JUDGMENT : This appeal is preferred against the Judgment dated 21.12.2010 made in S.C. No. 31 of 2010 on the file of the Sessions Judge-II, Kancheepuram. The appellant was convicted and sentenced to undergo five years imprisonment for the offence under Section 304(2) of IPC. 2. The case of the prosecution is that the accused was having illicit illegal intimacy with the deceased Umamageswari @ Manjula and used to demand money from her for consuming liquor. The deceased also used to quarrel with the accused, when the accused demanded money for consuming liquor. As such, the accused has developed enmity towards the deceased. On 15.11.2016, at about 10.00 a.m near the well and pump set in the agricultural field in Survey No.164/1 at Paraniputhur Village, the accused had taken the deceased to have sexual inter-course and when the deceased assaulted the accused on his lower lip, with regard to demand of money by the accused, as such, the accused with an intention to cause death of Manjula forcibly by hitting with his hands on the deceased's chest and pushed her from the pump set and she fell into the well of the agricultural land. As a result of injury and drowning, the said Manjula died. On 17.11.2006, the brother of the accused Arumugam has come to the house of P.Ws.1 and 2 and informed that the deceased body was found in the well. Thereafter, P.W.1, son of the deceased, lodged a complaint before P.W.10 at 11.00 a.m. and the same was registered in Crime No. 678 of 2006 under Section 174 of Cr.PC. The said F.I.R. was marked as Ex.P7. Thereafter, P.W.13 the Investigation Officer took up the entire investigation and altered the F.I.R from Section 174 of Cr.P.C to 302 of IPC on 20.11.2006. After completing the investigation, the Investigation Officer has perused all the files relating to the said crime and laid the final report. 3. The Trial Court framed charges and questioned the accused and he denied the charges and pleaded not guilty and claimed trial. During the course of trial, the prosecution examined 13 witnesses as P.Ws.1 to 13 and marked 17 documents as Exs.P1 to P17 and also produced M.Os.1 to 5. 4(i). It is seen from the records, P.W.1 is the son of the deceased. P.W.2 is the daughter of the deceased. During the course of trial, the prosecution examined 13 witnesses as P.Ws.1 to 13 and marked 17 documents as Exs.P1 to P17 and also produced M.Os.1 to 5. 4(i). It is seen from the records, P.W.1 is the son of the deceased. P.W.2 is the daughter of the deceased. P.W.1 deposed that on 15.11.2006 at about 8.00 p.m. his mother and the deceased went to the shop of P.W.3. Thereafter, she did not return back to home. On enquiry, he heard from P.W.3 and his grandfather on 16.11.2006, his mother and the accused came to the shop and obtained change for Rs.50/- and thereafter, on 17.11.2006, he was informed by one Arumugam that the deceased body was found in the well belong to the Hotel Ashok Residency. Thereafter, he identified the dead body as his mother from the saree worn by his mother. On the same day, on 17.11.2006, he lodged a complaint before P.W.10, the Inspector of Police. (ii) P.W.2, the daughter of the deceased deposed that she knows about the accused, who was staying near to her house. On 15.11.2006, her mother went to the shop, but she did not return back to the house. As such, on 16.11.2006, she enquired P.W.3, the shop owner and came to understand that the deceased and her mother had come to the shop of P.W.3 and obtained change for Rs.50/-. Thereafter, on 17.11.2006, while she was about to go for her work, one Arumugam informed that the body of the deceased was found in the well belongs to Hotel Ashok Residency. She also identified her mother from the saree worn by the deceased. (iii) P.W.3, the shop owner deposed that the accused and the deceased on 15.11.2006 at about 8.00 p.m. had come to obtain change for Rs.50/-. Thereafter, they went to the western side of his shop. Next day on 16.11.2006, P.W.1 enquired about his mother, since, she did not return back to home. Thereafter, on 17.11.2006, he heard information that the dead body of the deceased was found in the well belongs to one Hotel Ashok Residency. (iv) P.W.4 is the watchman of the land belongs to Hotel Ashok Residency and he deposed that he knows the accused as well as the deceased. Both the accused and the deceased came to the well situated in the agricultural field belongs to Hotel Ashok Residency for washing their clothes. (iv) P.W.4 is the watchman of the land belongs to Hotel Ashok Residency and he deposed that he knows the accused as well as the deceased. Both the accused and the deceased came to the well situated in the agricultural field belongs to Hotel Ashok Residency for washing their clothes. On 17.11.2006 he had seen the body of the deceased floating on the well and thereafter informed to one Arumugam. (v) P.W.5 is the Mahazar witness to the confession statement of the accused. (vi) P.W.6 is an independent witness who deposed that he knows about the accused and on 15.11.2006 at about 10.30 p.m. he had seen the accused and while he was going near the agricultural field, P.W.6 called him as Kumar, but the accused did not respond and went away with bundle of clothes. After two days, he heard that the deceased body was found in the well. (vii) P.W.7, is the Constable of Mangadu Police Station. The body of the deceased was handed over to him for postmortem by the Investigation Officer P.W.13 and he deposed that as per the direction of the Investigation Officer, he handed over the body of the deceased to Kilpauk Medical College Hospital to conduct postmortem. (viii) P.W.12, Doctor conducted postmortem on the deceased body and found the following injuries : xxxxxxxx The postmortem report was marked as Ex.P.13. 5. The learned Judicial Magistrate has recorded the statement of P.Ws.1 and 2 under Section 164 of Cr.P.C, on the direction of Chief Judicial Magistrate, Chengalpattu. The 164 Cr.P.C. statement of P.Ws. 1 and 2 marked as Exs.P9 and 10. The postmortem Doctor had collected the intestine, stomach and other parts of the deceased for chemical examination and the same was forwarded to the Forensic Science Department and the Viscera Report was marked as Ex.P.12. 6. The accused gave confession statement and the same has been marked as Ex.P.3. On the information during confession, M.Os 2 and 3 namely blouse and petticoat of the deceased which were said to be worn by the deceased on the date of occurrence have been identified by the accused near the bush at Kovur Bridge. 7. Based on the evidence and materials available on record, the learned Trial Judge questioned the accused under Section 313 of Cr.P.C about the incriminating evidence against him and he denied the same. 7. Based on the evidence and materials available on record, the learned Trial Judge questioned the accused under Section 313 of Cr.P.C about the incriminating evidence against him and he denied the same. On considering the above oral and documentary evidence, the Trial Court acquitted the accused for the offence under Section 302 of IPC. But the Trial Court, convicted and sentenced the accused for the offence under Section 304(part II) of IPC and sentenced him as stated above. 8. The learned counsel for the appellant vehemently contended that the entire case is based on circumstantial evidence and if it is being so, the prosecution failed to prove the chain of action from the last seen theory. Therefore, it is liable to be set aside. He would further contend that P.Ws.1 and 2 are son and daughter of the deceased and they deposed that on 16.11.2006 when enquired about their mother with P.W.3, the shop owner, he informed that on 15.11.2006 at about 8.00 p.m. their mother and the accused had come to his shop and obtained change for Rs.50/-. Thereafter, on 17.11.2006, the body of the deceased was found and informed by one Arumugam. Only thereafter, he lodged a complaint Ex.P1 alleging that on information, his mother found dead and identified by her saree and to take action. It is no where mentioned about P.W.3's information, in respect of the fact that the accused and the deceased had come to his shop. 9. The learned counsel for the appellant further would submit that P.W.2 even in her 164 statement, she has stated that on 15.11.2006, the accused invited the deceased on drunken mood, as if his wife was suffering with delivery pain, but her mother went to his house and found that it was a false news and returned back to home. Even thereafter, the accused compelled the deceased to come out and both went away. But, P.W.2 did not even whisper about those details in her deposition. Whereas, she has deposed that on 15.11.2006, her mother went to the shop. Therefore, it is only an after thought and that too after fixing the accused and recorded the statement under Section 164 of Cr.P.C and filed charges against the accused. But, P.W.2 did not even whisper about those details in her deposition. Whereas, she has deposed that on 15.11.2006, her mother went to the shop. Therefore, it is only an after thought and that too after fixing the accused and recorded the statement under Section 164 of Cr.P.C and filed charges against the accused. Further, he would submit that P.W.3, the shop owner also deposed that as per the 164 statement and as per the charges, P.W.3 was examined on 23.06.2008 and on the day, a petition was filed by the defence side to defer the same and it was allowed. Thereafter, the prosecution did not produce P.W.3 for cross examination. Therefore, prayed to brush aside the evidence of P.W.3. 10. The learned counsel for the appellant further would submit that P.W.4's evidence cannot be relied upon, since he is an accused in chain snatching cases. With regard to the same, P.W.4 is hand in glove with the respondent police and categorically admitted that as requested by the respondent police he deposed. It is further contended by the learned counsel for the appellant that P.Ws.1 to 3 have deposed that the accused was in drunken mood and had taken the deceased and both used drink. On the date of occurrence also, it seems they had liquor and on the drunken mood they both had quarreled and as such the accused attacked the deceased and fell down in the well. Whereas, the postmortem report Ex.P.13 shows that there is no evidence of alcohol influence. Ex.P12 Toxicology Report dated 20.12.2006 shows that no alcohol or other poison was deducted on the deceased body. Therefore, this contradiction quarrel, vitiated the case of the prosecution and did not prove the chain of action by the accused, although, the case is of circumstantial evidence and prayed for acquittal. 11. The learned Additional Public Prosecutor submitted that the prosecution case proved beyond all doubt by cross examining P.Ws.1 to 4 and P.W.6. Further the delay in cross examination of all the witnesses will not help the defence case and the conviction imposed upon the appellant preferably legal and prayed for confirming the same. 12. Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor and perused the materials available on record. 13. It is true that the entire case false on circumstantial evidence. 12. Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor and perused the materials available on record. 13. It is true that the entire case false on circumstantial evidence. On 15.11.2006 at about 8.00 p.m., the deceased went away from home and thereafter on 17.11.2006 her body was found in the well belongs to one Hotel Ashok Residency. Her body was identified by P.Ws.1 and 2 from the saree worn by the deceased, to connect the accused P.W.3 deposed that on 15.11.2006 at about 8.00 p.m. the deceased and the accused had come to his shop to obtain the change for Rs.50/- and thereafter they went on to the western side of the shop. 14. In fact, P.W.1 had deposed as follows : xxxxxxx Further he deposed that xxxxxx 15. P.W.2 deposed as follows : xxxxxxx P.W.2 deposed in her statement recorded under Section 164 of Cr.P.C., as follows :- xxxxxxx 16. Therefore, even on 15.11.2006 itself, P.W.2 very well knows that her mother deceased went away along with the accused. P.W.1. also knows that on 16.11.2006, his mother went along with the accused that too after obtaining change of Rs.50. It is also confirmed by his grandfather. P.W.3 has corroborated the evidence of P.Ws.1 and 2. Therefore, after knowing these facts, P.W.1 did not whisper anything in the complaint Ex.P1 about the accused. Therefore, the last seen theory of the prosecution cannot be believed. 17. The evidence of P.W.4 is also not believable one, since he is an accused and he used to depose on the request of the police. It was categorically admitted by him. As such, his evidence also has not supported the case of the prosecution. 18. P.W.6, an independent witness examined by the prosecution to prove the last seen theory. He deposed as follows : xxxxxxx 19. It is seen from the above, the accused, after the occurrence, was going through the agricultural field with the bundle of clothes. Whereas, M.Os.2 and 3 are only the two clothes which were worn by the deceased. As such, the evidence of P.W.6 is also not supporting the case of the prosecution. 20. As such, this Court of the view, that the circumstances relied upon by the prosecution is highly doubtful and the same cannot be based on the above facts for the commission of crime. 21. As such, the evidence of P.W.6 is also not supporting the case of the prosecution. 20. As such, this Court of the view, that the circumstances relied upon by the prosecution is highly doubtful and the same cannot be based on the above facts for the commission of crime. 21. The learned counsel for the appellant relied upon the judgment of the Division Bench of this Court reported in CDJ 2018 MHC 1181 [P.S. Baskar Vs. State] held as follows : “In a case based on the circumstantial evidence, every incriminating circumstance must be clearly established by legal and clinching evidence and the circumstance so proved must form a chain of events in which irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. We are also of the view that a case based on the circumstantial evidence, there is always a danger that conjuncture of suspicion may take place of legal proof. Therefore, the Court has to necessarily satisfy with various circumstances in a chain of events must be such as to rule out a reasonable likely-hood to the innocence of the accused. When the chain of circumstance gets snapped and the other circumstance, cannot in any manner, is sufficient to establish the guilt of the accused beyond all reasonable doubt. In view of the foregoing discussions, we have no other option, except to hold that circumstances placed by the prosecution has not been proved beyond reasonable doubts and merely because the defacto complaint suspected some detective nature of investigation, that itself cannot be a ground to hold that the Investigating Officer has failed to conduct the investigation properly. Mere suspicion, however strong, is not a legal proof for establishing the case beyond reasonable doubt. Hence, we find no merits in this appeal.” 22. Since the prosecution has failed to prove the chain of events by last seen theory to connect the accused, this Court has no other option except to hold that the circumstances placed by the prosecution has not been proved beyond any reasonable doubt. 23. The learned counsel for the appellant relied upon the judgment reported in CDJ 2018 SC 403 - [Navaneethakrishnan Vs. State] held as follows : “21. 23. The learned counsel for the appellant relied upon the judgment reported in CDJ 2018 SC 403 - [Navaneethakrishnan Vs. State] held as follows : “21. In Madhu v. State of Kerala (2012) 2 SCC 399 , this court while discussing the mandate of Section 27 of the Evidence Act held as under:- “49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited” .... as relates distinctly to the fact thereby discovered ....”. The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavor to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act”. 22. Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No.3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased - John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased - John Bosco or to PW -8 as the same was not purchased in their name. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased - John Bosco or to PW -8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No.1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No.3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case. 23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. The court in mindful of caution by the settled principles of law and the decisions rendered by this court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove. Conclusion:- 24. In view of the foregoing discussion, we are of the considered opinion that both the courts below have erred in relying that part of the statement which can be termed as confession which were given to the police officer while they were in custody and it will be hit by Section 26 of the Indian Evidence Act, 1872 and only that part of the statement which led to the discovery of various material would be permissible. Hence, in the absence of any other material evidence against the appellants - accused, they cannot be convicted solely on the basis of evidence of last seen together with the deceased. 25. In the light of the above discussion, the judgment and order dated 23.11.2009 passed by the High Court is set aside. The appeals are allowed. The appellants who are in custody shall be set at liberty forthwith, if they are not required in any other criminal case. 24. 25. In the light of the above discussion, the judgment and order dated 23.11.2009 passed by the High Court is set aside. The appeals are allowed. The appellants who are in custody shall be set at liberty forthwith, if they are not required in any other criminal case. 24. As such, in the absence of other material evidence against the appellant/accused, he cannot be convicted on the basis of the evidence of last seen theory with the accused. It is also to be seen that the prosecution has even failed to prove the theory of last seen with the deceased. 25. In view of the above discussion made by this Court, it is not necessary to appreciate the evidence, as to whether the conviction of the appellant can be sustained or not. 26. In the result, the conviction and sentence imposed by the learned Sessions Judge - II, Kanchipuram in the Judgment dated 21.12.2010 passed in S.C.No.31 of 2010 is set aside and the appellant/accused is acquitted of all the charges. Fine amount, if any, paid shall be refunded to the appellant forthwith. Bail bonds, if any, executed shall stand discharged.