Judgment : C.T. Selvam, J. 1. The appellant/accused has filed this Criminal Appeal challenging the judgment, dated 03.11.2011 in S.C.No.157 of 2008 on the file of the Additional District and Sessions Court (Fast Track Court No.3), Kallakurichi, in and by which, he was convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment and fine of Rs.5,000/-, in default, six months' rigorous imprisonment. 2. The case of the prosecution is that the appellant (hereinafter referred to as the accused) and the deceased were husband and wife. The accused and deceased resided at Thottiyam Village. The deceased was in advanced stage of pregnancy and she used to take food at her mother (P.W.2)'s house, while accused would do so at his maternal uncle's house. Illicit relationship developed between the accused and P.W.9, the maternal uncle's wife. Having witnessed an episode, the deceased admonished the accused. Towards saving himself from disgrace, the accused decided to do away with her. At about 9.30 p.m. on 26.04.2007, deceased had food at her mother (P.W.2)'s house and accompanied by P.W.2, had gone over to the house of the accused. The accused opened the door and took the deceased inside. At around 4 a.m. the next day, the accused strangulated the deceased to death. 3. P.W.1, father of the deceased, preferred a complaint at Chinna Salem Police Station on 27.04.2007 at about 12.30 p.m., P.W.18, Sub-Inspector of Police registered the complaint in Crime No.227 of 2007 under Section 174 (3) Cr.P.C. and prepared Ex.P-10 FIR. P.W.17, the Revenue Divisional Officer prepared Ex.P-9 report. P.W.19 Deputy Superintendent of Police initially took up investigation as the deceased had died within seven years of her marriage. He went to the scene of occurrence and prepared observation mahazar and rough sketch. After conducting inquest, he examined witnesses Pandian, Sumathi, Ponnappillai, Ramamurthi, Raji, Ganesan, Chinnasamy and recorded their statements. On 03.05.2007, he examined Dr.Indhumathi, who conducted post-mortem and recorded her statement. On being satisfied that the death was not dowry related, he handed over investigation to P.W.20, Inspector of Police. P.W.20 conducted further investigation and on 04.05.2007, he went to K.R.Hospital and examined Dr.Gandhiraj and recorded his statement. He also examined Rajamanickam, S/o Ilayaappillai, Mariapillai, Vasudevan and recorded their statements. On 04.05.2007, he altered the offence into one under Section 302 IPC and sent the report to officials and Court. P.W.20 conducted further investigation and on 04.05.2007, he went to K.R.Hospital and examined Dr.Gandhiraj and recorded his statement. He also examined Rajamanickam, S/o Ilayaappillai, Mariapillai, Vasudevan and recorded their statements. On 04.05.2007, he altered the offence into one under Section 302 IPC and sent the report to officials and Court. He arrested the accused on 04.05.2007 at about 12 noon near Suniamur Koot Road and recorded the confession statement before the witnesses Ganesan, VAO and Chinnasamy, Village Assistant, who also attested the confession statement. He sent the accused for judicial custody. On 05.05.2007, witnesses Subramanian, Gomathi were examined and their statements were recorded. On 09.05.2007, statements were recorded under Section 164(1) Cr.P.C. and the same were sent to Judicial Magistrate, Villupuram. On the basis of the same, Sankarapuram Judicial Magistrate recorded the statements of the witnesses Pandian, Sumathi, Ramamurthi, Ponnappapillai on 17.05.2007 and on 16.06.2007, he recorded the statements of Dr.Indhumathi, Kallakurichi Government Hospital and Dr.Selvarani, Assistant Director, Dr.(Tmt).Parasakthi, Chengalpet Doctor and also examined and recorded the statement of Natarajan, Police Constable. He concluded his investigation and filed charge sheet on 21.06.2007 for offence under Section 302 IPC. 4. The prosecution examined 20 witnesses and marked 12 exhibits. No material objects were marked. No oral or documentary evidence was adduced on the side of accused. 5. When the accused was examined under Section 313 Cr.P.C. regards the incriminating materials against him, he denied his complicity in the crime and stated that he had been falsely implicated in the case. He has filed a written statement to such effect. 6. The trial Court, on an analysis of the oral and documentary evidence, convicted the accused and sentenced him, as above stated. Challenging the said conviction and sentence, this Criminal Appeal is filed by the accused. 7. Learned counsel for the accused submitted that the motive for the occurrence is alleged to be the discovery of the amorous relationship between the accused and P.W.9. P.W.9 is the wife of Govindan, who is the maternal uncle of the accused. P.W.9 deposed that she had no relationship with the accused. She had not been treated hostile. Therefore, the evidence of P.W.9 is to be accepted. 8. The next contention is that Ex.P-1 complaint made no whisper about the illicit intimacy between P.W.9 and the accused. P.W.9 is the wife of Govindan, who is the maternal uncle of the accused. P.W.9 deposed that she had no relationship with the accused. She had not been treated hostile. Therefore, the evidence of P.W.9 is to be accepted. 8. The next contention is that Ex.P-1 complaint made no whisper about the illicit intimacy between P.W.9 and the accused. P.W.1, father of the deceased, in his statement made during the course of R.D.O. enquiry, had not informed of any illicit intimacy between P.W.9 and accused. Though P.W.1 denied a suggestion to that effect, P.W.17 RDO admitted thereto. P.W.2, Sumathi, who is the mother of the deceased had not deposed that there was any illicit intimacy between P.W.9 and accused. So also, P.W.4, brother of the deceased had not deposed to such effect. Therefore, the motive as suggested by the prosecution stands disproved. 9. Learned counsel for the petitioner next would contend that the presence of the deceased in the house of the accused on the night of 26.04.2007 had not been proved. According to the prosecution, P.W.2 had taken the deceased to the house of the accused and left her there on the night of 26.04.2007. The stand of the accused was that the deceased had not gone to the house on such night, as suggested, but, on the other hand, since she was in an advanced stage of pregnancy, had stayed in her mother's house from one month prior to her death. P.W.2 in evidence admitted to such position. The evidence of P.W.5, mother of the accused, was also to such effect. Ex.P-1 complaint made no mention that P.W.2 Sumathi, mother of the deceased had taken the deceased to the house of the accused on 26.04.2007. P.W.1 had not spoken to such position before the RDO, as stood reflected from the statement recorded by P.W.17 RDO. Further, P.W.12 Mariapillai deposed in chief examination that the body of the deceased was taken to hospital from the house of P.W.1. Though P.W.3 deposed that he had gone to the house of the accused at 7 am on 26.04.2007, knocked on the door, the accused opened the same and he then found the deceased lying on the floor in a dishevelled state, P.W.3 who had attested the inquest report Ex.P-8, had not tendered any statement before the RDO to such effect. Though P.W.3 deposed that he had gone to the house of the accused at 7 am on 26.04.2007, knocked on the door, the accused opened the same and he then found the deceased lying on the floor in a dishevelled state, P.W.3 who had attested the inquest report Ex.P-8, had not tendered any statement before the RDO to such effect. P.W.17 RDO deposed that neither P.Ws.3 and 4, nor P.W.10 had tendered any statement when they were enquired of. Learned counsel submits that it is natural that if such witnesses had seen the deceased lying on the floor at the house of the accused, they would have informed the RDO there regards. Further, though P.W.3 deposed that on seeing the deceased in such a state, he had gone and informed P.W.1, P.W.1, neither in Ex.P-1 complaint, nor in the statement recorded by P.W.17 RDO had informed such position. In fact, in Ex.P-1 complaint, P.W.1 stated that the deceased was taken to hospital on 27.04.2007 due to severe labour pain suffered overnight. In the circumstances, it would be hard to imagine a position where a girl in advanced stage of pregnancy and in labour pain, would have been left in the house of the accused. Pertinently, P.W.2 as also P.W.5 admitted that the deceased had been resident with P.W.2 from one month prior to the occurrence. 10. Learned counsel next points to the conduct of the accused. He would state that P.W.17 RDO stated that the accused had informed that he came home at mid-night of 26.04.2007 and went to sleep, and that in the morning of 27.04.2007, he came to know that his wife had developed chest pain and was taken to Chinna Salem Hospital. Learned counsel argues that if deceased was with the accused from the night of 26.04.2007, such statement would not have been tendered by the accused. The accused had not absconded and had been enquired both by P.W.17 RDO and P.W.20, the Deputy Superintendent of Police. Despite both persons having enquired of the accused on 27.04.2007, the accused had been arrested only on 04.05.2007. The FIR initially stood registered under Section 174(3) Cr.P.C. and it was only on 04.05.2007 that the same stood altered to reflect offence under Section 302 IPC. The accused had admitted to his being present in his house on the night of 26.4.2007. The FIR initially stood registered under Section 174(3) Cr.P.C. and it was only on 04.05.2007 that the same stood altered to reflect offence under Section 302 IPC. The accused had admitted to his being present in his house on the night of 26.4.2007. The normal conduct of a guilty person would be to deny his presence, if indeed the deceased had spent the night with him. 11. Learned counsel next touches upon the various statements recorded under Section 161(3) Cr.P.C. P.Ws.1 and 3 deposed in chief examination that P.W.20 DSP examined them, written statements were recorded. P.Ws.2 and 4 informed that P.W.20 examined them only four days after the death of the deceased. P.W.10 deposed that he was examined by the Police on the date of occurrence and that he had not informed anything. While the witnesses had spoken to their statements having been written down, the statements before Court were type-written. Learned counsel submits that the original statements of the witnesses recorded on 27.04.2007 had been suppressed. The statements of all the material witnesses were received by the learned Magistrate only on 04.05.2007. The post-mortem of the deceased was conducted on 27.04.2007 itself. If indeed the statement of witnesses were recorded by P.W.20 on 27.04.2007 itself, the accused would have been secured on such very day. Even alteration of the FIR to reflect offence under Section 302 IPC had been done only on 04.05.2007. The F.I.R., F.I.R. alteration report, statements of material witnesses, were all sent to the Judicial Magistrate only when the accused was forwarded for the purpose of remand on 04.05.2007. 12. Learned counsel submitted that the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. The probability of the defence theory that the deceased had not stayed with the accused on the night of 26.04.2007, could not be ruled out. It would suffice if the accused put-forth a probable defence, which the accused had done in the present case. The degree of proof required of the prosecution was much higher and the prosecution has failed to establish the case against the accused. Learned counsel therefore prayed for acquittal of the accused. 13. We have heard learned Additional Public Prosecutor on the above submissions. The degree of proof required of the prosecution was much higher and the prosecution has failed to establish the case against the accused. Learned counsel therefore prayed for acquittal of the accused. 13. We have heard learned Additional Public Prosecutor on the above submissions. He submitted that though P.W.17 RDO in his report Ex.P-9 informed of noticing certain injuries on the body of the deceased and stated the case to be one of suspicious death, it was only upon the conduct of post-mortem by P.W.14, Doctor, that the factum of murder came to be known. The accused had initially suppressed the grave crime committed by him and played along with the prosecution as if he was innocent. The prosecution case of P.W.2 having accompanied the deceased to the house of the accused on the night of 26.04.2007 and having left her there, stood properly established through the evidence of P.Ws.1 and 2. Though the statement of P.W.3 had not been recorded by P.W.17 RDO, that alone would not be reason enough to discard his evidence. He clearly has deposed that on the morning of 27.04.2007 at 7 am., he had gone over to the house of the accused and knocked on the door, whereupon the accused came and opened the door and went back to sleep. At such time, he had seen the deceased lying in a dishevelled state. This position is supported by the evidence of P.W.4. Thereafter, they and P.W.10 had informed P.W.1. Thereafter, P.Ws.1, 10 and 12 proceeded to the house of the accused, where they found the deceased lying unconscious. They engaged the services of P.W.11, taxi driver and proceeded towards Chinna Salem Hospital with the deceased. On the way, she died. At the hospital, the Doctor had confirmed that she had been brought dead. Thereafter, they have returned to their village. In the circumstances, there was no ambiguity about the prosecution case. It had been shown that deceased had spent the night of 26.4.2007 in the house of the accused. Ex.P-6 post-mortem report informs that the body of the deceased revealed the following injuries: "External injuries: 1. Dark brown abrasion: horizontal 2.5 cm x ½ cm over a contusion of 10x8 cm. Skin colour: below the Right ear upper part of the neck. 2. Ex.P-6 post-mortem report informs that the body of the deceased revealed the following injuries: "External injuries: 1. Dark brown abrasion: horizontal 2.5 cm x ½ cm over a contusion of 10x8 cm. Skin colour: below the Right ear upper part of the neck. 2. Dark colour abrasion 1.5 x ¼ cm horizontal over a contusion of 8x6 cm left upper part of the neck - skin colour. 3. Linear abrasion front of the neck middle 1/3 dark brown: interrupted 10 cm over a contusion of 12x6 cm skin colour- front of the neck and horizontal. 4. Linear abrasion: dark brown – right side of the neck over extending to the anterior chest: 12 cm in length interrupted. No abnormal discolouration of the face. Int. Exam of neck: Localised discolouration of the tissues of the front of the neck. Trachea and Larynx: No foreign body seen. Trachea: Inner surface congested: dark brown Thorax: Thoracic cavity empty 50 ml of fluid blood collection present in the neck. Lung: Right – 400 g light brown Left – 410 g congested. No fracture of the ribs. Heart: 300g. Light brown chambers empty; congested. Abdomen Liver: 1250 g. Dark brown in-tact; congested. Kidney: 110 g each; light brown; in-tact; congested. Spleen: 90 g; dark brown in-tact; congested. Stomach: Contents – empty; inner surface light brown in colour. Intestines: Distended with gas; pink colour; Bladder: Empty. Skull: No fracture of skull bones; membranes bluish brown in colour; in-tact; Brain: Solid: 1300 g; in-tact. Hyoid bone: Fractured ante-mortem. The muscles 2 tissues around the hyoid bones are congested and dark brown. Uterus: Pink. Enlarged to 36 wks. In-tact. No signs of rupture. Placenta in situ in fundus of uterus. No abnormality. Foetus – female; light bluish in colour; 40 cm in length – Umb. Cord -(N). ...... Final opinion: The deceased would have died of asphyxia due to strangulation." It has also been opined that the deceased would have died of asphyxia due to strangulation. It is for the accused to explain as to how the deceased had met her death. If he is not able to so explain, he would have to be found guilty of murder. 14. We have perused the records and considered the rival submissions. 15. The present is a case where there is absolutely no doubt that the deceased had died owing to homicidal violence. If he is not able to so explain, he would have to be found guilty of murder. 14. We have perused the records and considered the rival submissions. 15. The present is a case where there is absolutely no doubt that the deceased had died owing to homicidal violence. The question that arises is, if in the circumstances of the case, we safely could arrive at the conclusion that it is the accused who has caused her death. Though the complaint had been tendered by P.W.1, father of the deceased, he had not informed suspicion of wrong doing. The FIR only is to the effect that the deceased who was in an advanced stage of pregnancy, frequently had breathing problems, the deceased was taken to hospital and that she died on the way. Both in Ex.P-1 complaint, as also in the statement recorded before the RDO on 27.04.2007, P.W.1 had informed that he did not suspect any wrong doing. 16. Though P.W.3 has been present during the inquest conducted by P.W.17, RDO, he has not tendered any statement to him. This raises a serious doubt as to the role of P.W.3. In fact, on a perusal of the statement made by P.W.2, mother of the deceased to P.W.17 RDO, we find that she had informed that the deceased had complained of chest pain before going to bed on 26.04.2007 and that at 6 am on 27.04.2007, she had gone over to the house of the accused to see how she was, that the deceased had spoken to her and informed of suffering pain and it was at such instance that she had informed P.W.1, pursuant to which, the deceased was taken to hospital. Just as it is permissible to look into material favourable to the accused in his confessional statement made to the police or otherwise, it would be permissible to look into material in favour of the accused found in the statement of witnesses made in the course of inquest. Even in cross-examination, P.W.2 admitted that she has spoken to the deceased on the morning of 27.04.2007. In these circumstances, it appears that P.W.3 had been roped in as a witness only to put-forth the case presently placed by the prosecution. Even in cross-examination, P.W.2 admitted that she has spoken to the deceased on the morning of 27.04.2007. In these circumstances, it appears that P.W.3 had been roped in as a witness only to put-forth the case presently placed by the prosecution. If on such reasoning we discard the evidence of P.W.3, then we are faced with the admission of P.W.2, mother of the deceased, as also the evidence of P.W.5, mother of the accused that the deceased had been resident at the house of P.W.1 for a period of about one month prior to the incident. It is significant that P.W.12 deposed to taking the deceased to hospital by taxi from the house of P.W.1. 17. The conduct of the accused in having been present both at the time of RDO enquiry, as also at the time of Police enquiry, would also throw some doubt about the prosecution case. If Section 161(3) Cr.P.C. statements informing involvement of the accused indeed had been recorded on 27.04.2007, his arrest on such date is but to be expected. 18. It is significant that P.W.9 denied any relationship with the accused and the prosecution has not chosen to treat her hostile. 19. Though all the statements that have been forwarded to Court on 04.05.2007 are informed to have been recorded on 27.04.2007, the fact that the accused was present throughout the day on 27.04.2007, that witnesses inform of statements having been taken down in handwriting, but the same as produced in Court are type-written, would go to show that the prosecution had thought up a story only after the post-mortem report Ex.P-6, made clear that the present was a case of homicidal death. In suppression of statements actually recorded statements informed to have been recorded on 27.04.2007, had been created, the alteration of FIR effected, the arrest of the accused shown, and he has been remanded to custody, all on 04.05.2007. P.W.19 investigating officer has deposed to having examined P.W.14, post-mortem Doctor and receiving report Ex.P-6 on 03.05.2007. 20. The genesis of the occurrence is unclear, the investigating agency, as also the witnesses are found to be untrue and therefore, it follows that the benefit of doubt is to be given to the accused. Holding that the prosecution has not proved the guilt of the accused beyond reasonable doubt, we allow this appeal. 21. Accordingly, the appeal is allowed. The genesis of the occurrence is unclear, the investigating agency, as also the witnesses are found to be untrue and therefore, it follows that the benefit of doubt is to be given to the accused. Holding that the prosecution has not proved the guilt of the accused beyond reasonable doubt, we allow this appeal. 21. Accordingly, the appeal is allowed. The conviction and sentence imposed on the accused by the trial Court, are set aside. He is acquitted of the charges. He is directed to be set at liberty forthwith, unless his custody is required in connection with any other case. The fine amount shall be refunded.