JUDGMENT : S. NAGAMUTHU, J. The appellant is the 1st accused in S.C.No.160 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.3, Thiruvallur. The 2nd accused was one Mrs. Mary Xavier. The trial court framed as many as four charges against the accused. The first charge was against the appellant/1st accused under Section 302 of IPC. The 2nd charge was against the 2nd accused under Section 302 read with 34 of IPC. The 3rd charge was against the 2nd accused under Section 302 read with 201 of IPC and the 4th charge was against the 2nd accused under Section 203 read with 34 of IPC. By judgment dated 14.07.2008, the trial court convicted both the accused. As far as the appellant/1st accused is concerned, the trial court convicted him under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-, in default, to undergo simple imprisonment for 4 months. The trial court also convicted him under Section 201 of IPC and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-. The trial court convicted the 2nd accused under Sections 302, 201 and 203 IPC and imposed appropriate punishment. Challenging the said conviction and sentence, the appellant/A1 is before this Court with this appeal. 2. The case of the prosecution in brief, is as follows:- (a) The deceased in this case was one Arulnathan. The 2nd accused is his wife. P.W.1 and the 1st accused are close relatives of the deceased. They hail from Krishnagiri District. The deceased had brought P.W.1 and the 1st accused to his house with a view to help them to get employment. Accordingly, P.W.1 and the deceased stayed at the house of the deceased along with the 2nd accused for some time. Thereafter, P.W.1 rented a separate house wherein he was staying along with his mother. Thus, at the house of the deceased, the 1st accused alone was staying for some time. It is alleged that he was doing some business. (b) It is further alleged that in due course of time, the 1st accused developed illicit intimacy with the 2nd accused. Thereafter, P.W.1 rented a separate house wherein he was staying along with his mother. Thus, at the house of the deceased, the 1st accused alone was staying for some time. It is alleged that he was doing some business. (b) It is further alleged that in due course of time, the 1st accused developed illicit intimacy with the 2nd accused. P.W.1 had seen both the accused together at the house of the deceased on one of the occasions, when P.W.1 questioned the same, both the accused told that after all, the 2nd accused is an Aunt of the 1st accused and therefore, it would not be right on the part of P.W.1 to suspect them. They have also stated that the said relationship had come to the knowledge of the deceased. It is further alleged that the 1st accused wanted the 2nd accused to divorce the deceased and come with him. Since the deceased was a hindrance for their illegal relationship, it is alleged that the accused decided to do away with the deceased. (c) According to the further case of the prosecution, on 18.06.2006, the 1st accused had given sleeping pills to the 2nd accused and wanted her to give the same to the deceased stealthily. The 2nd accused responded positively. He added the sleeping pills in the food and served the same to the deceased. Since, it gave a different taste, the deceased did not take the food. He went for sleeping. It is alleged that when the deceased was fast asleep at about 3.00 a.m. on 19.06.2006, these two accused decided to kill the deceased. The 2nd accused caught hold the legs of the deceased and the 1st accused, with an iron pipe, attacked the deceased on his head twice and they also pressed a pillow against the face of the deceased and as a result, the deceased died on the spot. (d) Shortly thereafter, the 2nd accused went to the house of a neighbour and informed him that somebody had attacked and killed the deceased. The neighbours visited the house and found that the deceased was dead. Thereafter, the 2nd accused went to M.2-Madhavaram Milk Colony Police Station and presented a complaint at 6.00 a.m. on 19.06.2006. (d) Shortly thereafter, the 2nd accused went to the house of a neighbour and informed him that somebody had attacked and killed the deceased. The neighbours visited the house and found that the deceased was dead. Thereafter, the 2nd accused went to M.2-Madhavaram Milk Colony Police Station and presented a complaint at 6.00 a.m. on 19.06.2006. In the said complaint, the 2nd accused had said that while she was sleeping at her house at 4.45 a.m., awakened by the weeping of her child, she wanted to come out from the house. When she tried to open the door, it was bolted from outside and therefore, she could not open it. After that, one Anthoni Irudhayaraj opened the door. When they went into the hall of the house, she found him dead and there were also injuries on his body. She further stated that from the bureau, a necklace, bangles and other jewels totalling 9 items had been stolen away and she also stated that silver jewels were also stolen away. (e) P.W.17, the then Inspector of Police, on receipt of the said complaint, registered a case in Crime No.335 of 2006 at 6.00 a.m. under Sections 302 and 380 of IPC. Ex.P.18 is the First Information Report. He forwarded both the documents to court which were received by the learned Magistrate at 3.00 p.m. on 19.06.2006. (f) He took up the case for investigation, proceeded to the place of occurrence, prepared an observation Mahazar and a Rough Sketch at the place of occurrence and also recovered certain material objects from the place of occurrence. Then, he conducted inquest on the body of the deceased and forwarded the same for postmortem. He also arranged for photographs being taken by the Police Photographer P.W.13. (g) P.W.10 Doctor conducted autopsy on the body of the deceased on 19.06.2006 at 3.15 p.m. He found the following injuries on the body of the deceased : ''A moderately nourished body of a male with a 1. brown irregular abrasion 8 x 1-1.5 c.m. on the right lateral side of mid part of the back; 2. Laceration 1.5 x 1 c.m. x bone deep on the left fore head; 3. brown irregular abrasion 8 x 1-1.5 c.m. on the right lateral side of mid part of the back; 2. Laceration 1.5 x 1 c.m. x bone deep on the left fore head; 3. Horizontal laceration extending from left parietal region of the scalp to the left temporal region of the scalp measuring 4 x 2 c.m. x bone deep with 2 c.m. tag of scalp skin with subcutaneous tissue attached to the proximal end of the laceration; 4. On reflexion of scalp dark red scalp deep contusion on the left temporal parietal region of the scalp with a 'c' shaped fissured fracture on the left temporal and parietal bone present. On dissection of the skull defise darked sub dural hemorrhage and sub arachnid hemorrhage present on the left temporal parietal region of the brain. The base of the skull is in tact. Heart : Normal in size. Pericardium in tact. Cut Section contains fluid blood in both side chambers. Valves and coronaries are normal. Lungs : Normal in size. Cut Section congested. Hyoid bone in tact. Larynx and Trachea :Empty. Stomach : 100 grams of yellow coloured partly digested cooked rice particles. No definite smell. Mucosa congested. Spleen : Normal in size. Cut section congested. Liver : Normal in size. Cut Section congested. Kidneys : Normal in size. Cut section congested. Spinal Column and Pelvis : In tact. Bladder : Empty.'' He preserved the internal organs for chemical examination. The Report revealed that the deceased had been given sleeping pills. Ex.P.11 is the Postmortem Certificate. He gave opinion that the death was due to shock due to the injuries on the head. (h) During the course of investigation, P.W.17 collected the Cell Phone Contact Bills between the cell phone of the 1st accused and the cell phone of the 2nd accused which revealed that there were frequent calls between these two cell phones. Therefore, the Investigating Officer had an eye on the 1st accused and the 2nd accused. While so, the 2nd accused was arrested on 19.06.2006 at 6.15 p.m. and on such arrest, she gave a voluntary confession in which she disclosed the place where she had hidden the iron pipe. In pursuance of the same, she produced the iron pipe (M.O.39) from the place of hide out in the presence of P.W.9 and another witness. While so, the 2nd accused was arrested on 19.06.2006 at 6.15 p.m. and on such arrest, she gave a voluntary confession in which she disclosed the place where she had hidden the iron pipe. In pursuance of the same, she produced the iron pipe (M.O.39) from the place of hide out in the presence of P.W.9 and another witness. The 2nd accused, later on, gave a voluntary confession to P.W.14-the learned XVIII Metropolitan Magistrate, Chennai, in which she admitted her guilt and also the complicity of the appellant herein. (i) During the course of investigation, on 19.06.2006, at 4.00 p.m., the 1st accused was arrested in the presence of P.W.15 and another witness. On such arrest, he gave a voluntary confession in which he disclosed the place where the jewels had been pledged. In pursuance of the same, he took the police and the witnesses to the shop of P.W.2 and P.W.3 where the Investigating Officer recovered the gold jewels and also the silver jeweleries which had been pledged in the name of the 2nd accused vide M.Os.8 to 36. He recovered the same under a Mahazar. On completing the investigation, he laid the charge sheet against both the accused. 3. Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of the Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 19 witnesses were examined and 25 documents and 41 material objects were also marked. 4. Out of the said witnesses, P.W.1 is the Nephew of the deceased who has spoken about the alleged illicit intimacy between the 1st accused and the 2nd accused. P.W.2, a neighbour has stated that on the day of occurrence, the 2nd accused came to his house and informed that her husband had been killed by somebody. She went to the house and found that the deceased was dead. According to him, thereafter, the 2nd accused went to the police to make a complaint. P.Ws.3 and 4 are the Pawn Brokers. They have stated that on 07.06.2006, for a sum of Rs.40,000/-, these jewels, namely, M.Os.8 to 36 were pledged to them by the 2nd accused. On the same day, it is alleged that the 1st accused accompanied the 2nd accused. P.Ws.3 and 4 are the Pawn Brokers. They have stated that on 07.06.2006, for a sum of Rs.40,000/-, these jewels, namely, M.Os.8 to 36 were pledged to them by the 2nd accused. On the same day, it is alleged that the 1st accused accompanied the 2nd accused. They have further stated that they were later on recovered by the police on the confession given by the 1st accused. P.W.5 has spoken about the Observation Mahazar and the Rough Sketch. P.W.6 has spoken only about hearsay information and she has not stated anything incriminating against the accused. P.W.7 a Scientific Assistant has stated that he visited the place of occurrence on the day of occurrence to aid the Investigating Officer. As suggested by him, the material objects were recovered from the place of occurrence. P.W.8 has also spoken only on hearsay information. P.W.9 has spoken about the arrest of the 2nd accused and the consequential recovery of the iron pipe. P.W.10 has spoken about the postmortem conducted by him and his opinion regarding the cause of death. P.W.11, a Forensic Expert has stated that in the visceral organs of the deceased, she found the sleeping pills. P.W.12 has stated that he gave a building to these two accused for rent for some time. P.W.13 has spoken about the photographs taken at the place of occurrence. P.W.14 has spoken about the judicial confession given by the 2nd accused to her. P.W.15 has spoken about the arrest of the 1st accused, the disclosure statement made by him and the consequential recovery of the jewels. P.W.16 is a Police Constable Grade-I. According to him, when he was on patrolling duty on 14.06.2006 at 6.30 p.m., he saw both these accused came in a motor cycle and parked the same. He directed them not to stand there and accordingly, they went away. P.W.17 has spoken about the registration of the case on the complaint of the 2nd accused. P.W.18 has spoken about the call details between the cell phones of the 1st accused and the 2nd accused. P.W.19 has spoken about the investigation done and the final report filed by him. 5. When the above incriminating materials were put to the accused u/s.313 Cr.P.C., they denied the same as false. Their defence was a total denial. P.W.18 has spoken about the call details between the cell phones of the 1st accused and the 2nd accused. P.W.19 has spoken about the investigation done and the final report filed by him. 5. When the above incriminating materials were put to the accused u/s.313 Cr.P.C., they denied the same as false. Their defence was a total denial. On their side, they have marked one document as Ex.D.1, namely, Mahzar dated 19.06.2006, but no oral evidence was let in. 6. Having considered all the above, the Trial Court convicted both the accused as detailed in the first paragraph of the judgment. Challenging the said conviction and sentence, the appellant/1st accused is before this Court. 7. We have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 8. This is a case based on circumstantial evidence. The first and foremost circumstance relied on the side of the prosecution is that there was illicit intimacy between these two accused and since the deceased was a hindrance for the same, they decided to do away with the deceased. This fact was spoken by P.W.1. P.W.1 has stated that on one or two occasions, he found these two accused together in the house of the deceased. When he raised suspicion, the 2nd accused told him that after all, she is the aunt of the 1st accused and therefore, there was no substance in the suspicion. Except this evidence, there is no other evidence to prove the same. Assuming that there was such relationship between these two accused, that by itself, would not go to prove the guilt of the accused. 9. The next circumstance projected by the prosecution is that the 2nd accused had given a judicial confession to P.W.14. Based on the said judicial confession, the conviction and sentence imposed on the 2nd accused has been confirmed by a Division Bench of this Court in Crl.A.No.649 of 2008 by judgment dated 06.07.2009. 10. We have gone through the said confession. In the said confession, the alleged part played by the appellant has also been stated. But we find a legal impediment to use the said confession against this accused. 10. We have gone through the said confession. In the said confession, the alleged part played by the appellant has also been stated. But we find a legal impediment to use the said confession against this accused. It is too well settled that a confession of an accused is a substantive evidence against the maker of the confession and, if the same inspires the confidence of the court, that by itself can be the basis for the conviction of the said accused, even in the absence of any corroboration from any other independent source. In this case, solely relied on the confession given by the 2nd accused holding that it was voluntary, the 2nd accused was convicted and the same was confirmed by a Division Bench of this Court. 11. So far as the co-accused, namely, the 2nd accused is concerned, as per the decision of the Hon'ble Supreme Court in Kashmira Singh vs. State of Madhya Pradesh reported in 1952 AIR 159, the confession of the co-accused, cannot be taken as a substantive evidence. The proper approach to the confession of the co-accused is to keep the same aside first and then, to marshal the other evidences available against the accused excluding the confession altogether from consideration and on such marshaling and on such appreciation, if the court is able to come to the conclusion that the accused has committed the said offence, the court can look into the confession given by the co-accused as a last resort to add strength to the said conclusion. In this case, therefore, we have to see whether from the other evidences let in against the appellant, we could come to the conclusion that the appellant has committed the above crime. Then only, we could look into the confession given by the 2nd accused to P.W.14. 12. The other evidence upon which the prosecution nextly relies is on the recovery of the jewels from the pawn brokers, namely, P.Ws.2 and 3. According to their evidences and according to the Pawn Receipts, the jewels were pledged as early as on 07.06.2006 for a sum of Rs.40,000/- by the 2nd accused and not by this 1st accused. It may be true that the 1st accused had knowledge that the jewels were pledged by the 2nd accused with the pawn brokers. According to their evidences and according to the Pawn Receipts, the jewels were pledged as early as on 07.06.2006 for a sum of Rs.40,000/- by the 2nd accused and not by this 1st accused. It may be true that the 1st accused had knowledge that the jewels were pledged by the 2nd accused with the pawn brokers. It is also in evidence that the 2nd accused had accompanied the 1st accused, at the time, when the 2nd accused pledged the jewels. First of all, the jewels are not stolen properties. The occurrence in this case was only on 19.06.2006 whereas the jewels were pledged on 07.06.2006 itself. Therefore, from the recovery of these jewels which were pledged on 07.06.2006, that too, by the 2nd accused, we cannot hold that the offence against this accused stands proved. The jewels have not been taken out from the possession of the deceased. The pledging of these jewels, many days before the occurrence, would not any manner be incriminating. If that is so, there is no other evidence against this accused. Since from the available evidences, we are not able to come to the conclusion that this accused committed the crime as charged, we are unable to use the judicial confession given by the 2nd accused against the appellant in view of Section 30 of the Indian Evidence Act and in view of the decision of the Hon'ble Supreme Court in Kashmira Singh case cited above. Thus, though the 2nd accused has been convicted based on the said judicial confession made by her and though in the said confession, the 2nd accused has implicated the appellant also, we cannot act upon the said judicial confession of the 2nd accused so as to sustain the conviction of the appellant. Thus, in this case, we do not find any evidence against this 1st accused proving any incriminating circumstance so as to sustain the conviction. It may be true that the evidences let in by the prosecution may raise a very strong suspicion against the accused. But the suspicion, however, strong it may be, shall not take the place of proof. Therefore, we find that the prosecution has not proved the case of the prosecution beyond all reasonable doubts. 13. In the result, the appeal is allowed and the appellant/1st accused is acquitted from all the charges. But the suspicion, however, strong it may be, shall not take the place of proof. Therefore, we find that the prosecution has not proved the case of the prosecution beyond all reasonable doubts. 13. In the result, the appeal is allowed and the appellant/1st accused is acquitted from all the charges. The bail bond, if any, executed by him shall stand discharged. The fine amount, if any, paid, shall be refunded to the accused.