ORDER P. Sathasivam, J. One Ravikumar alias Kundu Ravi (A-1) in Sessions Case No.354 of 2000 on the file of Additional District Judge (Fast Track No.I) Chingleput, who suffered the punishment of life imprisonment and fine of Rs.1,000 in default six months rigorous imprisonment, has filed Crl.A.No.1370 of 2003. The second accused, viz., Murugan in the same Sessions case questioning his conviction under Sec.367(g) read with Sec.34, I.P.C. and sentenced to undergo 10 years rigorous imprisonment and fine of Rs.1,000, in default six months rigorous imprisonment, has filed Crl.A.No.1016 of 2003. The third and fourth accused who suffered imprisonment of 10 years and 4 years respectively have not filed appeal. 2. The case of the prosecution is briefly stated hereunder: (a) The deceased Rajeswari, on 28.5.1999 morning went to Madras Christian College to get an application form for the college admission. Since she did not return home, RW.15, mother of the deceased, went in search of her and enquired her daughter's friend RW.7. RW.15, on 30.5.1999, gave a complaint to Tambaram Police Station and the same was registered as “girl missing”. (b) On 2.6.1999, at about 1.30 p.m., P.W.3, watch-man of Madras Christian College saw a dead body in a highly decomposed state in the campus near pumping station and water tank. He immediately informed about the same to P.W.2, who is the Security Officer of Madras Christian College. P.W.2, in turn informed P.W.1, Bursar and he lodged a report before P.W.24, Sub-inspector of Selaiyoor Police Station, who registered the complaint as First Information Report under Sec.174, Crl.P.C., in Crime No.339 of 1999. (c) P.W.26, the Investigating Officer in charge took up the investigation and examined the witnesses, On 4.6.1999, he sent the body for post-mortem to P.W.11 through Ex.P-7. P.W.11, conducted autopsy and gave a report Ex.P-8 on 7.6.1999. RW.26, seized bangles through Form 95 i.e., M.Os.1 and 2 and took photographs of the body and sent the photo and skull for superimposition. P.W.27 took up the investigation on 16.6.1999. (d) A-4 on 6.7.1999 at 12.30 p.m. went to P.W.8, who is a friend of his father and gave extra judicial confession saying that on 28.5.1999, he along with A-1 to A-3 went to Madras Christian College water tank area to have drinks and at that time, they noticed a girl of 17 years going inside the campus and A-1 asked shall we rape her. On the direction of A-1, all the four agreed and waylaid the deceased, took her to nearby water tank and raped her one by one. When A-1 was raping, she gave alarm due to pain and at that time, A-1 strangulated her and she died. Then they kept the body on the footpath. After two months, he saw the news in the paper and from that time he became restless and decided to surrender to the police. When P.W.8 asked him to surrender, he refused and ran away. P.W.8 gave a complaint on the same day at 12.00 noon at the Selaiyoor Police Station. The complaint has been marked as Ex.P-3. (e) On the same day at 3.30 p.m. A-4 was arrested in the presence of P.W.1 8 and P.W.21 and his confession was recorded (Ex.P-55). On recovery of M.O.4 cap under mahazar Ex.P-56. A-1 and A-2 were arrested on the same day at 5.15 p.m. in the presence of P.Ws.14 and 19. A-1 gave confession (Ex.P-15) and M.Os.5 and 11 were recovered under mahazar Ex.P-57. A-3 surrendered on 9.7.1999 at 2 30 p.m. He gave confession (Ex.P-12) before P.W.13 and recovered long size note book Ex.P-13 under mahazar Ex.P-14. A-4 gave a statement under Sec.164, Crl.P.C., before Judicial Magistrate, Alandur, P.W.9 on 13.7.1999 and the same was recorded in Ex.P-5; thereafter, charge sheet was laid. 3. When the accused were questioned under Sec.313, Crl.P.C., with reference to the incriminating circumstances found against them, in the evidence of prosecution witnesses, they denied the same. Accused have not examined any witness on their side. 4. The learned Additional Sessions Judge, based on the extra-judicial confession statement of A-4 to P.W.8 and the statement under Sec.164, Crl.P.C. by A-4 to Judicial Magistrate, Alandur (P.W.9), accepted the prosecution case and found A-1 and A-4 guilty under Sec.341 , I.P.C., Sec.376 read with Sec.34 , I.P.C., A-1 alone charged under Sec.302, I.P.C., convicted and sentenced to undergo life imprisonment as well as fine of Rs.1,000, in default six months rigorous imprisonment. In respect of charge No.2, A-1 to A-3 sentenced to 10 years rigorous imprisonment and fine of Rs.1,000, in default six months rigorous imprisonment. No separate sentence was awarded in respect of charge I. In so far as charge No.4, A-2 to A-4 were acquitted. As said earlier, A-1 and A-2 alone preferred the above appeals. 5. Heard Mr. In respect of charge No.2, A-1 to A-3 sentenced to 10 years rigorous imprisonment and fine of Rs.1,000, in default six months rigorous imprisonment. No separate sentence was awarded in respect of charge I. In so far as charge No.4, A-2 to A-4 were acquitted. As said earlier, A-1 and A-2 alone preferred the above appeals. 5. Heard Mr. R. Sankarasubbu, learned counsel for the appellant in Crl.A.No.1016 of 2003, Mr. Kumaraguru, learned counsel for the appellant in Crl.A.No.1370 of 2003 and Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the State. 6. The only point for consideration in these appeals is, whether the prosecution has established the charges leveled against the accused. 7. The prosecution in order to sustain the charges, heavily relied on: (a) Extra judicial confession statement of A-4 to P.W.8, implicating all the four accused; and (b) Confession statement of A-4 under Sec.164, Crl.P.C., before the Judicial Magistrate, Alandur (P.W.9). 8. It is not in dispute that except the extra judicial confession statement of A-4 before P.W.8 and before the Judicial Magistrate, Alandur (P.W.9) under Sec.164, Crl.P.C., no other material was pressed into service. Ex.P-3 is a complaint by P.W.8 to the Inspector of Police, Selaiyoor Police Station, wherein, the complainant one Periyasamy, P.W.8., has narrated that the 4th accused Velu alias Velmurugan son of Palani is known to me and he is a Painter by profession. The said Velu (A-4) on 6.7.1999 at 10.30 a.m. came to his house and when he enquired, he made a statement that on 28.5.1999, he and his friends Ravikumar alias Kundu Ravi (A-1), Murugan (A-2) and Kutti (A-3), after climbing over Charlie School Compound, entered Madras Christian College Campus and while taking liquor near water tank, on seeing a 17 year old girl walking all alone, all four decided to rape her. On direction of A-1, the girl (Rajeswari) was taken to nearby water tank. He also informed that after committing rape by all four, they had thrown her in a nearby mud road. He further stated that after seeing the news item regarding death of a girl inside the Madras Christian College Campus, he had a sleepless night and he came and narrated the incident. It is also stated that though P.W.8 requested A-4 to surrender, he ran away. He further stated that after seeing the news item regarding death of a girl inside the Madras Christian College Campus, he had a sleepless night and he came and narrated the incident. It is also stated that though P.W.8 requested A-4 to surrender, he ran away. P.W.8 in his evidence before Court reiterated the statement made in Ex.P-3, It is seen from Ex.P-3 and the evidence of P.W.8, while admitting the guilt, he also implicated the other three accused. Except A-4, it is not the case of prosecution that the other accused A-1 to A-3 made a confession statement admitting the guilt. 9. No doubt, after their arrest, recoveries were made based on their statement. In this regard, learned counsel for the appellants relied on the judgment of the Supreme Court in the case of Kojja Sreenu v. State of Andhra Pradesh 2005 S.C.C.(Crl.) 853. While considering confession of co-accused under Sec.313, Crl.P.C., viz., that he helped the appellant A-1 in throwing the dead body in the pond, their Lordships have held that the said statement being in the nature of a confession involving a co-accused, it was not safe to place reliance on the same in the absence of any corroboration whatsoever. Here again, as said earlier, the confession statement of co-accused, viz., A-4 implicating other 3 accused (A-1 to A-3) has not been corroborated by any other evidence. In such a circumstance, it is not safe to place reliance on the same in the absence of corroboration whatsoever. The learned Additional Sessions Judge, failed to consider the above relevant aspect. 10. Coming to the second contention, viz., the statement of A-4 under Sec.164, Crl.P.C., before the Judicial Magistrate, Alandur (P.W.9), it is seen that the Inspector of Police, Selaiyoor Police Station made a requisition before the Additional Sessions Judge cum Chief Judicial Magistrate, Chingleput stating that A-4 Velu alias Velmurugan has intended to make voluntary confession statement and the same may be recorded by a Magistrate under Sec.164, Crl.P.C. The requisition was marked as Ex.P-4. Pursuant to the said requisition, Additional District Judge cum Chief Judicial Magistrate, Chingleput in his proceedings dated 8.7.1999, directed the Judicial Magistrate, Alandur (P.W.9) to record the statement under Sec.164, Crl.P.C., from the accused Velu alias Velmurugan (A-4) concerned in Selaiyoor Police Station in Crime No.339 of 1999. The said proceeding is Ex.P-5. Pursuant to the said requisition, Additional District Judge cum Chief Judicial Magistrate, Chingleput in his proceedings dated 8.7.1999, directed the Judicial Magistrate, Alandur (P.W.9) to record the statement under Sec.164, Crl.P.C., from the accused Velu alias Velmurugan (A-4) concerned in Selaiyoor Police Station in Crime No.339 of 1999. The said proceeding is Ex.P-5. Ex.P-6, is the confession statement of A-4, which was duly recorded by P.W.9., A perusal of Ex.P-6 makes it clear that the learned Magistrate has followed the conditions prescribed in Sec.164, Crl.P.C. However, it is the argument of the learned counsel for the appellants that though the learned Magistrate has warned the accused that there is no compulsion to make a statement admitting the offence and also that he was satisfied that the confession being made voluntarily, however, failed to make a memorandum at the foot of such recording as stated in Sub-clause(4) of Sec.164, Crl.P.C. It is useful to refer the relevant clause: 64. Recording of confessions and statements: (1)…… (2) …… (3)……. (4) Any such confession shall be recorded in the manner provided in Sec.281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect: “I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (signed)A.B., Magistrate.” 11. According to the learned counsel for the appellants, inasmuch as the memorandum at the bottom is mandatory and in the absence of such memorandum, the judicial confession can have no force at all. It support of the above proposition, recent Division Bench decision of this Court Marimuthu and others v. State, by Inspector of Police C.D.J. 2005 M.H.C. 1185, Crl.A.No.514 of 1998 (N. Dhinakar and M. Chockalingam, JJ.) has been pressed into service. It support of the above proposition, recent Division Bench decision of this Court Marimuthu and others v. State, by Inspector of Police C.D.J. 2005 M.H.C. 1185, Crl.A.No.514 of 1998 (N. Dhinakar and M. Chockalingam, JJ.) has been pressed into service. In that decision, before the Division Bench, the learned counsel for the appellant, while attacking the judicial confession alleged to have been made by A-2 before P.W.7 submitted that it is not in accordance with law nor was it one made after following the procedural formalities, which are mandatory under Sec.164, Crl.P.C., and no evidentiary value can be attached to such confession. The Division Bench while considering the said question elaborately and after referring the decision of the Supreme Court in Chandran v. State of Madras A.I.R.1978 S.C. 1574; Shivappa v. State of Karnataka 1995 S.C.C.(Crl.) 323; Tulsi Singh v. State of Punjab 1966 S.C.C.(Crl.) 1118; Dhananjaya Reddy v. State of Karnataka 2001 S.C.C. 652; Ayyub v. State of Uttar Pradesh 2002 S.C.C. 673, came to the conclusion that since the function of the Magistrate in recording confession under Sec.164, Crl.P.C., is a solemn Act he must follow the procedural formalities and ensure that all the provisions are complied with properly. After finding that the learned Magistrate has not given a certificate as one required under Sec.164(4) of the Code, which is mandatory, the judicial confession Ex.P-6 therein is of no legal significance in the hands of the Court and set aside the conviction and sentence imposed by the trial Court and allowed the appeal. Though the learned trial Judge in our case, in more than one place has explained that since the learned Judicial Magistrate (P.W.9) has fully complied with the directions in Sec.164, Crl.P.C., merely because no separate certificate/memorandum appended at the bottom of the statement, cannot vitiate the statement made before the Judicial Officer in view of various pronouncements of the Supreme Court starting from 1978 ending with 2002, we are unable to accept the reasoning of the learned Judge. 12. A reading of Sub-clause(4) of Sec.164 , Crl.P.C., and as interpreted in various decisions, we are of the view that the Magistrate while recording confession under Sec.164, Crl.P.C., must follow the procedural formalities and ensure that all the requirements of the provisions are complied with properly. 12. A reading of Sub-clause(4) of Sec.164 , Crl.P.C., and as interpreted in various decisions, we are of the view that the Magistrate while recording confession under Sec.164, Crl.P.C., must follow the procedural formalities and ensure that all the requirements of the provisions are complied with properly. Inasmuch as the certificate/memorandum as one required under Sec.164(4) Crl.P.C., is mandatory, we are of the opinion that the learned Magistrate (P.W.9) has not strictly followed all the requirements of the provisions contemplated in order to ensure that the confession statement given by the accused was voluntary in nature. Accordingly, the document Ex.P-6 fall short of judicial confession as contemplated under Sec.164(4) of the Code. In such circumstances, it (Ex.P-6) has no legal significance in the light of the law. As said earlier, though certain recoveries were made, it is not in dispute that the root cause for the same is the statement of A-4 to P.W.8 and P.W.9. In view of our conclusion and the infirmities pointed out above, it would be unsafe to sustain the conviction. 13. Accused Nos.3 and 4 have not filed any appeal. Learned counsel for the appellants submits that even in the absence of an appeal by accused Nos.3 and 4, if the Court comes to a conclusion that they are not guilty of the offences, the Court has power to record their acquittal as well. In support of his contention, he relied on the judgments of the Supreme Court in the case of Suresh Chaudhary v. State of Bihar A.I.R. 2003 S.C. 1981, and Gurucharan Kumar and another v. State of Rajasthan (2003)2 A.L.T.(Crl.) 35 (S.C.): (2003)2 S.C.C. 698 . The Supreme Court while dealing with S.L.Ps., in those cases held that if the Court reaches the conclusion that conviction of any accused was not possible, the benefit of doubt must be extended to the co-accused similarly situated though he had not challenged the order of conviction by way of an appeal. In the light of the above conclusion of the Supreme Court and by exercising the powers under Secs.397 and 401, Crl.P.C., we order the acquittal of accused Nos.3 and 4 as well along with the appellants herein/accused Nos.1 and 2. In the light of the above conclusion of the Supreme Court and by exercising the powers under Secs.397 and 401, Crl.P.C., we order the acquittal of accused Nos.3 and 4 as well along with the appellants herein/accused Nos.1 and 2. Under the above circumstances, the appeal is allowed, setting aside the conviction and sentence imposed in Sessions case No.354 of 2000 by the learned Additional Sessions Judge, Fast Track Court No.1, Chingleput against the appellants/accused Nos.1 and 2 as well as against accused Nos.3 and 4. viz., Kutti alias Velankanni, S/o.Marimuthu and Velu alias Velmurugan, S/o.Palani and all of them are acquitted of all the charges. They shall be released from custody forthwith, if not required in any other case. The fine amount, if paid by the appellants/accused shall be refunded. N.S.S.-----Appeal allowed.