JUDGMENT
A. Gopal Reddy, J.
1. These three appeals are filed against the common judgment and order dated 22-6-2004 passed by the Special Sessions Judge, Gunter (under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989). In all, three persons namely, Anchipogula Samsonu – Al ; Koki Prabhakara Reddy-A2; and Thurumella Jagadeesh -A3 were tried for the offence punishable under Section 376 (g) IPC or alternative of the offence under Section 3(2) (v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short “the Act”) and for the offence under Sections 302 and 201 IPC. Additionally A1 and A2 were charged for the offence punishable under Section 379 IPC.
2. Accused Nos. 1 to 3 were found guilty for the offence under Sections 376 (g), 302 r/w 34 and 20,1 IPC. A2 was further found guilty for the offence under Section 3(2) (v) of the Act; further A1 and A2 were found guilty for the offence under Section 379 IPC. Accordingly, A1 to A3 were sentenced to undergo imprisonment for life for the offence under Section 376 (g) IPC and to pay fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for two years; for the offence under Section 302 r/w 34 IPC sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for two years each. All the accused were sentenced to suffer rigorous imprisonment for five years for the offence under Section 201 IPC and to pay a fine of Rs. 2000/- each, in default to suffer rigorous imprisonment for six months. A1 and A2 were also sentenced to suffer simple imprisonment for one year for the offence under Section 379 IPC. As A2 was already punished for the offence under Section 376 (g) IPC, no separate sentence was awarded for the offence under Section 3(2) (v) of the Act. All the sentences imposed on them were directed to run concurrently. Out of the amount of Rs. 66,000/- it was directed to pay a sum of Rs. 40,000/- as compensation to P. W. 1. Against the judgment A2 filed Crl, A. No. 1723 of 2004; A3 filed Cri. A. No. 1892 of 2004 and A1 filed Crl. A. No. 2598 of 2004. Since all the appeals arise out of common judgment and in the same Sessions Case, they are heard together and disposed of by this common judgment.
3. The prosecution story as narrated during the course of trial is as follows : The deceased – Daggumalli Marathamma alias Ankamma was the second wife of Daggumalli Venkatesh-P. W. 3 and daughter of Jogi Srinivasarao- P. W. 1 P. Ws. 2 and 4 are relatives of the deceased. The deceased, the accused and the material witnesses are residents of Bapatia. Six months prior to the incident, the deceased married P. W. 3 without the consent of her father- P. W. 1 and set up their family in Vetapalem. Later they shifted the family to the house of P. W. 6 at Vandullapalli and finally shifted to the house of P. W. 2 at Chenagalayuduthota, Bapatia town. As P. W. 3 was involved in criminal case, on 26-3-2003 police searched the house of P. W. 2, but P. W. 3 escaped from the house. The next day morning deceased and P. W. 2 met P. W. 18-Sarpanch and requested him to talk with the police. On 27-3-2003 the deceased while going to the house of P. W. 6, asked P. W. 2 to bring her clothes to the house of P. W. 6. At 11 A. M. P. W. 2, along with the clothes of the deceased went to the house of P. W. 18 for seeking his help; as he was not available they returned to the house of P. W. 6; P. W. 2 accompanied the deceased till 5 P. M. and came back to her house. On the said date after having dinner deceased, P. W. 6 and her children went to sleep. A2 who bore grudge against the deceased, as she spoiled the family life of her relative, he hatched up a plan to eliminate the deceased. As per the plan A1 visited the house of P. W. 6 and called the deceased by name; when P. W. 6 enquired, he told that he is Samsonu-A1; then the deceased accompanied him in auto rickshaw towards Bapatla and her whereabouts are not known thereafter. On 31-3-2003 during the course of search of deceased, P. W. 1 heard the talk in the village that a female dead body was near the B. Pharmacy College. Then P. W. 1, his wife and son went there, as it was dark they visited the place next day morning, observed and identified the dead body as that of the deceased. Thereafter, P. W. 1 went to the police station and gave a written report-Ex. PI to P. W. 20- Sub-Inspector of Police who registered a case in Cr. No. 33 of 2003 under Sections 302 and 201 IPC and issued FIR Ex P46. Thereafter, P. W. 21 – the Circle Inspector of Police took up investigation and sent a requisition to P. W. 1 – Deputy M. R. O., Bapatla to exhume the body and hold inquest, who in turn made a requisition to the Medical Officer to conduct postmortem at the spot. P. W. 21 visited the scene of offence, prepared scene observation report-Ex. P15, draw rough sketch-Ex. P47. seized M. Os. 3 and 4 in the presence of P. W. 4 and another; thereafter he recorded the statements of P.Ws. 1 to 3, 5, to 9 and 18.
4. On 2-4-2003 P. W. 16, the Deputy M. R. O. held inquest over the dead body of the deceased in the presence of P. W. 10 and another and prepared Ex. P6- Inquest report and recorded the statements of P. Ws. 1, 3 and two others. P. W. 14, the doctor who conducted autopsy over the dead body of the deceased opined that cause of death was due to shock and hemorrhage as a result of multiple injuries and accordingly, issued Ex. P34 postmortem report and Ex. P35 final report. On 13-4-2003 at about 10.30 A. M., P. W. 10 visited the police station and presented Ex. P18 along with statement of A1 under Ex. P17 by producing A1 before P. W. 21, who recorded the confessional statement of A1 in the presence of P. W. 11 and another. At the instance of A1, P. W. 21 recovered M. Os. 7 to 9 in the presence of P. W. 11 and another. On the next day i. e. 14-4-2003 P. W. 21 arrested A2 and A3 and at the instance of A2 one pair of silver anklet – M. O. 6 and blood stained pant and Shirt – M. O. 11 were recovered in the presence of P. W. 11 and sent A1 and A2 for medical examination. P. W. 12, the Civil Assistant Surgeon, District Hospital, Tenali examined A1 and A2 and issued wound certificate Ex. P29; after receipt of caste certificate of the deceased – Ex. P40 issued by P. W- 17 altered the section of law by adding Section 3(2) (v) of the Act and issued altered FIR -Ex. P45. The Sub-divisional Police Officer after receipt of authorization orders;-Ex. P44 took up investigation, examined and recorded the statements of P. Ws. 1 to 11, 18 and two others and sent all the material objects to FSL for analysis. After completion of investigation police laid the charge sheet for the offences as referred above.
5. Before the trial Court, the prosecution in support of the case examined P. Ws. 1 and 23 and got marked Exs. P1 to P51 and produced material objects and marked them as M. Os. 1 to 12.
6. The learned Sessions Judge upon consideration of all the material on record accepted the case made out by the prosecution, convicted and sentenced the accused as referred above. Hence the present appeals.
7. Learned Senior Counsel, Sri C. Padmanabha Reddy appearing for A2 and A3 submitted that the entire case rests on the extra judicial confession said to have been made by Al before P. W. .10 in the presence of P. W. 11. There is no other evidence against the A3 except the confessional statement of A1, which cannot be used against A2 and A3 on mere recovery of pair of silver anklets, which are of common use in any house. The so-called confessional statement, if any, will lend assurance but the same cannot be sole basis for conviction and placed reliance on the following judgments:
(1) Haricharan Kurmi v. State of Bihar
(2) State of Punjab v. Gurdeep Singh 1999 Cri LJ 4597 : 1999 (7) Supreme 618
The mediators did not observe any blood stains on the silver anklets. The medical evidence does not corroborate the evidence of the prosecution for the offentie under Section 376 (g) IPC. Therefore, the conviction of the accused for the said offence is liable to be set aside.
8. Learned Counsel for Al while adopting the submission made by the senior counsel submits that the version of prosecution witnesses is totally imaginary when the doctor, P. W. 14 categorically stated that injuries 1 and 2 mentioned in Ex. P34 are not possible with M. O. 7 – knife. In view of the same, A1 cannot be convicted solely basing on the confessional statement made by him and the same is liable to be set aside.
9. The learned Additional Public Prosecutor would contend that A1 made a confession before P. W. 10 believing that he can protect him, which is corroborated by the evidence of P. W. 6 who stated that the accused No. 1 came to her house arid took the deceased in an auto. Since the deceased was last seen in the company of A1, it is for the accused to explain. Further, the recovery of M. O. 7- Knife, gold ring – M. O. 5 and pair of silver anklets – M. O. 6 of the deceased on the confessional statement of A1 is sufficient to prove the, involvement of A1 and A2 in the commission of the offence. Therefore, the lower Court rightly convicted the accused, which do not require any interference.
10. In view of the above submissions the point that arises for consideration in these appeals is : “Whether the prosecution is able to prove the guilt of the accused beyond reasonable doubt and whether the judgment of the lower Court requires to be set aside or modified.”
11. At this stage we could state that there are no eye-witnesses to the occurrence and the conviction is based on circumstantial evidence and extra-judicial confessional statement made by A1 before P.W. 10. The circumstantial evidence relied upon by the prosecution are as under:
1. That the deceased was last seen in the company of A1 who took her in an auto.
2. A2 had the motive for committing the murder of the deceased as he bore grudge against her for spoiling the family life of his relative Venkateswaramma.
3. Accused No. 1 made an extra-judicial confession of his guilt before P.W. 10 on 13-4-2003 and the same was recorded by P.W. 10 under Ex. P17.
4. On accused No. 1 pointed out the place of M.Os. 7 and 9 Knife, Jeans pant and shirt respectively were recovered in the presence of P.W. 11 which were stained with human blood as per FSL report.
5. A1 was absconding after the incident and appeared before P.W. 10 on 13-4-2003.
12. It is well settled that an extra-judicial confession is usually looked upon as weak type of evidence, and therefore, whenever it is sought to be relied upon, burden lies upon the prosecution to show its trustworthiness. In order to render such confession worthy of belief, regard must be had to;
1. The person to whom it was made.
2. The connection, if any, of the accused with him.
3. The occasion or reason for the accused to go and make such a confession to him. and
4. The circumstances in which it was made.
Extra-judicial confession by itself, for making any basis for conviction is considered as a weak piece of evidence when the surrounding circumstances create some doubt, therefore, such type of evidence requires strict scrutiny.
13. A reading of Section 30 of the Indian Evidence Act makes it clear that an extra-judicial confession made by one accused tried Jointly with others which affects himself and some others who tried along with can be taken into consideration if it is proved against such other persons as well as against the person who makes it. It is appropriate to notice Section 30 of the Indian Evidence Act, 1872 to use the extra-judicial confession made by one accused affecting him and others Jointly under-trial for same offence.
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
14. It is convenient to consider the submissions made in the context of decisions on which reliance is placed.
15. In Haricharan Kurmi’s case 1964 (2) Cri LJ 344, Para 11 (supra) it was held as under:
…Normally, if a statement made by an accused person is found to be voluntary and it amounts a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrully, and so Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence Criminal Courts generally require some corroboration to the said confession particularly if it has been retracted….It is clear that the confession mentioned in Section 30 is not evidence under Section 3 of the Act. Section 3 defines “evidence” as meaning and including-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
It was further held as under (para 12 of Cri LJ):
…In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right….The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 Cri LJ 839 where the decision of the Privy Council in Bhuboni Sahu case 1949 (5) Cri LJ 872 has been cited with approval.
16. In the case of Gurdeep Singh 1999 Cri LJ 4597 (supra) approving the ratio in Kavita v. State of Tamil Nadu 1998 (5) JT (SC) 151 : 1998 Cri LJ 3624, para 4 held as under:
There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.
17. In Kishore Chand v. State of H.P. the Supreme Court held as under (para 7):
An unambiguous extra-judicial confession possesses a high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the Court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the Court has to look into the surrounding, circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the Court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary can be relied upon by the Court along with other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administrating all necessary warnings to the accused that it would be used as evidence against him.
18. In Abdul Gani v. State of M.P. Mahajan, J. speaking for the Court deprecated the tendency of Courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. ‘Nor it can be gain-said that that the entire evidence, has to be accepted as whole truth. Further, it was said that the Court should make an effort to disengage the truth from falsehood arid to sift the grain from the chaff. (Emphasis supplied)
19. Keeping in mind the principles laid down above and the mandate of Section 30 of the Indian Evidence Act, apart from extra-judicial confession which we shall advert to a little later, we shall now examine the incriminating evidence produced by the prosecution against the appellants.
20. P.W. 1, the father of the deceased speaks about that the deceased fell in love with P.W. 3 and married him against their wishes. After the marriage, P.W. 3 put up his family at Vetapalem and later shifted to Vedullapalli and again shifted to the house of P.W. 2. He identified M.Os. 1 to 3. He denied the suggestion that he did not state the names of A2 and A3 either in Ex. P1 or in 161 statements recorded by the Inspector of Police. He further stated that during the course of search, himself, his wife and relatives went to the house of P.W. 6 where he was informed that A1 came in auto and took away the deceased in the same auto. In the cross-examination he admitted that on the evening of 27-3-2003 at 8 p.m. through A6 he came to know that his daughter was taken away by A1 and he gave Ex. P1 report on 1-4-2003.
21. P.W. 2 only speaks about P.W. 3 and deceased visiting her house and staying the whole night. On seeing the police P.W. 3 absconded from the house. Therefore, herself and the deceased went to the house of Sarpanch P.W. 18 and informed about police searching for P.W. 3; then he promised to talk with’ the police. On the next day herself and the deceased went to the house of P.W. 6, after waiting some time she returned to the house. She was declared hostile and did not support the case of the prosecution.
22. P.W. 3, the husband of the deceased states about his visiting the house of P.W. 2; when the police came there he absconded and again after two days when he visited the house of P.W. 2 she told that deceased went to the house of P.W. 6; accordingly he went to the house of P.W. 6 where he was informed that A1 came and took away the deceased. Two days after when the villagers are murmuring that a female dead body was buried in the fields near B. Pharmacy College, he went there and observed that dead body buried in the sand leaving hands and legs upwards. He did not find the silver anklets and gold ring on the dead body. He identified. M.O. 5 silver ring and M.O. 6 pair of silver anklets in the property identification parade. He suspected that A1 killed the deceased.
23. P.W. 6 in her testimony stated that on the date of offence after taking dinner herself, her children and the deceased went to sleep. After some time A1 came to her house and called the deceased by name; when she enquired he replied that he is Samsonu and took away the deceased in an auto towards Bapatla. She identified the clothes worn by the deceased while leaving her house.
24. P.W. 10 deposed that Inspector of Police prepared scene of observation Ex. P1 5 and seized M.Os. 3 and 4 blouse and broken bangle pieces respectively. The Mandal Revenue Inspector held inquest over the dead body of the deceased under Ex. P16. He scribed the statement of A1 Ex. P17 and also covering letter Ex. P18 and presented before the Bapatla Police Station along with the accused. He admitted that he worked as Village Administrative Officer and as a part of his duty he assisted the police during the course of investigation including to act as mediator. Except M.Os. 3 and 4 no other incriminating material was seized by the police at the scene of offence. He also admitted that basing on the wearing apparel i.e. saree M.O.I and petty coat M.O. 2 the dead body was identified as that of the deceased; at the time when A1 making the statement on 13-4-2003 no one accompanied him and prior to that date he has no personal acquaintance with the accused. When Ex. P17 statement was recorded 10 persons were present, except the four village servants he cannot say the names of other persons. Prior to 13-4-2003 he did not record any confessional statement from any accused. He took one hour for recording Ex. P17 and he did not know whether A2 and A3 are figured as accused in the case. He also stated about his scribing Exs. P19 and P20 mediatornamas.
25. P.W. 11, the Revenue Inspector deposed that pursuant to Ex. P21, A1 led them to the rear side of B. Pharmacy College, picked up a knife M.O.7, and in pursuance of confession made by A1 covered by Ex. P22, all of them went to the house of P.W. 4; where she produced a ring M.O. 5 which was seized by the police. Al also made another confession covered by Ex. P23. As per the said confession M.Os. 8 and 9 cotton jeans pant and black and cement coloured shirt respectively were seized, which are stained with blood. On the next day the police arrested A2 and A3, and on the confession of A2, police party lead to his house and where a pair of silver anklets M.O. 6 were recovered. He further deposed that he did not observe any blood stains on M.Os. 10 and 11. He admitted that though the police arrested A2 and A3 on 14-4-2003 at Stuvartpuram Railway platform, no railway staff came near while recording the statement of A2.
26. P.W. 14 the doctor who conducted post-mortem examination on the dead body of the deceased after exhumed by the revenue people found the following injuries.
1. Spindle shaped stab wound of 2 x 1 x 3 cms. present over right side of neck; 3 cms. below the right ear lobe with clear cut angle and margin transversely placed on cut section pierced subcutaneious tissues cut the major blood vessels and nerves of neck on right side made a cut over the body of C-4 Vertebrae on lateral side. The direction of the wound is right to left and downwards.
2. Left oblique shaped stab wound of 2 x 1 x 2.5 cms. present over the right side of neck. 1.5 cts. below the injury No. 1 with clean cut angles and margins. On cut section pierced the subcutaneous tissues cut the major blood vessels and nerves of neck and cut the trachea at the junctions of 3-4 tracheal rings entered into the cavity of trachea. The direction of the wound is from right to left forward and downwards.
3. Fracture of bony margin of nasal bone on both sides present with perihostial hemorrhages.
4. Contusion of 7 x 6 cms. present over the front of left side of chest 3 cms. below the outer l/3rd part of left collar bone.
He opined that cause of death was due to shock and hemorrhage as a result of multiple injuries. In his testimony he stated that all the injuries are fresh, red in colour and ante-mortem in nature and not possible with M.O. 7 knife. After receipt of Ex. P32 FSL report, he gave his final opinion covered by Ex. P35 that the FSL report reveals that Semen and Spermatozoa were not detected (sic) analysis of virginal smears/slides.
27. From the above evidence the main incriminating fact relied upon by the prosecution is that ,the deceased was last seen. by P.W. 6 in the company of A1 who came to her house and took away the deceased in an auto rickshaw towards Bapatla.
28. The last seen evidence is sought to be established by, the testimony of P.W. 6. At the outset, we must observe that there is a serious doubt on the version of P.W. 6 about the deceased going in the auto with A1. Even as admitted by P.W. 6, A1 Samsonu came to her house and called the deceased by name Marathamma; when she enquired about his identity, he replied that he is Samsonu. She admitted that for the first time she saw A1 in the street light as well as the light in the house and earlier to that she never happened to see him. She also admitted that she saw P.W. 3 and the deceased while boarding auto on the road. She denied the suggestion that A1 came to her : house and took the deceased in an auto and police did not examine her. Without probing further into the correctness of the last seen version emanating from P.W. 6’s evidence, even assuming that the deceased did accompany A1, but in view of her admission in the cross-examination that the deceased and P.W. 3 boarded the auto on the road, the story propounded by the prosecution that the deceased was last seen in the company of A1 will fluttered to the ground.
29. In the Jaswant Gir v. State of Punjab (2005) 12 SCC 438 the Supreme Court considered the last seen theory and observed thus:
…Without probing further into the correctness of the “last seen” version emanating from P.W. 14’s evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the appellant and the time when P.W. 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the “last seen” evidence, even if the version of P.W. 14 in this regard is believed.
30. Recently the Supreme Court in Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh held as under (at p. 1661 of AIR):
It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, shall taken utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar and Reddy Sampath Kumar v. State of A.P. .
The last seen theory, furthermore, comes into play where time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration.
31. For the foregoing reasons, once the prosecution failed to establish the links in the chain of circumstantial evidence that the appellants alone are responsible for the murder of the deceased particularly when there is a considerable time gap between the deceased’s boarding the vehicle with A1 and P.W. 1 and others found the dead body. In the absence of any links and chain of circumstantial evidence, it is not possible to convict the accused only on the last seen evidence and the alleged recovery.
32. We must, therefore, now test the veracity of the version of P.W. 10 in regard to alleged confession made by Al as recorded by him under Ex. P17. The first and foremost aspect, which needs to be taken, is P.W. 10 is not a person who has intimate relationship with the appellants. He admitted that he is a witness to the scene of offence and prepared inquest report and also attested it; at the time of A1 making statement no one accompanied him and he has no personal acquaintance prior, to 13-4-2003 and by then about 10 persons are present in his office, except four village servants he cannot say the names of the persons who are present at that time; nearly it took one hour fifteen minutes for him to record the statement under Ex. P17. He is also present and prepared the property identification Mahazar etc. Thus he can be a convenient witness to the prosecution as per his own admission.
33. A reading of Ex. P17 so-called extra-judicial confession, which was recorded by P.W. 10, clearly establishes that it is so meticulously drafted about commission of the offence verbatim as stated in the inquest report and it is not recorded in the language spoken by A1. Further, it was stated that A2, A3 and himself thought it proper time to kill Marathamma-deceased. The story narrated by him looks like a charge-sheet, wherein it was stated that after they committing heinous crime of rape and murder of the deceased three of them together dug a pit nearby between the two palmyrah trees and while burying he took gold ring and A2 took silver anklets. Curiously, in the confessional statement it was further stated that later he came to know that dogs dragged out the dead body; when the parents and relatives of the deceased are in search of Marthamma alias Ankamma (deceased) he also went there and saw the saree and petty-coat exposed on the body; the parents of the deceased identified the dead body as that of the deceased and gave a complaint against him in the police station and knowing all these he fled away. When P.W. 1 was informed on 27-3-2003 about deceased going with A1, naturally the parents will not allow A1 to escape when he accompanied them to see the dead body. Once the prosecution failed to explain the reason as to why the accused reposed confidence on P.W. 10, went to him after 17 days and made confessional statement and the medical evidence do not support the confessional statement recorded under Ex. P17 about commission of rape on the deceased, confessing the guilt for the offence not committed does not arise. In view of the same, it is not safe to convict the accused on the basis of confessional statement shrouded with suspicion without its corroboration.
34. As rightly contended by the learned senior counsel, in the absence of any other evidence against A2 and particularly A3, on mere recovery of silver anklets from A2, they cannot be found guilty of the offence for which they have( charged. Even assuming that silver anklets were recovered from A2, which are commonly available in all the houses, the same cannot be a sole circumstance to implicate A2. Once the confessional statement made by A1 do not inspire confidence of this Court, A1 to A3 cannot be convicted on the sole testimony of A1, so-called confessional statement. As already discussed above, the last seen theory also cannot be pressed into service to convict them for the offence.
35. Having given our anxious consideration to the entire evidence, we come to an irresistible conclusion that the prosecution failed to bring home the guilt of the accused. Further, the alleged confession attributed to A1 by P.W. 10 as recorded by him in Ex. P17 is suspicious. In view of the same, it is not safe to base the conviction on the doubtful extra-judicial confession and the doubtful testimony of P.W. 10. Similarly, when the prosecution miserably failed to prove about A2 committing rape on deceased, as she was a member of SC community, the proviso to Section 3(2)(v) of the Act does not attract. Therefore, the accused are acquitted of all the charges.
36. In the result, criminal appeals are allowed. The convictions and sentences awarded by the lower Court against the accused for the offences under Sections 376(g), 302 r/w Section 34, 201, 379, I.P.C. are set aside and they are set at liberty forthwith, if they are not required in any other case.