Judgment :- (Criminal Appeals against the judgment of the Fast Track Court No.II (Additional Sessions Court), Gobichettipalayam in S.C.No.165/2002 dated 11.03.2003.) Common Judgment: (M. Karpagavinayagam, J.) Premasudha/A1 and Balan @ Balasubramaniam/A2 have filed these criminal appeals challenging the conviction and sentence imposed upon them for the offences under Sections 109 r/w 302 and 302 I.P.C. respectively. 2. The facts in brief are as follows: (a)The deceased in this case viz., one Ramachandran was working as a Constable in Neyveli C.I.S.F. A1-Premasudha is the wife of the deceased. A1 along with her minor son was living at Bhavanisagar. A2-Balan @ Balasubramaniam was the friend of A1. He was running a mechanic shop at Bhavanisagar. (b)A1 had developed illicit intimacy with A2. The deceased who was working at Neyveli used to visit Bhavanisagar once in a week. On coming to know that A1 had illicit intimacy with A2, the deceased made arrangements to shift his family to Neyveli. As soon as this was known to A1 and A2, they had planned to kill the deceased. (c)On 02.06.2002, A1 asked P.W.12 - Ponnusamy to get pesticide from a shop. Accordingly, P.W.12 purchased the pesticide from one Dhanalakshmi Stores under Ex.P2 bill and handed over the same to A1. A1 planned to mix pesticide with pepsi and give the same to the deceased. This plan was conveyed to A2, who was in Erode at that time. (d) On 04.06.2002, A2 was asked to come to the house of the deceased to help in packing all the materials to shift the house to Neyveli. Accordingly, he came. As planned earlier, the pesticide was mixed with pepsi and the same was served to the deceased. On consuming the drink, the deceased vomited and fainted. (e)At 10.00 p.m., A.2 and the deceased were taken to a private hospital at Sathyamangalam. Dr.Viswanathan, P.W.19 gave first aid to both the deceased and A2, who had also consumed a portion of the pepsi. Thereafter, both of them were sent to K.G. Hospital, Coimbatore. (f) On 04/05.06.2002 at 12.30 mid night, P.W.18 Dr.P.Balasubramaniam admitted them in the K.G. Hospital, Coimbatore and treated them. P.W.25, another Doctor treated A2 in the hospital and referred the deceased to C.M.C. Hospital, Coimbatore, as his condition was serious. When the deceased was being taken to C.M.C. Hospital, he passed away and the doctor declared that he was brought dead. P.W.25, another Doctor treated A2 in the hospital and referred the deceased to C.M.C. Hospital, Coimbatore, as his condition was serious. When the deceased was being taken to C.M.C. Hospital, he passed away and the doctor declared that he was brought dead. (g) On 05.06.2002 at about 11.30 a.m., on coming to know the death of the deceased, P.W.1 - Pichayee, the mother of the deceased gave a complaint (Ex.P12) to the police. On receipt of the complaint, P.W.24-Sub Inspector of Police registered a case under Section 174 Cr.P.C. in Crime No.125 of 2002. He prepared Ex.P13 printed first information report and sent the same to the higher officials. (h)P.W.28 - Inspector of Police took up investigation and went to C.M.C. Hospital, Coimbatore. He conducted inquest over the dead body of the deceased in the presence of panchayatdars and other witnesses and prepared inquest report Ex.P22. He also visited the scene of occurrence and prepared observation mahazar and rough sketch- Ex.P23. (i)On 06.06.2002, the dead body was sent for postmortem with a requisition (Ex.P14). P.W.26 -Dr.Menaka Sekar conducted autopsy and issued Ex.P16 - postmortem certificate. The final opinion of the Doctor is Ex.P17. The Doctor opined that the deceased would appear to have died of Organophosphorus insecticide poisoning. (j) In the meantime, A2 who took treatment in the K.G. Hospital was discharged. Thereupon, on 10.6.2002, he appeared before the Village Administrative Officer - P.W.27 and gave a confession (Ex.P18). Recording his statement, P.W.27 prepared a report (Ex.P19) and handed over the same along with A2 to P.W.28, the Investigating Officer at about 3.30 p.m. on 10.6.2002. (k)P.W.28 arrested A2 and recorded his confession statement and in pursuance of the confession, M.O.1 - pesticide bottle and M.O.4 - pepsi bottle were recovered. Other witnesses were examined and material objects were sent for chemical examination. (l) After completion of the investigation, charge sheet was filed against both the accused for the offence under Section 302 I.P.C. 3. During the course of trial, on the side of prosecution, P.Ws.1 to 28 were examined. Exs.P1 to P28 were filed and M.Os.1 to 4 were marked. 4. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. 5. After trial, the trial Court found both the accused guilty of the offences under Sections 109 r/w 302 I.P.C. and 302 I.P.C. respectively and sentenced them to undergo life imprisonment. Exs.P1 to P28 were filed and M.Os.1 to 4 were marked. 4. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. 5. After trial, the trial Court found both the accused guilty of the offences under Sections 109 r/w 302 I.P.C. and 302 I.P.C. respectively and sentenced them to undergo life imprisonment. Hence, these appeals by A1 and A2. 6. Heard Mr.A.K.Kumarasamy, learned counsel for the appellant in Crl.A.No.564 of 2003 and Mr.K.Nachimuthu, learned counsel for the appellant in Crl.A.No.888 of 2003. 7. Learned counsel for the appellants took us through the entire evidence and would contend that the entire case is based upon the extra judicial confession and since the extra judicial confession does not inspire confidence, both the accused are liable to be acquitted. They also pointed out various irregularities with reference to the materials available on record. 8. On these aspects, we have heard the learned Government Advocate. 9. We have carefully considered the submissions made on either side and gone through the records. 10. There is no eye witness in this case and the entire case hinges upon the circumstantial evidence. The prosecution would rely upon the following circumstances:- 1 .the pesticide mixed with pepsi, which was consumed by the deceased was purchased by A1 through P.W.12. 2. the extra judicial confession given by A2 to P.W.8. 3. the written extra judicial confession given by A2 to P.W.27 on 10.6.2002. 11. As regards the first circumstance, it is to be noticed that there is no clear material to show that the pesticide, which had been purchased by A1 through P.W.12, contained the same poison element as found in the pepsi as well as in the stomach contents. As per the report - Ex.P7 given by the Expert – P.W.20, the pesticide bottle contained monochrotopas, whereas the pepsi bottle as well as the stomach contents contained organophosphorus. Though it is stated by P.W.12 that A1 asked him to purchase pesticide, it is clear that the very same pesticide had not been used for mixing with pepsi by A2. 12. Though it is stated by P.W.12 that A1 asked him to purchase pesticide, it is clear that the very same pesticide had not been used for mixing with pepsi by A2. 12. In the light of the fact that both the elements are different and also the fact that A2 did not speak anything about the pesticide, which had been purchased by A1 for the purpose of administering the same to the deceased, in the extra-judicial confession, the first circumstance, in our view, is not clearly established. 13. The second and third circumstances would relate to the extra judicial confessions given by A2 to P.W.8 and P.W.27. According to P.W.8, A2 was originally admitted in the K.G. Hospital and thereafter, he took treatment in Sathyamangalam Hospital where P.W.8 was also taking treatment. It is further stated that A2 confessed to him as to what happened and P.W.8 advised him to go to the Village Administrative Officer and give extra judicial confession to avoid police torture. Unfortunately, P.W.8 has turned hostile as his statement is not in consonance with the statement made to the police. Therefore, the second circumstance cannot be said to be established. 14. The third circumstance is the extra-udicial confession given by A2 to P.W.27 on 10.06.2002. It contains nitty-gritty details covering about six pages. A reading of the extra judicial confession - Ex.P18 would indicate that A2 reported about the illicit intimacy with A1 and also implicated A1 in a conspiracy to administer poison to the deceased. Admittedly, the case was registered on the complaint of P.W.1 on 05.06.2002 itself. There is no necessity for A2 to wait for about six days and then to give extra-judicial confession to the Village Administrative Officer P.W.27, who is not earlier known to A2. As a matter of fact, A2 accompanied the deceased from the beginning. If he had mood to give confession, he would have given the same to the Doctor - P.W.25 at K.G. Hospital or to any other Doctor in C.M.C. Hospital. Further, he did not refer to the admission in Sathyamangalam Hospital after he was discharged from K.G. Hospital and there is no whisper about his alleged extra-judicial confession implicating himself and A1 and the same does not inspire confidence as it is not corroborated by the material particulars available on record. 15. Further, he did not refer to the admission in Sathyamangalam Hospital after he was discharged from K.G. Hospital and there is no whisper about his alleged extra-judicial confession implicating himself and A1 and the same does not inspire confidence as it is not corroborated by the material particulars available on record. 15. Further, according to P.W.27, A2 came to his office at about 3.30 p.m. and after recording the extra-judicial confession and after preparation of the report Ex.P19, he went to the Sub Inspector of Police P.W.24 and handed over the same at about 4.30 p.m. But unfortunately, it is noticed from the extra-judicial confession that the same was recorded at 2.00 p.m. itself. When P.W.27 in Ex.P19 had clearly stated that the second accused gave extra-judicial confession only at 3.30 p.m, there is a doubt about the recording of the extra judicial confession at about 2.00 p.m. on the same day. 16. Further, if such a plan was hatched by A1 and A2 to commit the murder of the deceased by administering poison, there is no necessity for these two people to take the deceased immediately to the Sathyamangalam Hospital to give treatment and then come to KG Hospital and then took the deceased to Government hospital, Coimbatore. It is quite strange to see that A2 also had consumed the said poison and for the same, treatment was given to him in the K.G. hospital from 5.6.2002 to 8.6.2002. Under these circumstances, we are unable to place any reliance on the third circumstance, which in our view, cannot be said to be acceptable circumstance to connect the accused with the crime. 17. Ultimately, we are constrained to conclude that there are no proper links to form the complete chain so as to make the accused to be held responsible for the murder of the deceased. As such, the benefit of doubt has to be given to the accused and consequently they are liable to be acquitted. 18. Therefore, the conviction and sentence imposed upon the accused in S.C.No.165 of 2002 are set aside and both the appeals are allowed. The appellants / A.1 and A.2 are acquitted of the charges framed against them. The bail bonds shall stand cancelled and the fine amount, if paid, shall be refunded to them.