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2004 DIGILAW 1413 (MAD)

S. Palani v. State rep. By Inspector of Police

2004-10-28

M.THANIKACHALAM, P.D.DINAKARAN

body2004
Judgment :- M. Thanikachalam, J. The accused, who was charged under Section 302 I.P.C., (two counts), sentenced to undergo life imprisonment on each count, to run concurrently, with a direction that he shall not be released from the prison, unless he serves out twenty years of R.I., is the appellant. 2. The accused/appellant is the son of one Settu and Maya. Both of them were insisting the accused that he should marry one Sasikala i.e. the daughter of his maternal uncle, though he is having love affairs with one Jarina. Because of the persistent pressure and influence sought to be made by the parents, the accused having decided to commit murder his parents, murdered both, on 6.9.2000 at about 8.00 p.m. and 9.30 p.m. respectively, by crushing their heads by stone, then removed some jewels from Maya. In this view, he was directed to face the offence under Sections 302 (two counts) and 404 I.P.C. by the respondent police. 3. The accused refused to plead guilty, denying the entire allegations against him, which warranted the prosecution to march in 24 witnesses armed with 43 documents and 10 material objects. The scanning and evaluation of the above materials, according to the best judgment of the learned trial Judge, brought to surface, undoubtedly, the guilt of the accused under Section 302 I.P.C. alone on two counts. 4. The learned Additional Sessions Judge Thiruvannamalai came to the conclusion, that the extra judicial confession is fit enough to be acted upon, that the oral evidence of P.W.3 lends support to considerable extent, in respect of recovery of M.Os.2 to 4 series, that on the basis of the confession given by the accused, M.O.1, stone, which was used as a weapon to commit murder was recovered, that the last seen theory namely, the accused was seen with the company of his parents, is well proved by the oral evidence of P.W.2, that the prosecution had established the motive part and that the medical evidence also corroborated the act of the accused in committing the murder. Thus concluding, he slapped the sentence as said supra, which is under challenge in this appeal. 5. The prosecution case in brief: (a) The accused/appellant is the son of Settu and Maya, who were the residents of Pudupadi Village, Arcot Taluk. Thus concluding, he slapped the sentence as said supra, which is under challenge in this appeal. 5. The prosecution case in brief: (a) The accused/appellant is the son of Settu and Maya, who were the residents of Pudupadi Village, Arcot Taluk. The accused/appellant is a post graduate in M.A. and he was staying in a Hostel belonging to Adi Dravidar Welfare Department, along with P.W.3. Adjacent to the hostel, P.W.4 was doing flower vending. Opposite to the house of P.W.4, P.W.6 Jarina was living with her parents. The accused and P.W.6 fell in love, carried on their love affairs for two years or so. (b) Thiru Shanmugam, P.W.9 is the brother of Maya i.e. the mother of the accused. One Muthu is also one of the brothers of Maya and his daughter is Sasikala. The parents of the accused had the proposal to take Sasikala as their daughter in law, by giving her in marriage to the accused, which was not to the wish of the accused. Despite the unwillingness shown by the accused, the parents insisted, that he should marry only Sasikala, the daughter of Muthu, which caused irritation to the accused, taking decision to the extent of eradicating the parents, in order to marry Jarina. Thus, having decided to commit murder of his parents, on 6.9.2000, the accused requested the parents to come to Sodiyambakkam, assigning some other reasons, where from all the three went to Mangadu Junction Road, where P.W.2 was having his hire cycle shop. At about 7.30 p.m. or so, the accused took a hire cycle from P.W.2, took his father as pillion rider, leaving the mother there itself. Near Sodiyampakkam lake, the accused pushed the father, assaulted on his head by stone, M.O.1, which took away his life. Thereafter, he returned to the Mangadu Junction road, took the mother near the land of one Poongodi, where he pushed her and assaulted on her head with the same stone. Thus, murdering both, father and mother, the accused returned to the junction road, handed over the cycle to P.W.2, then went away. (c) On 7.9.2000, at about 12.00 p.m., the accused went to the police station, preferred Ex.P.36 complaint to P.W.15, as if his father was murdered and mother was missing, on which basis a case has been registered in Cr.No.423/2000 under Section 302 I.P.C., as well as women missing under Ex.P.37. (c) On 7.9.2000, at about 12.00 p.m., the accused went to the police station, preferred Ex.P.36 complaint to P.W.15, as if his father was murdered and mother was missing, on which basis a case has been registered in Cr.No.423/2000 under Section 302 I.P.C., as well as women missing under Ex.P.37. On receipt of the copy of the F.I.R., P.W.16, the Inspector of Police, rushed to Sodiyampakkam Lake, where he noticed the body of Settu. P.W.16, inspecting the scene of crime, prepared observation mahazar, sketch, recovered blood stain earth and other materials from the scene of crime. He had also made arrangements for conducting autopsy, giving requisition Ex.P.33. (d) On 9.9.2000, on receipt of Ex.P.40, P.W.17, inspected the scene of crime, where the body of Maya was found. Upon inspection, P.W.17 prepared observation mahazar, sketch and he had also made arrangements for conducting autopsy, having prepared inquest report also. The doctors, who had conducted autopsy over the body of Settu and Maya noted the injuries and gave opinion, regarding the cause of death of Settu and Maya. The investigation conducted by P.Ws.16 and 17 had not yielded any result in fixing the accused till 1.10.2000. (e) On 1.10.2000, at about 10.30 a.m., when the Village Administrative Officer of Paiyanginaru was in his office at Vadathandalam, the accused approached him, and divulged that he had committed the murder of his father and mother, offering himself to surrender, apprehending harassment in the hands of the police. The Village Administrative Officer, recorded the statement of the accused truthfully obtained his signature, then handed over the accused, as well as the statement recorded by him viz., Ex.P.1, with an endorsement, to the Inspector of Police, P.W.18 at about 1.00 p.m. (f) P.W.18, arresting the accused on the basis of Ex.P.1, examined him and at that time, the accused gave the confession statement Ex.P.2, confessing that he will take out the stone used by him, as well as the ear studs, removed by him, from his mother. On the basis of Ex.P.2, P.W.18 recovered M.O.1, under the cover of Ex.P.3, Mahazar, recovered ear studs, shirt, pant M.O.4, M.O.2 and M.O.3 respectively, under the cover of Ex.P.4 Mahazar. On the basis of Ex.P.2, P.W.18 recovered M.O.1, under the cover of Ex.P.3, Mahazar, recovered ear studs, shirt, pant M.O.4, M.O.2 and M.O.3 respectively, under the cover of Ex.P.4 Mahazar. By examining the cycle shop owner, P.W.2, recovered the cycle hire register book, recorded the statement of other witnesses also, then and there, including the maternal uncle of the accused, as well as P.W.6 and P.W.4 through whom, the accused had given a sum of Rs.1,000/- as well as M.O.4 to P.W.6., which were later returned by P.W.6, to the accused. The recovered material objects, were subjected to chemical examination and reports were obtained. Concluding the investigation, when the materials collected were analysed, it brought to surface that the accused had committed the murder of his parents, since they were impediment for his love marriage, since they insisted, the accused should marry only Sasikala, the daughter of his maternal uncle. In this view, seeking appropriate punishment, the final report has been filed, leading to trial, ending in conviction, as hereinbefore mentioned, which is under challenge. 6. Heard the learned senior counsel, Mr. V. Gopinath appearing for the appellant, and the learned Government Advocate, (Crl. Side), Mr. A.N. Thambithurai. 7. The learned senior counsel, Mr. V. Gopinath for the appellant submitted, that practically when there is no evidence either direct or circumstantial, implicating the accused with the crime said to have been committed by him, the conviction slapped by the trial Court under presumption shall go, for want of legal evidence, which is opposed by the learned Government Advocate, contending, that there are unquestionable circumstantial evidence, to confirm the conviction, which is based on legal evidence, not warranting any interference by this Court. 8. Admittedly, there is no eye witness, to connect the accused with the murder of his parents. The incident had taken place on 6.9.2000 during night hours. The bodies of Settu and Maya were found near Sodiyampakkam lake bund and in a groundnut field, respectively. Till 1.10.2000, the police were unable to fix the accused and it seems, they have not even suspected the accused, though he was all along with the police, when they had conducted inquest over the bodies of Settu and Maya. After 25 days, it is said the accused himself, surrendered before the Village Administrative Officer, gave confession, admitting the guilt, which is exhibited as Ex.P.1, through P.W.1. 9. After 25 days, it is said the accused himself, surrendered before the Village Administrative Officer, gave confession, admitting the guilt, which is exhibited as Ex.P.1, through P.W.1. 9. From the materials available on record, it seems, an attempt was made by the prosecution, to prove the guilt of the accused purely on the basis of circumstantial evidence. True, circumstantial evidence is legally acceptable and a conviction could be based, purely on circumstantial evidence alone, since the circumstances may not lie, as men do. Therefore, if a conviction is sought to be sustained only on the basis of circumstantial evidence, the Court should expect, that the circumstantial evidence or the circumstances must be beyond any reasonable doubt, then connecting the events without any snap, thereby encircling the accused, not giving any chance for him to escape, making any dent. In this view, if the prosecution relies upon circumstantial evidence, it should be so strong, convincing, unassailable, leading to the only one inference and conclusion, that the crime should have been committed only by the accused, not giving any chance even to doubt about the hands of the third parties. The circumstantial evidence relied on, on appreciation and consideration, if makes out any chance, that somebody's involvement also should be there, then that part of the circumstantial evidence should help the accused, to come out and not to see him behind the bar. 10. The circumstantial evidence relied on, on appreciation and consideration, if makes out any chance, that somebody's involvement also should be there, then that part of the circumstantial evidence should help the accused, to come out and not to see him behind the bar. 10. In this case, the circumstances relied upon by the prosecution are: (i) that the accused had the motive to commit the murder of his parents, since they were insisting the accused to marry Sasikala, daughter of his maternal uncle, against his wish, who was in love with P.W.6, (ii) that the accused with an intention to divert the course of the investigation, preferred a false complaint to the police, thereby changing the course of investigation also to certain period, and extent, (iii) that the accused was last seen along with the company of his parents by P.W.2 and thereafter, the bodies of the parents alone were recovered, for which the accused had no explanation, (iv) that after the accused committed double murder, he went to the hostel, directed P.W.3 to wash his cloth, in which P.W.3 had noticed M.O.4, in the pant pocket of the accused (v) that the accused after committing the murder of his mother, took away her ear studs, M.O.4, handed over the same to P.W.4, with some money, who in turn handed over the same to P.W.6, which was later recovered on confession by the accused and (vi) that to crown all these things, he had surrendered himself before P.W.1, gave extra judicial confession, wherein he had admitted his guilt, which is proof sufficient to sustain the conviction. On the above basis, and in addition, pointing out some other circumstances also, seeking aid from the evidence available on record, the learned Government Advocate submitted that the trial Court has very elaborately, deeply, legally considered all these points, which brought to surface the guilt, and slapped conviction, which deserves acceptance. 11. The learned senior counsel, Mr. V. Gopinath appearing for the appellant submitted, that none of the above circumstances enumerated is available in this case and even assuming, some of the circumstances are available, they are not connected with each other, pointing out the guilt of the accused in uncertain terms and therefore, by having this kind of snapped or unconnected circumstantial evidence, sustaining the conviction is against the well established principle of law. It is the further submission of the learned senior counsel that the extra judicial confession said to have been given by the accused is a concocted one, for the occasion, as an after thought, since there was no necessity for the accused, to give such an extra judicial confession, after 25 days, that too before an unknown person, which he refused to confirm, when he was taken to the Judicial Magistrate, for recording confession. In this view, he submitted placing reliance upon the weak piece of evidence viz., extra judicial confession, which has no support from any material, convicting the accused on surmise and conjecture, which is unknown to criminal law, is not at all possible. 12. We have given our deep thought regarding the submissions made by either counsel and considered the materials very minutely and meticulously to test the alleged involvement of the accused. By going through the materials on record and the judgment of the trial Court, we are of the considered opinion, that the trial Court is swayed by sentiments, convicted the accused only on some presumptions, which are not available in this case, when there are no materials, warranting to draw any such presumptions. The learned trial Judge though quoted number of rulings, in our considered opinion, failed to appreciate the ratio laid down therein, such as how the rulings are applicable or not applicable, as the case may be. The trial Judge, instead of analysing the facts, which are brought to surface by evidence along with the established principles of law, proceeded on his own presumption, quoting some Tamil proverbs, that the accused should have committed the murder of his parents, because of the fact, the parents were insisting on him to marry his maternal uncle's daughter, for which, we find no semblance of evidence and in fact, as pointed out by the learned senior counsel for the accused appellant, the evidence available are against the prosecution. 13. In a case of circumstantial evidence, generally motive should play a key role. Here, the motive alleged is that the parents were pestering the accused, persistently to marry Sasikala, daughter of Maya's brother, which was a stumbling block and barrier to marry his lover, P.W.6. Therefore, in order to remove the stumbling block, the accused had decided to eradicate the parents from the earth. Here, the motive alleged is that the parents were pestering the accused, persistently to marry Sasikala, daughter of Maya's brother, which was a stumbling block and barrier to marry his lover, P.W.6. Therefore, in order to remove the stumbling block, the accused had decided to eradicate the parents from the earth. If this is to be accepted, it should be shown that the parents were against the love marriage or the parents were very strong in insisting the accused to marry Sasikala alone and no one else, for that there was a proposal either from Maya or from the parents of the girl viz., brother of Maya. For this, practically there is nil evidence. It is also not the evidence from the mouth of P.W.6 or P.W.4 that the parents of the accused were against the love affairs of the son, viz., the accused. It is not the case of P.W.6, that the parents of the accused were against the love affairs, or the accused had informed to her, about the proposal of the marriage with, Sasikala. It is not known, where from the trial Court had drawn the inference, as if the parents were against the love marriage or they had insisted the accused to marry Sasikala only. The competent person, to speak about the proposal of marriage, must be the brother of Maya, who has been examined as P.W.9. P.W.9 has categorically stated even during the examination in chief, that his sister Maya has not even mooted any proposal for the marriage of her son viz, the accused with Sasikala, the daughter of his brother Muthu. This being the position, it cannot be said that the parents of the accused were insisting or pestering the accused, to marry Sasikala. In the absence of any such evidence, only placing reliance upon the extra judicial confession, which is not admissible, for which we will assign our reason infra, it is impossible to conclude, that there was motive for the accused to commit the murder of his parents. 14. The motive alleged appears to be highly imaginary, which could be seen from the attending circumstances also. The accused is an educated matured major. He was staying in the hostel, while he was studying and it appears later also. The parents were illiterate. 14. The motive alleged appears to be highly imaginary, which could be seen from the attending circumstances also. The accused is an educated matured major. He was staying in the hostel, while he was studying and it appears later also. The parents were illiterate. Therefore, even ignoring the parents, he could very well marry the girl of his choice, without the knowledge of the parents, whether it is P.W.6 or others. It is not the case of the prosecution, that if the accused married any other girl, against the will of the parents, he will lose the property owned and possessed by the parents. It is also not the case of the prosecution that he demanded money from the parents, for the purpose of the marriage with his lover, which was refused, causing grievance etc. It is also not made known, whether the parents owned any property or not, to be inherited by the son. Therefore, it is crystally seen, that there was no impediment of any kind, for the accused to marry P.W.6, even by ignoring the parents and to marry P.W.6, it is not all necessary for the accused to eradicate the parents prematurely, since they cannot stand as stumbling block, as decided by the trial court incorrectly, without considering the totality of the circumstances. Thus, one of the circumstances relied on by the prosecution, disappeared or vanished, thereby causing snap in the chain of events, weakening the circumstantial evidence to some extent. 15. The "Last seen theory" if proved clinchingly even that alone could be the sufficient evidence, to connect the person with the crime. Only in this view, P.W.2 has been examined. P.W.2 is having a cycle shop, at the junction of Mangadu Road. It is not known, what is the distance between this place and Pudupadi and Sodiyampakkam. From the evidence of P.W.2, it is not clear and certain whether he was acquainted with the accused and his parents or not, since he has not even named the parents of the accused. It is also seen from the evidence of P.W.2, that the accused was not known to him previously. As spoken by P.W.2, he agreed to give the cycle to the accused, since he reported that he is related to Subramaniam, who is known to P.W.2, which would indicate, that the accused is not a known person to the accused. It is also seen from the evidence of P.W.2, that the accused was not known to him previously. As spoken by P.W.2, he agreed to give the cycle to the accused, since he reported that he is related to Subramaniam, who is known to P.W.2, which would indicate, that the accused is not a known person to the accused. It is said, only during the night hours, P.W.2 had seen the accused or his parents. Therefore, how far P.W.2 could speak about the "last seen theory" identifying the person, is doubtful. This doubt, which arises spontaneously, by going through the evidence of P.W.2, has not been erased, whereas it is magnified by the answers elicited during the cross examination. 16. The oral evidence is let in, to prove certain facts and the witnesses are cross examined to test the veracity of the evidence, such as whether the evidence given by the witnesses could be accepted or not. Therefore, it is the duty of the court, which is expected to assess the evidence of the witnesses, to give a finding, whether the witnesses are dependable, reliable and are they speaking truth or not, in order to lay foundation on their oral testimony, to sustain a conviction. Unfortunately, the trial Judge, ignoring all the norms, took the evidence of P.W.2, as if he had connected the accused, with the crime and as if he had spoken, that the accused was along with his parents, etc., which is not the case. Even without going through the evidence of P.W.2 in detail, and its dependability and what is the evidentiary value of P.W.2, the "last seen theory" is accepted by the trial Court as established, which is not acceptable to us, which could be seen even by a cursory reading of the deposition given by P.W.2. 17. P.W.2 has stated that 1 « years ago at about 7.30 p.m., the accused came to his shop, requested the cycle to go to his Aunt's house, at Sodiyampakkam and at that time along with him, there was an old man and old lady. The relevant deposition reads: He had not spoken about the identity of the old man and old lady. None had spoken that the accused had taken his parents from their house also. The relevant deposition reads: He had not spoken about the identity of the old man and old lady. None had spoken that the accused had taken his parents from their house also. Though he would state, that the accused took in the cycle, first the old man in the cycle, allowing the old lady to stay there itself, he has not stated that later on the accused returned, took the old lady in the same cycle. He had deposed, that at about 10.00 p.m., the accused returned the cycle. It is not the case of P.W.2 that the accused returned, took the old lady also, in the cycle, then returned the cycle at about 10.00 p.m. Thus, it is not known, what happened to the old lady, who had taken the old lady from the cycle shop or the junction road etc. We cannot proceed on the presumption, that the accused took the old lady also, in the cycle, to the field, where she was found dead. It is the further case of P.W.2, that on the next day, when the villagers had seen the body of the old man, he had been there and seen the old man, who accompanied the accused on the previous day. If this evidence is not erased or no shade is cast upon this evidence, then we can say to some extent, that the 'last seen theory' is established and could be accepted. But unfortunately for the prosecution, P.W.2 has given a go by to the case of prosecution and exhibited his ignorance, which reads: This evidence spread the shadow, and even eclipsed the "last seen" case. He has further deposed that since his cycle shop was 50 to 70 feet away, he was unable to see the old man properly. This being the position, as disclosed by the oral evidence of P.W.2, we are at a loss to understand, how the oral evidence of P.W.2 could be accepted, in proving the last seen theory viz., the deceased persons were seen along with the accused, on the previous night, in order to say that he alone should have taken them, and caused their death, by using M.O.1. 18. Ex.P.5 is the register said to have been maintained by P.W.2, for lending cycles, on hire basis. 18. Ex.P.5 is the register said to have been maintained by P.W.2, for lending cycles, on hire basis. It is the case of P.W.2, that an entry was made on 6.9.2000 at page 15, which was written by his wife i.e. Ex.P.6, which was later recovered by the police under Ex.P.7. As seen from the document, and as admitted by the witnesses, there are corrections regarding the date. These corrections would also create some doubt, whether the accused could have taken hire cycle from P.W.2 or not. Except P.W.2, whose evidence is not worthy of acceptance, no one had spoken, as if the accused was seen with his parents, that too, while they were going in the same cycle. This doubt coupled with the non identification of the old man correctly by P.W.2, as the father of the accused and the old lady as the mother of the accused, it is impossible to say that the accused alone took the parents and committed murder, by assaulting them by stone. 19. In this context, we have to see the case of the accused also, to certain extent. It seems the deceased were having some amount, which they had received from P.W.9. According to the P.W.9, he had borrowed some amount from his sister and when the sister demanded the return of the amount, since the same is required for her son, he repaid the sum of Rs.20,000/-. It is not known what happened to that Rs.20,000/-. It is the case of the accused in Ex.P.36, that his parents had been to the house of Subramaniam to give Rs.20,000/-. Therefore, the police ought to have examined and investigated the matter from this angle namely, whether any other hands would have involved in murdering the deceased, for the amount, etc. The non investigation of the case, from this angle, coupled with the improbability, unnaturality and the non identification of the deceased by P.W.2 along with the accused, to the satisfaction, prompt us to say unhesitatingly, that the prosecution failed to prove the last seen theory, thereby connecting the accused with the murder, which was not properly analysed by the trial Judge, leading to erroneous conclusion, warranting our interference. 20. After the incident, on 7.9.2000, the accused preferred a complaint, Ex.P.36 to the police. 20. After the incident, on 7.9.2000, the accused preferred a complaint, Ex.P.36 to the police. Though the learned Government Advocate would contend, that this complaint was given to divert the course of investigation, none of the investigating officers had spoken, that with an intention to divert the course of investigation, the accused preferred Ex.P.36. Though an attempt is made to deduce that conclusion on the basis of the subsequent investigation, based upon Ex.P.1, the extra judicial confession said to have been given by the accused to P.W.1, if the investigation had been properly conducted on the basis of Ex.P.36, then there should be a conclusion by the investigating officer, that the accused had misrepresented the fact, which is not available in this case. Therefore, in the absence of any such evidence, arriving at a conclusion, as if the accused had preferred a false complaint, with an intention to divert the course of investigation, is an impossible one and in this view, this circumstance also vanishes. 21. It is the case of the prosecution, that M.O.4, gold covering ear studs belonged to Maya, the mother of the accused and it was removed by him, after he had committed the murder. By proving the recovery of M.O.4., on the basis of the confession said to have been given by the accused, an attempt is made to prove that because of the fact that the accused had committed the murder of mother, he should have removed the ear studs, which is one of the strongest circumstances, to prove the guilt. True, if any jewels or ornaments belonged to the deceased had been recovered on the basis of the confession of the accused, then the duty is cast upon the accused, to explain, how he came to be in possession of the said material. In the absence of any such explanation, an inference could be drawn, as if, because of the criminal act committed by the accused, he had disclosed the whereabouts of the jewel, which was later recovered either from him or from the person shown by him or from the place where it was concealed or hidden. In the absence of any such explanation, an inference could be drawn, as if, because of the criminal act committed by the accused, he had disclosed the whereabouts of the jewel, which was later recovered either from him or from the person shown by him or from the place where it was concealed or hidden. On the basis that the accused had dishonestly misappropriated the property of the deceased, a charge was made against the accused under Section 404 I.P.C. The learned trial Judge acquitted the accused from this charge, not believing the case of the prosecution to this extent, which is not challenged. But at the same time, unfortunately, the trial Court believed the evidence of some of the witnesses, as if M.O.4 belonged to Maya was in the possession of the accused, then later recovered on the basis of his confession. If this is accepted, then probably the charged under Section 404 I.P.C. could be taken as proved. But the trial Court having acquitted the accused under Section 404 I.P.C., believed this circumstance, which appears to be mutually contradictory, thereby showing that the trial Court has not properly understood the case and analysed the same, as it should have been done under law. Forgetting for the moment, that M.O.4 was recovered on the basis of the confession given by the accused, we have to see whether this will make out a case, to convict the accused under Section 302 I.P.C. 22. On the basis of the recovery of M.O.4, if the accused is to be connected with the crime, at the first instance, it must be proved that M.O.4, which was ordered to be confiscated generously, by offering the same in the Hundi of Sri Arunachaleswarar Temple, Tiruvannamalai, by the learned Judge, belonged to Maya, she was wearing the same, at least at the time when she was last seen along with the company of the accused. Our sincere effort, by going through the evidence, to find out any semblance of evidence, to prove the above aspects, ended in vain, since none had spoken about the above facts. The prosecution ought to have shown M.O.4 at least to P.W.2, who claimed that he had seen the old lady along with the accused, so as to say that he had also seen M.O.4 in the ears of the old lady. This procedure is not adopted. The prosecution ought to have shown M.O.4 at least to P.W.2, who claimed that he had seen the old lady along with the accused, so as to say that he had also seen M.O.4 in the ears of the old lady. This procedure is not adopted. It is not the case of murder for gain, since M.O.4, is worth nothing. P.W.5 has been examined to identify M.O.4, as if it belonged to his wife, which was given to Maya, for some occasion, at her request. Unfortunately, P.W.5 disowned the case of the prosecution, thereby receiving the name of hostility, thereby treating him as hostile witness. No attempt has been made by the prosecution to identify M.O.4, except through P.W.5. Therefore, there is no chance at all to say that at the time of the murder of Maya, she was wearing M.O.4 and after committing the murder, the accused should have removed the same, for his benefit. P.W.4, a flower vendor has given evidence to the effect, that the accused had handed over him two packets, requesting him to hand over the same to his lover, P.W.6. According to the prosecution, one of the packets contained M.O.4. But, P.W.4 also disowned the case of the prosecution. P.W.6 has deposed, that she received M.O.4 from the accused, through P.W.4. Assuming it is correct, we are at a loss to understand, how this could connect the accused with the crime, since as pointed out supra, there is no evidence that M.O.4 was in the ears of Maya, the deceased. Since M.O.4 is a covering stud, by giving the same to the lover, if at all the accused can receive dissatisfaction and not satisfaction. In this view also, the theory put forward by the prosecution, seems to be unnatural and unacceptable. P.W.3 had also stated, as if he had seen M.O.4 in the pocket of the accused, when the accused directed him to wash the pant and shirt. His evidence also stands in the same footing as that of P.W.6, not having the effect of connecting the accused. Under the above circumstances, since M.O.4 has not been identified as one belonged to the deceased Maya, assuming the recovery is correct, this circumstance would stand independently, not connecting the accused, warranting any inference that the accused could have committed the murder of his mother. Under the above circumstances, since M.O.4 has not been identified as one belonged to the deceased Maya, assuming the recovery is correct, this circumstance would stand independently, not connecting the accused, warranting any inference that the accused could have committed the murder of his mother. In this view, in our considered opinion, the theory of recovery of M.O.4 also failed in its enforcement, to attract the accused towards the offence. 23. The main and the substantial circumstance or the circumstantial evidence relied on by the prosecution, as a trump card, in this case, is Ex.P.1 i.e., the extra judicial confession said to have been given to P.W.1. Before going into the veracity of Ex.P.1, we feel it would be better, to consider the evidentiary value of a confession statement, and how it will strengthen the prosecution, if proved, or weaken the case of the prosecution, in the absence of corroborative evidence. Investigation has been commenced in this case on 7.9.2000. At the time of the inquest, the accused was present admittedly, which could be seen from the evidence. P.W.2 claims, that he had seen the body. If that is true, the normal conduct of P.W.2 must be that he should have disclosed the fact that he had seen the accused along with the old man, which is not the case, according to the prosecution. After the commencement of the investigation, 25 days later or so, the alleged extra judicial confession came to light. 24. The learned Senior Counsel, Mr. V. Gopinath inviting our attention to Rule 72 of the Criminal Rules of Practice submitted, that the Village Administrative Officers are prohibited from reducing or writing any confession or statement, whatever made by an accused, after the police investigation had begun and in this view, Ex.P.1 is not even worth the paper, on which it is written seeking further aid from the decisions of the Division Bench of this Court in Raja & 2 others v. State, etc. (1995-2-L.W. (Crl.) 513) and Pachaimuthu v. State (2003 MTJ (Crl.) 1085). In the latter decision, one of us (M. THANIKACHALAM, J.) was a party. In both the cases, it is held: "Rule 72 of the Criminal Rules of Practice prohibits the Village Magistrates (Village Administrative Officers) from reducing or writing any confession or statement, whatever made by an accused person after the police investigation had begun. In the latter decision, one of us (M. THANIKACHALAM, J.) was a party. In both the cases, it is held: "Rule 72 of the Criminal Rules of Practice prohibits the Village Magistrates (Village Administrative Officers) from reducing or writing any confession or statement, whatever made by an accused person after the police investigation had begun. An extra judicial confession recorded after the investigation by the police had begun, cannot be the basis of conviction." 25. As against the above decisions, the learned Government Advocate brought to our notice, a decision of this Court in K. Natarajan v. State (2001 Crl.L.J. 1135), wherein another division bench of this Court has held, that extra judicial confession of the accused, proved by the Village Administrative Officer, before whom it was made and who bore no animus against the accused, could be relied on, since the confession was corroborated by recovery of weapon of offence at the instance of the accused. By going through the said decision, it is seen, the effect of Rule 72 has not been considered, whereas it is well considered in the previous decisions of this Court, cited supra. It is also not the ratio of the division bench in K. Natarajan's case, that though the confession has been recorded by the Village Administrative Officer, after the investigation has begun, it is admissible in evidence or it could be relied on, even without any corroboration. In this view, in our considered opinion, the decision rendered in K. Natarajan's case, fails to lend any support for the prosecution. The learned Government Advocate also, in all fairness conceded, that P.W.1 has not followed the correct procedure, in recording the alleged confession and it may not have much evidentiary value, being the sole material, to sustain the conviction. 26. Section 3 of the Indian Evidence Act, 1872 defines "Evidence" as follows: "Evidence means and includes - (1) all statements which the Court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) ......." Section 24 of the Indian Evidence Act says, that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession, appears to the court, to have been caused by any inducement, threat or promise having reference to the charge against the accused person. Whether the confession is a judicial or extra judicial, to appreciate the confession in this case, we should always remember, that it came into light, after 25 days, from the date of the incident. It is not the case of the prosecution, that the accused disappeared, apprehending action against him. It is not the case of the prosecution also, that they had some suspicion against the accused, which prompted him to surrender before the Village Administrative Officer. As spoken by P.W.1, he is not known to the accused and utter stranger. The position being so, we are unable to digest that the accused could have given the confession to P.W.1, voluntarily and if at all, it is to be the confession involving the hands of the police, thereby bringing this confession as inadmissible. Even if the confession is admissible, it alone cannot be the sole basis for conviction, as held by the Apex Court. 27. In Chandrakant Chimanlal Desai v. State of Gujarat (1992 SCC (Cri) 157), the Apex Court had the occasion to consider the confession statement given by the accused before a Magistrate, which was the sole basis for conviction by the High Court, though it was not accepted by the trial Court. The Hon'ble Judges of the Apex Court, relying upon a decision of the Apex Court in Kashmira Singh v. State of M.P., ( AIR 1952 SC 159 ), wherein it is observed: "The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept." came to the conclusion, that the approach of the High Court to make confession statement, as the basis and then find out, if the facts stated therein were corroborated in material particulars by other evidence, instead of analysing the evidence first and trying to find out whether the evidence is reliable and the facts established are consistent, with the guilt of the accused, is an erroneous approach. The relevant portion reads: "The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion." 28. On the basis of the above ratio laid down by the Apex Court, if we analyse the judgment of the trial Court, it is evident, that the approach of the learned trial Judge is erroneous and against the dictum of the Apex Court. In fact, the trial Court has not analysed the evidence independent of the alleged confession given by the accused, then sought the corroboration from Ex.P.1. On the other hand, the trial Court took Ex.P.1 as the sole basis, and for the allegations made therein, corroboration is sought for from other materials, which is deprecated by the Apex Court. In fact, the trial Court has not analysed the evidence independent of the alleged confession given by the accused, then sought the corroboration from Ex.P.1. On the other hand, the trial Court took Ex.P.1 as the sole basis, and for the allegations made therein, corroboration is sought for from other materials, which is deprecated by the Apex Court. Even assuming this kind of procedure could be adopted (which cannot be), in our considered opinion, there is no corroboration, in view of the fact, none had identified the old man or old lady, as if they have seen them, with the company of the accused, acceptably and the alleged recovery. On the basis of the confession also, the prosecution failed to connect the accused with the crime. 29. Ex.P.1, the alleged extra judicial confession, must be the handy work of the investigating officers and the same could not be the statement given by the accused voluntarily, is evident by going through the oral evidence of P.W.1, whose evidence is not in conformity with the confession statement, fitting with the naturality and probability. In Ex.P.1, there is no averment that the accused after committing the murder of the father, took the same stone in the cycle, handed over the same to the mother, asking her, to sit in the back seat with the stone, then, taking her to the place, where she was found dead, at later point of time. But, P.W.1 had categorically stated, as if the accused had given the statement, as said above, which reads in Tamil as follows: No explanation is necessary, to label the above statement as unnatural and unbelievable. No sensible man, that too a post graduate like the accused, would have taken the same stone, which was used to commit the murder of his father, which should contain blood, handed over the same to the mother, to carry along with her, in order to use the same as a weapon, to commit murder of her. If the oral evidence of P.W.1 is to be accepted, the natural question that arises is, would not the mother have asked the son, where is the father, why he is giving the stone, which is stained with blood, etc., which is not the case of the prosecution, either in the alleged confession or through the mouth of P.W.2, through whom last seen theory is introduced, to connect the accused. This unnatural and the inconsistent evidence given by P.W.1, prompt us to say that Ex.P1 cannot be the voluntary confession, warranting our seal of approval, to have the base for conviction, whether it requires corroboration or not. 30. In Ex.P.1, it is alleged, that the parents of the accused gave pressure to him to marry the daughter of his maternal uncle, despite the fact, he informed them about his love affairs with P.W.6. To strengthen this allegation, we find nil evidence, whereas we find evidence against this averment, since the brother of the deceased, has given evidence that there was no proposal for the marriage, even mooted out by the deceased Maya. In this view, this part of the confession, which is labeled as motive for murder, is eclipsed completely, as we have already discussed hereinbefore, while discussing motive. Therefore, in our considered opinion, Ex.P.1 is inadmissible in evidence and the same cannot be the basis, for conviction, seeking corroboration vis-à -vis. 31. As rightly submitted by the learned senior counsel for the accused/appellant, even there is no clinching evidence, regarding the cause of death of the deceased. The prosecution case as per the final report is, that the accused assaulted the father and mother by the stone, then strangulated their necks, thereby causing death. Ex.P.34 is the postmortem certificate relating to Settu. As per the opinion available in Ex.P.34, the cause for the death is, "the deceased would appear to have died of head injury/injury to vital organ, skull/brain and asphyxia". Ex.P.35 is the postmortem certificate of the deceased Maya. As per the opinion available in Ex.P.35, the cause for the death of Maya is, "death due to asphyxia". As said above, the case of the prosecution is different. P.W.14, who examined the body of Maya is unable to give any final opinion regarding the death. In a case of strangulation, generally there may be injury to the hyoid bone, which is not available in this case, as seen from Exs.P.26 & 32. Therefore, it is doubtful, whether she was assaulted by the stone, then strangulated, causing death. It is not the case of the prosecution that the accused only caused strangulation, which could be attributed to asphyxia. But, the fact remains, Settu and Maya were done to death, thereby bringing this case within the parameter of homicide. Therefore, it is doubtful, whether she was assaulted by the stone, then strangulated, causing death. It is not the case of the prosecution that the accused only caused strangulation, which could be attributed to asphyxia. But, the fact remains, Settu and Maya were done to death, thereby bringing this case within the parameter of homicide. Though the doctors have opined that the deceased died due to head injury, coupled with injuries to vital organ and Maya died due to asphyxia, the evidence available on record fails to corroborate the act of the accused, connecting with this opinion, namely causing injury as well as asphyxia. In this view also, we are unable to say affirmatively, that the accused had committed the murder of both the deceased by using M.O.1. 32. The trial Court, without properly analysing the evidence from its proper perspective, coupled with law, carried away by sentiments, took Ex.P.1 as if it is a gospel truth, and erroneously came to the conclusion, that the averments therein are corroborated by other witnesses, which is not acceptable to us, for the foregoing detailed reasons. In this view of the matter, though it is a double murder case, we are unable to confirm the findings of the trial Court and in fact, we are constrained to interfere with the findings, since the findings are perverse in nature, not based on legal evidence, and sound principles, warranting our interference. Hence the appeal deserves for its acceptance, thereby requiring the findings of the trial Court to be set aside, concluding that the prosecution has miserably failed to bring home, the guilt of the accused. The appeal is allowed setting aside the conviction and sentence slapped by the trial Court in S.C.No.31 of 2002, on the file of the Additional Sessions Judge-cum-Chief Judicial Magistrate, Tiruvannamalai District by judgment dated 24.10.2002 and the accused is acquitted of the charges against him holding that the prosecution has failed to prove the guilt of the accused, beyond all reasonable doubt, ordering him to release forthwith, if his detention is not required in any other case.