Judgment : MARUTHAMUTHU, J. ( 1 ) BOTH the appeals arise from the judgment of the Sessions Judge, Tiruchirapalli in Sessions Case No. 194 of 1984 dated 31/10/1985. The appellants 1 and 2 in C. A. No. 959 of 1985 are respectively accused 1 and 4 and the appellant in C. A. No. 853 of 1986 is the second accused in Sessions Case No. 194 of 1984 in which the third accused was acquitted. One juvenile by name Arjunan was accused in Sessions Case No. 16 of 1985 which was connected with Sessions Case No. 1974 of 1984. Both the cases related to one and the same occurrence. The juvenile was acquitted. We may refer to the appellants as accused as arrayed before the Sessions Court for the sake of convenience. (ii) The first charge against all the four accused is/under section 396, I. P. C. on the allegation that on 15/7/1984 at about 10. 30 a. m. in the land of Murudha Padayachi, about one kilometer west of Musiri, all the four accused alongwith the juvenile accused Arjunan while conjointly committing dacoity committed the murder of one Sellammal and removed the gold studs from her ears. (iii) The second charge is under section 397 I. P. C. on the allegation that all the four accused and the juvenile accused mentioned above caused grievous hurt or attempted to cause death of Sellammal at the time of committing the dacoity. All the four accused in Sessions Case No. 194 of 1984 and the juvenile accused in Sessions Case No. 16 of 1985 pleaded not guilty to the charges. Both the sets of accused persons were tried by the Sessions Judge separately, though the occurrence was one and the same, for the reason that the accused in Sessions Case No. 16 of 1985 happened to be a juvenile. After trial, the Sessions Judge acquitted the third accused in Sessions Case No. 194 of 1984 and the juvenile in Sessions Case No. 16 of 1985. Accused 1,2 and 4 were found guilty of the charges under section 396, I. P. C. and the trial Judge convicted and sentenced each of them to undergo imprisonment for life. The fourth accused was and guilty for an offence under section 397, I. P. C. also. But no separate sentence was imposed thereunder. Accused 1,2 and 4 were found guilty of the charges under section 396, I. P. C. and the trial Judge convicted and sentenced each of them to undergo imprisonment for life. The fourth accused was and guilty for an offence under section 397, I. P. C. also. But no separate sentence was imposed thereunder. Of the accused 1,2 and 4 who remain convicted as such by the Sessions Judge accused 1 and 4 have preferred Criminal Appeal No. 959 of 1985 while the second accused has preferred Criminal Appeal No. 853 of 1986. Both the appeals are disposed of by a common judgment. ( 2 ) THE prosecution case in brief is this: (i) Periyasami Pillai (P. W. 1) and Sarasu (P. W. 3) are respectively the nephew and daughter-in-Jaw of the deceased Sellammal. They were all residing in West Street, Musiri. The deceased Sellammal used to go to the lands and cut and gather grass in the morning and return home by 12. 00 noon. On 15. 7. 1984 morning, she left her house on her routine. At about 4. 00 p. m. on that day (Sunday) one Parvathi Ammal, wife of one Alagan Chettiar and Vaiyapuri (P. W. 2) who was being employed by them to -irrigate their lands, proceeded to their lands which lies in the west of Musiri town. When they reached their lands, they saw an old woman lying there. They identified her as Sellammal of Andalpur Anr. Both the legs of the deceased were being tied with a torn gunny bag and the lobes of her ears being out. One end of her saree was being tied around the neck tight. P. W. 2 returned and reported the incident to P. W. 1 and P. W. 3 relatives of the deceased. P. W. 1 and P. W. 3 rushed to the land of Alagan Chettiar with a cot to take the deceased to their house. P. Ws. 1, 3 and others lifted the deceased from the paddy field of Alagan Chettiar and placed her in the plantain garden nearby. The saree which was tied squeezing her neck was removed. There were three cut injuries on the left side of her neck. The deceased appeared to slightly gasp through her mouth. P. Ws. 1 and 3 who felt that the deceased was still alive, took the deceased to the Government Hospital, Musiri. Dr. The saree which was tied squeezing her neck was removed. There were three cut injuries on the left side of her neck. The deceased appeared to slightly gasp through her mouth. P. Ws. 1 and 3 who felt that the deceased was still alive, took the deceased to the Government Hospital, Musiri. Dr. Parvathi (P. W. 12) examined the deceased who was in a critical condition at 4. 45 p. m. and found on her the following injuries: (1) Both earlobes were irregularly torn (2) An incised wound transversely placed 3 cms. x 1 cms. x 1 cm. over the left of both triangle of neck. (3) An incised wound transversely placed 4 cm. x 2cm. x 2cm. over the left side of neck just below first one. (4) 2 or 3 abrasions in between wound No. 2 and 3 were present. (5) The neck was swollen and oedematous in the anterior aspect of neck from right left portion triangle region to right portion triangle. (6) The lower jaw portion was also swollen oedematous and black in colour. The deceased was referred to the Headquarters Government Hospital, Tiruchirapalli for treatment. Ex. P. 18 is the Accident Register extract issued by P. W. 12. (ii) P. W. 12 sent an intimation (Ex. P. 28) to the police station, Musiri. Natarajan, Sub Inspector of Police (P. W. 16) proceeded to the Government Hospital at 5. 45 p. m. and found the deceased with injuries and in an unconscious state unable to make a statement. Therefore, P. W. 16 got a statement (Ex. P. 1) from P. W. 1 who was present there. He recovered a blood stained blue saree (M. O. 2) from the deceased under a mahazar (Ex. P. 3) in the present of one Velusamy (P. W. 7) and another. He got back to the police station and registered a case in Crime No. 203 of 1984 under section 394, I. P. C. at 6. 00 p. m. on Ex. P. 1 and prepared printed First Information Report (EX. P. 26) and sent Ex. P. 1 and Ex. P. 26 to the Judicial Second Class Magistrate, Musiri and copies thereof to his higher officials. The deceased breathed her last at about 9. 00 p. m. on the way when she was taken from Musiri to Tiruchirapalli Government Hospital. Therefore, the deceased was taken back to her house itself at Musiri. P. 1 and Ex. P. 26 to the Judicial Second Class Magistrate, Musiri and copies thereof to his higher officials. The deceased breathed her last at about 9. 00 p. m. on the way when she was taken from Musiri to Tiruchirapalli Government Hospital. Therefore, the deceased was taken back to her house itself at Musiri. P. W. 1 went to the police station, Musiri and informed of the death of the deceased by giving a statement (Ex. P. 2) to P. W. 16. Thereupon, P. W. 16 altered the section of the offence to sections 302 and 379, I. P. C. and sent express report (Ex. P. 27) to the Magistrate. (iii) In the meanwhile, at about 9. 30 a. m. prior to the occurrence, Ganesan (P. W. 5) who was residing in Pudhu Kallar Street, Musiri and who went to the plantain garden of Marudha Padavachi which is situate on the west of Kamatchi Amman Temple had seen the deceased lying in the plantain garden, the first accused tying one end of saree around the neck of the deceased, the 4th accused having a karukku aruval in his hand and sitting near the deceased, the second accused tying the legs of the deceased and then all of them lifting the deceased from the plantain garden and dropping her in the paddy field. Two other persons were also seen by P. W. 5 to be in the company of the accused 1, 2 and 4. P. W. 5 questioned the accused 1,2 and4 and two others who were trying to run away from the place as to why they should do so. Those persons made a threat that P. W. 5 should not divulge the incident to anybody, otherwise, he would also meet the same fate. Then P. W. 5 went to the town and informed one Ramalingam, a relation of the deceased within about 45 minutes after the occurrence as to what happened to the decreed. Thangavel (P. W. 6) residing in Malaiyapuram saw the accused 1 to 4 and the juvenile accused Arjunan to remain near the Kamatchi Amman temple at about 10. 15 a. m. when he was proceeding to Cauvery river to take bath. He found all those five persons to be not available at that place at 11. 00 a. m. when he returned from the river. 15 a. m. when he was proceeding to Cauvery river to take bath. He found all those five persons to be not available at that place at 11. 00 a. m. when he returned from the river. He came to know of the death of the deceased at 6. 00 p. m. on the same day. (iv) Lakshmanan, Inspector of Police (P. W. 17) took up investigation of the case and inspected the scene of occurrence, at 6. 45 p. m. in the presence of Dandapani and others and prepared observation mahazar (Ex. P. 4 ). He drew a rough sketch or the scene (Ex. P. 29 ). He seized the grass (M. O. 3 series, which was found spilled near the scene under a mahazar (Ex. P. 5 ). He conducted inquest on the dead body of the deceased between 11. 30 p. m. (15. 7. 1984) and 3. 00 a. m. (16. 7. 1984) prepared inquest report (Ex. P. 30) and examined P. Ws. 1 to 3 and some others. He gave a requisition (Ex. P. 16) to Government Hospital, Musiri to conduct autopsy and entrusted the dead body with police constable Thangaraj (P. W. 14 ). Dr. Parvathi (P. W. 12) who already examined tile deceased soon after she was brought from the scene of occurrence, conducted autopsy at about 9. 00 a. m. on 16. 7. 1984 and she found the following symptoms and injuries :-Symptoms: rigor mortis was present in all four limbs. The dead body of the female lay on back with arms close to sides. Eyes were found closed. Tongue was within the mouth. Jaw was found clenched. No discharge was noticed from eyes and nostrils. External injuries:1. Both ear lobes were irregularly torn. 2. An incised wound was transversely placed 3 cm. x 1 cm. x 1 cm. over the left portion triangle neck. 3. An incised wound was transversely placed 4 cm. x 2 cm. x 2 cm. over the left side of neck just below first one. 4. 2 or 3 abrasions in between wounds Nos. 2 and 3 were present. 5. The ligature mark encircling the neck horizontally was dry. It was parchment like. 6. The neck was swollen oedematous and blackish in colour from the right portion of triangle of neck to left portion of triangle of neck. Internal Examination: there was no fracture in ribs. 2 or 3 abrasions in between wounds Nos. 2 and 3 were present. 5. The ligature mark encircling the neck horizontally was dry. It was parchment like. 6. The neck was swollen oedematous and blackish in colour from the right portion of triangle of neck to left portion of triangle of neck. Internal Examination: there was no fracture in ribs. Heart 250 gms. Lungs-right 450 gms. left 400 gms. section of both was congested. In the neck, there was extravasation of blood. In the subcutaneous tissues under the neck, blood collection under the muscle of neck was present. The larynx and trachea were congested. There was fracture of left connection of hyoid bone. Stomach contained 25 ml. of digested liquid. P. W. 12 opined that the deceased might have died of asphyxia and shock due to strangulation between 10 to 12 hours prior to postmortem. She also opined that the injuries Noos. I to 3 found on the neck, might have been caused by a karukku aruval like M. O. 7. Ex. P. 17 is the postmortem certificate issued by P. W. 12. P. W. 14 seized the saree (M. O. 9) from the dead body after the postmortem and handed it over at the police station and delivered the dead body to the relations of the deceased. (v) P. W. 17 came to know from the examination of witnesses during investigation that all the four accused and the juvenile accused had complicity in the crime. But, they were not available for arrest. On 20/7/1984 at about 7. 00 p. m. P. W. 17 arrested the juvenile accused Arjunan underneath the bridge of Musiri-Kulithalai in the presence of Shanmugam Pillai (P. W. 8) and another. The juvenile accused voluntarily gave a confession statement of which the admissible portion is Ex. P. 6, offering to produce cash of Rs. 50/- to P. W. 17, if he was taken to his house. Accordingly, he eized cash of Rs. 50/- (M. O. 4) under a mahazar (Ex. P. 7) attested by P. W. 8 and another. At about 9. 30 p. m. on the same day P. W. 17 arrested accused 1 and 2 near Perala Kunthalam man temple near Kulithalai bus stand. He examined Al and A2 separately. A voluntarily gave a confession statement of which the admissible portion is Ex. P. 7) attested by P. W. 8 and another. At about 9. 30 p. m. on the same day P. W. 17 arrested accused 1 and 2 near Perala Kunthalam man temple near Kulithalai bus stand. He examined Al and A2 separately. A voluntarily gave a confession statement of which the admissible portion is Ex. P. 8 offering to produce the gold studs if he was taken to the place pointed out by him. A2 also gave a confession statement which was similar to that of A 1 and of which the admissible portion is Ex. P. 11. P. W. 17 seized the cash of Rs. 30. 75 (M. O. 5 series) from the pocket of Al under a mahazar (Ex. P. 9 ). He also seized Rs, 25. 75 (M. O. 6 series) from the second accused under mahazar (Ex. P. 10 ). Pursuant to the confession statements (Ex. P8 and P11), Al and A2 took P. W. 17 and his party to the jewellery shop of Chelladurai (P. W. 9) at 12. 15 a. m. in the midnight and pointed out P. W. 9. P. W. 9 admitted that he had received the gold studs from accused 1 and 2 and stated that he had given them to Kannaiah (P. W. 10) for safe custody. He got back the jewels (M. O. I series) from P. W. 10 and produced them to P. W. 17. seized M. O. 1 series under a mahazar (Ex. P. 12 ). All the mahazars were attested by P. W. 8 and another. On the next day (21. 7. 1984) at 3. 30 p. m. P. W. 17 arrested A4 near Manamedu Kaikatti in the presence of Shanmugam (P. W. 11) and another. When examined A4 voluntarily gave a confession statement to P. W. 17 of which the admissible portion is Ex. P. 13, offering to produce the karukku aruval (M. O. 7) from inside the nanal bush in the northern bund of Musiri Pallavaikal. P. W. 17 accordingly recovered M. O. 7 under a mahazar (Ex. P. 14) as taken out and produced by A4 from that place. Earlier at 3. 00 p. m. P. W. 17 arrested A3 at Kulithalai Railway Station platform in the presence of P. W. 11 and another. A3 also gave a confession statement to P. W. 17 who recovered a cash of Rs. 21. P. 14) as taken out and produced by A4 from that place. Earlier at 3. 00 p. m. P. W. 17 arrested A3 at Kulithalai Railway Station platform in the presence of P. W. 11 and another. A3 also gave a confession statement to P. W. 17 who recovered a cash of Rs. 21. 50 (M. O. 8 series) under a mahazar (Ex. P. 15) from A3. (vi) All the arrested accused were sent for remand. P. W. 17 examined P. W. 12 with reference to M. O. 7 0622. 7. 1984. He gave a requisition (Ex. P. 23) to the Judicial Second Class Magistrate Musiri to send the material objects concerned in this case for chemical analysis. Accordingly M. Os. 2, 7 and 9 were forwarded to the Chemical Examiner with a covering letter (Ex. P. 22) of the Magistrate. After analysis, the Magistrate received the Chemical Examiners report (Ex. P. 24) and the Serologists report (Ex. P. 25 ). The statements of P. Ws. 4, 5, 11 and one Ramachandran under section 164, Cr. P. C. were recorded by Gopalakrishnan P. W. 13, the Judicial Second Class Magistrate, Turaiyur on 27. 7. 1984. The statements of P. W. 11 and P. W. 5 and Ramachandran are respectively Ex. P. 19, P20 and P21. P. W. 17 laid the final report in the committal court under sections 396 and 397, I. P. C. on completion of investigation on 26. 9. 1984 against the four accused in Sessions Case No. 194 of 1984 and the juvenile accused in Session Case No. 16 of 1985. ( 3 ) WHEN the accused were examined under section 313, Cr. P. C. with reference to the incriminating circumstances appearing in the evidence against them, they denied their complicity in the offence. No defence witnesses were examined on their side. After trial, Al, A2 and A4 were convicted and sentenced as stated earlier. They challenge the said verdict in the present appeals. ( 4 ) MR. Karpagavinayagam, leaned counsel appearing for Al and A4 (appellants in Criminal Appeal No. 959 of 1985) and Mr. No defence witnesses were examined on their side. After trial, Al, A2 and A4 were convicted and sentenced as stated earlier. They challenge the said verdict in the present appeals. ( 4 ) MR. Karpagavinayagam, leaned counsel appearing for Al and A4 (appellants in Criminal Appeal No. 959 of 1985) and Mr. M. Jagadeesan, learned counsel appearing for A2 (appellant in Criminal Appeal No. 853 of 1986) contended that this is a case in which proof of the charges rests mainly on the eye-witness account of P. W. 5 and the circumstantial evidence of other witnesses and that the whole evidence is not creditworthy and that consequently, the finding of guilt made the learned Sessions Judge is not sustainable. They submitted that the learned Sessions Judge ought to have acquitted Al, A2 and A4 also while the acquitted A3 and the juvenile accused in view of the allegation that all these five accused persons including the juvenile accused conjointly committed dacoity and that in committing such dacoity they had committed the murder on the deceased Sellammal. According to the learned counsel, the evidence adduced by the prosecution is one and the same set, and if the evidence relating to A3 and juvenile accused is disbelieved, the same yardstick should be applied by court in considering the charges against the other three, namely A1, A2 and A4 and that they also must be found not guilty of the charges. It was added that the evidence adduced by the prosecution is discrepant and improbable and that it does not establish the complicity of A1, A2 and A4 with the crime. They assailed the confession statements made by the accused under section 27, Evidence Act and the recovery of the properties such as gold studs (M. O. 1 series) sickle (M. O. 7) and cash as stage managed and that they are liable to be eschewed completely from consideration. It was finally submitted that these accused persons (Al, A2 and A4) should be acquitted. ( 5 ) MR. B. Sriramulu the learned Public Prosecutor controverted the contentions made on behalf of Al, A2 and A4 and submitted that the offence against these persons remain proved and that the attack on the prosecution evidence is not justified. He pleaded that the findings of the learned Judge against these accused are not liable to be displaced. ( 5 ) MR. B. Sriramulu the learned Public Prosecutor controverted the contentions made on behalf of Al, A2 and A4 and submitted that the offence against these persons remain proved and that the attack on the prosecution evidence is not justified. He pleaded that the findings of the learned Judge against these accused are not liable to be displaced. We heard the learned counsel on both sides on these rival claims and contentions. ( 6 ) THIS is a case in which an old woman aged about 80 has been murdered in a broad daylight and her jewels have been stolen for which not only the appellants (accused 1, 2 and 4) but also A3 and the juvenile accused who remain acquitted by the trial court were being charged under sections 396 and 397, I. P. C. The prosecution case is that the deceased used to go to the helds in the, outskirts of Musiri town in the morning, cut and gather grass and return home at about 12. 00 noon that on 15. 7. 1984, the fateful day she went to the fields on her routine, but did not turn up to her house. It is stated that at about 10. 30 a. m. when the deceased was engaging herself in cutting grass near the plantain garden of Marudha Padayachi, west of Musiri town, all the five accused persons including the juvenile mentioned above had committed dacoity and her murder by taking her into the plantain garden of Marudha Padayachi. As regards the modus operandi the prosecution would state that the neck of the deceased was tied with one end of her own saree and squeezed besides cutting of her neck with a sickle and that the gold studs in her ears were removed by cutting her earlobes. On this aspect of the allegation, the prosecution has adduced the evidence of P. W. 5 who styles an eye-witness for a part of the occurrence and also the circumstantial evidence of other witnesses. ( 7 ) P. W. 5 states that at about 9. On this aspect of the allegation, the prosecution has adduced the evidence of P. W. 5 who styles an eye-witness for a part of the occurrence and also the circumstantial evidence of other witnesses. ( 7 ) P. W. 5 states that at about 9. 30 a. m. when he had been to see the plantain garden of Marudha Padayachi which is the scene of occurrence, he saw from a distance of about 15 feet that Al was tying the neck of the deceased with one end of the saree and squeezing the neck, A4 being seated by the side of the deceased with a sickle in his hand, A2 Lying the legs of the deceased and the deceased thereafter being lifted from the plantain garden and dropped in the paddy field not only by A1, A4 and A2 but also by two others who remained with them. P. W. 5 says that he could not mentioned the names of the other two persons except Al, A4 and A2. His evidence shows that he did not see the earlier part of the occurrence, namely cutting of the neck of the deceased and removal of gold studs from her ears by cutting her ear-lobes. We may point out that there is no dispute on the fact that the deceased was put to torture and ultimate death in the manner stated by the prosecution the evidence of P. W. 12 who, had seen the deceased soon after she was brought from the scene 6occunence and who conducted the autopsy on the dead body of deceased later, supports the prosecution version that the neck of the deceased might have been tied with aaree and squeezed and that the injuries on the neck might have been -by a sickle like M. O. 7. As regards the cause of death of the deceased, P. W. 12 has stated that it might be due to asphyxia and shock due to strangulation on the neck. The opinion thus expressed by P. W. 12 remains uncontroverted and it confirms the fact that the deceased was put to death by strangulation of her neck and that her jewels had been robbed of in that context. The opinion thus expressed by P. W. 12 remains uncontroverted and it confirms the fact that the deceased was put to death by strangulation of her neck and that her jewels had been robbed of in that context. But, if we proceed to examine the evidence with reference to the allegation against the accused 1, 2 and 4 who are the appellants in the present two appeals, we find that it suffers from serious infidelities and improbabilities making it impossible to believe it. ( 8 ) P. W. 5 is said to reside in Pudukallar Street, Musiri having his own lands in the east of the town. The plantain garden of Marudha Padayachi where the occurrence took place is situate west of the town. The distance between the town and the plantain garden of Marudha Padayachi is not less than 3 kms. according to P. W. 5. P. W. 5 would state in his evidence that he went to the plantain garden of Marudha Padayachi at about 9. 30 a. m. , just to see that garden whereas he has stated to P. W. 17 during investigation that he went there to see Marudha Padayachi. He was not stated at the same time what was the reason which prompted him to go to the garden of Marudha Padayachi or to see him there. Admittedly, he is not a dealer in plantains in order that it may be stated that he wanted to purchase the plantain bunches from Marudha Padayachi. He has not stated any definite purpose in going to the plantain garden of Marudha Padayachi on the particular day. Even with regard to his going to that plantain garden, his evidence is discrepant as he would say in his evidence that he went there to see the plantain garden after having stated in his statement under section 161, Cr. P. C. that he went to see Marudha Padayachi. Anyway, he did not see Marudha Padayachi there at all. His presence at the scene of occurrence, therefore, becomes doubtful. ( 9 ) IT is also the evidence of P. W. 5 that he saw the occurrence from about a distance of 20 feet but he did not make any alaram to attract the attention of the passersby or the persons nearby. He is said to have gone home after the accused persons had left the scene. ( 9 ) IT is also the evidence of P. W. 5 that he saw the occurrence from about a distance of 20 feet but he did not make any alaram to attract the attention of the passersby or the persons nearby. He is said to have gone home after the accused persons had left the scene. He would say that he informed of the occurrence to one Ramalingam, the relation of the deceased who lives within 100 feet from the residence of the deceased within about 45 minutes after the occurrence. This cannot be said to be true. If really P. W. 5 had reported to Ramalingam of the occurrence as such, Ramalingam would have made a complaint to the police mentioning the names of the culprits and making a reference to P. W. 5 as a witness. Even Ramalingam would not have failed to inform this matter to P. Ws. 1 and 3 who are also the relations of the deceased. What we find here is that in Ex. P. 1 the First Information Report given by P. W. 1 at about 4. 45 p. m. and the second report (Ex. P. 2) given at 10. 30 p. m. after the occurrence, none of the names of the accused find a place. Both the reports merely contain the averments as to how the deceased was tortured and put to death and not as to who did it. This shows that P. W. 5 might not have seen the occurrence and consequently might not have informed of the occurrence to Ramalingam. His explanation that the accused persons threatened him with dire consequences if he would reveal the occurrence to anybody while P. W. 5 questioned them, also cannot be accepted as true. What he saw the accused persons to do with the deceased at the scope of occurrence must be quite shocking to his own conscience and, therefore, he should have immediately reported the matter to the police station or to P. Ws. 1 and 3, the close relations of the deceased. Strangely enough, we find that P. W. 5 has been examined as a witness three days after the occurrence. If P. W. 5 was really an eye-witness as claimed by him he should have figured as an ocular witness not only in Ex. 1 and 3, the close relations of the deceased. Strangely enough, we find that P. W. 5 has been examined as a witness three days after the occurrence. If P. W. 5 was really an eye-witness as claimed by him he should have figured as an ocular witness not only in Ex. P. 1 but also as a panchayatdar in the inquest conducted by P. W. 17 on the same night of occurrence. It is mysterious how P. W. 5 was traced and made an eyes witness to the occurrence at all in the circumstances. His own evidence, even assuming that he was present somewhere near the scene, will show that he could not have actually seen the occurrence that took place inside the garden of Marudha Padayachi. He himself admits that in between the place where he remained and the occurrence took place there were intervening plantain trees in groups and that, therefore, he could not clearly see the offenders. That P. W. 5 could not have seen the actual occurrence must also be true as P. W. 17 stated in Ex. P. 3 the observation mahazar that the plantain trees were of a height of 10 feet. Therefore, we have to hold that the testimony of P. W. 5 is not reliable. ( 10 ) P. W. 6 is a person who is said to have seen all the five accused persons including the juvenile accused near Kamatchi Amman Temple at about 10. 15 a. m. when he went to the river to take bath and they were said to be absent at about 11. 00 a. m. when P. W. 6 returned from the river. His evidence is not at all helpful to the prosecution. To say that the accused persons were remaining near the temple is not sufficient. There must be evidence to show that the accused persons were found in close proximity to the deceased at the place of occurrence and that their presence was felt by P. W. 6 as doubtful. But, he has not stated so. He has not even stated whether those accused persons were talking to each other and whether they had stopped talking to each of them on seeing P. W. 6. But, he has not stated so. He has not even stated whether those accused persons were talking to each other and whether they had stopped talking to each of them on seeing P. W. 6. The evidence of P. W. 6 shows that the place where the accused persons were seen by P. W. 6 was not in close proximity to the place of occurrence and the deceased and that it is fairly at some distance. There is a channel south of the plantain garden of Marudha Padayachi, where the occurrence took place and the paddy field of one Alagan Chettiar where the body of the deceased was lying. South of channel, there is the bund of Cauvery river and further south of it, there is a road running ear west. On the south of the road is the Kamatchi Amman Temple. The topography of the place drawn from the evidence of P. W. 6 and Ex. P. 3 shows that the place where the accused persons were said to be remaining was not near the scene of occurrence. P. W. 6 has not informed to anyone of what he saw on the same date of occurrence, at least after coming to know that the deceased died at 6. 00 p. m. Admittedly, this witness also has been examined by P. W. 17 about 3 days after the occurrence. ( 11 ) ANOTHER witness namely P. W. 4 who is alleged to have seen the entire occurrence and all the accused persons participating therein and who is said to have stated so to P. W. 17 during investigation has not chosen to support his earlier statement during trial. He has been treated as a hostile witness. It is significant to note that none of P. Ws. 5, 6 and 4 has been examined by P. W. 17 during inquest which has been conducted between 11. 30 p. m. and 3. 00 a. m. on the same night after the occurrence. P. Ws. 4 and 5 have been examined P. W. 17 on 18/7/1984 while P. W. 6 has been examined on 19/7/1984 and these are respectively three days and four days after the occurrence. It is also not known how P. W. 17 was able to pitch upon these witnesses and examine them on those days. P. Ws. 4 and 5 have been examined P. W. 17 on 18/7/1984 while P. W. 6 has been examined on 19/7/1984 and these are respectively three days and four days after the occurrence. It is also not known how P. W. 17 was able to pitch upon these witnesses and examine them on those days. ( 12 ) THE attempt of the prosecution to show that Al, A2 and A4 (the appellants herein) had complicity in the crime of dacoity and murder by means of confession statements said to have been made by Al, A2 and A4 and the resultant recovery of properties under section 27 of the Evidence Act is a failure. It is stated that A 1 and A2 were arrested on 20/7/1984 at 9. 30 p. m. near the temple in Kulithalai and that each of them, when examined gave a confession statement offering to point out the shop where they had sold the gold studs and enable production of the same to P. W. 17. The admissible portions of the statements of Al and A2 have been marked as Ex. P8 and P11 respectively the mahazar under which both the gold studs have been recovered by P. W. 17 has been marked as Ex. P12. A careful scrutiny of these documents and the evidence of P. Ws. 17, 8, 9 and 10 reveals that no credence can be attached to this aspect of the prosecution version. The confession statements of Al and A2 remain written long, running to some pages. It looks artificial that such lengthy statements were given by Al and A2 simultaneously at 9. 30 p. m. and were so recorded by P. W. 17 or by some other police officer at his instance, at the scene at 9. 30 p. m. It looks further improbable when it is said that each of Al and A2 had sold one gold stud out of the pair to P. W. 9 and that each of them offered to get the respective stud produced by the shopkeeper (P. W. 9 ). But when the question of recovery of both studs came, both are said to have been produced by P. W. 9 and recovered by F:. W. 17 in the presence of P. W. 8. But when the question of recovery of both studs came, both are said to have been produced by P. W. 9 and recovered by F:. W. 17 in the presence of P. W. 8. ( 13 ) THE evidence of P. W. 9 does not establish the fact that it is A 1 and A2 only who went to his shop and sold both the gold studs. (M. O. 1 series) at 1. 00 p. m. on 15. 7. 1984 after the occurrence. ( 14 ) THIS shows that P. W. 9 has not identified Al and A2 as the persons who went to his shop and sold the gold stu4s. He vaguely says that two persons went to his stop. Even if he would mention the names as Ramachandran and Ramamurthi he was bound to identify and depose in court that it was Al by name Ramachandran and A2 by name Ramamurthi who went to his shop and sold the gold studs to him on 15/7/1984. We feel that it was a lapse on the part of the prosecution or that P. W. 9 was not willing to identify Al and A2 as the persons who sold the studs to him. If suggestions and questions have been put to P. W. 9 during cross-examination that those two accused were not seen by P. W. 9 prior to the alleged disposal of the studs on 15/7/1984 it cannot be said that Al and A2 are the two accused persons referred to by P. W. 1 in his chief examination. Evidently, there were four accused persons in Sessions Case No. 194 of 1984 in which P. W. 9 gave evidence. As already pointed out, it was the duty of the prosecution to have elicited from P. W. 9 that A 1 and A2 were the persons who sold the studs without giving room for any ambiguity or guess. It is not for the court to do an exercise over the evidence in chief and cross examination and ascertain whether Al and A2 are the culprits referred to by P. W. 9. It is not for the court to do an exercise over the evidence in chief and cross examination and ascertain whether Al and A2 are the culprits referred to by P. W. 9. It must be borne in mind that P. W. 9 has not seen those two persons at any time prior to the sale of the jewels and that the plea of A 1 and A2 is that none of them had gone to the shop of P. W. 9 to sell the jewels (M. O. 1 series) and that P. W. 9 was giving evidence as tutored by police. Certainly the evidence of P. W. 9 cannot be counted as a support to the prosecution for the purpose of holding that A 1 and A2 sold the studs (M. O. 1 series) to P. W. 9. We cannot ignore the various infirmities in the evidence starting from the arrest of Al and A2 and ending with the recovery of M. O. 1 series. P. W. 10 to whom P. W. 9 is said to have entrusted the studs (M. O. 1) series for safe custody and from whom P. W: 9 is said to have received back the same for production before P. W. 17 has not referred to the presence of A 1 and A2 with P. W. 9. ( 15 ) COMING to A4 he is said to have been arrested by P. W. 17 on 21/7/1984 at Manamedu Village. It is stated by the prosecution that A4 gave a confession statement to P. W. 17 and that in pursuance of the admissible portion of that statement (Ex. P. 13) the sickle (M. O. 7) was recovered from the nanal bush found on the northern bund of Musiri Pallayaikal. P. W. 11 claims to be a witness for this episode. We find, on a consideration of the evidence and circumstances that this is also not helpful to the prosecution even if the recovery is true. None of P. Ws. 1 and 3 has identified M. O. 7 as the stickle with which the deceased used to cut grass and as that which the deceased had taken with her on the fateful day. Their evidence is silent on this point. None of P. Ws. 1 and 3 has identified M. O. 7 as the stickle with which the deceased used to cut grass and as that which the deceased had taken with her on the fateful day. Their evidence is silent on this point. If P. W. 5 would say in his evidence that A4 as having a sickle with him when he was by the side of the deceased, it cannot be meant as that of the deceased. P. W. 6 who is said to have seen all the accused persons near Kamatchi Amman Temple between 10. 15 a. m. and 11. 00 a. m. has not stated that A4 or anybody else among the accused persons was having an aruval or sickle. ( 16 ) THE seizure of sickle (M. O. 7) has been cited by the prosecution as a circumstance to connect A4 with the crime. The prosecution version is that the deceased was cut with a kurukku aruval (sickle) on her neck while all the accused persons committed dacoity and murdered in the plantain garden of Marudha Padayachi. There is no proof that the blood stains found in M. O. 7 and the sarees (M. Os. 2 and 9) seized from the deceased belong to one and same blood group of human origin. The Serologist states in his report (Ex. P25) that the result of the grouping test was inconclusive though the bloodstains in all the three material objects were of human origin. Unless there is satisfactory proof to show that M. O. 7 was seized in pursuance of the confession statement of A4 and that the blood group in M. O. 7 tallies with Utat in M. Os. 2 and 9 it is not possible to hold the view that M. O. 7 was used by A4 for cutting the neck of the deceased. So far as A4 is concerned, he would deny everything and plead that he has been wrongly implicated in this case. ( 17 ) WE need no go into the details regarding the arrest of A3 and the juvenile accused as they had been acquitted in the trial court. Here, we must point out that the recovery of cash such as Rs. 30. 75 (M. O. 5 series) from Al, Rs. 25. 75 (M. Q. 6 series) from A2 and Rs. 21. Here, we must point out that the recovery of cash such as Rs. 30. 75 (M. O. 5 series) from Al, Rs. 25. 75 (M. Q. 6 series) from A2 and Rs. 21. 50 (M. O. 8 series) from A4 has got no hearing to the allegation made on the side of prosecution. The cash recoveries are cited by the prosecution in their attempt to show that the above accused persons retained the cash by the sale of M. O. 1 series to P. W. 9. We find here that even the sale of M. O. 1 series to P. W. 9 has not been conclusively proved and, therefore, there is no question of possession of cash by the above accused persons in that context. However cash in terms of currencies and coins that were recovered by P. W. 17 are not to be identified easily. We are unable to comprehend how the learned trial judge thought It right to mark the statements of P. Ws. 4, 5 and Ramachandran recorded under section 164, Cr. P. C. as Exs. P19, P20 and P21 respectively and solely on those statements in deciding this case. The said Ramachandran was not examined as a witness at all in the Sessions Court. Even if P. Ws. 4 and 5 would contradict their earlier statements under section 164, Cr. P. C. the procedure requires that the particular portion of the statement should be marked and not the entire statement. We are satisfied that the learned trial judge has completely gone wrong in appreciating the evidence and circumstances in this case and finding Al, A2 and A4 guilty of the charges against them. To find A4 guilty also and convict him for the offences under section 397, I. P. C. is unnecessary when there is a charge under section 396, I. P. C. against him. ( 18 ) WE find that the charges against Al and A4 (Appellants in Criminal Appeal No. 959 of 1985) and against A2 (Appellant in Criminal Appeal No. 853 of 1986) as not proved beyond doubt and that they are entitled to the benefit of doubt. Accordingly we allow these appeals, set aside the convictions and the sentences passed against the appellants by the trial judge and acquit them. The bail bonds executed by Al and A4 shall stand cancelled. A2 will be set at liberty forthwith. Appeal allowed.