BILAL NAZKI, J. ( 1 ) TWO accused persons were tried in sessions Case No. 164 of 1999 on the file of the V-Addl. Sessions Judge, Tirupathi. They were charged with offences under Sees. 397 and 302 of I. P. C. A-1 and A-2 were convicted of the offence under Section 397 of I. P. C and sentenced to undergo rigorous imprisonment for seven years. A-1 was further convicted of the offence under Section 326 of I. P. C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 200/-, in default he has to undergo simple imprisonment for one month. They were acquitted of the offence under Section 302 of i. P. C. Both the accused have filed appeals being Crl. A. Nos. 2 and 1 of 2001 against their convictions and sentences and the State has filed an appeal being Crl. A. No. 652 of 2001 against the acquittal of the accused under Section 302 of I. P. C. ( 2 ) THE following charges were framed against the accused. "firstly:- that you A-l and A-2 on or about 6/7-11-1998 at about 2. 00 a. m, went to the house of the deceased L. Munemma who is resident of N. R. Kammapalli village, Ramachandrapuram Mandal with intent to commit robbery on her and attempted to kill the said L. Munemma and in committing robbery you A-2 caught hold of her legs and hands while you a-l gagged her mouth, squeezed her neck and alsobeat her with a stone on her head causing severe injuries to her and thereby you A-1 and A-2 have committed the offence of robbery with attempt to cause her death punishable under section 397 of I. P. C. and within my cognizance; secondly:- that you A-l and A-2 on or about the same day, time and place while committing robbery on L. Munemma have squeezed her neck and beat with a stone on her head and that the said l. Munemma succumbed to death due to the injuries caused by you A-l and A-2 on 22-11-1998 in SVIMS Hospital, tirupathi and thereby you A-1 and A-2 have committed the offence of murder of the said L. Munemma punishable under section 302 of I. P. C. and within my cognizance. " ( 3 ) THE accused pleaded not guilty and claimed to be tried, eventually they were convicted. " ( 3 ) THE accused pleaded not guilty and claimed to be tried, eventually they were convicted. All the appeals were heard together and are being disposed of together by this judgment. ( 4 ) THE prosecution examined 16 witnesses and exhibited 22 documents. P. W. I is the son-in-law of the deceased. A-l is his brother s son. He stated that on 6-11-1998 he came to Tirupathi from N. R. Kammapalli and on 7-11-1998 at about 8. 30 a. m. the villagers of N. R. Kammapalli came to him and informed him that somebody beat his mother-in-law and had snatched away her gold ornaments and A-l had taken his mother-in-law to SVRR Hospital, Tirupathi and she was admitted there. He along with his wife rushed to the SVRR Hospital and found his mother-in-law with injury on the left side of her head and her clothes were stained with blood. On verification he found the gold ornaments i. e. , a pair of ear studs, a chain and a pair of rolledgold bangles were missing. The villagers informed him that during the night there was heavy rain and the offence could have been committed by some villagers, as the outsiders could not come to the village because flow of water in the canal was heavy. The value of the gold ornaments was worth Rs. 11,250/ -. The deceased died in the hospital on 22-11-1998. Police examined him in the hospital. He stated in cross-examination that on the northern side of their village there is a channel which remains free of water all the time. On the Eastern side of their village there is a rice mill and the distance between the house of A-2 and the rice mill is 100 meters. If one has to go to the rice mill, he has to cross the house of A-2. There is a school in the village which has the compound wall. During holidays it remains closed. The keys of the school remain with the students of the village. The village is bigger than the other villages in the Mandal. A-2 has no house or land of his own in the village. ( 5 ) P. W. 2 is the daughter of the deceased and wife of P. W. I. She also stated that on 7-11-1998 at 8. The village is bigger than the other villages in the Mandal. A-2 has no house or land of his own in the village. ( 5 ) P. W. 2 is the daughter of the deceased and wife of P. W. I. She also stated that on 7-11-1998 at 8. 00 a. m. some villagers from n. R. Kammapalle came to Tirupathi and informed her that her mother had been beaten and admitted to SVRR Hospital, Tirupathi. She went along with P. W. I to the hospital and found her mother with head injury on the left side, she was unconscious. She found her mother s gold ornaments missing. She died after 15 days. On 4-1-1999 she was asked to come to the school in the village by the Village Administrative Officer and was asked to identify the ornaments. She identified one chain and a pair of ear studs. She exhibited apair of ear studs as M. O. I and gold chain as M. O. 2. She did not know whether any Mahazar was prepared by the v. A. O. with regard to the identification. She did not sign any papers before the V. A. O. She was examined by the police. In her cross- examination she stated that she was examined by the police in SVRR Hospital, tirupathi on 7-11-1998. Four or five days after 4-1-1999 the V. A. O. sent a Talari to her house and took her to the school building for identification of M. Os. 1 and 2. Except herself, v. A. O. and Talari no other person was present at the time of identification at about 2. 00 p. m. She further stated that one could purchase the same model of M. O. 1 and M. O. 2 in any gold shop. There were no identification marks either on M. O. 1 or M. O. 2 by which they could identify them. The weight of M. O. 1 is 6 grams and M. O. 2 is 23/4th sovereigns. M. Os. l and 2 were prepared by one ramamurthy Achari, a goldsmith in the village. The gold was supplied to him. She could not say whether the gold was purchased for preparation of M. Os. 1 and 2. She denied the suggestion that she had identified M. Os. l and 2 five days after 4-1-1999 at a school in the village. l and 2 were prepared by one ramamurthy Achari, a goldsmith in the village. The gold was supplied to him. She could not say whether the gold was purchased for preparation of M. Os. 1 and 2. She denied the suggestion that she had identified M. Os. l and 2 five days after 4-1-1999 at a school in the village. She also denied that she was speaking at the instance of police. ( 6 ) P. W. 3 is a resident of N. R. Kammapalli village. She knew the deceased who resided opposite to her house. On 6-11-1998 she slept in one of the rooms of the deceased munemma and she woke up by 7. 00 a. m. on 7-11-1998 and found the deceased Munemma lying with bloodstains. She went out and cried, when her father, one Vasantha Naidu and others came there. A-1 also came there and took the deceased to the hospital. ( 7 ) P. W. 4 is also a resident of the same village. He stated that two years back at about 7. 00 a. m. P. W. 3 cried in front of the house of the deceased and on hearing the cries, he and other villagers rushed to the house of the deceased and found the deceased in an unconscious condition. They found an injury on the left side of her head. She was taken in a tractor and admitted to SVRR hospital, Tirupami. In his cross-examination he stated that A-2 was not a smoker, drunkard or a gambler. A-1 and A-2 had no friendship and had not been even on talking terms to each other. ( 8 ) P. W. 5 is a panch witness to the seizure of the clothes of the deceased. He identified saree as M. O. 3 and jacket as M. O. 4. P. W. 6 is also a resident of the same village. He stated that on 7-11-1998 he was asked to act as a mediator to the Mahazar prepared at the scene of occurrence. He identified bed sheet as M. O. 5 and cotton pancha as M. O. 6 stained with blood. P. W. 7 is a witness to the inquest. ( 9 ) P. W. 8 is an important witness on whose statement the whole case rests. He is a Village administrative Officer of C. Ramapuram village. He knew A-1. He did not know the deceased. P. W. 7 is a witness to the inquest. ( 9 ) P. W. 8 is an important witness on whose statement the whole case rests. He is a Village administrative Officer of C. Ramapuram village. He knew A-1. He did not know the deceased. On 29-12-1998, according to him, at about 11. 00 a. m. A-1 came to him and sought his help and A-1 told him that he committed theft in the house of the deceased on 6-12-1998 of a pair of ear studs, a chain and a pair of bangles. A-1 confessed before him that on the said date he committed theft of above articles after hitting the deceased on her head with a stone and he committed theft as he was in financial problems. He also told him that he had given a pair of ear studs to a-2 and he had taken the bangles and chain. He also told him that on the next day he had himself taken the deceased to hospital and after committing the theft, he came to know mat the bangles he had stolen were rolledgold and he had thrown them in vanka . Then he drafted a report and presented it to the circle Inspector of Police, who, in turn, gave it to the Sub-Inspector of Police, ramachandrapuram. In his cross- examination he stated that the distance between his village and N. R. Kammapalli is more than 10 K. ms. A-1 had no lands in his village. One Mr. Sheshadri, V. A. O. , of nethakuppam resides in N. R. Kammapalli village. One Kesava Reddy is the V. A. O. of n. R. Kammapalli village and he is residing in Kalepalli village which is situated about 2 K. Ms. from N. R. Kammapalli village. There was no acquaintance or any transaction between him and A-1 prior to his coining to him and confessing about the guilt on 29-12-1998. He drafted Ex. P-4 in his house. He admitted having stated to the police that he drafted Ex. P-4 at the police station. There are four to five villages in between n. R. Kammapalli village and his village and one has to pass through these villages to reach his village from N. R. Kammapalli. M. R. O. office is adjacent to the police station in Ramachandrapuram. ( 10 ) P. W. 9 was working as a Talari of nennur village. There are four to five villages in between n. R. Kammapalli village and his village and one has to pass through these villages to reach his village from N. R. Kammapalli. M. R. O. office is adjacent to the police station in Ramachandrapuram. ( 10 ) P. W. 9 was working as a Talari of nennur village. On 29-12-1998 at about 12. 30 p. m he was called by a police constable from R. C. Puram Police Station. He went to the police station where he saw A-1, P. W. 8, sub-Inspector of Police, Circle Inspector of police and other police officials. The Circle inspector of Police examined A-1 and recorded his confessional statement and he attested it. Another witness by name muniramaiah was also present. He also attested the confessional statement. P. W. 9 was treated hostile. P. W. 10 is a resident of ramchandrapuram village. He did not know the accused. He stated that on 29-12-1998 when he was at saw mill which was situated opposite to the police station, he was summoned by police and by the time he went to the police station, he found Sub- inspector of Police, Circle Inspector of Police and other police officials, P. W. 8, P. W. 9 and another person in the police station. That another person who was present in the police station is A-1. Police enquired from A-1 and prepared the statement of A-1. Police drafted what A-1 had stated. The admissible portion was marked subject to objection as Ex. P-5. Then on the confession made by A-1, he, p. W. 9, A-1 and police went to the rice mill at n. R. Kammapalli village and A-1 produced a plastic cover from the ground after digging to some extent and they found a stone and a gold chain in the plastic cover. M. O. 2 was identified as chain and M. O. 7 was identified as stone that was produced by A-1 on 29-12-1998 at 2. 30 p. m. Police drafted a mahazar of seizure of M. Os. 2 and 7. He along with P. W. 9 signed Mahazar which is ex. P-8. Later A-1 led them to the house of a-2. A-2 was present in his house. His statement was recorded and M. O. 1 was seized from his house at his instance under ex. P-9. He was also arrested. 2 and 7. He along with P. W. 9 signed Mahazar which is ex. P-8. Later A-1 led them to the house of a-2. A-2 was present in his house. His statement was recorded and M. O. 1 was seized from his house at his instance under ex. P-9. He was also arrested. In his cross- examination he stated that they went to n. R. Kammapalli village by a private jeep. He did not remember the number of the jeep. They started from R. C. Puram at 1. 00 p. m. and reached N. R. Kammapalli by 2. 30 p. m. The distance between Ramchandrampuram and N. R. Kammapalli is 10 K. ms. Police did not take any respectable persons of n. R. Kammapalli village to the rice mill. The rice mill is situated about half kilometer from n. R. Kammapalli village. The house of A-2 is situated by the side of a temple in the midst of the village. All the residents of neighbouring houses of A-2 were present and witnessed the seizure. Police did not obtain their signatures on the Mahazar prepared at the house of A-2. ( 11 ) P. W. LL is the doctor, who conducted post-mortem examination over the dead body of the deceased and found the following injuries, (1) Recently healed linear suture wound of 4 x 0. 2 cm, 3 cm above left ear in parietal area of scalp; (2) Contusion of 6 x 6 cms. of left temporal area of scalp black in colour; (3) Burrhole of 1. 5 x 1 cm. of left parietal bone underneath the wound No. 1. There is a rent of same diameter in duramater underneath, through which brain matter is seen; (4) This film of extradural hemorrhage in left middle cranial fossa, black in colour; (5) A curved fissured faracture of 16 cms. starting from the upper and back portion of left middle cranial fossa, downwards forwards and to right, involving left parietal, temporalbones, sphenoidbone and roof of orbits (both anterior cranial fossa ). Blood clots present. ( 12 ) ACCORDING to him the cause of death of the deceased was due to head injury. ( 13 ) P. W. 12 is the Village Administrative officer of N. R. Kammapalli village. He stated that on 4-1-1999 at about 10. 30 a. m. he held identification of M. Os. Blood clots present. ( 12 ) ACCORDING to him the cause of death of the deceased was due to head injury. ( 13 ) P. W. 12 is the Village Administrative officer of N. R. Kammapalli village. He stated that on 4-1-1999 at about 10. 30 a. m. he held identification of M. Os. l and 2 through the daughter of the deceased and prepared identification proceedings. She identified m. Os. 1 and 2 and Ex. P-11 is the Mahazar prepared by him for identification of M. Os. l and 2. M. Os. l and 2 are one pair of ear studs and one chain. ( 14 ) P. W. 13 is the Police Head Constable. P. W. 14 is also Police Head Constable and p. W. 15 is the Sub-Inspector of Police who investigated the matter. P. W. 16 is Inspector of Police who also investigated the matter. ( 15 ) NOW in the light of this evidence, two circumstances have been tried tobe projected against the accused persons, one is the extra judicial confession alleged to have been made by A-1 before P. W. 8, and the second circumstance is the recovery of stolen properties from the accused. ( 16 ) COMING to the first circumstance i. e. , extra judicial confession, P. W. 8 admitted that there was no acquaintance between him and a-1, and there were no prior transactions between them. There are five villages between the village to which A-1 belongs and the village of which P. W. 8 was V. A. O. There was a V. A. O. in the village to which a-1 belongs. The learned Counsel for the appellants submits that it is un- understandable as to why A-1 would go 10 kms. away crossing five villages and make a confession before V. A. O. who was not even known to him. He submits that the extra judicial confession is a very weak piece of evidence and has to be treated very carefully. He submits that there are inherent factors in disbelieving P. W. 8 and those factors are that a-1 was not at all a suspect. He had himself taken the deceased to the hospital. The offence had taken place on the intervening night of 6/7-11-1998 and for more than three weeks he was attending to the deceased in the hospital. He submits that there are inherent factors in disbelieving P. W. 8 and those factors are that a-1 was not at all a suspect. He had himself taken the deceased to the hospital. The offence had taken place on the intervening night of 6/7-11-1998 and for more than three weeks he was attending to the deceased in the hospital. There was no suspicion about him and in these circumstances, he could not at all make a confession before a stranger. The learned Counsel relies on judgments of the supreme Court reported in Gura Singh v. State of Rajasthan, State of Punjab v. Gurdeep singh and Balbir Singh v. State of Punjab. On the other hand, the learned Public Prosecutor submits that it is well settled position of law that if the extra judicial confession is true and voluntary, it can be relied upon by the Court to convict the accused for the commission of offence alleged. Both the counsel rely on the judgment of the Supreme Court in Gura Singh v. State of Rajasthan. In para6 of the judgment the Supreme Court stated. "it is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh ( AIR 1954 SC 322 ) this Court again in Maghar Singh v. State of Punjab ( AIR 1975 SC 1320 ) held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. Corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M. P. ( AIR 1985 SC 1678 ) this Court cautioned that it is not open to the Court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H. P. ( AIR 1990 SC 2140 ) this court held than an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and the Court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana ( AIR 1991 SC 37 ). After referring to the judgment in Piara Singh v. State of Punjab ( AIR 1977 SC 2274 ) this Court in Madan copal Kakkad v. Naval Dubey ( (1992) 3 scc 204 ) held that the extra judicial confession which is not obtained by coercion, promise of favoaur or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. " ( 17 ) IN the light of law laid down by the apex Court we are of the considered view that this extra judicial confession cannot be relied upon for following reasons, (1) There wasno acquaintance between A-1 and P. W. 8; (2) The alleged confession had been made after more than three weeks of the occurrence; and (3) A-1 was not at all a suspect and there was no reason for him to make a confession before an unknown stranger by crossing five villages and reaching 10 Kms. to make an extra judicial confession before P. W. 8. For these reasons, we are not in a position to agree with the learned Public Prosecutor and we do not believe the testimony of P. W. 8 and hence the plea of extra judicial confession has to be rejected. ( 18 ) NOW the only second circumstance which remains is of the recovery of stolen properties from the accused. P. W. 12 is the v. A. O. before whom P. W. 2 had identified the property as belonging to her mother. He categorically stated that he carried the identification of M. Os. 1 and 2 on 4-1-1999 at 10. 30 a. m. He prepared a Mahazar being ex. P-11. This Ex. P-11 also bears the date of 4-l-1999. In this exhibitit is stated that P. W. 12 received from Sub-Inspector of Police one pair of ear studs and one twisted gold chain for being identified by D. Shamalamma (P. W. 2 ). Thereafter he collected similar four pairs of ear studs and four twisted gold chains and mixed them with the articles sent by the Sub-Inspector. He kept all the articles on the table and called P. W. 2 to identify the properties that belonged to her mother. She removed one pair of ear studs and one twisted chain and showed them to him. She stated before him that these were the articles which were stolen on the night of 6-11-1998 from her mother. This was disputed by P. W. 2 herself in her statement in cross-examination. In her examination-in-chief she stated that she was asked to come to a school in their village by the V. A. O. and identify the ornaments belonging to her deceased mother. She accordingly identified M. Os. 1 and 2 as belonging to her mother. This was disputed by P. W. 2 herself in her statement in cross-examination. In her examination-in-chief she stated that she was asked to come to a school in their village by the V. A. O. and identify the ornaments belonging to her deceased mother. She accordingly identified M. Os. 1 and 2 as belonging to her mother. But in her cross- examination she stated that four or five days after 4-1-1999 the V. A. O. sent Talari to her house and she was asked to come to the school building for identification of M. Os. l and 2. She even denied the suggestion, "it is not true to say that I did not identify M. Os. l and 25 days after 4-1-1999 at a school in our village n. R. Kammapalli. . . . . . . . " So she disputes the identification itself on 4-1-1999. Besides, in her statement she had stated that such type of ornaments were available in the market and even the V. A. O. had stated that he had collected similar four pairs of ear studs and four twisted gold chains. P. W. 2 categorically stated that there were no specific marks the ear studs and gold chain had been carrying. Therefore, the whole transaction becomes doubtful and the recovery of M. Os. 1 and 2 cannot be believed. ( 19 ) P. W. 9 was one of the witnesses to the recovery who turned hostile. P. W. 10 is another witness who does not inspire confidence on the ground that he stated that a-1 was taken from the police station to near the rice mill at N. R. Kammapalli and he produced a plastic cover from the ground after digging. Although he accepted in his statement that all the neighbouring villagers had assembled at the place of occurrence, but no villager was made a witness. On the other hand, the witnesses were taken by the police along with them from the police station. They had started from raman and rapuram whith is 10 Kms. away from K. R. Kammapalli village. The recoveries made from A-2 are also not believable on the same grounds. The trial Courthas committed an error while dealing with A-2 and taken ex. P-9 as extra judicial confession. This statement was admittedly made before the police officer and could not have been relied upon except for the recoveries. away from K. R. Kammapalli village. The recoveries made from A-2 are also not believable on the same grounds. The trial Courthas committed an error while dealing with A-2 and taken ex. P-9 as extra judicial confession. This statement was admittedly made before the police officer and could not have been relied upon except for the recoveries. The recoveries have not been believed by us. The trial Court has also committed an error in para-15 of its judgment by staling that the extra judicial confession recorded by P. W. 8 from A-1 is voluntary and genuine and in pursuance of it he confessed before P. W. 16 under Ex. P-5 to show that he committed robbery of M. Os. 1 and 2 by causing injuries to the deceased. Similarly the trial Court has also committed an error in para-16 by stating that, "with regard to accused No. 2, he also produced m. O. I before P. W. 16 under cover of Ex. P-9 and he stated that accused No. 1 gave that m-O. 1 to him for his share. So as per Ex. F-5 to p-9 statements it is clearly shown that A-1 took away the gold ornaments from the body of the deceased and that A-1 also caussd injury to the deceased on the head and A-2 participated in the incident by assisting him by catching hold of the legs and hands of the deceased at the time of incident. " However, the learned Public Prosecutor relies on a judgment of the Supreme Court reported in limbaji and others v. State of Maharashtra, but this judgment is not applicable to the case in view of the fact that we are not in a position to believe the recovery itself. ( 20 ) FOR these reasons, we do not find that there was any evidence before the trial Court to convict the accused under any offence. The recovery was not proved. The evidence regarding the extra judicial confession was not trustworthy and the evidence of P. W. 8 was not believable. The so-called extra judicial confession made before the police officer could not have been taken into account. Accordingly we allow the appeals filed by A-1 and A-2 and dismiss the appeal filed by the State. The convictions and sentences passed against A-1 and A-2 are set aside and they are acquitted. The so-called extra judicial confession made before the police officer could not have been taken into account. Accordingly we allow the appeals filed by A-1 and A-2 and dismiss the appeal filed by the State. The convictions and sentences passed against A-1 and A-2 are set aside and they are acquitted. They shall be released forth with from custody, if not needed in any other cases.