R. M. BAPAT, J. ( 1 ) THE appellants herein were A-1 and A-2 in Sessions Case No. 313 of 1998, which was decided by the IV Additional Sessions Judge, Kakinada. They were tried for the offence punishable under Section 302 read with Section 34, IPC. On evidence the learned Judge held that the offence against both the accused was proved and, therefore, both of them were convicted and sentenced to suffer imprisonment for life and also to pay a fine of Rs. 5000/- and in default to suffer S. I. for six months. Aggrieved by the aforesaid order of conviction and sentence, the accused-appellants herein have filed the present appeal. ( 2 ) THE gravamen of the charge against the accused-appellants herein was that on 3-8-1998 at about 3. 00 a. m. in the sugarcane garden near F. K. Palem Centre, the accused did commit the murder of one Police Constable named Eelugubanti Vara Prasad, attached to Pithapuram Police Station, by catching hold of his neck and pushing him down into Jeebudoddi Irrigation drain canal and thereby committed an offence punishable under Section 302 read with Section 34, IPC. ( 3 ) THE prosecution case can briefly be narrated as follows: that A-1 is a resident of Radhalapeta, Pithapuram and is a rickshaw puller. A-2 was residing at the house of his mother-in-law in Virava village and was doing cooly work. It is the further case of the prosecution that A-1 and A-2 on the date of the incident were in search of illicit liquor. The deceased was on patrolling duty. He accosted them and asked them about their presence at the odd hour and there took place a quarrel between the accused on one hand and the deceased on the other hand. The deceased being the Police Constable told the accused to accompany him to the Police Station. Then both of them refused to do so. There was a quarrel and free fight between A-2 and the deceased. A-2 alleged to have throttled the deceased and pushed him into the channel (canal ). A-1 ran away from the scene of offence. The deceased being the Police Constable told the accused to accompany him to the Police Station. Then both of them refused to do so. There was a quarrel and free fight between A-2 and the deceased. A-2 alleged to have throttled the deceased and pushed him into the channel (canal ). A-1 ran away from the scene of offence. ( 4 ) IT is further stated by the prosecution that P. W. 1, the Village Administrative Officer of F. K. Palem was informed by some one about the finding of the dead body in the channel (canal) and, therefore, P. W. 1 and P. W. 5, the Village Servant, went to the scene of offence and found a dead body of a person with Khaki dress facing upwards in the channel (canal ). Then P. W. 1 prepared a report Ex. P-1 and send the same through P. W. 5 to Pithapuram Police Station, P. W. 16, who happened to be working as Head Constable in Pithapuram Police Station, had received the report Ex. P-1 and registered a case in Crime No. 96 of 1998 under Section 174, Cr. P. C. and issued the copies of F. I. R. to all concerned. P. W. 8, Head Constable of Pithapuram Police Station, after receiving the phone call stating that one scooter was found on the road side and one dead body in Khaki dress was found in irrigation bode of F. K. Palem. Immediately he went there on a cycle, found the scooter of the S. I. of Police and the dead body of the deceased and returned to the Police Station and informed to his staff. The Police went there and they found the presence of P. W. 1 and P. W. 7. The Inspector of Police, Pithapuram, received the information about the incident from P. W. 16 on phone at about 9. 00 a. m. Immediately P. W. 17, the Inspector of Police, inspected the scene of offence and drafted observation report Ex. P-2 in the presence of P. W. 1 and another. He seized M. Os. 1 to 5 at the scene of offence in the presence of P. W. 1 and another. He got the scene of offence photographed with the help of P. W. 9. The photos are produced on record as Exs. P-5 to P-8. P-2 in the presence of P. W. 1 and another. He seized M. Os. 1 to 5 at the scene of offence in the presence of P. W. 1 and another. He got the scene of offence photographed with the help of P. W. 9. The photos are produced on record as Exs. P-5 to P-8. P. W. 17 got prepared the rough sketch of the scene of offence under Ex. P-24. P. W. 17 conducted inquest over the dead body of the deceased at the scene of offence in the presence of P. W. 1 and another. Ex. P-3 is the inquest report. He seized M. Os. 6 to 14 in the presence of P. W. 1 and another from the person of the deceased. During the course of inquest, he realised that it was a murder and, therefore, he changed the section of law from 174, Cr. P. C. to 302, IPC and issued copies of F. I. R. to all concerned. After the inquest was over, the dead body of the deceased was sent to P. W. 14 for post-mortem examination. On 3-8-1998 at 2. 30 p. m. P. W. 14 conducted autopsy over the dead body of the deceased and issued Ex. P-16 post-mortem certificate. On the advice of P. W. 17 few parts of the body were sent to the Professor, Forensic Science Laboratory, Rangaraya Medical College, Kakinada for analysis. The said Professor gave Ex. P-17 report. After receiving the report Ex. P-17, P. W. 14 issued the final report Ex. P-18 opining that the deceased appears to have died of Asphyxia due to throttling. ( 5 ) IT is the further case of the prosecution that A-1 went to P. Ws. 10, 11 and one Dongabbai and alleged to have confessed that he along with his friend A-2 were going together for illicit liquor from Pithapuram to Zullur, they were accosted by the deceased and they struggled with each other. A-2 throttled the deceased and pushed him into the canal and thereby caused the death of the deceased. P. Ws. 10, 11 and one Dongabbai, who was not examined, reported the matter to P. W. 17. Their statements were recorded. A-2 throttled the deceased and pushed him into the canal and thereby caused the death of the deceased. P. Ws. 10, 11 and one Dongabbai, who was not examined, reported the matter to P. W. 17. Their statements were recorded. ( 6 ) IT is the further case of the prosecution that on 15-8-1998 P. W. 17 arrested the accused at the booking counter of Pithapuram Railway Station in the presence of his staff and P. W. 13, the V. A. O. , of Agraharam. When A-2 was in police custody, he alleged to have led P. W. 17 and the panch witnesses to his house and at the instance of A-2, P. W. 17 seized M. Os. 15 and 16 from his house and thus his clothes were attached under panchanama Ex. P-11. Thus, on completion of investigation, P. W. 17 filed the charge-sheet. ( 7 ) THE defence of the accused is of total denial. ( 8 ) IN order to connect the accused with the crime, the prosecution relied upon the evidence of P. W. 17, who had conducted inquest over the dead body of the deceased in the presence of P. W. 1 and another. Ex. P-13 is the inquest report. After the inquest was over, the dead body of the deceased was sent for post-mortem examination to P. W. 14. P. W. 14 is the Civil Assistant Surgeon, Government Hospital, Pithapuram. On receipt of requisition, he conducted autopsy over the dead body of the deceased and noticed the following external injuries on the person of the deceased. (1) An abraded contusion 5 cm. x 2. 5 cm. over the left side of the neck in the upper half vertically with crescentic finger nail mark red in colour. (2) A contusion 3 cm. x 3 cm. on the right side of the neck, red in colour. (3) A contusion 2 cm. x 0. 5 cm. obliquely over the lower part of the neck on the left side red in colour. (4) An abrasion 2 cm. in diameter over the back of the right shoulder red in colour. On internal examination, he noticed the following internal injuries on the person of the deceased. Fracture of parietal bones in the posterior aspect along the sagittal suture, fissured type, right parietal bone has a fissured fracture 4 in length horizontally, one inch above the lambdoid suture. in diameter over the back of the right shoulder red in colour. On internal examination, he noticed the following internal injuries on the person of the deceased. Fracture of parietal bones in the posterior aspect along the sagittal suture, fissured type, right parietal bone has a fissured fracture 4 in length horizontally, one inch above the lambdoid suture. The fractured bone edges are blood-stained. Haematoma below the scalp, extravagation of blood in the scalp layers at the occipital region. There is extra dural, sub-dural and sub-arachnoid haemorrhages, meninges lacerated. Lungs congested and oedematous, no fracture of ribs. Heart contains dark coloured fluid blood. Injuries to the neck muscles, with extravagation of blood seen in the muscles and subcutaneous tissue under the nail mark and on the right side in the upper portion. Trachea contains pink fine froth. All the abdominal virus are in their normal position. Stomach contains partially digested food, liver, spleen, pancreas and kidney are congested, bladder empty, no injury to spinal column. Sternum, Hyoid bone, part of the skin of the neck and scalp preserved for forensic opinion Hystopathological examination. "the Doctor opined that the deceased died because of Asphyxia due to throttling. ( 9 ) CONSIDERING the evidence relied upon by the prosecution on the point of homicidal death, we do hold that the deceased did die homicidal death. ( 10 ) THE second point arises for our consideration as to whether the prosecution has able to connect the accused with the crime? ( 11 ) P. W. 1 happened to be the Village Administrative Officer of F. K. Palem. He was informed by someone regarding the finding of the dead body in the canal and, therefore, he gave a report Ex. P-1 to the Police. On the strength of Ex. P-1, the Police machinery was set in motion. P. W. 1 had also acted as panch witness to the inquest report and observation report Exs. P-2 and P-3 respectively, which were drafted by P. W. 17, the Inspector of Police, Pithapuram. ( 12 ) P. W. 2 happened to be the wife of the deceased. She was not an eye-witness to the occurrence. Her evidence is of no significance. Simply she has stated that the deceased left the house after having dinner on 3-8-1998 and thereafter she found the dead body of her husband. P. W. 3 happened to be a cooly. She was not an eye-witness to the occurrence. Her evidence is of no significance. Simply she has stated that the deceased left the house after having dinner on 3-8-1998 and thereafter she found the dead body of her husband. P. W. 3 happened to be a cooly. He did not support the prosecution and, therefore, he was declared as hostile witness. P. W. 4 is an agriculturist. His fish pond is at a distance of 100 yards from the scene of offence. He was not an eye-witness to the occurrence. ( 13 ) P. W. 5 is the village servant of F. K. Palem. He carried Ex. P-1 report given by P. W. 1 to Pithapuram Police. On the strength of the report, the Police registered the case against the accused. ( 14 ) P. W. 6 was working as cooly. He had seen two persons going on a scooter in a high speed. They were wearing lungies and shirts and he was not able to identify any one of them. ( 15 ) P. W. 7 is a Police Constable. He had accompanied the deceased for patrolling duty during the night of 2/3-8-1998. As he was not feeling well, he returned back to the Police Station at 3. 15 a. m. and slept in the Police Station. P. W. 8 is the Head Constable, who was entrusted patrolling duties along with the deceased and P. W. 7. P. W. 9 is the photographer. He had taken the photos Exs. P-5 to P-8. P. Ws. 10 and 11 are the persons before whom A-1 alleged to have made a confession. Their evidence would be discussed later. P. W. 12 is a neighbour of A-2. He was declared as a hostile witness. P. W. 13 is the Village Administrative Officer of Agraharam. He was acted as panch witness when the accused was arrested. P. W. 14 conducted autopsy over the dead body of the deceased. P. W. 15 had examined A-2 and issued wound certificate. He opined that the injuries on the person of A-2 are simple in nature. Ex. P-19 is the wound certificate given by him. P. W. 16 is the Head Constable, who had received Ex. P-1 report given by P. W. 1 and who had issued copies of F. I. R. to all concerned. He opined that the injuries on the person of A-2 are simple in nature. Ex. P-19 is the wound certificate given by him. P. W. 16 is the Head Constable, who had received Ex. P-1 report given by P. W. 1 and who had issued copies of F. I. R. to all concerned. P. W. 17 is the Inspector of Police, who had conducted the entire investigation in this case. ( 16 ) LOOKING to the nature of evidence, which was relied on by the prosecution at the trial Court, we are convinced that there are no eye-witnesses and there are also no circumstances which are leading to the conclusion that the accused are guilty of an offence punishable under Section 302 read with Section 34, IPC. ( 17 ) WHAT evidence we have is the evidence of P. Ws. 10 and 11. They have stated in their evidence that A-1 went to them and confessed that on the night of the incident, he along with A-2 were in search of illicit liquor. They were accosted by the deceased and there was a fight between the deceased and A-2 in which A-2 throttled the neck of the deceased and pushed him into the canal causing his death. ( 18 ) THIS part of the evidence of P. Ws. 10 and 11 was taken to be substantive evidence by the learned Judge. The view expressed by the learned Judge is totally erroneous. As a matter of fact, A-1 alleged to have made a confession before P. Ws. 10 and 11 stating that A-2 killed the deceased is no confession in law. The confession must contain the statement in which the maker involves himself in the commission of the offence. In other words, it must be inculpatory statement but the evidence of P. Ws. 10 and 11 shows that A-1 has excluded himself in the commission of the offence but involved A-2 in the commission of the offence. In other words, the statement made by A-1 is exculpatory. It is no evidence under Section 30 of the Indian Evidence Act and that cannot form a basis for conviction. In many reported cases of the Apex Court as well as High Court in the Country held that exculpatory statement of a co-accused cannot be taken into consideration against his co-accused. It is no evidence under Section 30 of the Indian Evidence Act and that cannot form a basis for conviction. In many reported cases of the Apex Court as well as High Court in the Country held that exculpatory statement of a co-accused cannot be taken into consideration against his co-accused. They are as under : Pakalanarayan Swami v. Emperor, AIR 1939 PC 47 : Bhuboni Sahu v. The King, AIR 1949 PC 257; Emperor v. C. E. Ring, AIR 1929 Bom 296 : Jogendra Nath Banerjee v. Emperor, AIR 1934 Cal 724: Abdul Jalil Khan v. Emperor, AIR 1930 All 746 State v. Manindra Nath Das, AIR 1960 Cal 183 : Dr. Jainand v. Rex, AIR 1949 All 291 : Diwan Dhimar v. Emperor, AIR 1926 Nagpur 229 (2) : Bhimappa Saibanna Talwar v. Emperor, AIR 1945 Bom 484 : Emperor v. Ramsidh Rai, AIR 1938 Pat 352 and C. Das v. The State, AIR 1970 Orissa 100 ( 19 ) IN one of the cases reported in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 their Lordships of the Supreme Court held as under :"as a result of the provisions contained in Section 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence, circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. " ( 20 ) CONSIDERING the above legal position, we have no hesitation in holding that the prosecution could not connect the accused with the crime. " ( 20 ) CONSIDERING the above legal position, we have no hesitation in holding that the prosecution could not connect the accused with the crime. Therefore, we hold that the order of conviction and sentence recorded by the learned Judge against the accused-appellants herein is totally erroneous and, therefore, it is liable to be set aside. ( 21 ) THEREFORE, the order of conviction and sentence recorded against the accused-appellants herein by the IV Additional Sessions Judge, Kakinada in Sessions Case No. 313 of 1998 is hereby set aside. The accused-appellants herein are acquitted of the charges levelled against them. They are set at liberty forthwith if not required in any other case. The fine amount, if any paid, shall be refunded to the accused-appellants herein. In the result the Criminal Appeal is allowed. Appeal allowed.