Judgment : AJIT J. GUNJAL, J: 1. Respondent-accused was chargesheeted for the offence punishable under Section 302 of Indian Penal Code. Learned Sessions Judge on trial has acquitted him. Hence, the State is in appeal. 2. We have heard Mr. Bhavani Singh, learned State Public Prosecutor appearing for the State as well as Mr. Arun Shyam, learned Counsel appearing for respondent as Amicus Curiae. 3. The case of the prosecution is that the accused and the deceased are husband and wife. A case has been registered as against the accused for the offence punishable under Section 302 of Indian Penal Code. The complaint is lodged by PW1-M.B. Basheer which is at Ex.P1 and FIR is at Ex.P4. The gist of the complaint is that he knows the accused as well as the deceased and on the date of incident at about 6.30 p.m. when he was about to close his business, he saw the accused as well as his wife quarreling with each other. He pacified both the accused as well as the deceased and he advised them not to quarrel and the couple stopped quarreling. On the next day at about 11.45 a.m. when he was on the way to his shop, he saw the dead body of Gowri,’ the wife of accused, He found ligature injury on the neck of the deceased. Thereafter, he suspected some foul play and felt that accused must have done this act. He went to the police station and lodged the written complaint. On the basis of the said complaint which is at Ex.P1, a case has been registered. Immediately on receipt of the complaint, PW7-Jayaramu the Circle Inspector took up the further investigation of the case from CW5 – Gurubasavaraj, PSI. He visited the scene of occurrence and recorded the statement of witnesses of one Rahim, T.K.Krishna, P.R. Subhash, N.M. Devaiah, PC 24 and Dananjaya, PC 232. On 29.10.2001, he received the postmortem report from Medical Officer, Gonicoppa Hospital and he attested the said postmortem report. The said postmortem report is marked as Ex.P5. After completion of investigation, chargesheet is submitted on 31.10.2001 against the accused for the offence punishable under Section 302 of Indian Penal Code. During the course of trial, the prosecution has examined PWs.1 to 9 and got marked Exs.P1 to 6 and MOS.1 to 4 in support of their case. The said postmortem report is marked as Ex.P5. After completion of investigation, chargesheet is submitted on 31.10.2001 against the accused for the offence punishable under Section 302 of Indian Penal Code. During the course of trial, the prosecution has examined PWs.1 to 9 and got marked Exs.P1 to 6 and MOS.1 to 4 in support of their case. The defence ha not examined any witnesses nor marked any documents in support of their case. 4. PW1- M.B. Basheer is the complainant and he would re-iterate what has been stated in the complaint. He wound depose that he was doing business in poultry since last 3 years and he knows the accused who is present before the Court and also his wife. About 21/2 years prior to the date of giving his evidence at about 6.30 p.m. he was about to close his business, at that point of time, he found accused and his wife were quarrelling with each other. PW1 pacified them and they stopped the quarrel. However, on the next day morning at about 11.45 a.m. he noticed he dead body of the deceased and immediately thereafter he lodged the complaint with the jurisdictional police. It has also come in his evidence that he does not know either English or Kannada and the complaint was got typed with the assistance of somebody. But it is significant to note that the said person ha not been examined. On cross-examination, he would depose that the distance between his shop a well as the dead body is about 100 feet and he himself saw the dead body. He would depose that nobody informed him about the discovery of dead body. He has denied the suggestion that the accused did not quarrel with the deceased. He would admit during the course of cross-examination that deceased was addicted to alcohol and to the suggestion as on the date of incident deceased had consumed alcohol, he pleaded ignoring. 5. PW-2 Pala is the brother of the deceased and brother-in-law of the accused. He would depose that the accused as well as deceased used to quarrel with each other. He would depose that as on the date of incident, he was in the house of one Subhash, the Estate owner. 5. PW-2 Pala is the brother of the deceased and brother-in-law of the accused. He would depose that the accused as well as deceased used to quarrel with each other. He would depose that as on the date of incident, he was in the house of one Subhash, the Estate owner. The accused had also come to the house of estate owner at about 8.00 a.m. All the three i.e., the accused, deceased as well as PW2 used to reside in coolie line of estate and accused and his wife used to sleep in an open space. In mid night, deceased woke up and tried to go away, at that time the accused advised her not to go, but however, she did not heed. Accused slapped her and he also pressed her neck and killed her. The accused told him that the dead body of Gowri is lying in the open space. The accused also told him that he had covered her face by her saree and thereafter he went away. This incident was narrated by PW2 to the estate owner Subash and the estate owner gave him one hundred rupees and thereafter PW2 rushed to the spot where the dead body of his sister was lying. But however, what is significant to note is that he did not inform the above said incidents to the police nor anyone. 6. PW3 – Raja is the witness to the inquest panchanama and it was done in his presence. The contents of inquest panchanama is at Ex.P3 and he admits the contends thereof. During the cross-examination, he would admit that there were sharp edged buds where the dead body of the deceased was lying. He admits that he does not know the entire contents of Ex.P3. 7. PW4-Mallige is the witness to the seizure mahazar which is marked as Ex.P2. Pursuant to the said seizure mahazar, sari, blouse, petticoat and piece of cloth was recovered and he would admit that he has put his signature. He would also submit that these articles were seized by the police in his presence. 8. PW-5 P.R. Subhash is the estate and he would depose that PW2 was working in his estate and he used to reside in the coolie line house. PW5 also used to reside in his estate at that time. He would also submit that these articles were seized by the police in his presence. 8. PW-5 P.R. Subhash is the estate and he would depose that PW2 was working in his estate and he used to reside in the coolie line house. PW5 also used to reside in his estate at that time. He would depose that PW2 and his wife came on 21.10.2001 at about 9.00a.m. and asked him to sanction leave to them. PW2 informed that his brother-in-law has killed his wife i.e., his sister and for the said reason, they requested to give him amount for the expenditure. He would depose that PW2 told him that the accused has killed his sister and the accused narrated the facts regarding the incident. Hence, he granted permission to them and they went away. 9. PW6-Devaiah is the police constable who took the FIR to the concerned Magistrate. PW7-Jayaramu is the police Inspector who took over further investigation from CW5. PW8-C.M. Dananjaya is the police constable who was deputed to watch the dead body. PW9-Dr. M.S.Devaraju is the doctor who has conducted the autopsy and has given his opinion regarding the cause of death which is due to asphyxia and suffocation. 10. This is all the evidence let in by the prosecution in support of its case that indeed the accused had committed the murder of this wife. Learned Sessions Judge has acquitted the accused on the ground that there was no direct eye witness to the incident to come to the conclusion that the accused has committed the offence. He would disbelieve the evidences of PW2 to PW5. 11. We have perused the evidence let in by the prosecution. PW1 is the complainant. If aft all the accused is to be convicted, it is to be on the basis of the evidence of PW2. The question would be whether the evidence of PW2 is trustworthy and can be believed for us to hold that the order of acquittal is liable to be interfered. 12. PW2 evidence can be considered in two different aspects. One is that he claims to have witnessed a small incident in as much as he saw the accused sleeping with his wife. Thereafter, that the accused had killed and confessed before him that he had committed the murder of his wife. 12. PW2 evidence can be considered in two different aspects. One is that he claims to have witnessed a small incident in as much as he saw the accused sleeping with his wife. Thereafter, that the accused had killed and confessed before him that he had committed the murder of his wife. Indeed if this evidence is to be taken into consideration, PW2 can be considered as an eye witness to the incident, but however, the incident which he has witnessed is only the accused sleeping with deceased and nothing more than that. In so far as the extra judicial confession is concerned, time and again it is stated that is a weak type of evidence on which certainly it cannot be held that accused indeed has committed the said offence. The extra judicial confession no doubt can certainly be a ground to support the prosecution case, but however, the said extra judicial confession is required to be made before a neutral person. 13. Indeed, if any of the decisions are required, we can refer to two decisions of the Apex Court. In the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 SCC 505 has observed thus: “There is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra confession a weak piece of evidence. If the evidence abut extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate the he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against, it then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted an can be the basis of a conviction.” 14. The Apex Court in the case of Podyami Sukada Vs. The Apex Court in the case of Podyami Sukada Vs. State of Madhya Pradesh (now Chhattiagarh) reported in 2010 AIR SCW 4809 while dealing under Section 24 of the Evidence Act regarding Extra judicial confession has observed that “Evidentiary value of extra judicial confession depends upon trustworthness of the witness before whom confession is made.” 15. In the case on hand, the so called extra judicial confession is made before PW2 who is none other than the brother of the deceased. Hence, we are of the view that the so called extra judicial confession is not made before the neutral person in as much as PW2 certainly will have some interest in perpetuation. The fact that the accused has made extra judicial confession, if that part of the evidence is eschewed we are of the view that nothing remains in support of the prosecution case. Indeed, we also find from the evidence of PW1 the complainant that the deceased was consuming alcohol on a regular basis and PW1 is also unsure as to whether on the day of incident she had consumed alcohol. The prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Having said so, we are of the view that the order of acquittal does not suffer from infirmities and the benefit of doubt is to be extended to the accused. We do not find any merit in the appeal. Appeal stands dismissed. Mr. Arun Shyam, learned Counsel having assisted the Court as Amicus Curiae, his fee is fixed at Rs.7,500/-.