Judgment :- D. Murugesan, J. The appellant is the sole accused who was put on trial in Sessions Case No.523 of 2005 on the file of the Additional Sessions Judge, Fast Track Court No.III, Poonamallee, Thiruvallur District. By the judgment dated 211. 2005, he was found guilty of offence under Section 302 of IPC, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-in default to undergo rigorous imprisonment for five years. 2. The case of the prosecution as put forth before the trial court in brief is as follows:- The deceased Aruna is the wife of the accused by name Elumalai. The deceased had in the year 2002 married one Pradeepkumar and she had not lived with him. Though she had married the accused subsequently, she was in the habit of moving around with her boy friends and at that time she used to stay with them even during whole night. Therefore, the accused developed animosity and on the night hours on 8. 2005, he took the deceased in the auto bearing Regn. No. TN 07 E 5567 and strangulated her neck with thuppata near by a tailoring shop owned by P.W.2. Thereafter, he threw a stone on the head of the deceased and fled away from the scene of occurrence. P.W.1, the Village Administrative Officer of Kolapancherry who was in charge of Poonamallee Village saw a dead body of a female nearby a tailoring shop belonged to P.W.2. He also found injuries on the head, face and the female was found wearing black colour churidhar. He also found a thuppata nearby. However, he could not identify the deceased. Then, he went to Poonamallee Police Station and lodged the complaint, Ex.P.1 to P.W.14, the Inspector of Police who in turn registered the same in Cr.No.1750 of 2005 under Section 174 of Cr.P.C. He prepared the first information report, Ex.P.16. Thereafter, he visited the scene of occurrence at about 9.00 a.m., prepared observation mahazar, Ex.P.2, drew rough sketch, Ex.P.17. He made photographs of the dead body of the deceased being taken with the help of a photographer. M.O.8 (series) are photographs and their negatives. He advertised the photograph in the daily news paper. In the mean time, P.W.14 summoned P.W.9 Scientific Expert. He made photographs of the dead body of the deceased being taken with the help of a photographer. M.O.8 (series) are photographs and their negatives. He advertised the photograph in the daily news paper. In the mean time, P.W.14 summoned P.W.9 Scientific Expert. Thereafter at about 9.15 a.m., with the help of the scientific expert P.W.9, he collected blood particle with the help of swab from a brick piece and from the earth, ordinary earth and covering stud in the presence of the attesting witness P.W.3 and another under the cover of the mahazar Ex.P.3. Thereafter at about 9.30 a.m., he recovered another blood stained brick piece under the cover of the mahazar Ex.p.18. Then, he held inquest on the body of the deceased between 10.30 and 11.30 a.m. In the presence of panchayatars and prepared inquest report Ex.P.19. Then, he sent the corpse for post-mortem through the Head Constable. In the mean time on knowing the incident, Advocate, P.W.10 approached the police and immediately police rushed to her house and took the former husband of the deceased, accused and the said Advocate to hospital where, the body was identified. 3. Upon identification by the Head Constable and at the request of the Inspector of Police, the Doctor P.W.7 performed autopsy on the body of the deceased Aruna and found the following ante mortem injuries:- 1. Injuries :- Reddish brown irregular abrasion over outer border of right eye below lower top 5 x 1 c.m., upper top 4 x 1 c.m., middle of left forearm 4 x 1 c.m. Multiple small abrasion over right shoulder. 2. Lacerated wounds : right eye brow 7 x 2 x 1 c.m.; left eye brow 4 x 2 x 1 c.m.; middle of both tops 2 x 1 x 1 c.m. Buccal surface of both tops contused 3. A brown color ligature abrasion over front and right side of the neck 16 x 1.5 c.m.; In the front the ligature mark is below the thyroid cartilage and 7 c.m., below right mastoid process and 9 c.m., below the left mastoid process on dissection subcutaneous reddish contusion underneath the ligature abrasion in the prepharyngeal , retrophyangeal reddish contusion. 4. Internal injuries :- Reddish subscapulao contusion over occipital parietal and frontal area of scalp 5. Comminutted fracture of frontal bone and right temporo pareitalbone 6. Fracture of body of right maxilla with haemorrhage. 7. 4. Internal injuries :- Reddish subscapulao contusion over occipital parietal and frontal area of scalp 5. Comminutted fracture of frontal bone and right temporo pareitalbone 6. Fracture of body of right maxilla with haemorrhage. 7. Comminutted fracture of anterior and middle cranial fossa on both sides. 8. Sub dural and sub arachnoid haemorrhage over right fronto - parieto - occipital lobs. 9. Reddish contusion over right supra clavicular and infra clavicular region. 10. Central incisor teeth of both jaws are found fractured. He preserved the viscera for chemical analysis and reserved his opinion pending chemical analysis report. On receipt of Ex.P.10 Viscera report, he opined that the death would have occurred 36 - 48 hours prior to the post-mortem and the deceased would appear to have died due to the cumulative effects of asphyxia due to ligature strangulation with head injuries and issued Ex.P.11 Post-mortem Certificate to that effect. After the post-mortem the Head Constable made recovery of clothing M.Os.1 to 3 and M.Os.9 and 10 and also nose screw M.O.8 from the person of the deceased and handed over the same to the investigating officer. 4. In continuation of his investigation, P.W.14 on 8. 2005 at about 9.30 a.m., on suspicion when he enquired with the accused, the accused confessed to have murdered his wife and P.W.14 recorded the voluntary confession statement of the accused in the presence of P.W.13 and another. Pursuant to the admissible portion of confession Ex.P.20 of the accused and at the instance of the accused, he recovered a pair slipper used to wear by men and another pair of slipper used to wear by women MO.6(series) under the cover of the mahazar Ex.P.14 and at about 12.00 noon, he recovered an auto rickshaw M.O.5 from the possession of P.W.12 under the cover of the mahazar Ex.P.15. Thereafter, he prepared alteration report Ex.P.21 to one under Section 302 of IPC and subjected the accused to judicial remand and sent the material objects for chemical analysis. Thereafter, he took steps for test identification parade of the accused with P.Ws4 and 5. As per the order of the Chief Judicial Magistrate, Chengalpattu in Ex.P.4, on 25.08.2005, P.W.6, the Judicial Magistrate conducted Test Identification Parade of the accused at Central Prison Chennai. Ex.P.6 is the Test Identification Parade Report. Thereafter, he took steps for test identification parade of the accused with P.Ws4 and 5. As per the order of the Chief Judicial Magistrate, Chengalpattu in Ex.P.4, on 25.08.2005, P.W.6, the Judicial Magistrate conducted Test Identification Parade of the accused at Central Prison Chennai. Ex.P.6 is the Test Identification Parade Report. Then P.W.14 after following all due formalities collected reports of the chemical expert and upon completion of his investigation, he laid final report under Section 302 of IPC against the accused. 5. In order to substantiate the charges, prosecution examined 14 witnesses and marked 21 exhibits and produced 10 material objects. Neither witness was examined nor document was adduced on the side of the defence. 6. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he totally denied the same as false. On behalf of the defence, no document was marked and no witness was examined. However, learned trial Judge found the accused guilty of the offences, convicted and sentenced him as stated earlier. 7. Mr.A.Shiv Kumar, learned counsel appearing for the appellant has submitted that the case of the prosecution rests purely on circumstances evidence. In a case of circumstantial evidence, the prosecution is duty bound to prove each and every circumstances unerringly pointing out the guilt of the accused without there being any missing link. In this case, the prosecution has relied upon the following circumstances:- 1. last seen theory as spoken to by P.Ws.4 and 5 2. the arrest and the recovery of thuppatta, M.O.3 and auto-rickshaw M.O.5 as spoken to by P.W.12, the owner of the auto-rickshaw 3. identification of the accused at the time of test identification parade conducted by the Judicial Magistrate, P.W.6. 8. The learned counsel would submit that insofar as the last seen theory is concerned, from the fact that both P.Ws.4 and 5 had seen the accused with the deceased on the night of 8. 2005 is totally false and they have been brought only after the arrest of the accused on 05.08.2005. The learned counsel would also draw our attention to the fact that even when the body was recovered by the police and the inquest was conducted on 8. 2005 is totally false and they have been brought only after the arrest of the accused on 05.08.2005. The learned counsel would also draw our attention to the fact that even when the body was recovered by the police and the inquest was conducted on 8. 2005 and both the P.Ws.4 and 5 were examined, they did not reveal the number of auto-rickshaw which they had seen on the previous night and that too when they saw both the accused and the deceased together. 9. The learned counsel would submit that according to the prosecution version, the prosecution has fixed the accused only after the statement of P.W.12, the owner of the auto rickshaw which was recovered at 3.00 p.m. on 05.08.2005. There is nothing to indicate as to how the investigating officer came to know of registration number of the auto rickshaw so as to approach the owner of the same viz., P.W.12 to find out the fact that as to who drove the auto on the date of occurrence. According to the learned counsel, admittedly, the auto rickshaw was seen at about 12.00 noon on 05.08.2005 and that too only after the arrest of the accused at 9.45 a.m., on 05.08.2005. When the prosecution has not proved the important link as to how the investigating officer came to know of the registration number of the auto rickshaw, the entire version of P.Ws.4 and 5 as deposed before the court giving registration number of the auto was only either an improvement or they were tutored the auto rickshaw number for the purpose of the case after the arrest of the accused and the recovery of the auto was made. In that event, the evidence of P.Ws.4 and 5 must be discarded and consequently, the case of the prosecution as to the last seen theory must also be disbelieved. 10. The learned counsel would submit that insofar as the identification of the accused by P.Ws.4 and 5 who had spoken about the last seen theory, he would draw our attention that even on 05.08.2005 immediately after the arrest of the accused, he was shown to them in the police station where both witnesses identified the accused. If this version of the prosecution is accepted, the test identification parade conducted by the Judicial Magistrate, P.W.6 has no value, as both the witnesses were already aware of the identity of the accused. If this version of the prosecution is accepted, the test identification parade conducted by the Judicial Magistrate, P.W.6 has no value, as both the witnesses were already aware of the identity of the accused. If the test identification parade conducted by the Judicial Magistrate is not taken into consideration, the evidence of P.Ws.4 and 5 as to the identification of the accused before the police has no credibility and therefore the prosecution has failed to prove as to the next circumstances namely the identification of the accused as well. 11. The learned counsel would lastly submit his argument on the conduct of the accused. He would submit that the conduct of the accused may also have a bearing in this case as admittedly after he came to know of the photographs of the deceased published in the news paper, he met his Advocate, P.W.10 to inform the same. If so happened that Pradeepkumar who was the first husband of the deceased was also present and all the three of them viz., P.W.10, the Advocate of the accused, accused and the said Pradeepkumar went to the Kilpauk Medical College and both the accused and the said Pradeepkuamr identified the dead body. At that time police were also present apart from P.W.10. Even thereafter, he has not made any attempt to escape or flee away till such time he was arrested at 9.45 a.m. On 05.08.2005, i.e., at least for 2 days. In view of the above conduct of the accused, it could be reasonably presumed that the accused is innocent. It is the categorical stand of the prosecution that even as per the evidence of the prosecution witnesses, particularly, P.W.11, the father of the deceased that the deceased had earlier married one Pradeepkumar and she did not live with him and thereafter his father was not in a position to depose further before the court as to what had happened to his daughter after she separated the said Pradeepkumar. It is the specific case of the prosecution that the deceased had number of boy friends and even after she contracted second marriage with the accused, she used to leave the house and go with her boy friends even during night times and also stay with them and the same questioned by the accused. It is the specific case of the prosecution that the deceased had number of boy friends and even after she contracted second marriage with the accused, she used to leave the house and go with her boy friends even during night times and also stay with them and the same questioned by the accused. Therefore, the learned counsel would submit that the deceased had number of friends and she was not a good woman with good virtue and as such, she could have been murdered by some other person and the appellant/accused had falsely been implicated only on the ground that the deceased was lastly living with him as wife. The learned counsel would therefore, submit that in the absence of evidence as to the last seen theory, recovery and also the failure on the part of the prosecution to prove the motive coupled with the conduct of the accused and the character of the deceased, the prosecution has not proved any of the circumstances to point out the guilt of the accused and the accused is entitled for the benefit of doubt and consequently for acquittal. 12. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor would contend that there is nothing to indicate that P.Ws.4 and 5 had deposed falsely implicating the appellant/accused for the offence, as it was not suggested in their cross examination as to why both P.Ws.4 and 5 should falsely implicate the accused. Having regard to their evidence, the prosecution case as to the last seen theory should be accepted and should be taken as proved. Insofar the recovery of auto is concerned, of course, P.Ws.4 and 5 had not given the registration number at the time of inquest. But, having regard to the fact that the accused was with the investigating officer along with Pradeepkumar and the Advocate and even at that time the investigating officer had entertained doubt about the accused and only in that contest he should trace out the number of the auto rickshaw which was driven by the culprit and thereafter he traced the owner of the auto rickshaw viz., P.W.12 and he was examined at about 3.00 p.m. on 05.08.2005. Only thereafter, he came to know that the auto was entrusted in the custody of the appellant/accused and the same was in the possession of the accused on the date of occurrence and thereafter he fixed the accused and made arrest at 9.45 a.m., on the same day. Pursuant to the admissible portion of the confessional statement of the accused Ex.P.20, he recovered M.O.6 slipper. 13. Therefore, the learned Additional Public Prosecutor would submit that the last seen theory as well as recovery would go to show the culpability of the accused in the crime. Insofar as the circumstances, as to the conduct accused is concerned, the learned Additional Public Prosecutor would submit that merely because the accused was present throughout initial part of the investigation with the investigating officer, that by itself would not absolve him from the charge of committing the murder, in the event that the prosecution is able to prove his involvement in the offence through other witnesses. The prosecution has established all the chain of circumstances and the judgment under appeal is sustainable both on law and on facts and the same requires no interference. 14. We have carefully considered the above submissions. In so far as the law as to the circumstantial evidence is concerned, it is well settled that whenever the prosecution put forth its case on the circumstantial evidence, it is the duty on the part of the prosecution to prove each and every circumstances unerringly pointing out the guilt of the accused, without there being any break in the chain of links and the link must be complete in form. 15. Insofar as the last seen theory is concerned, the prosecution has examined P.Ws.4 and 5. The evidence of the last seen theory as spoken to by P.Ws.4 and 5 is highly doubtful for the following reasons. 15 (i) firstly though P.Ws.4 and 5 had stated that on the night of 8. 2005 both of them had seen the accused standing nearby an auto rickshaw and when he was questioned by P.W.4, he had stated that there was no fault in the auto and by that time his wife was sitting inside the auto, they could not give the registration number of the auto rickshaw to the investigating officer who had recorded the statements on the next morning when the inquest was conducted i.e., on 03.08.2005. The investigating Officer has also deposed before the court that when the statements were recorded from P.Ws.4 and 5 at the time of inquest only, they had stated the registration number of the auto rickshaw (TN 07 E 5567) and they have not mentioned the registration number of the auto namely 5567. It is highly probable that at that time they could not notice the number of the auto rickshaw. But, it is for the prosecution to satisfy as to how the investigating officer came to know that in the same auto, the accused and the deceased were travelling as spoken to by P.Ws.4 and 5. According to the investigating officer, he enquired P.W.12, the owner of the auto rickshaw at 3.00 a.m. On 8. 8.2005 and only thereafter he fixed the accused for his involvement in the occurrence. However, there is absolutely no evidence to show as to how the investigating officer came to know the registration number of the auto rickshaw, so as to enable him to go to the house of P.W.12, the owner of the auto and obtained a statement from him at 3.00 a.m., on 8. 2005. It is the categorical statement of the investigating officer that he fixed the accused only after the statement of P.W.12 and thereafter the seizure of auto was made at about 12.00 noon. Therefore, the implication of the accused and the consequent alteration FIR on 8. 2005 which reached the Judicial Magistrate concerned at 6.30 p.m. on the same day was only after the arrest of the accused without there being any link as to how he was fixed as accused by the investigating officer. In this context, we must also refer to the submission made by the learned counsel appearing for the appellant/accused that even though P.W.12 had stated the name of the accused at 3.00 a.m., on 05.08.2005 and he has also referred to the registration number of the auto rickshaw and thereafter the investigating officer had also made the arrest of the accused at about 9.45 a.m. on 05.08.2005, surprisingly, in the alteration report, the name of the accused has not been mentioned. Therefore, it is highly doubtful as to whether P.Ws.4 and 5 had come with true version before the court as to the last seen theory. Therefore, it is highly doubtful as to whether P.Ws.4 and 5 had come with true version before the court as to the last seen theory. When such a doubt is entertained, the benefit must be given to the accused as to the last seen theory. 15 (ii) Secondly, insofar as the recovery is concerned, the recovery too entertains some doubts viz., while P.W.12 had stated that he was enquired at 3.00 a.m. on 8. 2005 and in fact at that time though the auto rickshaw was in his custody, the investigating officer has not taken any care to seizure the auto then and there as admittedly, he had seized the auto only at 12.00 noon on that day which throws serious doubt over the seizure of the auto rickshaw itself. Further, though the prosecution has come forward with the case that the thuppatta M.O.3 used for the commission of the murder contained blood stains, strangely no such blood stain was detected in the auto rickshaw in which the deceased was allegedly travelling and she was found sitting in the same. In these circumstances, the recovery of auto rickshaw itself is also doubtful. 16. Insofar as the identification of the accused is concerned, even according to the evidence of Pws.4 and 5 they have identified the accused on 8. 2005 i.e. immediately after the arrest in the police station. It is well settled that any identification before the police has no evidentiary value at all and more so in a case of circumstantial evidence. Therefore, for the same reason the test identification parade conducted by the Judicial Magistrate, P.W.6 loses its value as both the witnesses had already seen the accused and that too in the police station. In this context, the judgment of the Supreme Court reported in 2007 Crl.L.J. 3509 (SC) State of Madhya Pradesh V. Chamru @ Bhagwandas is referable. In para-10 of the judgment, the Apex Court had observed that the photograph of the accused shown to the child witness before the test identification parade takes away the effect of the test identification parade. In this case it is still worst that both the witnesses had shown the accused at the police station itself and therefore, the prosecution cannot place any reliance on the test identification parade conducted by the learned Judicial Magistrate, P.W.6. 17. In this case it is still worst that both the witnesses had shown the accused at the police station itself and therefore, the prosecution cannot place any reliance on the test identification parade conducted by the learned Judicial Magistrate, P.W.6. 17. As we have found that all the three circumstances put forth against the appellant/accused by the prosecution have not been established beyond any reasonable doubt, the benefit of doubt must be given in favour of the appellant/accused. In view of the finding that the prosecution has not established its case, we are not inclined to make any reference as to the submission made by the learned counsel appearing for the appellant/accused on the conduct of the appellant/accused as well as the deceased are not necessary. 18. For all the above reasons we are of the considered view that the prosecution has failed to prove the circumstances to bring home the accused of charge under Section 302 of IPC. Accordingly, the criminal appeal is allowed and conviction and sentence imposed upon the appellant/accused to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for five years for offence under Section 302 of IPC by the judgment made in S.C.523 of 2005 dated 211. 2005 are hereby set aside. The appellant/accused is set at liberty. The appellant/accused is entitled for refund of find amount if he had already paid the fine amount before the trial court. The directions of the learned trial Judge with regard to case properties shall remain unchanged.