Judgment :- (Appeal against the judgment in S.C.No.254 of 2002 dated 31.12.2002 rendered by the learned Additional District Sessions Judge, (Fast Track Court I), Salem.) M. Karpagavinayagam, J. Ranjith Kumar, who has been convicted for the offences under Section 302 and 316 IPC, has filed this appeal. 2. The relevant facts for the disposal of this appeal are as follows: a) P.W.1-Poongothai is the mother of the deceased Govinda Rani. The deceased Govindarani was given in marriage to one Vijaya Mohan, an auto driver, 13 years ago. Out of their wedlock, P.W.2-Ramachandiran was born. The said Vijayamohan died nine years ago. After his death, the deceased Govindarani was residing in the house of P.W.1-Poongathai along with her son. In the meantime, the accused a lorry driver by name Ranjith Kumar had developed illicit intimacy with the deceased for four years. The deceased Govindarani was running a flower shop in front of Kalaikathir Newspaper office and both the deceased and the accused Ranjith Kumar were living together in the house belonging to one Palani. In the meantime, the accused got married to one another lady. Thereafter, he stopped coming to the house of the deceased frequently. The deceased Govindarani used to telephone the accused asking as to why he was not visiting her house often. b) On 04.08.2002 at about 8.00 p.m, the deceased Govindarani was waiting for the accused in the petty shop near Kalaikathir office. At that time, the accused came there, whereupon the deceased asked the accused as to why he did not use to come to her house regularly. The accused told her that he could not come to her house since he got married with another woman, who was pregnant then. The deceased said that she also became pregnant because of his contact with her. Then, the accused asked the deceased to undergo operation. She refused for the same as she had already undergone operation twice at the instance of the accused. Then, both of them went to the house of the deceased. While the deceased was inside the house, the accused with the help of a pillow smothered and caused her death. Then he went away in the motor bike. c) Next day, i.e on 05.08.2002, since the deceased did not go to the flower shop, P.W.1 asked her grandson P.W.2-Ramachandiran to go and check up whether the deceased is available in house. Then he went away in the motor bike. c) Next day, i.e on 05.08.2002, since the deceased did not go to the flower shop, P.W.1 asked her grandson P.W.2-Ramachandiran to go and check up whether the deceased is available in house. When P.W.2 went to the house of the deceased, he noticed her dead. This was informed to P.W.1 and P.W.3, the mother and brother of the deceased respectively. Then both of them came and found that the deceased had breathed her last. They also noticed the injury on the neck of the deceased. Thereafter, P.W.1 went to Anadanapatti Police Station and gave a complaint to P.W.10, Sub Inspector of Police-Ex.P-1. A case was registered under Section 302 IPC. d) P.W.12, the Inspector of Police took up investigation and went to the scene of occurrence and prepared the Observation Mahazar-Ex.P-2 and Rough Sketch-Ex.P-10. He also conducted the inquest on 05.08.2002 and examined P.W.1 to P.W.6 and other witnesses. The body was sent to the Doctor for postmortem. e) P.W.11, Dr. Valli Nayagam attached to Salem Government Hospital conducted postmortem and found the uterus containing a male foetus 25 cm in length present and also issued Ex.P-9 postmortem certificate giving opinion that the deceased died of Asphyxia due to smothering. f) On 06.08.2002, P.W.12 arrested the accused and on his confession, the motor cycle which was used by the accused was recovered. Material objects were sent for chemical examination. After completion of the investigation, he filed the charge sheet against the accused under Section 302 IPC. g) During the course of trial, on the side of the prosecution, P.W.1 to P.W.12 were examined, Ex.P-1 to P-11 were filed and M.Os.1 to 5 were marked. h) When questioned under Section 313 Cr.P.C, the accused denied having committed any offence. On the side of the defence D.W.1 and D.W.2 were examined and Exs.D1 to D3 were marked. i. The trial Court analysed the evidence adduced by both the parties and convicted the accused for the offence under Section 302 and 316 IPC. Hence, this appeal by the accused. 3. We have heard Mr.K.V.Sridharan, learned counsel appearing for the appellant and Mr.E.Raja, learned Additional Public Prosecutor appearing for the State. 4. We have considered the submissions made by the counsel on either side and also perused the records. 5. Hence, this appeal by the accused. 3. We have heard Mr.K.V.Sridharan, learned counsel appearing for the appellant and Mr.E.Raja, learned Additional Public Prosecutor appearing for the State. 4. We have considered the submissions made by the counsel on either side and also perused the records. 5. According to the prosecution, the accused and the deceased were having illicit affairs and they lived under the same roof and this illicit intimacy continued even after the marriage of the accused with some other woman. Since the deceased was pregnant the accused asked her to abort her pregnancy for which, she refused. Therefore, the accused caused her death by smothering. 6. Admittedly, there is no eye witness to the occurrence. P.W.1 and P.W.5 would only speak that the accused and the deceased were seen together near Kalaikathir office and then, both of them proceeded towards the house. This aspect of the evidence, in our view, has not been clearly established, since P.W.1, the mother of the deceased has not spoken about that fact in Ex.P-1, the complaint that she saw both the accused and the deceased were quarreling with each other near Kalaikathir office and then proceeded towards the house of the deceased. 7. We are not able to place reliance on the evidence of P.W.5 also, since P.W.5 while deposing had stated that she saw both the accused and the deceased left the place near Kalaikathir office and went to their house in a motor bike. Admittedly, P.W.5 did not state this when she was examined by the Investigating Officer. On the other hand, P.W.5 had admitted in cross examination that from the place where she was sitting at about 8.30 p.m on 04.08.2002, she could not see the location of the house of the deceased and the accused. So, ultimately there is no acceptable evidence to show that both were going together to the house of the deceased, where the deceased was found dead. 8. It is true that P.W.1 and P.W.3 have spoken about motive. The deceased had told them that she was compelled by the accused to abort her pregnancy and for that, she refused and the accused used to threaten her. But, this aspect of the evidence has not been clearly established, since the deceased was not living with P.W.1 and P.W.3. Moreover, the deceased was living in a separate place where the accused used to visit frequently. But, this aspect of the evidence has not been clearly established, since the deceased was not living with P.W.1 and P.W.3. Moreover, the deceased was living in a separate place where the accused used to visit frequently. 9. It is the case of the prosecution that after marriage, the accused had not visited the house of the accused frequently and as such, there was a misunderstanding. So, the evidence relating to the motive as projected by the prosecution through P.W.1 and P.W.3 would by itself does not establish that the accused only caused the death of the deceased, in the absence of the evidence to show that both were living together under the same roof. Since the evidence relating to the last seen together is lacking in this case, we are unable to hold that the accused only committed the murder of the deceased. Under those circumstances, we are to hold that the accused is entitled to be given the benefit of doubt and accordingly, he is acquitted of the charges. 10. In the result, the appeal is allowed. The bail bonds, if any, executed by the appellant shall stand cancelled. The fine amount, if paid, shall be refunded to the appellant.