Judgment :- SIVASUBRAMANIAM, J. Referred Trial No. 9 of 1989 is coming before us for confirmation of the conviction and sentence passed by the learned Second Additional Sessions Judge, Madras, under S. 366 of the Criminal Procedure Code in S.C. No. 133 of 1988. C.A. No. 782 of 1989 is the appeal by the second accused while C.A. No. 783 of 1989 is the appeal preferred by the third accused in the said case. C.A. No. 1104 of 1989 is the appeal by the State against the acquittal of A-1 and A-2 for an offence under S. 120-B read with S. 302, I.P.C. 2. The accused were tried by the learned Sessions Judge on four charges. A-1 and A-2 were charged for an offence punishable under S. 120-B read with S. 302 of the Penal Code for having conspired together to commit the murder of one Kamala Devi, wife of A-1. A-2 and A-3 were further charged for an offence under S. 302 read with S. 34 of the Penal Code for having committed the murder of the deceased Kamala Devi along with P.W. 1, the approver Boparam in furtherance of their common intention and the conspiracy hatched between A-1 and A-2 prior to 6-6-1987. The third charge is against A-2 and A-3 for an offence under S. 376 of the Penal Code for having committed rape on Kamala Devi. The learned Sessions Judge acquitted A-1 and A-2 and convicted under charge No. 1 and convicted A-3 under charge Nos. 2 and 3 and sentenced them to death under charge No. 2 and R.I. for 10 years under charge No. 3. 3. The prosecution case in brief is as follows :- The first accused Ramesh is a native of a village in Rajasthan State and the deceased Kamala Devi was his wife. She also hailed from a village in Rajasthan State and they were married about 4 1/2 years before the date of the occurrence. P.W. 2 Parasmal is the brother and P.W. 3 Shanthi Devi is the sister of the deceased Kamala Devi. P.Ws. 2 and 3 were living with their families in Madras. The second accused Suresh is the brother of the first accused and the third accused is the servant of the first accused working in his shop. P.W. 2 Parasmal is the brother and P.W. 3 Shanthi Devi is the sister of the deceased Kamala Devi. P.Ws. 2 and 3 were living with their families in Madras. The second accused Suresh is the brother of the first accused and the third accused is the servant of the first accused working in his shop. The first accused was carrying on his business under the name and style of "Ramesh Kumar, Uttamchand" in door No. 9, Kasi Chetty Street. A-2 was assisting A-1 in his business. At the time of the occurrence, A-1 was residing in the fourth floor in door No. 22, Thulasingam Street in Sowcarpet, with his Wife and child Sandeep, and his brother A-2. P.W. 1 also was working in the shop of A-1. A-3 and P.W. 3 also were residing with A-1 in his house. One Venkoba Rao, the uncle of P.W. 4 Gopinath is the owner of the house where A-1 was living. One Parasmal was residing with his family in the second floor of the house while one Champalal was residing in the third floor in one portion and one Mangilal was residing in another portion. P.W. 9 is the wife of the said Mangilal. Parasmal had gone to Rajasthan at the time of the occurrence. P.W. 5 Rajagopal was working as Watchman in the temple situated in the ground floor. P.W. 6 Noparamis the brother-in-law of P.W. 1. There were frequent quarrels between A-1 and the deceased Kamala Devi and A-1 was demanding dowry from her parents. P.W. 2 advised not to behave like this and therefore they were not on talking terms. About a month before the date of the occurrence the deceased asked for money from A-1 for purchasing Milk. A-1 refused to give money and beat her. Kamala Devi sustained a bleeding injury and therefore, she went to the house of P.W. 3. On the next day, A-1 brought her back to his house. As usual, A-1 left for Singapare on 6-6-1987 with P.W. 7. Before leaving, he asked P.W. 1 to remain in the house and sleep in the hall. On the evening of 6-6-1987, when A-1 and P.W. 7 left for Air Port, A-1 was talking with A-2 for about 15 minutes. On that night, A-1 left for Singapore. On 7-6-1987, Kamala Devi wanted to sleep in the hall as it was sultry inside her bedroom. On the evening of 6-6-1987, when A-1 and P.W. 7 left for Air Port, A-1 was talking with A-2 for about 15 minutes. On that night, A-1 left for Singapore. On 7-6-1987, Kamala Devi wanted to sleep in the hall as it was sultry inside her bedroom. Therefore, she wanted P.W. 1 to sleep in the backside room. P.W. 1 went to the terrace and slept there. On 8-6-1987, P.W. 1 was suffering from Fever and therefore, he did not go to work. When Kamala Devi was taking bath in the bath room, P.W. 1 saw her through an opening in the door. He called A-3 also and wanted him to see Kamala Devi taking bath. When she came to know about this, she scolded them. P.W. 1 and A-3 apologised for their mistake and promised not to do so thereafter. On that night, A-2 and A-3 returned to the house at about 9.30 p.m. Kamala Devi sent food through P.W. 1. When Kamala Devi was sleeping in her bedroom, P.W. 1 asked A-2 and A-3 why they were not on talking terms with her. A-2 replied saying that she was quarreling with A-1 and her mother and therefore, he was not talking with her. Since one day Kamala Devi had informed A-1 that A-2 and A-3 were in the habit of drinking liquor and therefore, A-2 told A-3 and P.W. 1 that she must be taught a lesson as she had tried to create misunderstanding between the brothers. A-2 suggested to P.W. 1 and A-3 that they could commit rape on her when she was alone and then murder her and throw her down from the upstairs. When P.W. 1 stated that if A-1 had come to know about this he would get angry. A-2 told him that it was A-1, who had asked him to murder his wife. Further, A-2 promised P.W. 1 and A-3 that he would arrange to pay Rs. 5, 000/- each after A-1 returned from Singapore. At about 11 p.m. A-2 sent A-3 to find out whether Kamala Devi was sleeping. When A-3 opened the lock in the iron gate, it created some noise and therefore he returned as Kamala Devi woke up from her sleep. She asked A-3 whether anything was required by him for which A-3 replied saying whether she required milk for her child. When A-3 opened the lock in the iron gate, it created some noise and therefore he returned as Kamala Devi woke up from her sleep. She asked A-3 whether anything was required by him for which A-3 replied saying whether she required milk for her child. When A-3 informed this incident to A-2, he has decided to wait and carry out that plan on the next day. 4. On 9-6-1987 at about 4 p.m., P.W. 1 returned from the shop and found the house was locked. He took the key from P.W. 9, purchased milk, placed the same inside the house, locked the house and left the key with P.W. 9. At that time, Kamala Devi had gone to the house of P.W. 3. At about 9 p.m., when P.W. 1 left the shop A-1 gave him Rs. 10/- and asked him to get food from a hotel. Accordingly he brought food and gave the same to Kamala Devi. Then he went to the first floor and witnessed a Video film for about 10 minutes in the house of Venkoba Rao along with P.W. 4. A little later, A-2 and A-3 returned from the shop in a scooter. A-2 and A-3 followed by P.W. 1 went to the fourth floor and the same was witnessed by P.W. 4. After taking food, Kamala Devi closed the gate and slept in the hall while P.W. 1, A-2 and A-3 were in their bedroom in the backside. A-2 was reading some sex books. M.O. 2 series. They discussed about the method by which they could reach the hall, where Kamala Devi was sleeping. A-2 suggested since Kamala Devi was likely to get up after hearing the sound of the gate, they could go to the terrace and climb down. A-3 told them that it would also create some noise and therefore, he suggested that they could go through the house of P.W. 14 Ashok, to reach the balcony. A-2 sent A-3 to find out whether Kamala Devi was sleeping or not. He found that she was sleeping in the hall and the door was kept open. They took a Chocolate colour Lungi and went to the balcony through the house of P.W. 14. P.W. 1 was wearing Green colour Lungi, M.O. 2, and A-2 was wearing a Blue colour Lungi, M.O. 3, while A-3 was wearing a dark Brown colour Lungi M.O. 4. They took a Chocolate colour Lungi and went to the balcony through the house of P.W. 14. P.W. 1 was wearing Green colour Lungi, M.O. 2, and A-2 was wearing a Blue colour Lungi, M.O. 3, while A-3 was wearing a dark Brown colour Lungi M.O. 4. A tubelight was burning in the hall and Kamala Devi was lying on a Mat, M.O. 5, and Pillow, M.O. 6. She was wearing a violet colour blouse, M.O. 7, Upper skirt, M.O. 8 and Yellow colour Thaveni, M.O. 9. Her three-year-old son, Sundeep, was lying nearby, A-2 directed A-3 to close the mouth of Kamala Devi with the Chocolate colour Lungi and A-3 did so. A-2 sat on her left thigh and beat her on the thigh. At that time, the child woke up and cried, and therefore, P.W. 1 took it. A-2 put his hand inside her blouse and when she tried to say something, A-3 closed her mouth with his hands. Kamala Devi wept. P.W. 1 was standing with the child. A-3 closed her mouth with his hand and throtled her neck with another hand. A-2 pulled her out when she wriggled out, A-2 sustained an injury as a result of Kamala Devi's nail coming into his contact. The bangles worn by her were broken. M.O. 10 series are broken bangles. P.W. 1 left the child and caught hold of her ankle and A-2 raised her inner skirt, M.O. 1. A-2 removed his Lungi and raped her for about 2 or 3 minutes. After having satisfied his desire, he asked A-3 also to rape her. A-2 closed her mouth and A-3 committed rape on her. When A-2 wanted P.W. 1 also to rape, he refused to do so. She became unconscious and A-2 warned P.W. 1 not to say anything about the occurrence to anybody. All of them brought her to the balcony and when they tried to throw her down, Kamala Devi caught hold of the balcony with her two hands. A-2 beat on her hands and so her bangles were broken. M.O. 12 series are the bangles. Again A-2 beat on her stomach and she fell down on the road in front of the Ambassadar cat MSL 6146 belonging to P.W. 8 where P.W. 8 was having a shop. A-2 beat on her hands and so her bangles were broken. M.O. 12 series are the bangles. Again A-2 beat on her stomach and she fell down on the road in front of the Ambassadar cat MSL 6146 belonging to P.W. 8 where P.W. 8 was having a shop. As M.O. 9 Thavani was in the balcony, A-3 was asked to take the same and place it on the road. P.W. 1 was keeping the child in the room. P.W. 1 A-2 and A-3 returned to their room through the open terrace. A-2 opened the gate on the ground floor and he and A-3 came down. Kamala Devi was found dead. It was about 1.00 a.m., in the morning. All of them returned to the fourth floor and decided not to disclose anything to anybody. 5. At about 3.30 a.m. on the morning of 10-6-1987, the uncle of P.W. 4 woke him and informed him that the sister-in-law of A-2 had fallen down from the upstairs and he wanted P.W. 4 to look into the matter. Thereupon P.W. 4 came to the ground floor and saw A-2 near the gate. It was pitch-dark outside and therefore he asked P.W. 5 to switch on the light. Venkoba Rao also came down and enquired as to how it had happened. A-2 informed him that he did not know how she fell down accidently. A-3 brought P.W. 2 to the scene of occurrence. P.W. 3 also came there. When P.W. 4's uncle advised A-2 to go to the Police Station and report the matter, A-2 hesitated out of fear. Therefore, P.W. 4's uncle sent P.W. 5 and one Jeethmali partner of A-1, to accompany A-2. Accordingly all of them went to C. 2 Police Station at 5.30 a.m., and reported the matter to the Sub-Inspector of Police, P.W. 3, which Was recorded by a constable. Ex. P. 43 is the report and the same was registered as Cr. No. 135/87 under S. 174 of the Criminal Procedure Code. Ex. P. 44 is the express F.I.R. P.W. 23 reached the scene of occurrence with two constables at 5.45 a.m. 6. P.W. 23 took up investigation and examined A-2. He came to know that Kamala Devi was married before four years and therefore, as per law, the case could be investigated only by an Assistant Commissioner of Police. Ex. P. 44 is the express F.I.R. P.W. 23 reached the scene of occurrence with two constables at 5.45 a.m. 6. P.W. 23 took up investigation and examined A-2. He came to know that Kamala Devi was married before four years and therefore, as per law, the case could be investigated only by an Assistant Commissioner of Police. Therefore, P.W. 23 contacted the Assistant Commissioner of Flower Bazaar Area through phone. P.W. 24, the Assistant Commissioner of Police, Flower Bazaar Area, went to C. 2 Police Station at 6.30 A. M., and perused Ex. P. 43 and 44 and took up investigation in this case. 7. P.W. 24 inspected the place Where the dead body was lying and prepared the observation mahazar, Ex. P. 10, attested by the witnesses. He prepared the rough sketch of the road, Ex. P. 46, and the fourth floor, Ex. P. 47. Ex. P. 45 is the rough sketch of the backside of the house in the upstairs. P.W. 10 Police Photographer, took photographs of the scene of occurrence from various angles. Ex. P. 13 series, Exx. D. 1 and D. 2 are the photographs taken by him. P.W. 24 recovered the bloodstained earth M.O. 15, sample earth M.O. 6 and M.O. 17 series, three letters under Ex. P. 11 attested by the same witnesses. He recovered M.O. 18 series broken bangles, M.O. 19 series three Green colour broken bangles, M.O. 20 another piece of bangle, a Cigarette bit, Chewingam, M.O. 21 bedsheet, M.O. 22 Pillow, M.O. 6 Pillow cover, M.O. 23 a bundle of Beedi, M.O. 24 Beedi, M.O. 25 nylon mat, M.O. 12 series - 6 pieces of bangles, M.O. 25 One ft. wooden flank, M.O. 26 - a piece of wood, M.O. 1 series - Two Hindi books under the mahazar, Ex. P. 12 attested by the same witnesses. A-2 also signed in the said mahazar and a copy of which was served on him. As there was lot of crowd in the road, the body was removed to the mortuary in the Government Hospital. P.W. 24 sent the requisition, Ex. P. 34 to Tondiarpet Revenue Divisional Officer with Exx. P. 43 and P. 44 to conduct inquest. After the receipt of the said requisition at 5.00 p.m., P.W. 21 Paul Alexander, the Revenue Divisional Officer could not conduct the inquest immediately on the same day. P.W. 24 sent the requisition, Ex. P. 34 to Tondiarpet Revenue Divisional Officer with Exx. P. 43 and P. 44 to conduct inquest. After the receipt of the said requisition at 5.00 p.m., P.W. 21 Paul Alexander, the Revenue Divisional Officer could not conduct the inquest immediately on the same day. He instructed P.W. 23 to bring Panchayatdars for the inquest to be held on the next day. P.W. 21 conducted the inquest at 9.50 a.m., on 11-6-1987 in the presence of A-1, A-2, P.W. 5, P.W. 14, one Ramasamy and Gandhilal Jain. Ex. P. 38 is the inquest report prepared by him. He sent the requisition. Ex. P. 39 for post-mortem7-A. A P.W. 22, the Medical Officer attached to the Government General Hospital, conducted autopsy on the dead body of Kamala Devi on 11-6-1987 at 2.45 p.m. She found as many as 46 external injuries on the dead body which are more fully described in Ex. P. 41, post-mortem certificate issued by her. As the injuries found on the dead body are not disputed by the accused, we find it unnecessary to describe the same in this judgment. P.W. 17, the Police Constable recovered M.O. 7 Jacket, M.O. 8 Upper Skirt, M.O. 9 Thavani and M.O. 27 Clip from the dead body and handed over the same to P.W. 25. 8. Meanwhile, P.W. 7, who had gone to Singapore with A-1 received information from Madras that the wife of A-1 had fallen down from the upstairs. When this information was passed on to the accused, he stated that it was possible since his wife used to sit on the balcony parapet wall. It was only after reaching the Air Port, P.W. 17 informed him that she was dead. But P.W. 7 could not find any reaction in the face of A-1. On the other hand, he was freely smoking and took leave of P.W. 7, A. 1 reached Madras at 12 in the night A-2, A-3 and P.W. 1 stayed in the house of the sister of A-1. A-1 told P.W. 1 and A-3 that he would give the money as promised and asked them not to give information about the incident. On the next day morning, P.W. 1 went to the house of P.W. 6. 9. A-1 told P.W. 1 and A-3 that he would give the money as promised and asked them not to give information about the incident. On the next day morning, P.W. 1 went to the house of P.W. 6. 9. On 12-6-1987 at 10 a.m., P.W.2 met P.W. 21 and told him that he had some suspicion about the death of Kamala Devi. He gave a copy of the report given by him to C. 2 Police Station, Ex. P. 27. P.W. 21 examined P.W. 2 and recorded his statement, Ex. P. 40, on 15-6-1987, P.W. 21 received Ex. P. 41 post-mortem certificate. He sent the same along with Ex. P. 38 P.40 to the Personal Assistant to the District Collector. On 17-6-1987, P.W. 24 received the file from the District Collector and he directed P.W. 25, the inspector of police to take up further investigation in this case. Accordingly, P.W. 25 took up investigation and altered the case to one under S. 302 of the Penal Code. He examined P.Ws. 4, 5 and 9 and recorded their statements. 10. P.W. 1 stayed in the house of P.W. 6 for six days. On 17-6-1987, he went to Mahabalipuram and met P.W. 15, the proprietor of Hotel and wanted a job from him. P.W. 15 was not in a position to give him a job but permitted him to stay with him for two or three days. On 17-7-1987, P.W. 25 arrested A-2 and A-3 and questioned them. A-2 gave a confession statement, the admissible portion of which is Ex. P. 15. He told P.W. 25 that he would produce his Lungi, the Lungi of A-2 hidden beneath his bed and three letters written by his wife which were placed in his suit case. Similarly, A-3 also gave a Abatement, the admissible portion of which is Ex. P. 14. He also voluntarily produced his Lungi and the Lungi of A-2 placed underneath the bed. Statements were recorded in the presence of P.W. 13 and another. P.W. 25 took A-2 and A-3 and the witnesses to the scene house. A. 2 took out his Lungi, M.O. 3, the Lungi of A-3, M.O. 4 and three letters, M.O. 17 series and produced the same before P.W. 25, who received the same under the mahazar, Ex. P. 18, attested by the same witnesses. P.W. 25 took A-2 and A-3 and the witnesses to the scene house. A. 2 took out his Lungi, M.O. 3, the Lungi of A-3, M.O. 4 and three letters, M.O. 17 series and produced the same before P.W. 25, who received the same under the mahazar, Ex. P. 18, attested by the same witnesses. P.W. 25 took A-2 and A-3 to the Police Station and recorded additional charge under S. 376 of the Penal Code. P.W. 1 was not available for arrest. He sent A-2 and A-3 for remand on 18-6-1987. 11. On 24-6-1987 at about 9.30 a.m., P.W. 1 returned to Madras from Mahabalipuram and went to the house of P.W. 6. He was informed by P.W. 6 that the Police was in search of him. Thereupon, he told P.W. 6 as to what had really happened. P.W. 6 advised P.W. 1 to report the matter to the Police. Both of them went to C. 2 Police Station at 10 p.m., and P.W. 1 was arrested by P.W. 25, when P.W. 25 questioned P.W. 1 in the presence of P.W. 11 and one Manakchand and Narbanchand, he narrated in Hindi what had happened and it was translated by P.W. 11 in Tamil. It was recorded by a Police Constable and the same was attested by P.W. 6, P.W. 11 and Manakchand. Ex. P. 7 is the admissible portion of the statement given by P.W. 1 in which he had stated that he would produce his Lungi if he is taken to the house of Noparam, P.W. 6. Accordingly, P.W. 25 took him to the house of P.W. 6 at 4 a.m., on 25-6-1987 wherein P.W. 1 took out M. 0. 2 from a cupboard and gave the same to P.W. 25 which was recovered under the mahazar, Ex. P. 8, attested by P.W. 11 and others. After returning to the Police Station, when P.W. 25 searched the person of P.W. 1, he recovered the pass book, Ex. P. 1, from the pocket of P.W. 1 which was recovered under the mahazar, Ex. P. 9, and attested by the same witnesses. P.W. 1 was produced before the Court with a remand report. On 25-6-1987 at 2 p.m., P.W. 25 arrested A. 1 in the corner of Kasi Chetty Street in the presence of P.W. 12 Ramlal. A-1 produced two pass books, Ex. P. 9, and attested by the same witnesses. P.W. 1 was produced before the Court with a remand report. On 25-6-1987 at 2 p.m., P.W. 25 arrested A. 1 in the corner of Kasi Chetty Street in the presence of P.W. 12 Ramlal. A-1 produced two pass books, Ex. P. 52 and P. 53, from his shop. He was sent for remand on 26-6-1987. P.W. 25 made, arrangement to send M.Os. to the Chemical Examiner. Ex. P. 22 to P. 24 are the reports received from the Chemical Examiner. 12. As per Ex. P. 19, the Fifth Metropolitan Magistrate P.W. 16 was directed to record the confessional Statement of P.W. 1. P.W. 16 directed the Jail Superintendent to produce P.W. 1 on 16-7-1987. Accordingly, P.W. 1 was produced before the Magistrate, who administered necessary warnings to P.W. 1 contemplated u/S. 164 of the Criminal Procedure Code. P.W. 1 was given 24 hours time to think over the matter. Again on 17-7-1987 at 4 p.m., when P.W. 1 was produced before P.W. 16, the latter repeated the warnings again. Thereupon P.W. 1 gave a confessional statement which was recorded in Tamil after translation. Ex. P. 3 is the statement. The Chief Metropolitan Magistrate directed the Tenth Metropolitan Magistrate P.W. 19 to conduct the proceedings for tender of pardon to the accused Boparam (P.W. 1) as per Ex. P. 29. Accordingly, P.W. 1 was produced before the learned Magistrate on 16-9-1987 and P.W. 19 read over the confession statement of P.W. 1 and P.W. 1 admitted the correctness of the said statement. The conditions for tender of pardon were explained to P.W. 1 and he had accepted the same. P.W. 1 was granted pardon as per the proceedings, Ex. P. 30. 13. On 19-6-1987, P.W. 20 Dr. K. Thankaraj examined A-2 for assessing his sexual potency. He was of the opinion that there is nothing to suggest that he is impotent. On the basis of X-ray reports, his age was determined between 18 and 20 years. Ex. P. 32 is the certificate. On the same day, he examined A-3 also for the said purpose. He was of the opinion that there is nothing to suggest that he is impotent. Ex. P. 33 is the certificate issued by him. His age was determined as 20 to 22 years. Ex. P. 35 is the certificate issued by Dr. Ex. P. 32 is the certificate. On the same day, he examined A-3 also for the said purpose. He was of the opinion that there is nothing to suggest that he is impotent. Ex. P. 33 is the certificate issued by him. His age was determined as 20 to 22 years. Ex. P. 35 is the certificate issued by Dr. K. Gururajan with regard to P.W. 1 which was proved by P.W. 20. After completing the investigation, P.W. 25 laid the charge sheet against the accused. 14. When the accused were questioned u/S. 313 of the Criminal Procedure Code on the incriminating circumstances appearing against them, they denied the occurrence. A. 1 stated as follows :- On 10-6-1987, he left Singapore for Madras by air and he was received by his partner, Jeetmal, and his relation Gandhilal. He went to their house where he was informed that A-2 was in the house and Boparam and A. 3 were in the Police Station. Later, he met them in the Police Station. On 13-6-1987, he was sent for by the police and they detained him in the Police Station from 13-6-1987 to 25-6-1987. He received letters from P.W. 1 through constables, Kadirvelu, Thangavelu, Chander and Badsha from Saidapet Sub Jail, apart from phone calls from him. P.W. 1 wrote in those letters that he was prepared to tell the truth but the Police was compelling him to give a confession statement. When P.W. 1 was in Jail, photographs were taken at the instance of the Police. A-2 stated as follows :- On 9-6-1987 at about 9-30 p.m., he came to the house and went to sleep at 10-30 p.m., along with A-3 in the backside room. P.W. 1 was writing letter and later on, he went to the open terrace for sleeping. At about 3 a.m., on the next morning, A. 3 woke him up and stated that his sister-in-law is not in the house and her whereabouts are not known. Further, A-3 told him that he searched for her as advised by Venkoba Rao and he sent P.W. 1 to search for her outside. All of them proceeded to downstairs. When A. 3 opened the gate, they found Kamala Devi, lying on the road. Venkoba Rao advised him to report to the police and therefore he gave a report to the Police. All of them proceeded to downstairs. When A. 3 opened the gate, they found Kamala Devi, lying on the road. Venkoba Rao advised him to report to the police and therefore he gave a report to the Police. Police took him and P.W. 1 and A-3 to the Police Station and questioned them and detained them till 16-6-1987 on which date they were put in the lock up. On 18-6-1987, he was sent for remand. An application for grant of anticipatory bail was filed on his behalf, on 16-6-1987 which was subsequently dismissed. A. 3 adopted the statement given by A. 2. 15. On a consideration of the entire evidence let in by the prosecution and the defence, the learned Sessions Judge came to the conclusion that the case of conspiracy has not been established and therefore, he acquitted A-1. In so far as A-2 and A-3 are concerned, he held that the prosecution has proved its case against them and therefore, they were convicted and sentenced as stated above. 16. The point to be decided by this Court is, whether the prosecution has proved its case against the accused beyond all reasonable doubt ? 17. The fact that the deceased Kamala Devi died of homicidal death is not in dispute. As a matter of fact, it was not challenged by the accused. As per the post-mortem certificate, Ex. P. 1, and the evidence of the doctor, P.W. 22, as many as 46 external injuries were found on the dead body. On examination of genitals, the doctor found Vulva normal and Bruising of tissues on right side of Vagina 2 x 1 x 1/2 cms. Bruising was reddish blue in colour. Hymen was absence and there were brusing over the anterior lip of the cervix. The doctor explained as to how each one of the injuries could have been caused. According to her, injury Nos. 27 to 33 could be caused due to struggle and injury Nos. 34 and 35 could be caused due to hit with hands or legs or knees. Injury Nos. 36 and 37 corresponding to internal injuries could be caused due to fall from a great height and the head coming into contact with the ground. She was further of opinion that bruising of tissues on the right side of Vagina could be caused when the victim offers resistance at the time of forcible sexual intercourse. Injury Nos. 36 and 37 corresponding to internal injuries could be caused due to fall from a great height and the head coming into contact with the ground. She was further of opinion that bruising of tissues on the right side of Vagina could be caused when the victim offers resistance at the time of forcible sexual intercourse. Similar bruising found on the anterior lip of left cervix could be caused under such circumstances. Having taken into consideration of the injuries mentioned in Ex. P. 41, the doctor was of the opinion that the death of the victim was instantaneous and that Asphyxia due to smothering and compression of neck and head injuries would individually and collectively cause the death of the victim. She was of the definite opinion that smothering and compression of neck could not be due to fall. During Cross-examination, she has opined that there was a very good chance of the victim being alive after she had sustained the injuries due to smothering and Compression of neck. Therefore, the prosecution has established that the death was caused by smothering and the injury sustained by the victim falling on the ground from the fourth floor. The possibility of the deceased Kamala Devi meeting with her death in any other manner was overruled since she was found sleeping shortly before the occurrence and the gate leading to the road was found locked. As far as the injuries found on the genitals, the medical opinion was positive that they must have been caused by a forcible intercourse by the assailants. Even though elaborate arguments were advanced by the learned counsel for the accused regarding the improbability of the accused committing rape on the deceased, they have not disputed the inevitable conclusion that those injuries could not have been caused by any other manner. We shall later on consider the involvement of A-2 and A-3 so far as charge for rape is concerned. Therefore, it has been established beyond any doubt that the deceased Kamala Devi was subjected to forcible intercourse by the assailants and thrown outside later on resulting in her death. The only question to be decided is, whether the prosecution has proved that A-2 and A-3 along with P.W. 1 have committed the crime. 18. Therefore, it has been established beyond any doubt that the deceased Kamala Devi was subjected to forcible intercourse by the assailants and thrown outside later on resulting in her death. The only question to be decided is, whether the prosecution has proved that A-2 and A-3 along with P.W. 1 have committed the crime. 18. At the outset, it must be stated that there are no eye witnesses to the occurrence and therefore, the entire prosecution case depends upon the evidence of the approver, P.W. 1. Mr. Rangavajjula, learned counsel appearing for A-2 and Mr. N. T. Vanamamalai, learned counsel appearing for A-3 attacked the evidence of P.W. 1 on the following grounds :- (a) The story given by P.W. 1 is inherently improbable and it is highly unnatural (b) He is not a truthful witness as the version given by him is thoroughly unnatural (c) It was impossible for A-2, A-3 and P.W. 1 to reach the balcony in the manner spoken to by P.W. 1. P.W. 1 must be the principal suspect and the confession statement given by him is not voluntary (d) His evidence has not been corroborated in any manner by other independent evidence 19. The testimony of the approver, P.W. 1, is the sheetanchor for the prosecution case. It is no doubt true that an approver is an accomplice in the crime. But undoubtedly he is, the competent witness under the Evidence Act. His participation in the crime introduces an element of doubt in his evidence and therefore, the Courts are naturally not relying on such tainted evidence unless it is corroborated in material particulars by other independent evidence. The reason for such a caution is that an accomplice is likely to give false evidence in order to shift the blame on other accused, that he being a man of bad character, his evidence is open to suspicion and that his evidence is naturally biassed in favour of the prosecution as it is given in the hope of pardon. The combined effect of Ss. The combined effect of Ss. 113(133) and 114 Illustration (b) of the Evidence Act is that though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, the Courts will not accept the evidence of such an evidence (sic) as a matter of practice without corroboration in material particulars as observed by the supreme Court in Haroom Haji v. State of Maharashtra,1999 (110) ELT 309, 1968 AIR(SC) 832, 1967 CAR 215, 1968 (74) CRLJ 1017, 1968 (2) SCR 641 : 1999 (110) ELT 309, 1968 AIR(SC) 832, 1967 CAR 215, 1968 (74) CRLJ 1017, 1968 (2) SCR 641 ). The said provision incorporates the rule of prudence because an accomplice who betrays his associates is not a fair witness and it is possible he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. Further, the Supreme Court held that it is for this reason, the Courts before they act on accomplice's evidence insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however, small each accused named by the accomplice. In this way, the Commission of the offence is confirmed by some competent evidence other than the single and unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is avoided. On this basis, the Supreme Court declared that this rule of caution or prudence has become so ingrained in the consideration of accomplice's evidence as to have almost the standing of rule of law. 20. Before going to the question of corroboration, the Court must satisfy as to the credibility of the approver and therefore, his evidence must show that he is a reliable witness. It is only after this test is satisfied by the prosecution, the question of corroboration would become relevant. If on the face of the evidence tendered by the approver his evidence is totally unreliable and does not inspire the confidence in the mind, of the Court his evidence has to be rejected at the threshold. 21. It is only after this test is satisfied by the prosecution, the question of corroboration would become relevant. If on the face of the evidence tendered by the approver his evidence is totally unreliable and does not inspire the confidence in the mind, of the Court his evidence has to be rejected at the threshold. 21. The learned Public Prosecutor relied on the decision of the Kerala High Court in State of Kerala v. Thomas Cherian 1982 CrLJ 2303 and submitted that it is open to the Court to consider the question of reliability of approver's evidence with reference also to the corroborating evidence. We will take it that such corroborating evidence can be used both for the purpose of deciding reliability of the approver's evidence and also for corroboration of the prosecution case in material particulars as the learned counsel appearing for the accused have not disputed this position. 22. Bearing the abovesaid principle, let us now consider the reliability of the evidence of the approver, P.W. 1 Mr. Rangavajjula, in his opening arguments elaborately dealt with the location and physical features of the scene of occurrence and the surrounding area. He strenuously contended that it was impossible for the accused to reach the hall where the deceased was sleeping on the fateful night through the route spoken to by P.W. 1. He referred to the rough sketches and various photographs and explained that it is almost humanly impossible for the accused to reach the balcony from the house of Ashok P.W. 14 in this case. According to P.W. 1, they first got into the terrace portion of P.W. 4's house which according to the learned counsel is possible. According to him, second and third parts of the route post in surmountable difficulty. After reaching the terrace in P.W. 14's house, they had to cross the tiled roof of the house. According to P.W. 1, they did not climb over the roof but they walked through the cornice situated on the wall of Ashok's house. It is to be noted that there is a gap of 1 1/2' between the wall of the scene building and the outer-wall of Ashok's house. The learned counsel submitted that it is impossible for anyone to walk on such a narrow cornice situated at the height of the fourth floor as it would be an hazardous task. It is to be noted that there is a gap of 1 1/2' between the wall of the scene building and the outer-wall of Ashok's house. The learned counsel submitted that it is impossible for anyone to walk on such a narrow cornice situated at the height of the fourth floor as it would be an hazardous task. Then coming to the third portion of the route, there is another roof which has not a cement cover. The end of the roof is made up a tiles as seen in the photograph, Ex. D. 19. It is the evidence of P.W. 1 that they walked through the cornice of the wall and reached the cemented portion of the roof from where they got into the balcony. It is seen from the photograph that there is a sunshade just below the balcony. Above the sunshade parapet wall of the balcony is situated. There is iron fencing over the parapet wall to prevent people from going into the balcony from the neighbouring house. P.W. 1 explained that from the cemented portion of the roof they placed their legs on the balcony and by catching hold of the iron post used for the fence, they were able to climb to the balcony. The height of the sunshade from the roof of Ashok is about 2 1/2' to 3 1/2'. It was suggested to P.W. 1 that the height is 4' to 4 1/2'. The parapet wall of the balcony is about 2 3/4' in height. According to P.W. 1, they reached the sloping roof of Ashok and from there, they placed one of their legs on the sunshade and by catching hold of the iron post in the fence of the balcony, they were able to reach the balcony. Mr. Rangavajjula, learned counsel, referred to many photographs filed on behalf of the accused and explained to us that it was humanly impossible for people like P.W. 1 and the accused to adopt such an hazardous venture. He also referred to the existence of a gap of about 1 1/2 between the scene house and the house of Ashok and therefore, they could not have taken the risk of walking on the cornice portion of the wall on the house of Ashok to reach the tiled portion of his house. Even small mistake would have landed them on the ground resulting in sure death. Even small mistake would have landed them on the ground resulting in sure death. Further, it was pointed out that similarly going from the sloping roof to the sunshade and then to balcony also is impossible. Apart from that the sunshade also projecting outside and any slip would have resulted in their falling from the fourth floor to the road outside. The learned counsel further argued that according to the earlier statement of P.W. 1, he was asked to sleep in backside room, that he slept on the terrace and therefore, he was sleeping there on the night of occurrence. Therefore, there was no necessity for him to go and sleep anywhere else. His statement before the Police and the confession statement before the learned Magistrate were referred to and it was submitted that nowhere P.W. 1 has stated above the route through which they had reached the balcony for commission of the crime and that it was only for the first time he has given these details when he was examined in Court. There was no reason why even after committing the murder, they should return to their room through the same route. It was easy for them to open the iron gate and reach their rooms without being noticed by anybody else. By returning through the same route, they took the risk of being noticed by the neighbours and others and therefore, the story of P.W. 1 is highly improbable. As far as the possibility of reaching through the routes spoken to by P.W. 1 is concerned, the learned Public Prosecutor submitted that it is not very difficult to go through the said route since he saw some boys demonstrating the possibility by going through the same route up to the balcony. He offered to demonstrate the same to the learned counsel for the accused if they have got any doubt in this regard. However, this offer was not taken advantage of by the learned counsel for the accused for certain reasons best known to them. They stated that such a demonstration should be done with the help of identical persons as P.W. 1 and the accused. Apart from that they did not take any steps to witness such a demonstration. However, this offer was not taken advantage of by the learned counsel for the accused for certain reasons best known to them. They stated that such a demonstration should be done with the help of identical persons as P.W. 1 and the accused. Apart from that they did not take any steps to witness such a demonstration. Therefore, it is unnecessary for us to go any further into this aspect and we take it that it is possible to reach the balcony in the manner alleged by the prosecution. Then the next question would be whether it is probable that they would have adopted such a method. As we have already noticed, there is convenient way to reach the room where the deceased was sleeping through the iron gate. It is in evidence that P.W. 1 and the accused used to go to the bathroom only by opening the said iron gate during nights also. The key of the lock in the gate was always available nearby. The only explanation offered by P.W. 1 was that by opening the gate, they apprehended that the noise created by the gate would disturb the sleep of the deceased. This does not appear to be a probable explanation. As they have been always going to the bathroom through the gate, it would not have created any doubt in the mind of the deceased as she was used to such noise. The story of P.W. 1 that they returned in the same route, throws considerable doubt in the evidence22. When we consider the background of the circumstances in which the deceased was mercylessly killed, we find that the story of P.W. 1 appears to be highly improbable and unnatural. It is seen from the evidence that the deceased Kamala Devi belonged to a poor family, that A. 1 married her knowing fully about her status and that therefore, the possibility of his demanding for payment of dowry and jewells appears to be remote. P.W. 1 has stated that there used to be frequent quarrels between A. 1 and the deceased and a month before the occurrence. A. 1 beat her causing a bleeding injury and therefore, she went to the house of P.W. 3. Even though the prosecution has examined P.Ws. P.W. 1 has stated that there used to be frequent quarrels between A. 1 and the deceased and a month before the occurrence. A. 1 beat her causing a bleeding injury and therefore, she went to the house of P.W. 3. Even though the prosecution has examined P.Ws. 2 and 3 to prove that the feelings between the husband and the wife were strained, the learned Sessions Judge himself has elaborately considered their evidence and found that it was not acceptable. The learned Sessions Judge has further found that the alleged conspiracy to murder the deceased Kamala Devi has not been proved and that it is highly improbable that A. 1would have asked his own brother to murder his wife. In view of this positive findings, it is not necessary for us refer to the volume of evidence let in this regard. It was only on the said finding the learned Sessions Judge has acquitted A. 1 in this case. 23. The evidence shows that the deceased Kamala Devi had delivered a prematured child which subsequently died only about 30 days before the date of occurrence. There is absolutely no material to come to the conclusion that there was such a incompatibility between the husband and wife which would have made A. 1 to do away with the life of his wife The prosecution has not let in any evidence to prove that the brothers, A. 1 and A. 2, had conspired to kill the deceased, excepting the solitary incident in which A. 1 is alleged to have conversed With his brother, A. 2, for about 15 minutes before A. 1 leaving for Singapore. What transpired between them is not known to anyone else. P.W. 1 had no personal knowledge. But on the other hand according to him, he was informed by A. 2 about the said conspiracy. From this material, it is impossible for any Court to draw any inference that the accused had entered into such a conspiracy. 24. The main foundation for the prosecution case is the alleged conspiracy between A. 1 and A. 2 in pursuance of which alone, A. 2 and A. 3 along with P.W. 1 decided to kill the deceased. When the evidence is viewed from this angle, we find that the participation of A. 2 in the crime becomes highly doubtful. 24. The main foundation for the prosecution case is the alleged conspiracy between A. 1 and A. 2 in pursuance of which alone, A. 2 and A. 3 along with P.W. 1 decided to kill the deceased. When the evidence is viewed from this angle, we find that the participation of A. 2 in the crime becomes highly doubtful. It is in evidence that A. 2 was married only about seven months before the date of the occurrence and he was getting letters from his wife pouring forth her love towards him. Some of the letters have been exhibited in this case as Ex. P. 17 series. Even if there was some reason for A. 2 to end the life of the deceased with a view to secure peaceful life his brother, A. 1, certainly he would not have resorted to the most inhuman method of committing rape on his own brother's wife that too, along with two of his servants. 25. The prosecution has let in evidence to show that A. 2 and A. 3 were in the habit of reading sexbooks in Hindu which have been marked as M.O. 1 series which were recovered by P.W. 24 under Ex. P. 2. P.W. 1 says that he has also read those books. Apart from that, P.W. 1 has stated that on 8-6-1987, P.W. 1 and A. 3 saw the deceased taking both in the bathroom through a hole. From these circumstances, the prosecution expects the Court to draw an inference that they were sex-starved men and therefore, it was probable that they would have raped the deceased on that day. 26. There is another aspect which also throws considerable doubt in the prosecution version regarding rape. Though all the three decided to have forcible sexual intercourse with the deceased Kamala Devi, P.W. 1 refrained from doing so at the last minute due to fear. According to him, A. 2 removed his lungi and had intercourse with the deceased for two or three minutes and fully satisfied his sexual desire. It was thereafter he wanted A. 3 also to have intercourse with her. After finishing the sexual act, A. 3 wanted P.W. 1 also to have his turn and at that time the deceased was in a semiconscious state. It was the reason why P.W. 1 did not attempt to have intercourse with her. It was thereafter he wanted A. 3 also to have intercourse with her. After finishing the sexual act, A. 3 wanted P.W. 1 also to have his turn and at that time the deceased was in a semiconscious state. It was the reason why P.W. 1 did not attempt to have intercourse with her. At this stage, A. 2 is alleged to have stated that even though P.W. 1 has not committed rape, he should not reveal this affair to anyone else. This version of P.W. 1 shows that A. 2 and A. 3 had full intercourse before the deceased was thrown out after causing injuries on her. If that is so, the medical evidence must support such a possibility. We have already noticed supra that the prosecution has established that the deceased was raped before she was murdered. As the doctor found bruises on her genitals which according to him could not have been caused in any other manner. Therefore, the possibility of A. 2 and A. 3 committing the rape will have to be considered at this stage. The learned counsel for the accused submitted that the medical evidence does not support the theory of rape by the accused as no symptoms were found on A. 2 and A. 3. They referred to the medical certificates, Ex. P. 31, P. 33 and P. 35 in respect of A. 2, A. 3 and P.W. 1 respectively and contended that the doctor did not find any symptoms of recent forcible intercourse. Further, even though the Lungis worn by them were seized none of them contained any seminal stains. The cloth of P.W. 1 alone was found bloodstained. They also pointed out that no spermatozoa was found in the genitals and therefore, the theory of rape has to be negatived. In reply to this contention, the learned Public Prosecutor submitted relying on a passage from the Book on the Essentials of Forensic Medicine and Toxicology written by Dr. K. S. Narayan Reddy that the motility of sperms will be present only till 24 hours from that time of intercourse and therefore, the absence of sperms in this case cannot be a ground to negative the case of rape. According to the learned author, the sperms are found in the vagina only up to 24 hours and spermatozoa may be found for three to five days in the uterine cavity. According to the learned author, the sperms are found in the vagina only up to 24 hours and spermatozoa may be found for three to five days in the uterine cavity. We find that the said observations relate to a living person and we do not know whether the said principle would apply in a case of dead body. Mr. N. T. Vanamalai, submitted that such a opinion of an author of Medical Jurisprudence cannot be used in Court without putting the said opinion to the Medical Expert examined in this case when he was examined in Court relying on the decision of the Supreme Court in Kusa v. State of Orissa, 1980 (86) CRLJ 408, 1980 AIR(SC) 559, 1980 CAR 66, 1980 (86) CRLJ 200, 1980 CrLR(SC) 200, 1980 (2) SCC 207 , 1980 SCC(Cr) 389, 1980 (2) SCR 801 : 1980 (86) CRLJ 408, 1980 AIR(SC) 559, 1980 CAR 66, 1980 (86) CRLJ 200, 1980 CrLR(SC) 200, 1980 (2) SCC 207 , 1980 SCC(Cr) 389, 1980 (2) SCR 801 ). Further, he pointed out that even according to this said author, the creating phosphokinase test is a very reliable and sure test in respect of seminal stains but the same has not been done in this case. Whatsoever it is, we find that there is no corroborative evidence as far as A. 2 and A. 3 are concerned relating to the charge of rape. Considering the oral evidence of P.W. 1 and medical evidence, we find that it is highly improbable that A. 2 and A. 3 could have raped the victim in the manner alleged by the prosecution. In the absence of seminal fluid in the vagina and any symptoms of intercourse on A. 2 and A. 3, we find it difficult to come to a conclusion that A. 2 and A. 3 have committed rape in the manner alleged by the prosecution. At any rate, the prosecution has not established its case beyond all reasonable doubt in so far as this aspect of the matter is concerned. 27. Let us now consider the subsequent conduct of P.W. 1. After the deceased was thrown out in the street, he along with A. 2 and A. 3 came down and saw to deceased lying in front of an Ambassador car. They told the neighbours that she had fallen down accidentally. 27. Let us now consider the subsequent conduct of P.W. 1. After the deceased was thrown out in the street, he along with A. 2 and A. 3 came down and saw to deceased lying in front of an Ambassador car. They told the neighbours that she had fallen down accidentally. They went to the house of one Kamala Devi, the sister of A. 2, and gave to same information to her. According to him, A. 1 returned on the subsequent night from Singapore. He said to P.W. 1 that he would pay the amount as promised and wanted P.W. 1 not to reveal the affairs to anyone else. However, no amount was paid to him. This aspect also throws some doubt in the evidence of P.W. 1 as normally he would not have absconded from his house without receiving some money from him. He went to the house of his brother-in-law, P.W. 6, on the next day and stayed there for six days. During his cross-examination, it was brought out that P.W. 6 was working as a cook in the house of a Sait. Four other servants were also staying with P.W. 6. Even though he stayed there for six days, he was not able to give the names of the person under whom P.W. 6 was working and he was not aware of the names of any members of his family. He was not able to mention the names of any of the four servants who were staying with him for six days. Even though he was roaming throughout the day and staying in the house of P.W. 6 during nights, he did not know whether there was any newspaper publication about the murder of the deceased. He is also not able to give the address of the house where he was staying with P.W. 6. He did not disclose anything about the murder either to his brother-in-law, P.W. 6 or to any of his co-workers. Even though he did not expect that Police would arrest him, he left the place after six days And went to Mahabalipuram. He approached one Jailsingh, P.W. 15, who was known to him and requested him to give a job. He stayed with him for seven days. He returned to Madras on 24-6-1987. He has given a curious reason for returning to Madras. He approached one Jailsingh, P.W. 15, who was known to him and requested him to give a job. He stayed with him for seven days. He returned to Madras on 24-6-1987. He has given a curious reason for returning to Madras. According to him, he accidentally saw his photo in a Tamil Newspaper in the adjacent shop but he did not purchase a paper to find out whether he was implicated as an accused in the case. He saw the photograph when the adjacent shop owner was reading the newspaper. However, the shop owner did not recognise him as the person whose photograph had appeared in the paper. P.W. 1 saw his photo alone in the paper and he did not see the photographs of the other accused. The newspaper has been marked as Ex. P. 5. We find that the photograph of the deceased Kamala Devi also is published along with the photo of P.W. 1. If really he had seen the newspaper only on 26-4-1987, he would not have omitted to find out the contents of the newspaper report as it was a matter of life and death for him. According to the newspaper report, P.W. 1 was arrested on the previous day itself viz., 23-6-1987. The Police did not issue any statement denying the said news items at any point of time. On this basis, the defence counsel contended that he was in Police Custody from 10-6-1987 till he was produced before the Court on 25-6-1987. After having come to know that he was involved in the murder case, it is not known why he again went back to Madras where the chances of his arrest were more. According to him, he went to Madras on 24-6-1987 in a bus. The bus ticket has been marked as Ex. P. 1. He met P.W. 6 in Madras and came to know from him that A. 2 and A. 3 were arrested already. It is curious that till he was arrested by the Police, he did not make any attempt to contact anyone of the accused. He must have been very anxious to save himself and therefore, he would not have omitted to get necessary support and money from A. 1, who had already promised to pay substantial money. On the other hand, he went straight to P.W. 6 and disclosed the entire facts to him. He must have been very anxious to save himself and therefore, he would not have omitted to get necessary support and money from A. 1, who had already promised to pay substantial money. On the other hand, he went straight to P.W. 6 and disclosed the entire facts to him. How suddenly he changed his mind and decided to come forward with the truth is not known. On the advice of P.W. 6, he went to the Elephant Gate Police Station and surrendered before the Inspector of Police. He is alleged to have confessed the whole thing to the Police in the presence of P.W. 11 and another. The prosecution examined P.W. 15 to corroborate the evidence of P.W. 1 regarding his stay at Mahabalipuram from 17-6-1987 to 24-6-1987. According to P.W. 15, he was running a hotel by name "Mahasahar" in partnership with others. However, it was elicited from him that there is no licence for running the hotel from Mahabalipuram Township. However, he has stated that he did not know where P.W. 1 was working in Madras and why he left the job. This evidence also does not inspire confidence28. There is another aspect appearing in this case which throws considerable doubt in the prosecution case. P.W. 24 investigated the case from 10-6-1987 to 17-6-1987 and finally he came to the conclusion that it was not a case of dowry death and therefore, P.W. 25 took up further investigation. During the said period, there was absolutely no suspicion against the accused and P.W. 1 in spite of the fact that several objects were recovered from the scene of occurrence like Cigarette bits etc., A. 2 and A. 3 were arrested in 17-6-1987 and it is not known on what basis they were arrested. The obvious reason appears to be that on 16-6-1987, anticipatory bail was filed on behalf of A. 2 and A. 3 which was adjourned to 17-6-1987. It was only thereafter they were Arrested on 17-6-1987. It was suggested on behalf of the accused that A. 2, A. 3, and P.W. 1 were in Police Custody till then. It appears from thin evidence that the post mortem certificate was received on 17-6-1987 and on that basis the learned Public Prosecutor submitted that the Investigating Officer had no reason to suspect the accused before that date. It was suggested on behalf of the accused that A. 2, A. 3, and P.W. 1 were in Police Custody till then. It appears from thin evidence that the post mortem certificate was received on 17-6-1987 and on that basis the learned Public Prosecutor submitted that the Investigating Officer had no reason to suspect the accused before that date. We are unable to accept the said explanation since several symptoms were found by the Investigating Officer in the scene of occurrence at the earliest point of time indicating the presence of assailants and violence against the deceased. No attempt was made to take any clue from these signs of crime and the investigation remained dormant till 17-6-1987. When the evidence disclosed that A. 2 A. 3 and P.W. 1 were alone last seen with the deceased, the Investigating Officer did not try to find out their involvement in the crime. By the time of P.W. 1 was arrested on 24-6-1987, considerable time was lost. 29. From the evidence of P.W. 1, it is seen that the very idea of rape was entertained by them only after watching the naked body of the deceased when she was taking bath in the bathroom. According to him, they saw her through a hole in the bathroom door. A point was raised on behalf of the accused that bathroom door did not contain any such hole and therefore, the whole story on that aspect should be rejected as false. When P.W. 25 was cross examined on this aspect he has admitted that he has not prepared any observation mahazar showing the presence of a hole in the door. When P.W. 25 came to know about this aspect of the case, we do not know why the door was not recovered under a Mahazar. 30. We have already noticed that the entire prosecution case rests on the evidence of P.W. 1, the approver, and therefore, his evidence must inspire confidence in the mind of the Court. Courts have held that a confessional statement of an approver can be relied on only when it is inculpatory in nature and when there is an attempt to exclude his part in the crime, his evidence becomes doubtful. Courts have held that a confessional statement of an approver can be relied on only when it is inculpatory in nature and when there is an attempt to exclude his part in the crime, his evidence becomes doubtful. When we consider the evidence of P.W. 1 we find that he wants to make it appear that he was an unwilling participant in the crime and that he was not a party to rape. It is no doubt true that it is open to the Court to rely on the inculpatory portion of the confession and exclude the other portion. The said question depends upon the facts of each case. 31. Mr. N. T. Vanamamalai, pointed out various circumstances to show that P.W. 1 is the prime suspect in the case. He submitted that even according to P.W. 1 he is an unmarried man and he had seen the naked body of the deceased through the hole in the bathroom door along with A. 3 A. 1 and the deceased had confidence in him. P.W. 1 has stated in his statement u/S. 164 Criminal Procedure Code that he was asked to sleep in the terrace on 7-6-1987 as the deceased wanted to sleep in the hall. In Ex. P. 43, A. 2 has stated that P.W. 1 slept in the terrace on 9-6-1987. Therefore, it was possible according to the learned counsel that P.W. 1 could have got in to the balcony from the terrace without any difficulty. It was also pointed out that the Lungi M.O. 2 worn by him contained blood-stains. According to P.W. 1, he was absconding till 24-6-1987. From these circumstances, the learned counsel pointed out that P.W. 1 alone had the opportunity to commit rape on the deceased. However, we find that it is unnecessary to consider the said aspect of the matter since it is not the prosecution case that P.W. 1 alone has committed the crime. 32. On a careful consideration of the above materials available in the prosecution case, we find that P.W. 1's evidence is not a reliable one, as there are several inherent improbabilities in his version. Therefore, the question of corroboration of his evidence may not be of any significance. However, for the sake of completeness, we propose to deal with that aspect also hereunder. 33. Therefore, the question of corroboration of his evidence may not be of any significance. However, for the sake of completeness, we propose to deal with that aspect also hereunder. 33. The law regarding corroboration of the evidence of an approver has been well settled and therefore, it is unnecessary to refer to various decisions on this aspect. The corroboration required is of two kinds. The first relating to the area of reassurance of the credit of the approver himself as a trustworthy witness, after the Court is satisfied about the trustworthiness of the approver. The second kind of corroboration is the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused persons in the crime. In Dagdu v. State of Maharashtra 1977 AIR(SC) 1579, 1977 CAR 241, 1977 (83) CrLJ 1206, 1977 CrLR(SC) 261, 1977 (3) SCC 68 , 1977 SCC(Cr) 421, 1977 (3) SCR 636 : 1977 AIR(SC) 1579, 1977 CAR 241, 1977 (83) CrLJ 1206, 1977 CrLR(SC) 261, 1977 (3) SCC 68 , 1977 SCC(Cr) 421, 1977 (3) SCR 63), the Supreme Court held that "though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tendering to incriminate the particular accused in the commission of the crime". The Supreme Court has given a note of caution stating that "it is hazardous as a matter of prudence, to proceed upon the evidence of a self-confessed criminal who in so far as an approver is concerned, has to testify in terms of the pardon tendered to him and that the risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. However, the Supreme Court further explained the theory and stated that it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it. The earlier case on this aspect of the Supreme Court in Rameshwar v. The State of Rajasthan 1952 Mad WN (Cri) 26 : 1952 CrLJ 547 ) was relied upon for this purpose. Therefore, the usual test with respect to the appreciation of the approver's evidence is reliability and corroboration in material particulars. It is not necessary that the corroboration should cover whole of the prosecution case. Further, there is no necessity that it should cover all the material particulars if the prosecution cases Bearing the principles in mind, let us now consider the corroborative evidence available in this case. 34. Learned Public Prosecutor relied on the following piece of evidence as corroborative evidence. (a) According to P.W. 1 sometime before the occurrence we went to the house of one Venkoba Rao situate in the first floor and witnessed a Video film and then 10 minutes later, A. 2 and A. 3 came to the house in a scooter and went to upstairs followed by him. P.W. 4 was to speak this part of the version (b) Ex. P. 43 is the complaint given by A. 2 wherein it has been stated that A. 2 and A. 3 returned to the house at 9 p.m., and slept in the house (c) P.W. 1 has stated that after taking food, A. 2 was reading some text books which is corroborated by the recovery of M.O. 1 series from the room under the house search list, Ex. P. 12, attested by A. 2 himself and P.W. 8 (d) P.W. 1 in his evidence stated that before the commission of the crime, they discussed about the route to reach the balcony and this is corroborated by the evidence of P.W. 14 who has stated that it is possible to go to the terrace through the said route. Exs. P. 12, attested by A. 2 himself and P.W. 8 (d) P.W. 1 in his evidence stated that before the commission of the crime, they discussed about the route to reach the balcony and this is corroborated by the evidence of P.W. 14 who has stated that it is possible to go to the terrace through the said route. Exs. D. 7, D. 19 and D. 20 are the photographs showing the physical features of the house. (e) According to P.W. 1, he was wearing Lungi, M.O. 2, A. 2 was wearing M.O. 3 Lungi and A. 3 wearing the Lungi M.O. 4. M.Os. 3 and 4 were recovered on 17-6-1987 when A. 2 and A. 3 were arrested under Ex. P. 18 in pursuance of their confession. M.O. 2 was recovered from P.W. 1 on 25-6-1987 under Ex. P. 8 we find that none of the above said circumstances could be taken as corroboration of P.W. 1's evidence regarding the commission of the crime. At the most it can be inferred that they were seen in the house together sometime before the commission of crime. However, the possibility of some other person entering into the house has not been overruled35. Learned Public Prosecutor further referred to the injuries found on the deceased and correlated the same to the overacts attributed to each one of the assailants as spoken to by P.W. 1. Reliance was placed on the recovery of material objects like glass bangles etc., as a piece of corroboration. We find it unnecessary to refer to each of the injuries in this regard. The presence of certain injuries on the deceased as spoken to by P.W. 1 may be relevant for the purpose of proving the crime but not the criminal. The medical evidence cannot be treated as corroborative evidence against each of the accused because the injuries could have been caused by anybody else. The corroboration required must relate to the particular accused involved in this case and not with regard to the murder of the deceased. Therefore, they cannot be taken as a corroborative piece of evidence to strengthen the evidence of the approver, P.W. 1. It is significant to note that post-mortem was over when P.W. 1 was examined and, therefore, it is not difficult for him to speak about the various injuries found on the body of the deceased. Therefore, they cannot be taken as a corroborative piece of evidence to strengthen the evidence of the approver, P.W. 1. It is significant to note that post-mortem was over when P.W. 1 was examined and, therefore, it is not difficult for him to speak about the various injuries found on the body of the deceased. It is also relevant to note that no semen was found in any of the Lungis recovered. 36. On a careful consideration of the entire evidence of P.W. 1 and other evidence adduced by the prosecution, we find there is absolutely no corroborative evidence in the real sense of the term to probabilise the evidence of the interested testimony of P.W. 1. The entire circumstances relied on by the prosecution would only go to show that the said three persons were present in the house at about 9 or 10 p.m., on that day. We have already noticed that the key of the iron gate leading to the hall where the deceased was sleeping was available in the gate itself. Therefore, the possibility of someone else entering into the hall cannot be overruled. Apart from that, there is no other evidence to corroborate the testimony of P.W. 1 regarding the parts played by A. 2 and A. 3 in the commission of rape and murder. Therefore, we find it highly unsafe to rely on the interested and biassed evidence of the approver, P.W. 1 and send the accused to gallows. 37. It is yet another case in which the real assailants, who have committed a dastardly and brutal crime go unpunished for want of acceptable evidence. We are really pained to note that the prosecution was not able to bring home the guilt of the persons really involved in this crime. Even though there is a lurking doubt in our mind as to the involvement of one or more of the accused in this crime, they cannot be punished on such a doubt, however strong it might be. The evidence of P.W. 1 on whose testimony alone the entire case rests does not inspire confidence in our mind. Following the high traditions of criminal jurisprudence in our country, we are not inclined to send the accused to gallows on mere suspicion, and on the evidence of the approver whose evidence stands uncorroborated. The evidence of P.W. 1 on whose testimony alone the entire case rests does not inspire confidence in our mind. Following the high traditions of criminal jurisprudence in our country, we are not inclined to send the accused to gallows on mere suspicion, and on the evidence of the approver whose evidence stands uncorroborated. Therefore, we have to come to the inevitable conclusion that the prosecution has not proved its case against the accused beyond all reasonable doubts and, therefore, the appellants are entitled to the benefit of such a doubt and consequently they are entitled to be acquitted. We are not able to agree with the reasonings of the learned Sessions Judge for convicting the accused. 38. As far as the appeal in C.A. No. 1104 of 1989 preferred by the Stage against the accused challenging their acquittal is concerned, since we have already come to the conclusion that the evidence of P.W. 1 is unreliable and that his evidence has not been corroborated on material particulars, we do not find any grounds to interfere with the findings of the learned Sessions Judge in this regard. We have also found that practically there is no evidence regarding the so called criminal conspiracy. Therefore, there are no merits in this appeal and the same is liable to be dismissed. 39. In the result, C.A. Nos. 782 and 783 of 1989 are allowed, the conviction and sentence passed against the accused are set aside and they are acquitted of all the charges. The reference made by the learned Sessions Judge in R.T. No. 9 of 1989 is answered accordingly. C.A. No. 1104 of 1989 preferred by the State is dismissed.