JUDGMENT : C.V. Nagarjuna Reddy, J. 1. The sole accused in Sessions Case No. 519 of 2010 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Markapur, Prakasam District (for short 'the Court below'), filed this Appeal assailing his conviction for the offence under Section 302 IPC and sentencing to undergo Imprisonment for Life and to pay a fine of Rs. 2,000/- and in default of such payment, to suffer Simple Imprisonment for three months. 2. The case of the Prosecution, in brief, is stated hereunder : One Vijayamma (hereinafter referred as 'the deceased') was the daughter of one Badugu Malakondaiah and P.W. 2, who are residents of Guntupalli Village of P.C. Palli Mandal. About 12 years prior to the date of incident, the deceased was given in marriage to one Kanala Venkateswarlu, who is the elder son of one Kanala Balaiah and P.W. 4 of Peddarikatla Village, and the appellant is their younger son. After marriage, the deceased joined her matrimonial home and she was blessed with two children viz., Vamsi and Varshini. The deceased along with her husband and children used to lived in a rented house belonging to P.W. 11. As the husband of the deceased suffered loss in business, he went to Hyderabad to work as Railway coolie by leaving the deceased and their children at Peddarikatla Village. As the rented house in which the deceased and her children were living was sought to be renovated, they vacated the said house and started living in the house of her in-laws by eking out their livelihood by training the villagers in tailoring work. 3. The appellant used to quarrel with his parents as well as the deceased on petty issues. Ten days prior to the occurrence, heavy altercation took place between the appellant and the deceased for entering Puja room with footwear. The appellant decided to kill the deceased and enquired P.W. 10 about the legal formalities for grant of bail in murder case etc. P.W. 10 chastised the appellant and also warned him. On 23-10-2009 at about 1.00 p.m., the deceased came from tailoring work and slept on the cot in the back side room. At that time, P.W. 4 was cooking food in front of the house. P.W. 10 chastised the appellant and also warned him. On 23-10-2009 at about 1.00 p.m., the deceased came from tailoring work and slept on the cot in the back side room. At that time, P.W. 4 was cooking food in front of the house. The appellant, who came from outside, found the deceased sleeping alone on the cot and taking advantage of the same, he picked up a pestle and beat on her head, which resulted in severe bleeding injuries to her. The deceased died on the spot. Meanwhile, on hearing the sound, P.W. 4 rushed into the house, witnessed the incident and raised hue and cry out of fear. On seeing P.W. 4, the appellant threw away the pestle and ran out of the room. P.Ws. 5 and 6 noticed the appellant and enquired about his behavior but without paying any attention to them, he ran away. L.W. 7-Kanala Vijayalakshmi, P.W. 7 and P.W. 8 also witnessed him running away. On coming to know about the incident, P.W. 1, who is the brother of the deceased, gave Ex. P-1 - report to P.W. 16-Assistant Sub-Inspector of Police, K.K. Mitla Police Station, against the appellant and his father. P.W. 16 registered the case in Crime No. 65 of 2008 under Section 302 IPC, submitted express FIR and copies to all the Officers concerned and informed about the incident on phone to P.W. 19-Inspector of Police, Podili Circle. On the instructions of P.W. 19, P.W. 16 and P.W. 15-Constable went to Peddarikatla Village to guard the scene of offence. On the same day, at about 7.00 p.m. P.W. 19 reached the scene of offence, took up the investigation, recorded the statement of P.W. 1, observed the scene of offence in the presence of P.Ws. 18 and 13, seized the blood stained pestle under the cover of Ex. P-12 - Scene observation report duly attested by them, got photographed the scene of offence by P.W. 18 and prepared the rough sketch of the scene of offence. 4. On 24-10-2008 at about 9.00 a.m., P.W. 19 conducted inquest over the dead body of the deceased in the presence of panchayatdars-P.Ws. 18, 13 and 14 and prepared Ex. P-13-inquest report. During the inquest, P.W. 19 recorded the statements of P.Ws. 2 to 6, L.W. 7-Kanala Vijayalakshmi and P.Ws. 4. On 24-10-2008 at about 9.00 a.m., P.W. 19 conducted inquest over the dead body of the deceased in the presence of panchayatdars-P.Ws. 18, 13 and 14 and prepared Ex. P-13-inquest report. During the inquest, P.W. 19 recorded the statements of P.Ws. 2 to 6, L.W. 7-Kanala Vijayalakshmi and P.Ws. 7 to 11 under Section 161 Cr.P.C. He sent the dead body of the deceased for autopsy to the Government Hospital, Podili, through P.W. 15. On examination of witnesses, P.W. 19 came to the conclusion that Kanna Balaiah, who was also a suspect, was not responsible for the death of the deceased and hence, he deleted his name. 5. On 25-11-2008 at about 9.00 a.m., the appellant met P.W. 18-Village Revenue Officer and made Extra-judicial confession before him. P.W. 18 recorded Ex. P-18 - confessional statement of the appellant and produced him before P.W. 19. After interrogating the appellant in the presence of P.W. 18 and L.W. 17-Paritala Srinivaslu, P.W. 19 arrested him under the cover of Ex. P-19 - mediatorsnama duly attested by them and sent him to the Court for judicial custody. During further investigation, P.W. 19 forwarded the blood stained pestle to APRFSL, Guntur, for examination and report. After examination of the said pestle, the Officer of the APRFSL, issued Ex. P-20 - report that "blood is detected on it and it is of human origin". 6. P.W. 17 - Medical Officer, who conducted autopsy over the dead body of the deceased, issued Ex. P-16 - Post Mortem Certificate opining that "the cause of death is due to shock and hemorrhage caused by blunt object" 7. On completion of the investigation, L.W. 22 - Inspector of Police, Podili, filed the Charge sheet against the appellant for the offence punishable under Section 302 IPC. 8. Based on the charge sheet and the material collected during the course of investigation, the trial Court framed the following charge: "That you on 23-10-2008 at 1.00 p.m. intentionally and knowingly killed K. Vijayamma @ Vijaya W/o. Venkateswarlu while she was sleeping on a cot by beating her with a pestle on her head and fact causing severe bleeding injuries and committed murder which is an offence punishable u/sec. 302 IPC within my cognizance and I direct that you all be tried by this court on the said charge." 9. 302 IPC within my cognizance and I direct that you all be tried by this court on the said charge." 9. As the appellant pleaded not guilty, he was subjected to trial during which the Prosecution has examined P.Ws. 1 to 19, got Exs. P-1 to P-21 marked and produced M.O. 1. The defence did not choose to adduce any oral or documentary evidence. 10. Upon appreciation of the evidence on record, the Court below has disposed of the case in the manner as noted herein before. 11. At the hearing, Smt. C. Vasundhara Reddy, learned Counsel for the appellant, submitted that the Prosecution has failed to prove the motive, which assumed great relevance, as P.W. 4-the alleged eye witness has turned hostile, thereby, changing the nature of the case as the one based on circumstantial evidence. She has further submitted that the Court below has committed a serious error in relying upon Ex. P-18 - alleged extra-judicial confession stated to have been made by the appellant before P.W. 18 and that therefore, the Judgment of the Court below is liable to be set aside. 12. Opposing the above submissions, the learned Public Prosecutor for the State of Andhra Pradesh strenuously contended that the appellant being a vagabond developed grudge against the deceased, who is his own sister-in-law, as she admonished him for entering puja room with footwear and that the Prosecution has proved motive. He has further submitted that apart from the extrajudicial confession, the Prosecution has established the circumstances by which Section 106 of the Indian Evidence Act, 1872 (for short 'the Act') could be invoked; that the appellant having pleaded alibi, failed to prove the same; and that therefore, the Prosecution was able to prove the guilt of the appellant beyond reasonable doubt. 13. We have considered the respective submissions of the learned Counsel for the parties with reference to the evidence on record. 14. 13. We have considered the respective submissions of the learned Counsel for the parties with reference to the evidence on record. 14. As regards the motive, the Prosecution has specifically alleged in the charge sheet that the appellant, who was not doing any work, used to quarrel with his parents as well as the deceased on petty issues; that in passage of time, ill feelings cropped up between the appellant and the deceased; that ten days prior to the commission of offence, heavy altercation took place between the appellant and the deceased for the former entering puja room with footwear; and that the same ignited bitter feelings between both of them, which led the appellant to kill the deceased. P.Ws. 1 to 3, who are none other than the brother, mother and sister respectively of the deceased, were not witnesses to any of the alleged quarrels between the appellant and the deceased. P.W. 1 referred to the disputes between the appellant, his parents and the deceased and also the appellant and his father harassing the deceased without any reason. He has neither spoken about the frequent quarrels between the appellant and the deceased nor about the quarrel that had taken place ten days prior to the date of occurrence, allegedly, for the reason that the appellant had entered puja room with footwear. 15. P.W. 2-mother of the deceased stated that she does not know the reason for the occurrence. In her evidence, P.W. 3 stated that her enquiries with the children, who were, allegedly, present in the house, revealed that on the date of occurrence in the morning hours, the appellant was admonished by the deceased for entering the Puja room with footwear and that on that score, altercation ensued between the two. We, thus, find a complete contradiction between the evidence of P.W. 1 and that of P.W. 3 on the period of time during which the alleged quarrel between the appellant and the deceased took place. Apart from this, the evidence of P.Ws. 1 and 3 is hearsay as they did not claim to have witnessed any of the quarrels between the appellant and the deceased at any point of time. 16. The only person, who was examined as direct witness to speak about the alleged quarrels and also about the motive and the occurrence is P.W. 4, who is none other than the mother of the appellant. 16. The only person, who was examined as direct witness to speak about the alleged quarrels and also about the motive and the occurrence is P.W. 4, who is none other than the mother of the appellant. As she has not supported the case of the Prosecution, she was treated hostile. The only incriminating aspect that could be elicited from P.W. 4 by the Prosecution against the appellant is her admission that the deceased warned the appellant against entering the prayer zone with footwear. She further added that the appellant never visited the prayer room with footwear and that for that reason, no altercation ensued between the appellant and the deceased. She further stated that the warning administered by the deceased was more than ten to fifteen days prior to the occurrence. 17. Even if we rely upon the statement of P.W. 4 that the deceased has warned the appellant against entering puja room with foot wear, that by itself may not constitute sufficient motive for the appellant to go to the extent of killing his own sister-in-law. In a case based on circumstantial evidence, motive plays very important role and it constitutes one of the links in the chain of circumstances. In our opinion, the Prosecution utterly failed to prove its case as regards the motive. 18. With regard to the submission of the learned Counsel for the appellant relating to Ex. P-18-extra judicial confession of the appellant, P.W. 18 was working as the Village Revenue Officer, when he allegedly prepared Ex. P-18. In his evidence, he has admitted that he did not have any acquaintance with the appellant. He has also submitted that on being informed about the murder, he had been to the house of the appellant on the afternoon of 23-10-2008; that he has prepared a report and waited there on information about the proposed visit of the Inspector on the report lodged by the relatives of the deceased; that the Police of Konakanamitla and Podili visited the house of the appellant after some time and that after observing the scene of offence, they prepared Ex. P-12-report and seized a pestle with blood stains found at the scene of offence. P-12-report and seized a pestle with blood stains found at the scene of offence. He further deposed that again on the next day, on the instructions of the Inspector of Police, he visited the house of the deceased, that in his presence, the Inspector of Police had recorded the statements of the blood relatives of the deceased, conducted inquest over the dead body of the deceased and prepared Ex. P-13-Inquest report, which was attested by him; and that in the said report, the cause of death was mentioned as injuries received by the deceased with pestle on her head. Interestingly, this witness did not raise any whisper about the alleged extra-judicial confession when he gave evidence on 17-6-2011. However, about two weeks thereafter, i.e., on 30-06-2011, this witness was recalled and sworn in for further chief-examination, during which Ex. P-1 8-Extra judicial confession was introduced by the Prosecution. P.W. 18 has deposed that on 25-11-2008 at 9.00 a.m., the appellant< approached him, confessed his guilt and decided to surrender himself before the Police through this witness and that thereupon, he recorded Ex. P-18-confessional statement and handed over the same along with Ex. P-21-covering letter and the appellant to the Police. In the cross-examination, the bluff of this witness was called. He admitted that he has prepared Ex. P-18 at Poddili Police Station on the instructions of the Inspector of Police. 19. It is clear from the evidence of P.W. 18 that he prepared Ex. P-18 on the instructions of the Inspector of Police at the Police Station and was handed over to the Police. It is, thus, clear that after the appellant surrendered to the Police, his statement was recorded at the instance and in the presence of the Police Officer. 20. Article 20(3) of the Constitution of India confers a fundamental right on a person not to be a witness against himself. This provision embodied the Rule against self-incrimination. Under Section 25 of the Act, confession made to a Police Officer shall not be proved against the person accused of any offence. Similarly, under Section 26 thereof, confession by the accused, while in custody of Police, shall not be proved against him. The only exception to the said Rule is contained under Section 27 thereof, under which, any fact leading to discovery could be used against the accused only to the extent of such discovery. Ex. Similarly, under Section 26 thereof, confession by the accused, while in custody of Police, shall not be proved against him. The only exception to the said Rule is contained under Section 27 thereof, under which, any fact leading to discovery could be used against the accused only to the extent of such discovery. Ex. P-18 is thus hit by the above mentioned Constitutional and statutory provisions. Unfortunately, the Court below, without bearing in mind this fundamental principle of criminal jurisprudence, has made Ex. P-18-extra-judicial confession as the sole basis for convicting the appellant. Such an approach is not expected of a Judicial Officer of the rank of a District Judge. 21. As regards the submission of the learned Public Prosecutor that the confession can be justified by applying Section 106 of the Act, though this submission was not pressed into service before the Court below and no finding thereon has been given, we propose to test his submission. 22. Under Section 106 of the Act, when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. The Prosecution alleged that the appellant has killed the deceased. The said accusation was based on the purported statement given by P.W. 4 before the Police. In order to drive home this accusation, the Prosecution has examined P.W. 4. However, P.W. 4 turned hostile. She did not specifically speak about the presence of her son at the house. The learned Public Prosecutor argued that when she specifically spoke about the absence of herself, her husband and the children of the deceased at home, only two more persons, who are the regular members of the family, remained at home i.e., the grand mother of the appellant and the appellant himself and that the grand mother of the appellant being an old lady not having any motive to kill the deceased, the only other person, who could have killed the deceased was the appellant and that therefore, the burden lies on him under Section 106 of the Act, to explain the cause of death of the deceased. He further submitted that through P.W. 4, the defence has set up the plea that the appellant was away for 10 days prior to the occurrence whereas in Section 313 Cr.P.C., examination, the appellant has stated that he was not in the village on the date of occurrence only. He further submitted that through P.W. 4, the defence has set up the plea that the appellant was away for 10 days prior to the occurrence whereas in Section 313 Cr.P.C., examination, the appellant has stated that he was not in the village on the date of occurrence only. The learned Public Prosecutor has further submitted that a suggestion was put to P.Ws. 2 and 3 on behalf of the defence that the deceased died due to fall from the steps and that this suggestion being provide false on the basis of the medical evidence on record, the appellant is liable to be held guilty. 23. Except P.W. 4, no other witness was examined as a direct witness to the occurrence. When P.W. 4 turned hostile and the Prosecution could not establish through her evidence, the presence of the appellant at the time of the occurrence, the Prosecution cannot press into service Section 106 of the Act. 24. As regards the submission of the learned Public Prosecutor that when P.W. 4 has stated in her evidence that herself, her husband, her mother, the appellant, the deceased and her children used to stay at home in the house and that when P.W. 4 has eliminated the presence of herself, her husband and the children of the deceased, it is reasonable to presume that only three persons i.e., the grand mother of the appellant, appellant and the deceased remained at home, we are afraid we cannot accept this submission because the theory of preponderance of probability has no place in Criminal Jurisprudence, which requires proof beyond reasonable doubt. While P.W. 4 has not specifically referred to the presence of the appellant at the time of occurrence, the evidence of P.Ws. 1 to 3 is mere hearsay and they have also not specifically referred to the presence of the appellant at that time. Howsoever strong the suspicion may be, it can never take the place of proof. 25. No doubt, the suggestions made by the defence on material aspects, if found false, may be treated as an additional link in the chain of circumstances against the appellant if the Prosecution has succeeded in establishing other links to complete the chain. Howsoever strong the suspicion may be, it can never take the place of proof. 25. No doubt, the suggestions made by the defence on material aspects, if found false, may be treated as an additional link in the chain of circumstances against the appellant if the Prosecution has succeeded in establishing other links to complete the chain. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , the Supreme Court held at paras-159 and 160 as under:- "It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the Prosecution have been satisfactorily proved. (2) The said circumstance point to the guilt of the accused with reasonable definiteness, and (3) The circumstance is in proximity to the time and situation. If these conditions are fulfilled, only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise....." 26. In the instant case, the Prosecution failed to produce any such evidence either proving the motive or presence of the appellant at the time of occurrence or his participation in the occurrence. Hence, we do not find any merit in the submission of the learned Public Prosecutor. 27. For the aforementioned reasons, we hold that the Prosecution failed to prove the guilt of the appellant beyond reasonable doubt and the Court below has erroneously convicted him for the offence under Section 302 IPC. 28. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 IPC in the Judgment, dated 11-8-2011, in Sessions Case No. 519 of 2010, on the file of the VI Additional District and Sessions Judge (FTC), Markapur, are set aside. The fine amount, if any, paid by him shall be refunded to him. Consequently, the appellant/accused shall be set at liberty forthwith, if he is not required in any other case or crime.