Judgment :- (Criminal Appeal against the judgment of the learned District Additional Sessions Judge, Fast Track Court No.3, Poonamallee, Chengalpet District made in S.C.No.137 of 2002 dated 14/7/2003.) M. Jeyapaul, J. The sole accused who was convicted for offences under Sections 302, 380 and 449 of I.P.C., and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment, to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment and to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment, respectively by the learned District Additional Sessions Judge, Fast Track Court No.3, Poonamallee, in S.C.No.137 of 2002 dated 14/7/2003 has filed the present appeal against his conviction. 2. The charge as against the appellant/accused who is mason by profession is that on 27/8/2001 at about 8.00 a.m., having trespassed upon the house of P.W.1, committed murder of his wife for gain and thereby he committed offences punishable under Sections 449, 302 and 380 of Indian Penal Code. 3. As many as twenty witnesses have been examined, besides marking twenty nine documents and twenty three material objects on the side of the prosecution. 4. The case in brief of the prosecution as spoken to by the witnesses examined on the side of prosecution is as follows:- Govindarajulu, P.W.1, is the husband of the deceased Banumathi and the father of Gururaj, P.W.2. The accused had already executed some masonry work for P.Subramani, P.W.9 and also for Govindarajulu, P.W.1. On 27/8/2001 at about 8.00 a.m., the accused came to the house of P.W.1 at Porur, seeking some masonry work. He was having a coir rope in his hand. P.W.1 informed him that there was no work and he would call him whenever there was some work. The accused left the house of P.W.1. P.Ws.1 and 2 were working in some private Company. Both of them had thereafter left for their house to attend their work. 5. P.W.1 having received the information through one Natarajan that his wife was murdered for gain came down to his house at about 2.00 p.m., on the very same day. P.W.2 son of P.W.1 also returned to the house after hearing the sad news. 6. They found the deceased Banumathi in a pool of blood. 5. P.W.1 having received the information through one Natarajan that his wife was murdered for gain came down to his house at about 2.00 p.m., on the very same day. P.W.2 son of P.W.1 also returned to the house after hearing the sad news. 6. They found the deceased Banumathi in a pool of blood. A coir rope was found tied around her neck. One of the diamond ear stud, neck chain and gold bangles were found missing on the person of the deceased. 7. P.W.2 opened the bureau and found that a cash of Rs.5,000/- kept by him in the safe of the bureau was also missing. The ear stud of the right ear lobe, right nose, gold bangles and thali chain were found in tact on the dead body. 8. P.W.1 went to SRMC Police station and lodged a report Ex.P.1 at about 3.00 p.m., on the said day. The Inspector of Police, who received the report, registered a case in Crime No.385 of 2001 under Sections 302 and 380 of I.P.C. 9. He rushed to the scene of crime and drew a rough sketch Ex.P.23. He also prepared an observation mahazar Ex.P.2 in the presence of G.Gejaprasad, P.W.4. He recovered the coir rope, M.O.6 under relevant seizure mahazar, Ex.P.3. He summoned the fingerprint expert and scientific expert to the scene of occurrence for the purpose of collecting the evidence therefrom. 10. P.W.19 held inquest on the dead body of Banumathi between 4.30 p.m. to 6.00 p.m., on the very same day and prepared inquest report Ex.P.24. He examined the witnesses present over there and recorded their statements. 11. Dr.Manoharan P.W.18 having received the dead body from the Constable S.Gnanasambandan, P.W.17 commenced post-mortem examination at 10.45 a.m., on 28/8/2001. He found the following injuries and other symptoms on the dead body of Banumathi. 1. Lacerated wound over the lower end of the left ear lobe, from the point of ear puncture 1 x 0.5 x 0.5 cm; wound margins are irregular. 2. A linear complete brown colour ligature abrasion 31 x 1 x 0.5 cm over the front and sides of the neck and below the thyroid cartilage, multiple coir fibres are present over the ligature abrasions. 2. A linear complete brown colour ligature abrasion 31 x 1 x 0.5 cm over the front and sides of the neck and below the thyroid cartilage, multiple coir fibres are present over the ligature abrasions. On dissection: Reddish haemorrhage in the surrounding soft tissues of the ligature abrasion, in the Retro Pharyngeal and Para Pharyngeal region, surrounding the thyroid cartilage and in the lumen of the trachea. 3. Reddish subscalp contusion over the right frontal (4 x 3 cm), left temporal region (5 x 4 cms) and at the mid occipital region (3 x 4 cms). All the above injuries are antemortem in nature. Bleeding from nose present. Finger nails are intensely cyanosed; sub conjunctival haemorrhage in both eye present; Tip of the tongue found between teeth. Thyroid cartilage and Hyoid bone and intact. Heart: Chambers contain fluid blood: Valves normal; coronaries patent; great vessel normal. Lungs: Normal in size. C/s.congested. Petechial haemorrhage at the interlobarfissure of both lungs. Stomach: Contains 100 ml of pale brown fluid; no definite smell; mucosa pale. Liver, Spleen & Kidneys: Normal in size. C/s. congested. Bladder: empty. Uterus: Normal in size, C/s.empty. Ovaries: Normal in size C/s.Normal. Pelvis & Spinal column: Intact Brain: C/s.surface vessels congested." In his post-mortem certificate Ex.P.21, he has opined that the deceased Banumathi appeared to have died of "Asphyxia due to ligature strangulation" about 24 to 30 years, prior to the post-mortem examination. The apparels found on the dead body were recovered by the Constable P.W.17, who was present during postmortem examination and entrusted to P.W.19, the Investigating Officer, for the purpose of further investigation in this case. Having received the apparels found on the dead body under Form-95 (Ex.P.18), he despatched them to the Court for the purpose of chemical examination. 12. P.W.19 went to the house of the accused, having sent prior intimation to the learned Judicial Magistrate, Poonamallee and recovered a sum of Rs.4,500/-, M.O.5, and a coir rope, M.O.7 and a knife, M.O.16, in the suit case, M.O.17, under the relevant seizure mahazar in the presence of J.Jagadeesan, P.W.7. 13. On the basis of the information furnished by Mani, the brother of the accused, P.W.19 went to the pawn broker shop of Harish P.W.12 and recovered a gold chain weighing 170 grams and a pair of gold bangles weighing 26.300 grams in the presence of Thirunavukarasu P.W.11. 13. On the basis of the information furnished by Mani, the brother of the accused, P.W.19 went to the pawn broker shop of Harish P.W.12 and recovered a gold chain weighing 170 grams and a pair of gold bangles weighing 26.300 grams in the presence of Thirunavukarasu P.W.11. It is pertinent to mention here that P.Ws.10 and 11, who alleged to have witnessed the process of recovery had turned hostile. 14. Harish P.W.12 has spoken to the fact that Thirunavukarasu P.W.11 came along with the accused and pledged the aforesaid gold ornaments. 15. On 29/8/2001 at about 11.30 a.m., P.W.19 arrested the accused near Mugalivakkam bus stand. P.W.19 sent the accused to the Deputy Superintendent of Police, Poonamallee for the purpose of investigation in this matter. K.Vijayakumar, P.W.14, the then Tahsildar attached to Poonamallee was summoned to the Office of the Deputy Superintendent of Police, Poonamallee for the purpose of recording the confession statement of the accused. K.Vijayakumar, P.W.14 recorded the confession statement of the accused between 3.30 p.m., and 4.30 p.m., on the same day in the presence of S.V.N.Natarajan, P.W.13. It is to be noted that the Deputy Superintendent of Police has subscribed his signature as one of the witnesses to such a confession statement recorded by the Tahsildar. The whole process of recording of confession was videographed by M.Manikavasagam, P.W.20. The video cassette has been marked as Ex.P.26. On the basis of the confession statement given by the accused, the Investigating Officer P.W.19 went along with S.V.N.Natarajan, P.W.13, to the house of Mani who is none other than the brother of the accused and recovered a sum of Rs.19,000/- M.O.13, and a diamond ear stud, M.O.3 and ear link chain, M.O.4, under relevant seizure mahazar Ex.P.10. Thereafter, the accused as well as the material objects recovered at the instance of the accused were brought to the Police Station. The accused was then remanded to judicial custody. On 3/9/2001, P.W.19 submitted a requisition to the learned Judicial Magistrate, Poonamallee, seeking Police custody of the accused. On the same day, Police custody of the accused was taken and again a confession statement from the accused was recorded. A white half saree M.O.15, a jacket, M.O.22, a skirt, M.O.14 and a plastic carry bag, M.O.23, were recovered from the accused on the basis of the said statement Ex.P.28. under the relevant seizure mahazar Ex.P.29. 16. On the same day, Police custody of the accused was taken and again a confession statement from the accused was recorded. A white half saree M.O.15, a jacket, M.O.22, a skirt, M.O.14 and a plastic carry bag, M.O.23, were recovered from the accused on the basis of the said statement Ex.P.28. under the relevant seizure mahazar Ex.P.29. 16. The accused identified the location of the Tamil Nadu Textile house, from where he purchased those dress materials for a sum of Rs.250/-. The accused was thereafter sent to judicial custody. P.W.19 having completed the investigation, laid the final report as against the accused for offences under Sections 449, 302 and 380 of I.P.C., on 9/9/2001. 17. The incriminating circumstances found in the testimony of the prosecution witnesses were put in the form of questionnaire to the accused and the accused had submitted that under threat and coercion, confession statement was recorded and the material objects were identified and entrusted to the Police, only after he received beating at the hands of the Police. The whole case has been foisted on him, he has further submitted. 18. The learned counsel for the appellant/accused would submit that there is no ocular evidence to the occurrence. It is his submission that there are lot of missing links in the chain of circumstances projected by the prosecution. The manner in which the confession statement was recorded by the Tahsildar in the presence of the Deputy Superintendent of Police speaks of perfunctory investigation. The whole recovery alleged to have been made at the instance of the accused has been completely stage managed. The trial Court has totally ignored the missing links in the chain of circumstances and has recorded the conviction, he argues. 19. The learned Additional Public Prosecutor would submit that recovery has been made only on the basis of the confession statement given by the accused. Having referred to the questionnaire and the answers given by the accused under Section 313 of the Code of Criminal Procedure, the learned Additional Public Prosecutor would submit that there is an admission by the accused that it was he who took the material objects found hidden in the house of his brother Mani and handed over the same to the investigating Official. It is his vehement submission that, even if the confession statement does not inspire confidence of this Court, the recovery part of the case remains intact and therefore, the trial Court has rightly relied upon the recovery and having connected the recovery to the role of the accused, passed a verdict of conviction. 20. The trial Court has adverted to the confession made by the accused to the Tahsildar K.Vijayakumar, P.W.14 and has come to the conclusion that the recovery has been properly made by the Investigating Officer. When the recovery has been made based on the confession and the same was not properly explained by the accused, the Court will have to necessarily link the accused to the role alleged against him by the prosecution, it has been observed by the trial Court. The recovery of the material objects pursuant to the confession has persuaded the trial Court to arrive at a conclusion that the accused had committed the offence charged against him. 21. Admittedly, there was no eye-witness to the occurrence at all. The testimony of P.W.1 would disclose that the accused was seen at about 8.00 a.m., on the day of occurrence. He would depose that the accused came down to his house, seeking some work. The accused had left the place when P.W.1 informed him that there was no work for the present. P.W.1 has very smartly stated before the Court that he saw the accused carrying a coir rope in his hand. Such meticulous details are not noted by any person. Further an accused who intended to commit murder for gain would not have patently shown the weapon of offence public. 22. The Investigating Officer has recovered not only the rope which was found around the neck of the deceased but also the rope which was found in the house of the accused. The expert has failed to give any opinion as to whether there was any connection between the rope found in the neck of the deceased and the rope alleged to have been recovered from the house of the accused. 23. G.Gururaj, P.W.2, son of P.W.1 would state that he kept a sum of Rs.5,000/- in the chest of his bureau and the same was found missing. No denomination of the missing amount of Rs.5,000/- was given by P.W.2. 23. G.Gururaj, P.W.2, son of P.W.1 would state that he kept a sum of Rs.5,000/- in the chest of his bureau and the same was found missing. No denomination of the missing amount of Rs.5,000/- was given by P.W.2. It is not possible also for a person who has not visualised any theft in his house to keep in his memory the denominations of the amount kept in the chest of his bureau. P.W.19, the Investigating Officer in this case has recovered a sum of Rs.4,500/- M.O.5, from the house of the accused in his absence. It is the case of the prosecution that the same was recovered in the presence of the wife of the accused. When the denomination had not been properly given by the person who lost the money, it is not safe to connect the paltry amount of Rs.4,500/- found in the house of the accused with the amount found robbed from the house of P.W.1. 24. It is not as if the accused was jobless. It is the admitted case of the prosecution that the accused was a Mason by profession. Of course, he was seeking work from his reputed customers now and then. A possession of a sum of Rs.4,500/- by the family of a Mason needs no explanation for such a possession. 25. The Investigating Official has chosen to lift the fingerprint from the bureau from where the sum of Rs.5,000/- was robbed. But the fingerprint experts report has not been obtained and filed before the Court. The Court finds that such a scientific evidence would have definitely come to the rescue of the prosecution in the matter of establishing the case of murder for gain to the hilt. 26. The witnesses G.Sampath, P.W.10 and N.Tirunavukarasu, P.W.11, who were allegedly associated for the purpose of recovering the material objects, have turned hostile to the version of the prosecution. Therefore, the recovery part of the story of the prosecution through those two witnesses falls to the ground. 27. Very unusually, the Inspector of Police P.W.19 has sent the accused to the Deputy Superintendent of Police, Poonamallee, for the purpose of recording the confession statement. Therefore, the recovery part of the story of the prosecution through those two witnesses falls to the ground. 27. Very unusually, the Inspector of Police P.W.19 has sent the accused to the Deputy Superintendent of Police, Poonamallee, for the purpose of recording the confession statement. If at all, the accused had intended to unfold his heart to the Deputy Superintendent of Police, the Deputy Superintendent of Police would have resorted to the mode contemplated under Section 164 of Cr.P.C. Surprisingly, he had summoned the Tahsildar for the purpose of recording the confession statement, with a view to strengthen case. Such a confession statement by the Tahsildar was also completely videographed. It is pertinent to note that the Deputy Superintendent of Police, Poonamallee, and the Investigating Officer were very much present at the time when the Tahsildar recorded the alleged confession statement of the accused. The Deputy Superintendent of Police has even subscribed his signature as one of the witnesses to such a process of taking confession statement from the accused. Though the confession statement as such was not marked before the Court, the signature of S.V.N.Natarajan, P.W.13, has been marked. But strangely, the Tahsildar Vijayakumar, P.W.14, would state that the text of the confession recorded by him is found in Ex.P.9. 28. The trial Court also, even without marking the text of the confession, has given a chance to the witness S.V.N.Natarajan, P.W.13, and the Tahsildar Vijayakumar, P.W.14 to depose before the Court each and every detail of the confession alleged to have been given by the accused. The Sessions Judge should not have recorded the whole text of the confession statement which flowed through the mouth of P.Ws.11 and 14, when the same is not admissible in evidence. 29. Considering the manner in which the whole confession statement was recorded by the Tahsildar Vijayakumar, P.W.14, we find that such a confession does not inspire confidence of this Court. The accused has come out with a version that he was manhandled and after threat and coercion, such a confession was obtained from him. When the confession statement is not admissible in evidence, the video cassette marked before the Court below also loses its evidentiary value. 30. It is better to refer to question 23 found in the proceedings under Section 313 of the Code Criminal Procedure conducted by the trial Judge. When the confession statement is not admissible in evidence, the video cassette marked before the Court below also loses its evidentiary value. 30. It is better to refer to question 23 found in the proceedings under Section 313 of the Code Criminal Procedure conducted by the trial Judge. The accused has categorically answered that he was dragged to the office of the Deputy Superintendent of Police to confess the crime after giving a thrashing. Unable to bear the beating, he had agreed to confess the crime. He was taken to the house of his brother and was directed to take money and jewel from his house only after giving sufficient beating. The money as well as jewels handed over to the Police from the house of his brother were never entrusted to his brother, he has stated. 31. It is true that he took the cash as well as the jewels from the house of his brother and handed over them to the Investigating Officer. When he has not admitted that he entrusted those materials to his brother, the recovery at his instance from the house of his brother does not connect him to the crime of theft charged against him. Further, the recovery mahazar witness, P.W.13, would state that he had not entered into the house of the brother of the accused when such a recovery was effected. When there is no evidence to show that the amount as well as the jewels were handed over by the accused to his brother the recovery of such materials does not clinchingly connect the accused to the crime of theft. 32. Another circumstance spoken to by Jindha, P.W.16, is that some clothes were purchased by the accused from his shop. For a very paltry amount, the accused has allegedly purchased some clothes for the daughter of his brother. Even if we accept that he had purchased those clothes from the said shop, we cannot come to the conclusion that the amount robbed from the house of P.W.1 was used for the purpose of purchasing those dresses. 33. It is found from the medical testimony that the wife of P.W.1 was strangulated to death. In the absence of direct evidence, the prosecution has miserably failed to establish the circumstances connecting the accused to the crime. 33. It is found from the medical testimony that the wife of P.W.1 was strangulated to death. In the absence of direct evidence, the prosecution has miserably failed to establish the circumstances connecting the accused to the crime. There is doubt writ large in the case of the prosecution that it was the accused who committed the ghastly murder for gain. The circumstantial piece of evidence let in on the side of the prosecution has not established beyond reasonable doubt that the charges as against the accused are proved. 34. The trial Court having believed the recovery part of the case has erred in convicting the accused for offences under Sections 449, 302 and 380 of Code of Criminal Procedure. 35. For the reasons stated above, Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/accused in S.C.No. 137 of 2002 On the file of District Additional Sessions Judge, Fast Track Court NO.3, Poonamallee at Chengalpet District are set aside. The accused is acquitted and is consequently directed to be released forthwith unless his detention is required in connection with any other case. Fine amount, if any, paid by the accused shall be refunded to him.