the time, as alleged by the prosecution in the absence of the Police. As pointed out earlier, P. W. 1 admits that he was not received any receipt from the Police through P.W. 4. As pointed out earlier, P. W. 1 admits that he was not received any receipt from the Police through P.W. 4. Therefore, the suggestion put to the witnesses concerned that these documents have been prepared only at the Village Administrative Officers office in the presence of the Police cannot be brushed aside. In View of these suspicious features we do not propose to place importance on the evidence relating to the recording of the extra judicial confession. Besides that, as the Supreme Court held in Balwinder Singh v. State of Punjab the extra judicial confession is a very weak piece of evidence and cannot be acted upon unless there is a strong supporting material. But in the instant case, since we reject the extra judicial confession we need not go into the aspect of the said material. ( 9 ) LET us now come to the evidence of P. W. 6, who claims himself as eye witness. P. W. 6 would state that he saw the occurrence by standing at a distance of about 100 feet. He would also admit that in between the place where the appellant was standing along with her children and the place where he was standing there was a huge rock 10 feet high. Therefore, it is quite improbable to say that he saw the occurrence from a distance of about 100 feet. Moreover. P. W. 6 is a gardener doing agricultural work. The natural conduct of a person, especially a villager when he sees the lady and the children drowning in the river, he would immediately go to the river bank and he would also I jump into the river and he would try to rescue them. Oh the other hand he goes to the Village administrative Officers office, situated at about 300 feet away from the place of occurrence and thereafter after some minutes all the, people came along with P. Ws. 1, 2 and 3 and P. Ws. 2 and 3 rescued the appellant, and recovered the dead bodies of the two children. According to P. W. 1 and P. W. 8 the appellant was taken to the Police Station and was handed over to the police along with the documents. However. P. W. 6 would say that P. W. 8 alone went to the Police Station and brought the police. According to P. W. 1 and P. W. 8 the appellant was taken to the Police Station and was handed over to the police along with the documents. However. P. W. 6 would say that P. W. 8 alone went to the Police Station and brought the police. So, the inference is that the appellant was in the spot throughout till the police came. This aspect also has not been established clearly in view of the different statements given by the two sets of witnesses. ( 10 ) IN the context of these insufficient materials we have to See the case of the defence; It is the case of the appellant that she went to the temple situated nearby for worshipping and on the way to the temple, she went to the river for cleaning the faecal-matter of the child and at that time she fell down into the river along with the child accidentally. This defence, in a way gets corroborated by the evidence of P. W. 5 the Doctor, P. W. 5, the Doctor would state that while he examined the appellant she had stated that she fell into the river along with the children. It is not stated as if in order to kill her children and to commit suicide she fell into the river. Therefore, the defence as projected in this case assumes significance, especially in the absence of any material produced by the Prosecution to establish the motive put forward in this case. According to the Prosecution the appellant, day in and day out was beaten by her drunkard husband She was not given any money for household expenses. So, she decided to kill the children and to put an end to her life by committing suicide. To establish this the Prosecution has not chosen to examine either her husband or their neighbours. Therefore, when the material for the motive is completely absent, especially when we reject the statement of eye witness, we have no other alternative except to come to the conclusion that there is no material whatsoever in this case to connect the appellant with the commission of the offences referred to above. ( 11 ) ON the foregoing discussion, we are of the view that the appellant is liable to be acquitted and the conviction and sentence are liable to be set aside. In the result, the appeal is allowed. ( 11 ) ON the foregoing discussion, we are of the view that the appellant is liable to be acquitted and the conviction and sentence are liable to be set aside. In the result, the appeal is allowed. The conviction and sentence is set aside. Bail bond, if any already executed stands cancelled. Appeal allowed.