( 1 ) APPELLANTS/a-1 to A-3 aggrieved by the Judgment in S. C. No. 386/96 dated 24-8-1998 on the file of Additional Sessions Judge, Khammam had preferred the present Criminal Appeal. The learned Judge on appreciation of evidence of PW-1 to PW-13 and Exs. P-1 to P-14 and Exs. D-1 and M. Os. 1 to 14 found A-1 to A-3 guilty of offence under Section 398 r/w. Section 34 and Section 304 Part-I r/w. Section 34 I. P. C. and sentenced them to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs. 500/- each in default to suffer Simple Imprisonment for one month and further sentenced them to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs. 500/- each in default to suffer Simple Imprisonment for one month for the offence under Section 398 r/w. Section 34 I. P. C. and also Section 304 Part I r/w. Section 34 I. P. C. respectively and the aforesaid sentences were directed to run concurrently. ( 2 ) THE case of the prosecution is that the complainant G. Muthaiah i. e. , PW-11 and the deceased were working as Cleaner and Driver of the lorry bearing No. AP 16 T 3329 of Chennupati Lorry Transport, Vijayawada and they were residents of Vijayawada and A-1 and A-3 are residents of Thummurukota, Rentachintala Mandal, Guntur District and A-2 is a resident of Kocherla, Vinukonda Mandal, Guntur District. It is also the case of the prosecution that the deceased Bhakskar Rao had been to Laxminagar of Dummugudem Mandal and on 8-12-1993 at about 2000 hours the deceased Bhaskar Rao along with the Cleaner Gundu Muthaiah started from Laxminagar in the aforesaid lorry with a load of paddy belonging to Karelli Anjaneyulu (LW-6) and two others bound to Khammam. On the way when they reached Paloncha they slept at Chunnupati Lorry Transport office and asked the watchman to wake them up at 0230 hours on the subsequent day and he woke up Bhaskar Rao, the deceased, and Muthaiah-PW-11 and they started from Paloncha on 9-12-1993 at about 0315 hours with the said lorry and when they reached Kothagudem three strangers/accused boarded their lorry on the guise of proceeding to Khammam and offered Rs. 10/- each as fare to Khammam and they sat in the cabin. 10/- each as fare to Khammam and they sat in the cabin. It is also the case of the prosecution that by the conversation among the accused the complainant/pw-11 came to understand that the accused are Venkateswarlu, Kotaiah and Saidulu. The deceased along with PW-11 and the accused started from Kothagudem at about 0410 hours and at about 0520 hours they reached near Vinobhanagar on Kothagudem-Khammam road. Then the accused brandished knives and threatened the lorry driver, the deceased, to extract money from him anticipating that the deceased would be having money which was collected due to the transport of consignment in the lorry. The deceased did not yield to the threats of the accused. One of the accused stabbed the deceased on his right chest and right cheek with intention to extract money from him and the deceased was adamant and continued his driving and the other two accused also stabbed the deceased on his back below the neck causing fatal bleeding injuries. Blood was oozing out from the stab injuries and the condition of the deceased deteriorated and ultimately he could not control the lorry and the lorry ran towards the Southern side of the B. T. Road and it ran into the barren field of Yellanki Chinna Abbaiah and fell on its right side. The deceased came out from the lorry cabin and died due to profused bleeding due to stab injuries inflicted by the accused. One of the accused was entangled in the lorry cabin and he was extracted by the other two accused and they went away towards the fields. While they were fleeing away Chowdam Yelagondaiah and Gundepinni Muthaiah noticed them. One of the accused received injuries by stabbing in the incident. On the complaint of the complainant PW-11 on 9-12-1993 at 0830 hours, Crime No. 103/93 of Julurpad Police Station was registered and after completing investigation and receipt of Post Mortem Examination report and Forensic Science Laboratory report the Inspector of Police, Kothagudem filed the charge sheet. In view of the abscondance of A-1 the case against A-1 was separated and however subsequent thereto both the P. R. Cs. were committed to the Court of Session which were numbered as S. C. Nos. In view of the abscondance of A-1 the case against A-1 was separated and however subsequent thereto both the P. R. Cs. were committed to the Court of Session which were numbered as S. C. Nos. 389 and 391 of 1996 and the learned Sessions Judge made over the same to Additional Sessions Judge, Khammam and accordingly the learned Additional Sessions Judge after recording evidence convicted and sentenced the accused as specified supra. ( 3 ) SRI Bali Reddy, the learned Senior Counsel representing the appellants/accused would submit that PW-11, the sole eye witness was declared hostile and Ex. P-7 was disowned and in view of the same, the very version of the prosecution cannot be believed and the evidence of PW-8 cannot improve the episode of the prosecution in any way in the light of the evidence of PW-11. The learned Counsel also would submit that even on a comparison of the signature in Ex. P-7 with the signature in the deposition of PW-11, it is clear that the same are not one and the same and there is great suspicion relating to the fact whether the complainant had made the complaint at all. The learned Counsel also had drawn the attention of this Court to the time gap and would contend that this case was manipulated as against the appellants/accused and they were falsely implicated. The learned Counsel also would contend that even in the light of the evidence of PW-2 and PW-4 three persons were brought by the police on the same day to the accident spot and in the light of the same, the version of the prosecution that the arrest was made subsequent thereto cannot be believed. The learned Counsel also had commenced about the identification parade and pointed out to the relevant aspects in the cross-examination of PW-7. The learned Counsel would contend that statements were alleged to have been recorded by PW-7 in the course of test identification proceedings and they may not as such amount to confessions. The said statements are definitely incriminating in nature suggestive of the presence of the accused at the spot on the fateful day and no precautions had been taken by the learned Magistrate as per Law before proceeding to record such statements during the course of test identification proceedings. The learned Counsel also would point out that PW-2 and PW-4 were not declared hostile. The learned Counsel also would point out that PW-2 and PW-4 were not declared hostile. The learned Counsel also would point out that relying upon the events on the ground of res gestae and also invoking Section 29 of the Indian Evidence Act 1872 and placing reliance on the alleged statements of the accused said to have been made to PW-7 in the course of test identification proceedings and recording conviction on the strength of such evidence, definitely is unsustainable in the light of several inherent improbabilities in the prosecution version especially in the light of the fact that PW-11 himself was declared hostile and as a matter of statement in Ex. P-7 PW-11 had specifically disowned the same. The learned Senior Counsel also had drawn the attention of this Court to medical evidence and also Exs. P-2 to P-4, the recovery of knives and would comment that in view of the facts and circumstances the appellants/accused definitely are entitled to an order of acquittal since there is no legally acceptable evidence to connect these accused with the offences with which they had been charged with. ( 4 ) THE learned Additional Public Prosecutor would contend that merely because PW-11 was declared hostile the whole evidence of PW-11 need not be discarded and the evidence of such a witness may have to be scrutinized with care and caution and the truth may have to be separated from falsity. Even otherwise in view of the evidence of PW-8 the version of the prosecution cannot be disbelieved. The learned Counsel also had taken through the evidence of PW-6, PW-7, PW-10, PW-2 and PW-4 and PW-11 and the learned Counsel would contend that the statements were voluntarily made by the accused before the Magistrate and these statements would not amount to confession and there is no incriminating material as against them and hence such voluntary statements made by the accused had been relied upon by the learned Judge and hence the conviction and sentence imposed are justified and the same are in accordance with law. Reliance was placed on Balu Sonba Shinde Vs. State of Maharashtra (2003 SCC (Crl) 112) and Ashfaq Vs. State (Govt. of NCT of Delhi) (2004 SCC (Crl) 687 ). ( 5 ) PW-1 to PW-13 were examined and Exs. P-1 to P-14 and Ex-D1, i. e. , statement under Section 161 Cr. Reliance was placed on Balu Sonba Shinde Vs. State of Maharashtra (2003 SCC (Crl) 112) and Ashfaq Vs. State (Govt. of NCT of Delhi) (2004 SCC (Crl) 687 ). ( 5 ) PW-1 to PW-13 were examined and Exs. P-1 to P-14 and Ex-D1, i. e. , statement under Section 161 Cr. P. C. of PW-6, and M. Os. 1 to 14 were marked. Ex. P-7 is the original complaint of PW-11 said to have been given to the Police. PW-8 is said to be the person who scribed Ex. P-7 which was signed by PW-11. PW-3 is the brother-in-law of the deceased. PW-1 simply deposed that he noticed the lorry belonging to Chennupati Lorry Transport turned turtle and also noticed the deceased lying dead in the front of the vehicle who was the driver of the lorry with bleeding injuries and he suggested the cleaner to go to the Police Station and report the matter. PW-2 and PW-4 deposed about what they had actually seen just after the incident. PW-5 deposed about Ex. P-1 panchanama. PW-6 was examined in relation to Exs. P-2 to P-4 and also seizure of Mos. 7, 8, 9, 10, 12, 13 and 14. PW-7 conducted the test identification parade. PW-8 is the scribe of Ex. P-7 which is said to have been given by PW-11. PW-9 deposed about coming to know about the death of the deceased and the lorry turning turtle. PW-10 is the Doctor. PW-12 is the Sub-Inspector of Police who had registered the crime and issued express F. I. Rs. PW-13 is the Circle Inspector of Police who filed the charge sheet. Ex. P-6 is the test identification proceedings conducted by PW-7. Ex. P-8 is the Post Mortem examination report. Ex. P-9 is Section 161 Cr. P. C. statement of PW-11 and Ex. P-10 is the F. I. R. issued by PW-12 based on Ex. P-7 report. Ex. P-11 is the scene of offence panchanama conducted by Police. Ex. P-12 is the rough sketch of scene of offence prepared by police. Ex. P-13 is four photos with negatives. Ex. P-14 is the Motor Vehicles Inspectors report regarding the inspection of the lorry driven by the deceased. P-7 report. Ex. P-11 is the scene of offence panchanama conducted by Police. Ex. P-12 is the rough sketch of scene of offence prepared by police. Ex. P-13 is four photos with negatives. Ex. P-14 is the Motor Vehicles Inspectors report regarding the inspection of the lorry driven by the deceased. Likewise, MO-1 is the shirt, MO-2 is lungi, MO-3 is banian, MO-4 is drawer, Mo-5 is blood stained earth, MO-6 is control earth, MO-7 is bag, MO-8 is towel, MO-9 is shirt, MO-10 is country bomb, MO-11 is knife, MO-12 is shirt from A-2, MO-13 is knife from A-2 and MO-14 is knife from A-3. Ex. D-1 is Section 161 Cr. P. C. statement of PW-6. ( 6 ) THE fact that the deceased was the driver of the lorry bearing No. AP-16-T-3329 of Chennupati Lorry Transport, Vijayawada is not in controversy and the lorry was driven by him on the fateful day i. e. , 9-12-1993 and the same turned turtle at Vinobhangar also is not in serious dispute. The version of the prosecution is that the appellants/accused on 9-12-1993 at about 5 a. m. near Vinobhanagar and Kothagudem-Khammam Road with the common intention and in furtherance of robbing money committed murder of the deceased, the driver of the lorry, by stabbing him with knives. Whether this version of the prosecution had been established and whether there is legally acceptable evidence on record to connect the appellants/a-1 to A-3 with the incident is the question. The only eye witness to the incident according to the version of the prosecution is PW-11, the cleaner. It is stated that PW-8 had scribed Ex. P-7 and PW-11 had lodged the same. Submissions at length were made to compare the signatures in Ex. P-7 and the deposition of PW-11. On a careful scrutiny of the signatures in Ex. P-7 and the deposition of PW-11 even to a naked eye, these signatures appear to be different signatures and would throw some suspicion whether Ex. P-7 was signed by PW-11 at all. No doubt submissions were made that in the light of the evidence of PW-8, the scribe of Ex. P-7, Ex. P-7 can be relied upon despite the fact that PW-11 was declared hostile. Ex. P-7 reads as hereunder: on 8-12-93 at about 8 p. m. Lorry No. Ap 16 T 3329 we loaded the paddy and started from Laxmipuram to Khammam. P-7, Ex. P-7 can be relied upon despite the fact that PW-11 was declared hostile. Ex. P-7 reads as hereunder: on 8-12-93 at about 8 p. m. Lorry No. Ap 16 T 3329 we loaded the paddy and started from Laxmipuram to Khammam. We reached Palwancha at about 10 p. m. and I and lorry driver Bhaskar Rao slept at Palwancha. at about 10 p. m. Next day on 9-12-93 at about 3-15 hrs. we started from Palwancha and reached Kothagudem at about 4-15 hrs. a. m. Near Kothagudem bus stand three persons stopped the lorry, we asked them where are your going. Those three persons told they want to go to Khammam and offered to give Rs. 10/- per head as fare. Those three persons boarded the lorry. In those three persons two are in stout and height and one person is short. Two persons wore lungies, one person wore pant. As per their versions their names are venkateswarlu, Kotaiah, Sydulu. After crossing Julurpad at about 5-15 a. m. about to reach Vinobhanagar those three persons who are in the cabin woke up and picked knives and pierced on the neck of the driver and demanded to give money what amounts you are having. Driver did not give the amounts. One of them in the lorry pierced the driver on his right side of the chest with the knife. Remaining two persons pierced driver with knives. The driver made hue and cries and left the steering of the lorry and fell down due to uncontrol of the steering. Those three persons get down from the lorry and ran away. The driver fell down in front of the lorry and died. I can identify those three persons. So take appropriate action. ( 7 ) PW-11 who was declared hostile deposed that he was working as the cleaner of the lorry of which the deceased was the driver and at Kothagudem five passengers boarded the lorry by payment of Rs. 10/- to go to Khammam and after they crossed Julurpadu village the lorry met with an accident and turned turtle and it was not dashed against any vehicle or tree and unless the driver got sleep there was no possibility of the lorry meeting with accident and turning turtle. 10/- to go to Khammam and after they crossed Julurpadu village the lorry met with an accident and turned turtle and it was not dashed against any vehicle or tree and unless the driver got sleep there was no possibility of the lorry meeting with accident and turning turtle. This witness also deposed that till Julurpad he was not in sleep and all the five passengers were traveling and noticed by him and he got mild sleep by the time of the accident and thereby he did not notice how it had happened and by the time he woke up he was on the side of the lorry and others were not in the lorry. Immediately after the incident he went to. Rami Reddy, a clerk of their lorry office at Kothagudem and informed him and both of them went to the scene of offence and the driver was already dead and they went to the police station and presented Ex. P-7 complaint scribed by PW-8. This witness specifically deposed that none of the accused were traveling in the lorry and this witness also deposed that identification proceedings were conducted in C. P. W. where he had identified the culprits who are the accused and this witness was declared hostile and in cross-examination by the Additional Public Prosecutor the witness deposed that it is not true to suggest that he had identified these accused as culprits in C. P. W. in the proceedings conducted by PW-7, the Magistrate, and it is not true to suggest that Ex. P-7 report was scribed by PW-8 on his dictation. However he stated that the accused persons 1 to 3 boarded the lorry at Kothagudem and after crossing Julurpadu park they demanded them to shell down money and on refusal by the Driver they stabbed the Driver and out of fear he was in the lorry cabin on a side with no reaction and that it is because of the stab injuries the driver lost control of the steering resulting in the lorry turning turtle and accused 1 to 3 who stabbed Bhaskar Rao, the deceased, on the lorry turning turtle jumped from the lorry and fled away towards the fields and he stated that he can identify them. All the other suggestions also were specifically denied. Not only that the signatures of this PW-11 on Ex. All the other suggestions also were specifically denied. Not only that the signatures of this PW-11 on Ex. P-7, if compared with the signatures in the deposition taken in Court would throw some suspicion, but also in the light of the nature of evidence of PW-11 though the incident of the lorry turning turtle had been established, there is no legally acceptable evidence to connect the accused with the incident proper. The evidence of PW-8 in this regard in relation to Ex. P-7 is only to the limited extent that the report was scribed by him and signed by PW-11 and this may not improve the version of the prosecution. PW-2 deposed that he had seen the lorry turning turtle and noticed the driver who fell down and lying and the cleaner and they ascertained what happened and the cleaner stated that the accused persons boarded their lorry at Kothagudem having paid Rs. 30/- as fare and while coming they demanded for shelling down money with driver and the cleaner and on refusal of the driver to part with money they hacked the driver while he was driving and thereby the driver lost control and the incident took place. This witness also deposed that they noticed bleeding injuries on the dead body of the driver and this witness further deposed that about five or ten days later Police called him to attend to Warangal Jail and this witness, Chinna Abbaiah and Muthaiah went to Warangal Jail and identified the accused. This witness was cross-examined at length. In cross-examination no doubt certain suggestions were denied. This witness also deposed that it is not true to suggest that he is speaking falsehood about noticing the accused persons getting down from the lorry and running away though the accused did not travel in the lorry and though there is no possibility from the fog to identify. This witness also deposed that the vehicle suffered little damage and one of its front glass broken on drivers side. He also further deposed that Police came by 6 a. m. there and after a few minutes they examined him and some time thereafter the accused were brought to the sot by police and recovered the knives left by the accused in the lorry cabin. He also further deposed that Police came by 6 a. m. there and after a few minutes they examined him and some time thereafter the accused were brought to the sot by police and recovered the knives left by the accused in the lorry cabin. Five or six days thereafter this witness along with others identified them in the test identification proceedings and this witness also was cross-examined about how the identification proceedings had been conducted. PW-4 also had deposed to the same effect just like PW-2. This witness also deposed that Police came by 7 a. m. or 6. 30 a. m. and examined him at that time and also in the evening and the accused were brought by police to the spot on the same day and they identified the accused as culprits when the police asked him to identify by showing the accused as that they are the culprits and about 15 days after the occurrence they were taken to Warangal jail where they identified the accused. Relating to the aspect of identification also this witness was cross-examined. This evidence of PW-2 and PW-4 had been relied upon the ground of res gestae and actually what had transpired immediate to the incident. Thus strong reliance was placed by the prosecution on the evidence of PW-11, though declared hostile, and also the evidence of PW-2 and PW-4 who had seen the accused running away. Strong reliance was placed on the decision referred (2) supra wherein it was held that if the weapon with which the offender was armed was within the vision of the victim so as to be capable of creating terror in the mind of the victim that is sufficient to satisfy the word used for the purposes of Section 397 IPC and it need not be further shown to have been actually used for cutting, stabbing, shooting as the case may be. In the decision referred (1) supra, while dealing with hostile witness and reliability thereof the Apex Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence and the portion of the evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautions and circumspect in such acceptance. There cannot be any doubt or controversy relating these propositions. There cannot be any doubt or controversy relating these propositions. Apart from the aspect in relation to the signature of PW-11 on Ex. P-7, no doubt PW-11 had deposed about the incident, but had specifically denied having seen these accused or having identified these accused. Thus though PW-11 had spoken about the incident, he was clear and categorical in specifically deposing that the persons who are brought before the Court and who are charged with the offences are not the persons amongst those who had traveled on the fateful day in the lorry in question. It is needless to say that the prosecution may have to establish that the accused were the persons who participated in the commission of the offence on the fateful day. The evidence of PW-2 and PW-4 if carefully scrutinized also would suffer from certain infirmities. The day was a day of fog and they say that they had witnesses the incident and they rushed to the spot where the lorry turned turtle and noticed the accused fleeing away. It is pertinent to note that in the cross-examination of both the witnesses they deposed that these were brought on the same day to the spot and it was also deposed that since Police said these were the culprits and PW-4 had identified these accused as the culprits, it is doubtful whether the appellants/accused 1 to 3 are the persons who are in any way concerned with the incident on the fateful day. ( 8 ) THE evidence of PW-2 and PW-4 is to the effect that they had noticed the incident and rushed to the spot. PW-5 was examined to prove the seizure of M. Os. 1 to 4 shirt, lungi, banian and drawer, and blood stained and control earth M. Os. 5 and 6 under cover of Ex. P-1 panchanama and no doubt it was suggested to this witness that he was deposing at the instance of Police. PW-6 was examined who deposed that he came to the Police Station along with LW-18, LW-19, LW-20 an LW-22 and they interrogated the accused persons who disclosed about the weapons in their custody used by them in commission of the crime and the Police seized from A-1 a bag (MO-7), one shirt and one towel (MOs. PW-6 was examined who deposed that he came to the Police Station along with LW-18, LW-19, LW-20 an LW-22 and they interrogated the accused persons who disclosed about the weapons in their custody used by them in commission of the crime and the Police seized from A-1 a bag (MO-7), one shirt and one towel (MOs. 8 and 9), one country bomb (MO-10) lying in the bag and one knife (MO-11) and the police seized the same from A-1 under cover of Ex. P-2 panchanama and when the interrogated A-2 he disclosed the same facts and police seized from him MO-12 shirt, MO-13 knife seized under a cover of Ex. P-3 panchanama from A-2 and A-3 disclosed the same facts and the police seized from him MO-14 knife under cover of Ex. P-4 panchanama and they attested the panchanama at the Police Station. This witness was cross-examined at length and this witness deposed in cross-examination that it is not true to suggest that he stated before the Police as in Ex. D-1 as if after catching hold of A-3 on his information they caught hold of A-1 and A-2 and later informed to Police. Ex. D-1 reads as hereunder: myself Siddaboina Tirpaiah, Siddaboina Venkateswarlu and Nanoth China Dharma were informed to the police we all went to the hayrick situated at the out skirts of the village and we caught hold of the other two persons who hide themselves near hayrick. ( 9 ) THE other crucial witness is PW-17 who deposed that on requisition received from the Inspector of Police, Kothagudem dated 16-12-1993 Ex. P-5 to conduct test identification parade to identify the suspects in Cr. No. 103/93 of Julurpad Police Station at Central Jail, Warangal, fixing the date as 18-12-1993, he proceeded to C. P. W. on that day and taken all precautions in arranging the test identification proceedings of suspects with non-suspects of about 19 of equal built, get-up and appearance etc. P-5 to conduct test identification parade to identify the suspects in Cr. No. 103/93 of Julurpad Police Station at Central Jail, Warangal, fixing the date as 18-12-1993, he proceeded to C. P. W. on that day and taken all precautions in arranging the test identification proceedings of suspects with non-suspects of about 19 of equal built, get-up and appearance etc. , and fixed to the choice of suspects with the said non-suspects and taken precautions to keep the witnesses away to the premises and later he instructed the Attender to bring one after another witness and he called Gundu Muthaiah and recorded his statements as to how he can identify and asked him to identify the suspects if any out of those persons and he identified A-2 and A-1 and could not identify A-3 and had shown some other person by name Narayana, a non-suspect, and he had recorded the same and later kept him away. Then he gave option to the suspects to change their places and called PW-2 and asked him as to how he can identify and recorded his statement and asked him to identify and he identified A-1, A-2 and A-3 from out of the culprits. PW-7 then kept the second witness away and he called Chinna Abbaiah (LW-4) and asked him to identify and recorded his statement and he had identified only Sydulu and Venkateswarlu and could not identify A-2 and again the same process was followed and he had called PW-4 and asked him how he can identify and recorded his statement and he identified A-2 and A-1 as culprits and could not identify A-3 and for A-3 he identified a non-suspect by name Gali Kumar. This witness, PW-7, deposed about the conduct of identification proceedings and Ex. P-6 is the identification proceedings report prepared by him including the statements of witness recorded by him and the statements of accused persons recorded by him. This witness, PW-7, deposed about the conduct of identification proceedings and Ex. P-6 is the identification proceedings report prepared by him including the statements of witness recorded by him and the statements of accused persons recorded by him. This witness also deposed in cross-examination that he cannot overrule the possibility if any of showing the accused to the witness on that day and however as per jail Rules they were not allowing anybody to enter the jail premises without the prior written permission from the Judicial Officer concerned and even if the written permission is there, they were allowed from 3 p. m. till 6 p. m. This witness also deposed that it is true that from to the statements of accused persons there is no mention that they were traveling in the lorry by the time of accident. However they stated that they sustained injuries and he had so stated in the chief-examination. It was also deposed that it is true that they did not state specifically where they sustained injuries. The statements of the suspects recorded by PW-7 also had been relied upon by the prosecution to establish the fact that these statements are suggestive of the presence of the accused on the date of the incident at the spot. ( 10 ) IT is no doubt true that the accused 1 to 3 are said to have stated that the lorry fell down accidentally and the driver of the lorry died in the accident and they sustained injuries and a case was registered against them as though they killed the driver and they were kept in Kothagudem Police Station and they were shown to the witnesses and asked them to identify. A-3 is said to have stated that the lorry fell accidentally and the lorry driver died and they received injuries and the case was registered against them as if they killed the driver and all the three of them were beaten in the Police Station and he does not know what case was registered against him and the witnesses who came had pointed out to them and they were asked to state that they traveled in the lorry. Though these statements as such may not amount to confession, some incriminating material which would be suggestive of the presence of these accused at the spot had been recorded. Though these statements as such may not amount to confession, some incriminating material which would be suggestive of the presence of these accused at the spot had been recorded. It is no doubt said that these statements were voluntarily made, but no precautions were taken before recording such statements of the suspects and on the strength of such statements which may be suggestive of the presence of two of them, especially in the light of the nature of evidence available on record, definitely it cannot be said that the offences with which the accused had been charged with had been proved by the prosecution beyond all reasonable doubt. At any rate, the statements said to have been made voluntarily on the ground that these statements would not amount to confession, definitely cannot be used of as substantive evidence so as to sustain the conviction and the sentence of such grave charges in the absence of other acceptable evidence. The evidence of PW-9 is only to the effect that on seeing the newspaper items he came to know about the death and the lorry turning turtle. ( 11 ) PW-10, Doctor, deposed that on requisition from the Circle Inspector of Police on 9-12-1993 he had conducted autopsy over the dead body of the deceased between 4. 15 p. m. and 6. 15 p. m. and found the following injuries: 1. A penetrating wound of x 1 x below the right clavicle. 2. Incised wound of x 1 x below the right ear. 3. Other three incised wounds at the upper part medial aspect of right scapular 2 in number simple with a size of x x 3 and 2nd x x and the 3rd wound is grievous in nature below the above two injuries with a size of x 4 x and 4. Another incised wound x 2 x below the left occipital region. PW-10 deposed that Injury Nos. 1, 2 and 4 are simple and all are anti-mortem and the causative weapon is a sharp edged weapon and the death of the deceased was due to shock and internal hemorrhage which is due to laceration of the left lung followed by injury No. 3, sub-injury No. 3 which is sufficient to cause the death of any human being. The death of the deceased was 10 to 12 hours prior to the autopsy and Ex. The death of the deceased was 10 to 12 hours prior to the autopsy and Ex. P-8 is the Post Mortem Examination report with opinion. This witness was cross-examined and this witness deposed that he cannot rule out the possibility of these injuries from broken glass splinters of lorry glass if any. ( 12 ) PW-12 and PW-13 are the Sub-Inspector of Police and Circle Inspector of Police. PW-12 deposed that on 9-12-1993 he received Ex. P-7 written report from PW-11, the cleaner of the lorry AP 16 T 3329 of Chennupati Lorry transport Vijayawada at 8-30 a. m. and registered the same as Cr. No. 103/93 under Sections 398, 302 r/w. Section 34 IPC and issued Ex. P-10 express F. I. R. and immediately C. I. P. Rama Swamy on intimation came and taken up investigation by receiving C. D. file from him and he assisted him in the investigation. This witness deposed that PW-11 and PW-8 both came and presented Ex. P-7 report and he does not know who scribed it and it was scribed by PW-8. Ex. P-7 was already scribed and signed by the time it was given to him. The distance between Kothagudem and Julurpad Police Station is 35 K. Ms. and there is frequently of buses and one can reach in one hour or so. He further deposed that he dispatched the F. I. R. immediately to Court by handing over the same to constable at about 9. 3 a. m. or so. This witness deposed that it is not true to suggest that it is this witness who had taken the F. I. R. and handed over to the Magistrate on that day at 5 p. m. as per endorsement in Ex. P-10 and he no doubt adds that there is a mention that it was through S. I. and not by S. I. This witness was cross-examined about certain typographical features. He also deposed that it is not true to suggest that Ex. P-7 report is an outcome of deliberations and consultations at the instance of Chennupati Transport people and others and though it was an accidental death they diverted it as robbery and murder ingeniously and the F. I. R. was issued just before sending to Court. He also deposed that it is not true to suggest that Ex. P-7 report is an outcome of deliberations and consultations at the instance of Chennupati Transport people and others and though it was an accidental death they diverted it as robbery and murder ingeniously and the F. I. R. was issued just before sending to Court. ( 13 ) PW-13 is the Circle Inspector of Police who deposed that on 9-12-1993 he received express F. I. R. issued by PW-12 in Cr. No. 103/93 and deposed about Ex. P-1 panchanama, seizure, observation and preparation of rough sketch of the scene of offence, taking photos of dead body at the scene of offence and the negatives and conducting autopsy and examining the complainant PW-11 and other witnesses and the photographer and this witness also deposed that on 15-12-1993 PW-6 and other villagers caught hold of A-3 and S. I. and other villagers arrested A-1 and A-2 and produced them before him at 7 p. m. at Julurpad Police Station and they secured PW-6, LW-18 to 20 and 22 and in their presence the accused were interrogated and they disclosed about the commission of the crime and this witness also deposed about the seizure of M. Os. and the drafting of panchanamas etc. , and the Motor Vehicle Inspector examining vehicle and finding no mechanical defects and giving Ex. P-14 report and also filing requisition before PW-7 for test identification, receiving Post-Mortem Examination report and closure of investigation and filing of the charge sheet. This witness was cross-examined at length. This witness deposed that at about 10. 30 a. m. he received express F. I. R. from PW-12 and the distance between the scene of offence and the Police Station is 4 K. Ms. as mentioned in Ex. P-10. Along with this witness, the S. I. and constables came and inquest was completed by 3 P. M. PW-11 and PW-8 were present at the scene of offence at the time he visited the scene of offence. PW-1 did not state before him about his suggestion to PW-1 to go and report at Police Station. as mentioned in Ex. P-10. Along with this witness, the S. I. and constables came and inquest was completed by 3 P. M. PW-11 and PW-8 were present at the scene of offence at the time he visited the scene of offence. PW-1 did not state before him about his suggestion to PW-1 to go and report at Police Station. He also deposed that PW-2 did not state his watching any heap of paddy, thrashing floor or about his witnessing there from the lorry turning turtle and PW-2 did not also state noticing of any injury below the shoulder to the stomach or abdomen area at front or back or his sending cleaner in another lorry turning turtle and PW-2 did not also state noticing of any injury below the shoulder to the stomach or abdomen area at front or back or his sending cleaner in another lorry to go and report to police or of the fact of PW-11 after presenting report to police he coming to the spot or about his witnessing cleaner getting down from the cabin of the lorry. PW-13 also deposed that PW-4 did not state that by the time they went to the lorry they found the cleaner weeping or by the time they noticed the occurrence there was warming from the fire place or about the three persons running away from his field. The other suggestions relating to the test identification parade and other aspects no doubt had been specifically denied. ( 14 ) IT is pertinent to note that the specific case of PW-2 and PW-4 is that the accused were brought to the spot on the same day but the Investigating Officer deposed as though the arrest was made on a subsequent date. In the light of the fact that PW-2 and PW-4 had specifically deposed about bringing of these accused as suspects on the same day to the spot by the police, the arrest at a later point of time definitely cannot be believed. Equally the alleged seizure in the words deposed by the prosecution witnesses also cannot be believed. Apart from this aspect of the matter, PW-7 also deposed that the possibility of these suspects being shown to the witnesses for the purpose of identification cannot be ruled out though there are some safeguards under the jail Rules. Equally the alleged seizure in the words deposed by the prosecution witnesses also cannot be believed. Apart from this aspect of the matter, PW-7 also deposed that the possibility of these suspects being shown to the witnesses for the purpose of identification cannot be ruled out though there are some safeguards under the jail Rules. In view of the specific admissions made by PW-2 and PW-4 that they had seen these accused as suspects at the spot and brought on the same day, the subsequent test identification parade would just remain as a farce only and nothing more and nothing beyond. In the light of the evidence of PW-11 and the doubt case on the signature in Ex. P-7 alleged to have been subscribed by PW-11 and also in the light of the nature of evidence of PW-2 and PW-4 and the medical evidence available on record, though the incident on the fateful day had been established by the prosecution, the version of the prosecution that the appellants/accused had committed these offences on the fateful day definitely had not been established beyond all reasonable doubt and for want of legally acceptable evidence the appellants/accused are entitled to the benefit of doubt. The findings recorded by the learned Judge cannot be said to be sustainable findings and in view of the same benefit of doubt is to be given to the appellants/accused and accordingly acquittal is hereby recorded. The Criminal Appeal is allowed. The bail bonds of the appellants/accused shall stand cancelled.