Judgment :- M.Karpagavinayagam, J. Challenging the conviction under Section 302 I.P.C. for having committed the murder of the deceased Vennila, her husband Periyasamy, has filed this appeal. 2. The facts in brief, are as follows: (a) Periyasamy, the accused married the deceased Vennila two years prior to the occurrence. Within one year after the marriage, a male child was born. About five months prior to the date of the occurrence, the deceased used to complain to P.W.2 Kuppusamy, her father, P.W.3 Kullammal, neighbour and P.W.5 Pachaiammal another neighbour, that the accused has always been quarrelling and beating her and compelling her to have sexual intercourse with him frequently. When the torture became unbearable, the deceased left the matrimonial home and joined her parents. After sometime, on the intervention of Panchayatdars, the parents of the deceased sent her with the accused to live with him. Even thereafter, there used to be frequent quarrel between the accused and the deceased. Further the accused began to suspect her fidelity. (b) P.W.6 Duraisamy, a friend of the accused gave some audio casettes containing cinema songs to the accused. Since the same was not returned, P.W.6 went to the house of the accused and asked his wife for the return of the casettes. She told him that the accused was out of station. Therefore, P.W.6 went back. As soon as the accused came to the house, the deceased informed the accused about the casettes being asked by P.W.6. In the evening, again quarrel started and the accused beat the deceased. The deceased went and complained to P.W.3 Kullammal, the neighbour. (c) P.W.3 Kullammal therefore came to the house of the accused and reprimanded him. The mother of the accused also advised the accused not to beat the deceased. But the accused beat his mother also. The father of the accused, on seeing that his wife was being beaten by his son, retaliated by beating the accused. After taking food in the night, the accused asked the deceased to come and take bed with him. But she refused. Having got irritated over the refusal of the deceased, the accused planned to finish her off once for all. (d) At about 3.00 a.m. on 23.6.1996, the accused got up and put a rope on her neck and strangulated her to death and hanged her from the roof of the house. But she refused. Having got irritated over the refusal of the deceased, the accused planned to finish her off once for all. (d) At about 3.00 a.m. on 23.6.1996, the accused got up and put a rope on her neck and strangulated her to death and hanged her from the roof of the house. Then he went away from the house and concealed himself till 3.00 p.m. Thereafter, he came to P.W.1 Mani, Village Administrative Officer and made extra judicial confession narrating the incident. P.W.1 Village Administrative Officer recorded his statement, attested by his Assistant Shanmugam. Ex.P1 is the statement of the accused. (e) Thereupon, P.W.1 took the accused to the Police Station and handed over Ex.P1 statement and Ex.P2 endorsement along with the accused to P.W.13 Sub Inspector of Police at about 4.00 p.m. P.W.13 Sub Inspector of Police, on receipt of the same, registered a case for the offence under Section 302 I.P.C. Ex.P13 is the First Information Report. (f) On receipt of message, P.W.14 Inspector of Police, took up investigation and went to the scene of occurrence. At about 5.00 p.m., P.W.14 prepared Ex.P3 observation mahazar and Ex.P.14 rough sketch. He recovered M.O.1 rope (thaambu kayiru) from the house. He conducted inquest and examined the witnesses and Ex.P15 is the inquest report. (g) On requisition by P.W.14 Inspector of Police, P.W.9 Doctor conducted post mortem on 24.6.1996 and issued Ex.P7 post mortem certificate. She opined that the death occurred due to asphyxia because of strangulation about 48 to 72 hours prior to post mortem. (h) At about 9.30 p.m., P.W.14 Inspector of Police came back to the Police Station and arrested the accused. He requested for recording the statement of the accused under Section 164 Cr.P.C. (i) On 27.6.1996, the accused was produced before D.W.1 Judicial Magistrate. Before him, he has stated that he was not willing to give any confession statement. The said proceedings are Ex.D2. (j) P.W.14 Inspector of Police continued the investigation. His successor one Mahalingam, Inspector of Police, after completion of investigation filed the charge sheet against the accused for the offence under Section 302 I.P.C. 3. During the course of trial, P.Ws.1 to 14 were examined. Exs.P1 to P15 were filed and M.Os. 1 to 15 were marked. On the side of the defence, D.W.1 Judicial Magistrate was examined and Exs.D1 and D2 were marked. 4. During the course of trial, P.Ws.1 to 14 were examined. Exs.P1 to P15 were filed and M.Os. 1 to 15 were marked. On the side of the defence, D.W.1 Judicial Magistrate was examined and Exs.D1 and D2 were marked. 4. When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating materials available on record, he stated that he was innocent and at the time of occurrence, he was not in the house and he had gone to the field for cutting sugarcane. 5. The trial court, on consideration of the evidence available on record, concluded that the prosecution had established the case beyond reasonable doubt and convicted the accused for the offence under Section 302 I.P.C. and sentenced him to life. Aggrieved by the said judgment, this appeal has been filed. 6. Mr V.Gopinath, learned Senior Counsel appearing for the appellant/accused would contend that there is no positive evidence to show that the deceased died due to homicide in view of the evidence of the Doctor that there is possibility of suicide and in any event, Ex.P1 the extra judicial confession, cannot be relied upon, as it would suffer from various infirmities. 7. In reply to the said submissions, Mr V.Arul, learned Government Advocate would submit that the reasonings given by the trial court for imposing conviction for the offence under Section 302 I.P.C. on the appellant, are perfectly justified and as such, no interference is called for. 8. We have carefully considered the submissions made by counsel on either side and analysed the materials available on record with care and caution. 9. According to the prosecution, the accused strangulated neck of the deceased - his wife and caused her death, since she was not co-operating with him for sex. The occurrence took place on 22/23.6.1996 at about 3.00 a.m. in the house of the accused. Admittedly, there is no eye witness. The entire case is based upon circumstantial evidence. 10. The main piece of circumstantial evidence relied upon by the prosecution is Ex.P1 extra judicial confession given by the accused to P.W.1 at 3.00 p.m. on 23.6.1986. In the said statement, he narrated various details including the motive and also the manner of the incident in which the deceased was done to death. The evidence of P.W.9 Doctor would clearly indicate that the deceased died due to asphyxia, because of strangulation of her neck. In the said statement, he narrated various details including the motive and also the manner of the incident in which the deceased was done to death. The evidence of P.W.9 Doctor would clearly indicate that the deceased died due to asphyxia, because of strangulation of her neck. The particulars of the injuries given under Ex.P7 postmortem certificate also would indicate that it cannot be a suicide, but it must be a homicide only. Though it was suggested to P.W.1 and P.W.2 that the deceased committed suicide, nothing had been placed before the court either through defence evidence or through the explanation given by the accused under Section 313 Cr.P.C. with regard to suicide committed by the deceased. Under those circumstances, we have no hesitation to hold that the deceased died due to homicide. 11. It has to be seen, whether the said homicide had been committed by the accused. 12. It is settled law that in a case of circumstantial evidence, the prosecution has to establish all the circumstances clearly and clinchingly. Further more, the circumstances from which the inference of guilt is drawn, must form a complete chain and they must be such that they unerringly point to the guilt of the accused and the accused alone without giving room for any hypothesis or innocence of the accused. 13. In this case, as submitted by learned Government Advocate appearing for the State, the prosecution would mainly rely upon the extra judicial confession given by the accused to P.W.1 at about 3.00 p.m. on 23.6.1996. There is no dispute in the legal position that the extra judicial confession made by the accused to the Village Administrative Officer before commencement of the investigation is admissible and the same can be acted upon to base the conviction, provided it must be corroborated by other materials placed by the prosecution, as held in In re Muthukarunga Konar (1959 Cri.L.J.603), Murugan vs. The State (1991 Crl.L.J.1680) and Arjunan and others vs. The State (1993 Cri.L.J.3113). 14. The Supreme Court in Balbir Singh vs. State of Punjab (2000 SCC(Cri) 236), has held that even though the extra judicial confession can be accepted as one of the pieces of circumstantial evidence, the same is not to be accepted without independent corroboration. 14. The Supreme Court in Balbir Singh vs. State of Punjab (2000 SCC(Cri) 236), has held that even though the extra judicial confession can be accepted as one of the pieces of circumstantial evidence, the same is not to be accepted without independent corroboration. The Supreme Court has further held that if extra judicial confession is of a doubtful character and does not afford corroboration, the same cannot be relied upon. 15. As submitted by the prosecution, the only piece of circumstantial evidence is Ex.P1 extra judicial confession made by the accused to P.W.1. On going through Ex. P1 extra judicial confession, we are constrained to take a view that Ex.P1 would not only suffer from lack of credibility, but also from lack of corroboration. As a matter of fact, the evidence of P.W.9 Doctor who refer to the time of death, would completely falsify the case of the prosecution given in Ex.P1 made by the accused to P.W.1. According to Ex.P1, the occurrence took place on 23.6.1996 at about 3.00 a.m. The post mortem was conducted at about 12.45 p.m. on 24.6.1996. The opinion which has been given by the Doctor in Ex.P7 and in her deposition before the court is that the death would have occurred about 48 to 72 hours prior to postmortem. If this evidence is taken into account, the death would not have occurred on 23.6.1996 at about 3.00 a.m. which is only 33 hours prior to postmortem. In other words, according to the Doctor, the occurrence must have taken place only on the night of 21/22.6.1996. 16. In Ex.P1, it is stated that previous night, i.e. on 22.6.1996 at about 9.00 p.m., there was quarrel between the accused and the deceased and in that process, the deceased was beaten by the accused. Thereupon, the deceased went to the house of P.W.3 neighbour Kullammal and complained her that she was being beaten by the accused. Out of sympathy, P.W.3 Kullammal went to the house of the accused and reprimanded the accused as to why he beat the deceased. But this version given by the accused in Ex.P1 has not been corroborated by P.W.3. As a matter of fact, P.W.3 would state even in her chief examination that no such quarrel took place between the accused and the deceased on the said night and the deceased never came to her to complain about the beating. 17. But this version given by the accused in Ex.P1 has not been corroborated by P.W.3. As a matter of fact, P.W.3 would state even in her chief examination that no such quarrel took place between the accused and the deceased on the said night and the deceased never came to her to complain about the beating. 17. It is the evidence of P.W.4 Sappai, a neighbour of the accused that about 3.00 a.m. on 23.6.1996 the accused came to his house and told him that his wife committed suicide. On hearing this, P.W.4 came to the house of the accused and found the deceased dead. Though, the reference about P.W.4 is mentioned in Ex.P1, the fact that the information about the suicide was passed by the accused to P.W.4, has not been mentioned therein. If the evidence of P.W.4 to the effect that the accused informed him that the deceased committed suicide is accepted, then there is no reason for the accused to go away from the house immediately and to hide himself for the whole day. 18. It is the case of the prosecution that the accused went to the Village Administrative Officer at about 3.00 p.m. and gave extra judicial confession. Admittedly, the accused did not have acquaintance with the P.W.1 Village Administrative Officer earlier. It is the evidence of P.W.1 that he took the accused to the Police Station along with Ex.P1 and at the Police Station, he wrote Ex.P2 and handed over Exs.P1 and P2 along with the accused to the police. P.W.1 would further state that Ex.P1 was prepared at his office and Ex.P2 was prepared at the Police Station. This looks artificial because the perusal of Exs.P1 and P2 would show that it is a continuation and the same must have been prepared at one and the same place. 19. It is also stated by P.W.1 in the cross examination that he sent a copy of Ex.P1 to the Tahsildar. It is not known as to what was the action taken by the Tahsildar after receipt of Ex.P1. As a matter of fact, when the death of a woman within seven years of marriage is reported, the Executive Magistrate under Section 174 Cr.P.C. has to go to the scene of occurrence and conduct inquest on the dead body. This procedure, admittedly, has not been followed by the officers concerned. As a matter of fact, when the death of a woman within seven years of marriage is reported, the Executive Magistrate under Section 174 Cr.P.C. has to go to the scene of occurrence and conduct inquest on the dead body. This procedure, admittedly, has not been followed by the officers concerned. On the other hand, P.W.13 Sub Inspector of Police, hastened to register a case under Section 302 I.P.C. against the accused, merely on the basis of Exs.P1 and P2 given by P.W.1 Village Administrative Officer. 20. There is no dispute with regard to the fact that P.W.1, before handing over Exs.P1 and P2 to the Police Station did not choose to verify the contents of Ex.P1 by going to the scene of occurrence to see the dead body. Only P.W.14 Inspector of Police, on receipt of the message, came to the Police Station and after receipt of the copy of F.I.R. went to the scene of occurrence and conducted inquest. Only after 9.30 p.m. he came back to the Police Station and arrested the accused. Thus, it is clear that P.W.14 Inspector of Police did not care to follow the procedure under Section 174 Cr.P.C. by requesting the Tahsildar to come to the scene of occurrence to conduct inquest. 21. All the above facts taken in cumulative, would indicate that Ex.P1, the statement of the accused could not have been recorded by P.W.1 Village Administrative Officer at the time alleged by the prosecution. 22. It is true that the accused and the deceased were living together in one house with a small child of 11 months. But on going through the observation mahazar, rough sketch and the evidence of P.W.14, it could be seen that the house was partitioned by a small wall and on the eastern side, parents of the deceased were residing and on the western side, the accused and the deceased were residing. P.W.14 also would state in the cross examination that the deceased was last seen by the parents of the accused. Under those circumstances, mere non-explanation by the accused with regard to the cause of death of the deceased would not be a strong link to form a complete chain. 23. P.W.14 also would state in the cross examination that the deceased was last seen by the parents of the accused. Under those circumstances, mere non-explanation by the accused with regard to the cause of death of the deceased would not be a strong link to form a complete chain. 23. Furthermore, as seen from Exs.D1 and D2 proceedings, it is clear that the accused was produced before D.W.1 Judicial Magistrate, before whom he has stated that he was compelled by the police to give confession statement before the court, and he was not willing to give such a statement. When Ex.P1 cannot be given any weight in view of all these infirmities, nothing remains there to hold that the accused only committed homicide of his wife. 24. In such a fact situation, it has to be held that the prosecution has met its colossal failure, in view of the fact that they failed to establish the guilt of the accused beyond reasonable doubt. As such we are of the view that the accused is entitled to be given benefit of doubt and consequently, he is liable to be acquitted. 25. In fine, the appeal is allowed, setting aside the conviction and sentence imposed on the appellant/accused and he is acquitted of the charge. He is directed to be set at liberty forthwith unless he is required in connection with any other case.