Judgment : Per R. BALASUBRAMANIAN, J. 1. The appellant in this appeal is A1 in S.C.No.23/2000 on the file of the learned Additional District and Sessions-Judge-cum Chief Judicial Magistrate, Vellore. He was tried in that case along with one other person arrayed as A2. The charge against A1 is under sections 302 and 201 I.P.C. and the charge against A2 in under sections 302 read with Section 34 and 201 I.P.C. The learned trial Judge found A1 alone guilty and convicted him to undergo imprisonment for life for the offence of murder together with a fine of Rs.5,000/-, carrying a default sentence. For the offence under Section 201 I.P.C., the learned Judge sentenced him to undergo rigorous imprisonment for two years together with a fine of Rs.1,000/-, carrying a default sentence. A2 was acquitted. The State had not challenged that portion of the judgment acquitting A2. Heard N. Doraisamy, learned counsel appearing for the appellant and V.M.R. Rajendran, learned counsel appearing for the State. 2. The prosecution case is that, at 12.00 in the night namely, on the intervening night of 31.12.1998 and 1.1.1999 (charge is not very clear), A1 killed his wife by strangulating her neck in his house and at that time A2 caught hold of the legs of Banumathi (since deceased) so as to enable A1 to complete the task. After the crime, to screen the offence, they poured petrol on the deceased; burnt her and then threw her body in a well situated in the lands belonging to one Raji. In support of their case, the prosecution had examined P.Ws. 1 to 22, besides marking Exs. P.1 to P.22 and exhibiting M.Os. 1 and 2. The defence did not bring in any oral evidence. However, they have marked Ex. D.1, the marriage invitation of A1 and Banumathi (since deceased). P.W.1 is the mother of Banumahti (since deceased). Banumathi was given in marriage to A1 on 11.9.1991. A2 is the cousin brother of A1. P.W.1 is residing at Chinnalampatti. While A1 was living with his wife at Vedapatti, A2 was also staying with them and was having a motor cycle workshop. A1 and the deceased had a three year old male child named Manikandan. Banumathi was given in marriage to A1 on 11.9.1991. A2 is the cousin brother of A1. P.W.1 is residing at Chinnalampatti. While A1 was living with his wife at Vedapatti, A2 was also staying with them and was having a motor cycle workshop. A1 and the deceased had a three year old male child named Manikandan. The deceased was complaining to P.W.1 that her mother-in-law is torturing her stating that she ought to have given her son A1 in marriage only to her granddaughter Deepa and they have made a wrong choice in getting A1 married to the deceased. She also complained to P.W.1 that A1 also was saying like that often. A1 asked his wife to bring a sum of Rs.1,000/- which P.W.1 mobilised by selling her jewels, P.W.2 and A2 told her that her daughter (since deceased) had fallen in to the well. Sending information to her son at Bangalore, she went to the occurrence village and to the well in the house of P.W.8. No body was floating in the well. She came to know that her daughter was burnt and then thrown into the well. Three days after the occurrence, the dead body was found floating, which she identified as that of her daughter. Body was found burnt. The denture was not there. Face was fully burnt. Then, in the company of P.W.3 (Village Leader), she went to the Investigating Police Station, where she lodged the complaint attested by P.W.3. Ex.P.1 is the said complaint. She was examined by the Police as well as by the Revenue Divisional Officer (P.W.22). 3. P.W.20 is the Sub-Inspector of Police, before whom, at 11.30 a.m. on 03.11.1999, P.W.1 was brought by P.W.3 and P.W.1 at that time gave a complaint. He registered it as Ex.P.1. P.W. 3 signed in it. Ex.P.2 is the signature of P.W.3. He registered it under Section 174 of the Code of Criminal Procedure; prepared Ex.P.14, the printed first information report and then sent the material records to P.W.22, the Revenue Divisional Officer, at Tiruppathur as well as to the Deputy Superintendent of Police, Vaniyambadi. P.W.17, after collecting the express records from P.W.20, handed over the same to P.W.22, P.W.18 is the constable, who after collecting the material records, handed over the same to the Deputy Superintendent of Police and other authorities. P.W.21 is the Investigating Officer. P.W.17, after collecting the express records from P.W.20, handed over the same to P.W.22, P.W.18 is the constable, who after collecting the material records, handed over the same to the Deputy Superintendent of Police and other authorities. P.W.21 is the Investigating Officer. At 1.30 p.m. on 3.1.1999, he received the express records in this case and he immediately went to the scene of occurrence where, after observing it in the presence of P.W.7 and another, he prepared Ex.P.3, the observation mahazar and Ex.P.15, the rough sketch. By examining P.Ws. 1, 3, 4, 5 and others, he recorded their statements. P.W.22, after conducting inquest over the dead body, sent the same to the hospital for post mortem. P.W.22, was the Revenue Divisional Officer at Tiruppathur during the relevant time. He received Ex.P. 14, the express records in this case at 1.50 p.m. on 3.1.1999. He proceeded to the scene of occurrence and reached it. At 3.30 p.m. on that day, he conducted inquest over the dead body and prepared Ex.P.17, the inquest report. Then, he sent the dead body with a requisition to the Government Hospital at Tiruppathur through a police constable for post-mortem. He examined A1 by recording his statement. Ex.P.18 is the said statement. By examining P.W.4, he recorded her statement and that is Ex.P.19. By examining P.W.1, he recorded her statement and that is Ex.P.20. Then, by examining Chinnakannu, he recorded her Statement, which is Ex.P.21. Since Selvam, Arumugam, Samraj, Rajendran and Kuppan, examined by him, gave a similar statement he recorded one statement, in which he obtained all their signatures. Ex.P.22 is the said statement of those persons. He sent all the records to the court. 4. P.W.21 continued the investigation further by examining witnesses and recording their statements. He collected the report sent by P.W.22 and went through it. P.W.19 is the police constable, who accompanied the dead body along with the requisition given by P.W.22 for postmortem. He handed over the dead body in the Government Hospital at Tiruppathur and identified it on 4.9.1999. He was present throughout post mortem. The dead body was handed over by him to the relatives after post mortem. The preserved hyoid bone was handed over by him to the court with the requisition given by the Deputy Superintendent of Police (P.W.21). He handed over the dead body in the Government Hospital at Tiruppathur and identified it on 4.9.1999. He was present throughout post mortem. The dead body was handed over by him to the relatives after post mortem. The preserved hyoid bone was handed over by him to the court with the requisition given by the Deputy Superintendent of Police (P.W.21). Then, with the courts letter he took the hyoid bone and delivered it at the laboratory in the Government Medical College Hospital at Chengleput. P.W.15 is the Doctor, who did post-mortem on the dead body. At 12.30 p.m. on 4.1.1999, she commenced post mortem. Ex.P.7 is the requisition received by her for conducting post-mortem. During post-mortem, she found various symptoms as noted by her in Ex.P.8, the postmortem report. The symptoms are as hereunder: “External Examination: Moving maggots seen over the scalp, neck, chest, back, abdomen and gluteal region. Scalp hair burnt partially. Scalp hair loosened. Peeled off easily. Scalp is black in colour. Eye balls protruded and soft. Tongue is protruded outside in between teeth. Tongue is bitten by teeth. The colour of the tongue outside the bitten mark is black in colour (cyanosed) and tongue inside the bitten mark is pale in colour. Nails of hands and feet are black in colour. Skin glow present. Skin is burnt and peeled off easily. Foul smelling emanates from the body. Internal Examination: Opening of Thorax; Lungs - right side - 350 gms - congested. C/s.Oozes frothy fluid blood. Left - 350 gms - congested. C/s. Oozes frothy fluid blood is radish brown in colour. Heart - 250gms. Cavity - empty - soft, Hyoid bone found fractured in two places. (1) Left (torn) fractured situated at the junction of greater cornea with body. (2) Right side great cornea is fractured. There is no soot p articles in the trachea and in the oesophagus and there is no mud in the trachea and oesophagus. Opening of the abdomen: Abdomen is distended uniformly, opened with a hissing noise. Stomach contains partially digested cooked rice mixed with dhall about 200gms. There is no free fluid in the stomach. Liver 1200 gms spongis brown colured. Spleen 80 gms - soft. Kidneys 90 gms - each surface soft, congested, flabby. Uterus - normal size. Cavity empty, soft, Intestine is greenish coloured. Opening of the head; Skull bones intact. Membrane intact. Brain liquefied. There is no free fluid in the stomach. Liver 1200 gms spongis brown colured. Spleen 80 gms - soft. Kidneys 90 gms - each surface soft, congested, flabby. Uterus - normal size. Cavity empty, soft, Intestine is greenish coloured. Opening of the head; Skull bones intact. Membrane intact. Brain liquefied. The following visceras are sent for chemical analysis: 1) Stomach and its contents 2) Intestine and its contents 3) Liver 4) Kidney 5) Preservative Hyoid bone is preserved in formaline and sent for expert opinion. Autopsy concluded at 2.00 p.m. The deceased would appear to have died about 60-72 hours prior to autopsy.” Ex.P.9 is the viscera report, which shows that no poisonous substance was detected in the viscera. Ex.P.10 is the report on the hyoid bone, which shows that there is a fracture of the hyoid bone. Ex.P.11 is the final opinion based on the above records. According to her final opinion, death is due to strangulation of neck and asphyxia. All the burn injuries are postmortem injuries. Death would have occurred 60-72 hours prior to autopsy. 5. P.W.2, examined to prove that the accused told him that Banumathi self-immolated her and then on her own fell into the well, turned hostile. We went through his entire evidence and we are of the opinion that his evidence is of no use either to the State or to the defence. P.W.3 is the Panchayat President. He knows the accused as well as deceased. He knows P.W.1 also. On 2.1.1999, he received an information that Banumathi, by pouring kerosene on herself, set fire to her and then fell into the well. He received the news on that night itself. P.W.1 also came and told him about the occurrence. When they went to the well, they found the body immersed. Third day after the occurrence, the body started floating. P.W.1 identified the dead body as that of her daughter. As requested by P.W.1, he accompanied her to the police station, where P.W.1 gave the complaint. He attested that complaint and that signature is Ex.P.2. P.W.4 is the elder sister of the deceased. A2 is the cousin of A1. She knows the accused. Banumathi used to tell her that A1 was pestering for a second marriage and was asking her consent, for which she did not agree. He attested that complaint and that signature is Ex.P.2. P.W.4 is the elder sister of the deceased. A2 is the cousin of A1. She knows the accused. Banumathi used to tell her that A1 was pestering for a second marriage and was asking her consent, for which she did not agree. The deceased was also complaining to her that she was subjected to cruelty in the context of dowry demand and that her mother-in-law was always saying that she had made a wrong choice of getting her son married to the deceased instead of her grand-daughter Deepa. The deceased also told her that A1 asked her to give way for his second married life. On coming to know about the occurrence, she went to the village where she did not find any one in the house of A1. They could not also find the dead body in any well. P.W.3 was also there. P.Ws. 1 and 3 went to the police station and gave the complaint. That complaint was given only after the dead body was seen floating. Stones were found tied on the body. P.W.5 is the niece of P.W.1. She knows all the parties. The deceased used to tell her that A1 was always pestering her to get dowry from her mothers house and many times, P.W.1 had sent money. P.W.5 advised the deceased to live with her husband. When A1 suffered a fracture, P.W.1 gave him a sum of Rs.1,000/-. But, however, he was pestering for more money. On the 2nd of January 1999, she came to know that her sister (Banumathi) self-immolated her and then fell into a well. When she went to the village, she found P.W.1 and others and they were talking that somebody had poured petrol on Banumahti, burnt her and then pushed her into the well. P.W.6 is residing at Chinnalampalli. She knows the prosecution witnesses; the accused and the deceased. Banumathi, picking up a quarrel with her husband (A1), often used to go to her house and say that she is being tortured for dowry and in that context she was being beaten. She also told P.W.6 that since no dowry was given, A1 was threatening to marry another girl. On 2.1.1999, she received an information that Banumathi, after self-immolating her, fell into a well. She also told P.W.6 that since no dowry was given, A1 was threatening to marry another girl. On 2.1.1999, she received an information that Banumathi, after self-immolating her, fell into a well. When she went to the village, she heard people talking that both the accused have burnt Banumathi and then pushed her into the well. P.W.7 witnessed the preparation of Ex.P.3, the observation mahazar. P.W.8, examined to prove the retrieval of the dead body from the well and what he heard in the village, turned hostile. We went through his entire evidence and it is of no use either to the State or to the defence. P.W.9, examined to prove the demand for dowry and what he heard in the village after the occurrence, turned hostile. We went through his evidence in its entirety and we find that it is neither useful to the State nor to the defence. P.W.10, examined to prove Banumathi being subjected to cruelty in the context of dowry demand, also turned hostile. Her evidence is of no use either to the State or to the prosecution. P.W.11, examined to prove that A1 was threatening his wife that he is going to marry for the second time and the accused dragging Banumathi and pushing her into the well, turned hostile. Her evidence is also of no use either to the State or to the defence. P.W.12 and P.W.13, examined to prove that the accused dragged Banumathi and pushed her into the well and when asked, the accused criminally intimidated them, turned hostile. Their evidence is also of no use either to the State or to the defence. 6. P.W.14 is the Village Administrative Officer. At 8.30 a.m. on 1.1.1999 when he was in his office, A2 appeared before him and confessed that he along with A1 strangulated Banumathi in her house to death; by pouring petrol on her, she was set fire to and thereafter, her body was pushed into a well. Ex.P.4 is the statement given by A2 signed by him. Then, he took A2 to the police station where, he surrendered him along with his statement (Ex.P.4). A2 was arrested and examined. He gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.5. Pursuant to Ex.P.5, M.Os.1 and 2 came to be recovered under Ex.P.6. P.W.21 continued the investigation by examining witnesses and recording their statements. A2 was arrested and examined. He gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.5. Pursuant to Ex.P.5, M.Os.1 and 2 came to be recovered under Ex.P.6. P.W.21 continued the investigation by examining witnesses and recording their statements. By examining P.W.15, the Doctor who did post-mortem, he altered the section of offence from one under section 174 of the Code of Criminal Procedure into one under Section 302 and 201 I.P.C. Ex.P.16 is the altered printed first information report, which he sent to the court. He arrested A2 when he was produced before him by P.W.14, the Village Administrative Officer. Ex.P.5 is the admissible portion of the confession statement of A2, pursuant to which, M.Os.1 and 2 came to be recovered under Ex.P.6. Then, he sent the case properties to the court with a requisition to subject the same for chemical examination. P.W.16 is theMagisterial Clerk, who speaks about the receipt of case properties along with Ex.P.12 (requisition) given by the Investigating Officer. As an enclosure to Ex. P.13, the case properties were sent to the laboratory. Ex.P.9 is the viscera report and Ex.P.10 is the report on the hyoid bone. A2 was sent for judicial remand. The police officer who filed the final report had not been examined. But, however, the final report came to be filed before court on 1.6.1999. 7. When the accused was questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts, except admitting the marriage and birth of a child. Mr.N. Doraisamy, learned counsel for the appellant would submit that even in Ex.P.1, P.W.1 had stated that her daughter, out of dejection, self immolated her and then fell in to the well. There is oral evidence of at least three or four witnesses, which show that they also received an information that Banumathi self-immolated her and then fell into the well. In Ex.P.17, the inquest report prepared by P.W.22, the Revenue Divisional Officer, it is found stated that his enquiry did not reveal any dowry demand. Therefore, in the face of such overwhelming material, the conviction of the accused for offences under sections 302 and 201 I.P.C. cannot be legally sustained. In Ex.P.17, the inquest report prepared by P.W.22, the Revenue Divisional Officer, it is found stated that his enquiry did not reveal any dowry demand. Therefore, in the face of such overwhelming material, the conviction of the accused for offences under sections 302 and 201 I.P.C. cannot be legally sustained. Though there is Ex.P.4, the extra judicial confession stated to have been given by A2 to P.W.14 (Village Administrative Officer) and it can be used against the co-accused in the same trial, yet, since A2 stands acquitted, it would not be safe to rely upon the said extra judicial confession. Therefore, learned counsel argues that the judgment under challenge is without any legal evidence. V.M.R. Rajendran, learned counsel appearing for the State would argue that though A2 might have been acquitted, yet, there is no harm in acting upon Ex.P.4 to sustain the conviction of A1. He would also argue that, on going through the entire evidence available on record, this court may not be in a position to take a different view than the one taken by the learned trial Judge in holding the accused guilty. 8. In the context of the submissions made by the learned counsel on either side, we went through the judgment under challenge. It is true that there are materials here and there that A1 was subjecting his wife (since deceased) to cruelty in the context of dowry demand. Evidence also shows that he was subjecting her to cruelty, asking her consent for his second marriage. Ex.D.1 is the marriage invitation. It shows that the marriage between A1 and the deceased was held on 11.9.1991. P.W.1 also admits in her cross examination that the marriage was on 11.9.1991. The occurrence is shown to have taken place on the intervening night of 31.12.1998 and 1.1.1999. Therefore the occurrence had definitely taken place after the expiry of seven years from the date of marriage and that is the reason probably, a charge under section 304-B of the Indian Penal Code was not framed against the accused. At least, the court should have taken care to frame charges under section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act along with other charges. Even that has not been done. At least, the court should have taken care to frame charges under section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act along with other charges. Even that has not been done. We carefully applied our mind as to whether at this distance of time the conviction of the accused, if at all a case is made out, can be brought under section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act. But we find that it would cause considerable prejudice to the accused, since he was facing trial on the accusation of murder falling under Section 302 I.P.C. and screening the evidence to erase the offence punishable under section 201 I.P.C. Ex.P.17, the inquest report, submitted by P.W.22 also shows that his enquiry did not disclose any dowry demand. Therefore, in the face of the above materials, we have no doubt at all that it would not be possible to hold A1 guilty of the offence under section 498-A I.P.C. and section 4 of the Dowry Prohibition Act. Therefore, our endeavour would be to find out whether, on the facts available, the conviction of A1 for the offence under sections 302 and 201 I.P.C. can be legally sustained, though the prosecution had definitely established that death in this case is due to strangulation. All the burn injuries are post-mortem in nature. 9. To answer this question, we went through Ex.P.1 at the first instance. In Ex.P.1 itself, P.W.1 had stated that as A1 was pestering his wife (since deceased) to pave way for him to get married for the second time, her daughter, as a dejected person, self immolated her fell into the well and then died. Therefore, even at the earliest stage, P.W.1 had come out with the above version. In addition to the above, we have some more materials that the deceased had self-immolated her. P.W.3 is the Village Panchayat President. He has no special interest to protect the accused nor has any grievance against the State. His evidence shows that information reached him that Banumathi self immolated her and then fell into the well. His evidence also shows that on the same night, he got the information. Same night maybe the occurrence night itself. P.W.5 is the elder sister of the deceased. His evidence shows that information reached him that Banumathi self immolated her and then fell into the well. His evidence also shows that on the same night, he got the information. Same night maybe the occurrence night itself. P.W.5 is the elder sister of the deceased. Her evidence shows that on the 2nd of January, she received an information that her younger sister self immolated her and then fell into the well and therefore, she went to the village to see her sister. P.W.6 is another independent witness, who would also state that she received an information on 2.1.1999 that Banumathi had self immolated her and then fell into the well. The evidence of the above referred to witnesses had come out even in their respective chief examination. If they have not so disclosed in their investigation, than, the State could have very well treated them as extra judicial confession of A2, he had stated that A1 strangulated his wife to death in his house and he facilitated A1 to commit the crime by holding the legs of Banumathi. This confession statement has corroboration in the medical evidence, since the hyoid bone report shows that the hyoid bone had suffered a fracture. But unfortunately, as we have stated earlier, the evidence of the witnesses referred to above show that Banumathi self immolated her and then fell in to the well. A2 stands acquitted by the trial court, despite the extra judicial confession given by him. 10. Under these circumstances, in the face of the substantive evidence available before court in the form of the evidence of P.Ws.3, 5 and 6, we are not inclined to place any reliance on the extra judicial confession of A2 to convict the accused. Courts have been consistently holding that extra judicial confession itself is a very weak piece of evidence but nonetheless, there is no bar in acting upon it, if it is found to be trustworthy. Since the extra judicial confession is in direct conflict to the substantive evidence available on record and referred to above by us, we do not want to attach much credibility to the same. P.W.1 had admitted in her evidence that on the occurrence night itself, police came to the occurrence village and apprehended A1, who was hiding in the school and on examination, A1 even on that night pointed out the well where the body was thrown. P.W.1 had admitted in her evidence that on the occurrence night itself, police came to the occurrence village and apprehended A1, who was hiding in the school and on examination, A1 even on that night pointed out the well where the body was thrown. If it is so, then, we fail to understand as to why on that night itself no complaint was recorded by the police from anyone of the persons available there. P.W.1 also admits that on that night itself, she was examined near the well at about 10.00 p.m. and a statement was obtained from her, in which, she had also signed. But the statement before court exhibited as Ex.P.1 is dated 3.1.1999. What happened to that statement recorded on the night of the occurrence, there is no explanation at all. P.W.21, the Investigating Officer, had admitted in his evidence in cross that when he reached the scene for the first time, he examined P.W.1 there and recorded her statement. He would even affirm that it was the first work he had done and thereafter only, he prepared the observation mahazar (Ex.P.3) on 3.1.1999. Therefore reading the evidence of P.W.1 and the evidence of P.W.21, it is clear to our mind that there is every possibility of the complaint having recorded from P.W.1 on the night of the occurrence itself. As noted earlier, what happened to that complaint, there is absolutely no explanation. P.W.14, the Village Administrative Officer, also admits in his evidence in cross that at 11.00 a.m. on 2.1.1999, his village menial informed him about the crime and at 12.00 noon or 1.00 p.m. on that day, he informed the police by giving a written complaint. The complaint is also behind the screen only and not before court. 11. For all the reasons stated above, we find that the conviction of the accused (A1) cannot be sustained. Therefore, we are inclined to set aside the judgment under challenge and it is accordingly set aside. The accused (A1) is acquitted of the offence for which he was charged, tried and convicted. The fine amount, if any, paid by the accused is directed to be refunded to him. A1 is stated to be in prison. He shall be released forthwith, unless his detention is required in connection with any other case.