Judgment :- (Prayer: Criminal appeal against the judgment dated 12.10.2004 passed by the learned Additional District & Sessions Judge, Fast Track Court, Tiruppattur, Vellore District in S.C.No.82/1999.) R. Balasubramanian, J. The appellants are A1 and A2 in S.C.No.82/1999 on the file of the Additional Court of Sessions (Fast Track Court) Vellore at Tiruppattur. Two more persons were tried in that sessions case along with the appellants for offences under sections 376(2)(g); 302 and 201 I.P.C. The learned trial Judge acquitted A3 and A4 and the State had not challenged that judgment in a manner known to law. By the same judgment, the learned trial Judge convicted A1 and A2 under all the charges and accordingly, sentenced the appellants to undergo imprisonment for life together with a fine of Rs.5,000/-, carrying a default sentence, for the offence of murder; 10 years rigorous imprisonment together with a fine of Rs.5,000/-, carrying a default sentence, for the offence of gang rape and 3 years rigorous imprisonment together with a fine of Rs.2,000/-, carrying a default sentence, for screening the offence. Hence they are before this court in this appeal. Heard Mr.AR.L. Sundaresan learned senior counsel appearing for the appellants and Mr. N.R. Elango learned Additional Public Prosecutor appearing for the State. 2. The prosecution case is that at about 7.00 p.m on 21.10.1995, by force, all the four accused took the victim girl to a secluded place, where, she was raped and in the course of the same transaction, A1, by throttling the neck of the victim, caused her death. According to the prosecution, after committing the crime as referred to above and with a view to screen the offence, all of them took the dead body to the agricultural land of one Jayaraman; left it there and therefore punishable under the various sections as referred to earlier. To prove their case, the prosecution examined P.Ws.1 to 26, besides marking Exs.P.1 to P.43 and M.Os.1 to 16. The defence did not let in any oral evidence but marked Ex.D.1, the acknowledgement due, containing the signature of P.W.10. Admittedly, there are no eye witnesses to the occurrence. The entire prosecution case revolves around Ex.P.7, the extra judicial confession, stated to have been given by A1 on 25.11.1995 to P.W.10 witnessed by P.W.11 and Ex.P.11, the extra judicial confession stated to have been given by A2 on 26.11.1995 to P.W.13 witnessed by P.W.14. Admittedly, there are no eye witnesses to the occurrence. The entire prosecution case revolves around Ex.P.7, the extra judicial confession, stated to have been given by A1 on 25.11.1995 to P.W.10 witnessed by P.W.11 and Ex.P.11, the extra judicial confession stated to have been given by A2 on 26.11.1995 to P.W.13 witnessed by P.W.14. P.W.1 is the elder brother of the deceased. He had only deposed on the educational qualification of his sister; her employment details and as to how she used to go for work and come back home. He would then state that his sister, who left the house at 8.15 a.m. on 21.10.1995 for her work, did not return even by 6.30 p.m. on that day and therefore he went in search of her. All enquiries made by him did not yield any result. In the course of such search, they found a lady's bicycle abandoned and finding that the said bicycle belongs to his sister, they tried to pursue the matter further. But however, as it was very late in the night, they did not do anything else on that night. At 6.00 a.m. the following morning, they continued their search and en route, they found two hawai slippers belonging to his sister on the ground and a further search made, resulted in locating the dead body of the victim. P.W.1 noticed external injuries on his sister. P.W.1 gave a complaint to the police, which is marked as Ex.P.1. M.O.1 is the lady's bicycle and M.O.2 is the pair of slippers which his sister was wearing. P.W.2 only observed the dead body on the morning of 22.10.1995 when he came to know about it. P.W.3 also knows P.W.1 and his family. He observed the dead body of the victim in this case. He also noticed the injuries. P.W.4 is related to P.W.1. P.W.4 also observed the dead body on the next day. 3. P.W.24 is the Sub-Inspector of Police in the Investigating Police Station. At 9.30 a.m. on 22.10.1995, P.W.1 appeared before him and gave a complaint, which he registered as Ex.P.1 in his police station crime No.622/1995 under section 302 I.P.C. Ex.P.39 is the printed first information report. Then he sent the express records to the court as well as to the higher officials through P.W.23. P.W.23 accordingly carried the express records to the court as well as to the higher officials. Then he sent the express records to the court as well as to the higher officials through P.W.23. P.W.23 accordingly carried the express records to the court as well as to the higher officials. P.W.25 is the Investigating Officer. At 11.00 a.m. on 22.10.1995, he collected the express records in this case and commenced the investigation. He reached the crime scene at 11.30 a.m. and in the presence of P.W.5 and another, he prepared Ex.P.3, the observation mahazar and Ex.P.36, the rough sketch. P.W.25 caused the crime scene and the dead body to be photographed. He sent for the finger print expert and dog squad. At 12.30 in the afternoon, he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared Ex.P.37, the inquest report. Finger print expert arrived at the crime scene at 4.00 p.m. and examined the crime scene. No clue was available. From near the crime scene, he recovered a pair of hawai slippers and some sample earth under a mahazar. P.W.5 witnessed the preparation of Ex.P.3, the observation mahazar and recovery of M.O.2 (pair of hawai slippers); M.O.4 (sample earth); M.O.5 (the purse); M.O.6 (pen) and M.O.7 (some cash) under Exs.P.4 and P.5. P.W.25 sent the dead body with a requisition for post mortem to the Government Hospital at Tiruppattur. P.W.21 is the Photographer, who photographed the crime scene and the dead body. M.Os.8 and 9 series are the photographs and negatives. 4. P.W.20 is the duty Doctor in the Government Hospital at Tiruppattur. On receipt of the dead body and the requisition, he commenced post mortem on the dead body at 12.45 p.m. on 23.10.1995. During post mortem, he found various symptoms as noted by him in Ex.P.20, the post mortem report. Ex.P.19 is the requisition received by him for conducting post mortem. The symptoms noted by him in Ex.P.20 are as follows: "Eye balls protruded out. Fluids coming from both ends of both eyes. Tongue in between the teeth and protruded out. R.M mildly present in upper limbs. Moderately present in lower limbs. External Injuries: 1) An abrasion on right fore arm 2 cm x 3 mm (nail marks). 2) An abrasion on left fore arm 2 cm x 3 mm (nail marks). 3) Abrasion on right clavicle. 4) Abrasion on left breast. 5) Abrasion on left side of neck. R.M mildly present in upper limbs. Moderately present in lower limbs. External Injuries: 1) An abrasion on right fore arm 2 cm x 3 mm (nail marks). 2) An abrasion on left fore arm 2 cm x 3 mm (nail marks). 3) Abrasion on right clavicle. 4) Abrasion on left breast. 5) Abrasion on left side of neck. 6) Abrasion on front of neck and contusion around the area. 7) Bleeding from both the ears. 8) Vaginal rupture with bleeding. On Dissection: Skull – Intact. No fracture. Brain – Congested and becomes liquefied. Hyoid bone – Hyoid bone fractured on left side (left corn of hyoid bone). Chest – 2nd and 3rd ribs fractured on right side. Heart – Congested. Lungs – Congested. Liver – Congested. Kidney – Congested. Stomach – Undigested food particle. Small intestine – Empty. Vaginal torn is present with bleeding hymen. Public hair already shaven. Uterus – Normal in size. White fluid seen in uterus and vaginal canal." The viscera was preserved for examination. Vaginal smear was also taken. Ex.P.21 is the report on the examination of vaginal smear and scalp hair. The report shows that no semen was detected in the vaginal smear and no blood was detected in the scalp hair. Ex.P.22 is the report on the viscera, which shows that no poison was detected in the viscera. Based on Exs.P.21 and P.22, the Doctor opined that death would have occurred 36 to 42 hours prior to autopsy due to strangulation. 5. P.W.25 continued his investigation further. Ex.P.38 is the rough sketch prepared by him for the place where the cycle recovered in this case was found parked. Examination of the cycle did not result in lifting any finger prints. P.W.25 sent the case properties to the court with a request to subject the same for chemical examination. P.W.25 continued his investigation by examining further witnesses and recording their statements. No clue was forthcoming. He recovered the articles removed from the dead body and handed over to him by the constable, who was present during post mortem, under Form 95. Those articles were produced before him by the constable present during post mortem with his special report – Ex.P.39. The investigation conducted till 24.10.1995 did not give any clue at all about the culprits. All the witnesses examined till 24.11.1995 did not give any clue about any suspected culprit. 6. Those articles were produced before him by the constable present during post mortem with his special report – Ex.P.39. The investigation conducted till 24.10.1995 did not give any clue at all about the culprits. All the witnesses examined till 24.11.1995 did not give any clue about any suspected culprit. 6. P.W.6 is employed in rolling beedi. He knows P.W.1's family. The victim in this case is working in a silk factory. The deceased, to board the bus to go to her place of employment, must come to the intersection of Nariyaneri Road and to go back home also, she must only board the bus there. On a particular day, the victim was travelling with him in the bus, which was over crowded. P.W.6 and the victim alighted at Nariyaneri. On the next day, he came to know that the victim died. P.W.7 is the Contractor in the Silk Factory and the victim was working under him on a monthly salary of Rs.800/-. The working hours for the victim is from 8.00 a.m. to 5.00 p.m. P.W.7 was informed by his friend that the victim in this case died. P.W.8 knows P.W.1's family. On a day prior to the death of the victim in this case, the victim came to his shop and asked him whether her brother had come and gone? Then she left the place in a cycle. Following her, P.W.1 came to the shop and enquired about his sister and he was informed that ten minutes before that, his sister left in the cycle. P.W.9 is working under P.W.7 on a monthly salary of Rs.1,300/-. The deceased was working with him at that time. The deceased was working as a technical assistant. The deceased was initially a Hindu but later on converted into Christianity. P.W.9 is a Hindu and he proposed to the victim that he would marry her. The victim used to come to the office between 8.30 and 9.00 a.m. and leave for home between 5.00 and 5.30 p.m. everyday. Coming to know that the victim is dead, he went and observed the dead body. 7. P.W.10 is the Village Administrative Officer of Kadhili Village. The victim used to come to the office between 8.30 and 9.00 a.m. and leave for home between 5.00 and 5.30 p.m. everyday. Coming to know that the victim is dead, he went and observed the dead body. 7. P.W.10 is the Village Administrative Officer of Kadhili Village. At about 9.00 a.m. on 25.11.1995 when he was in his office talking with his friend (P.W.11), A1 came there and confessed that he along with Kumar (A4), Ravichandran (A2) and Jinnah (A3), murdered the victim girl after raping her and wanted to surrender. A1 was narrating the events, which P.W.10 reduced into writing. A1 made a disclosure that at about 8.00 p.m. on 21.11.1995, the victim girl was murdered and when P.W.10 asked him as to why he murdered, he answered that "he was possessive of the victim girl; they used to travel in the same bus; the victim girl refused the proposal; when they were travelling in the bus, the accused pressed her legs, for which, she removed her slippers and showed; angered at that, he conspired with his friends and at about 7.00 p.m. on 21.11.1995, when all the four were in the road, they saw the victim girl going in a cycle; they intercepted her and bodily lifted her to a secluded place, where she was raped and fearing that she may expose the accused, she was murdered and then her body was thrown in a different place". As already stated, P.W.10 reduced into writing the narration of A1 and he had taken the signature of A1 in it. P.W.11 witnessed the preparation of the said statement by signing it. P.W.10 then took A1 to the Investigating Police Station and surrendered him along with his statement before the Inspector of Police. Ex.P.7 is the said statement. Later on, the Investigating Officer took this witness to the crime scene where, some sample earth was recovered under Ex.P.8 (mahazar). At that stage, he was treated as hostile. P.W.11 would state that when he went to see P.W.10, he found A1 talking with him about the murder of the victim girl. He would state that he does not know the full details. P.W.11 admitted his signature in Ex.P.7 and then P.W.11, P.W.10, A1 and others went to the Investigating Police Station where, P.W.11's signature was taken. At that stage, he was treated as hostile. He would state that he does not know the full details. P.W.11 admitted his signature in Ex.P.7 and then P.W.11, P.W.10, A1 and others went to the Investigating Police Station where, P.W.11's signature was taken. At that stage, he was treated as hostile. P.W.25 was informed at 10.30 a.m on 25.11.1995 by the Sub-Inspector of Police in the Investigating Police Station that P.W.10 appeared before him along with A1 and accordingly, P.W.25 reached the police station at 11.15 a.m. where, he found A1 and P.W.10. He verified the statements made by them. A1 gave a voluntary confession statement, the admissible portion of which is Ex.P.40. Pursuant to the same, A1 took the police party to the crime scene and pointed out the place, for which, Ex.P.41, the rough sketch, was prepared. At 12.45 p.m., from the crime scene, some sample earth was recovered under Ex.P.42. At 1.45 p.m. A1 led the police party to his house, from where, he produced M.O.3 (diary) under a mahazar. At 2.45 p.m., A1 identified A4 and accordingly, A4 was also arrested and examined. A4 also gave a voluntary confession statement. P.W.25 examined P.Ws.10 and 11 by recording their statements. The recovered incriminating objects were sent to the court. 8. P.W.12 would state that he was proceeding to the bus stop to board a bus on 21.10.1995. Near a cinema theatre, he noticed two persons passing him; he asked them as to from where they are coming; however he did not know them; both went without answering and on the next day morning, he came to know about the death of the victim in this case. At that stage, he was treated as hostile. P.W.13 is the Village Administrative Officer of Sundarampalli Village. At 9.30 a.m. on 26.11.1995 when he was in his office talking with his friend (P.W.14), A2 appeared before him and confessed about the crime stating that, since two of his friends had already been arrested, he was fearing that he may also be arrested and having that fear in his mind, he confessed to P.W.13, who reduced into writing the narration of A2. In his confession statement, he gave the details as to how the crime came to be committed. Ex.P.11 is the said statement, which was attested by P.W.14. At that stage, he was treated as hostile. In his confession statement, he gave the details as to how the crime came to be committed. Ex.P.11 is the said statement, which was attested by P.W.14. At that stage, he was treated as hostile. P.W.14 would state that on 26.11.1995 at 9.15 a.m., when he went to see P.W.13 in his office, he found A2 already there talking with P.W.13. They were talking about the death of a girl belonging to Kondappanaickenpatty. A2 confessed of his involvement in the crime and his statement was reduced into writing by P.W.13. P.W.14 signed in that statement as a witness. At that stage, he was treated as hostile. P.W.15, examined to prove the arrest of A3 and A4, turned hostile. P.W.16, examined to prove that on the occurrence day evening the accused purchased some short eats from his shop, turned hostile. 9. As noted earlier, P.W.24 is the Sub-Inspector of Police in the Investigating Police Station. At 11.00 a.m. on 26.11.1995, when he was in the police station, P.Ws.13 and 14 appeared before him along with A2 and his statement. P.W.25, on receipt of the information from P.W.24, reached the police station at 12.15 p.m where, he went through the statement given by A2. A2 was arrested and examined and he gave a voluntary confession statement, the admissible portion of which is Ex.P.43. In the presence of P.Ws.13 and 14, Ex.P.6 (letter) came to be recovered under Ex.P.44 (recovery mahazar) attested by P.Ws.13 and 14. On A2 identifying A3, he was arrested at 2.00 p.m on the same day and examined. A3 also gave a voluntary confession statement. The arrested accused and the incriminating objects recovered were brought to the police station and the accused was sent for judicial remand. The case properties were sent to the court. P.W.25 examined further witnesses on the next day by recording their statements. P.W.25 referred A1 to A3 for medical examination. 10. P.W.19 is the duty Doctor in the Government Hospital at Tiruppattur. At about 12.00 noon on 11.12.1995, A1 appeared before him along with a police medical memo and his examination showed that A1 was potent. A1 refused to give his semen and blood for examination. A3 was also brought before him by a police constable and his examination revealed that he was potent. A3 also refused to give his semen and blood for test. A1 refused to give his semen and blood for examination. A3 was also brought before him by a police constable and his examination revealed that he was potent. A3 also refused to give his semen and blood for test. A2, brought by police constables, was also likewise examined by him on the same day. He was found potent and he also refused to give his semen and blood for test. Exs.P.16 to P.18 are the certificates given by P.W.19. As A4 wanted to confess, P.W.25 gave a requisition to the court to record his confession statement. P.W.18 is the Judicial Magistrate, before whom, A4 was produced at 3.00 p.m. on 30.01.1996. A4 was cautioned as required by law by P.W.18. A4 refused to confess and recording that, he closed the proceedings. Ex.P.13 is the requisition submitted by the police officer to examine A4 under section 164 of the Code of Criminal Procedure; Ex.P.14 is the endorsement made by the Chief Judicial Magistrate on Ex.P.13 and Ex.P.15 is the proceedings drawn by P.W.18. P.W.17 is the driver of the bus belonging to Annai Sathya Government Transport Corporation. He was driving the bus in route No.12. His duty hours is between 1.00 a.m. and 1.30 p.m., the following day. At about 8.30 a.m. everyday, while returning from Burgur, he would stop the bus at Nariyaneri cross road and he would state that he would remember if he sees the persons, who used to board the bus. He would further state that he does not remember the names. At that stage, he was treated as hostile. It must be noticed that he was examined to prove that the victim girl in this case used to travel in that bus. P.W.22 is the Magisterial Clerk, who speaks about the receipt of the case properties along with the requisition submitted by the Investigating Officer; sending the same to the laboratory as an enclosure to court's letter and receipt of the various reports. P.W.25 was transferred and he was succeeded by P.W.26. P.W.26 verified the investigation already done by P.W.25. He sent two letters containing the admitted hand writing of the victim girl to the court to have it compared with the disputed documents. After completing all the legal formalities, he filed the final report in court against the accused on 19.11.1996 for the offences referred to earlier. 11. P.W.26 verified the investigation already done by P.W.25. He sent two letters containing the admitted hand writing of the victim girl to the court to have it compared with the disputed documents. After completing all the legal formalities, he filed the final report in court against the accused on 19.11.1996 for the offences referred to earlier. 11. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them (we are confining only against A1 and A2), they denied each and every circumstance put up against them as false and contrary to facts. Ex.D.1 is the acknowledgement due showing the addressee as P.W.10 and the sender as A1. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellants, would contend that when P.Ws.10 and 13 are shown to be total strangers to A1 and A2 respectively, there is no rhyme or reason for them to confess to them separately about the crime and that too, almost 35 days after the crime. Contending that when a person is shown to have given a confession to another at a belated stage, it would induce the suspicion in the prosecution case, learned senior counsel brought to our notice a number of judgments, about which, we will refer a litter later. Learned senior counsel took enormous pains by taking us through Exs.P.7 and P.11 namely, the extra judicial confession of A1 and A2 respectively and would contend that the words used in expressing the sequence of events are more or less verbatim the same. When Ex.P.7 is shown to have been given on 25.11.1995 to P.W.10 and Ex.P.11 is shown to have been given on 26.11.1995 to P.W.13 (both places separated by a long distance), it is un-understandable as to how the contents of both these statements would be the same. According to the learned senior counsel, this itself is more than sufficient to discredit the evidence of P.Ws.10 and 13. By taking us through the evidence of P.W.9, it is argued by the learned senior counsel that Ex.P.6 had come to be written by P.W.9 only a week after the occurrence. If that is so, then, this letter could not have been with the deceased on the date of the crime. By taking us through the evidence of P.W.9, it is argued by the learned senior counsel that Ex.P.6 had come to be written by P.W.9 only a week after the occurrence. If that is so, then, this letter could not have been with the deceased on the date of the crime. If this position is established, then, there is no possibility at all for the accused namely, A2, to be in possession of such a letter, which was not with the deceased on the day when the crime was committed. This is yet another falsity in the prosecution case, which would enable us to doubt the extra judicial confessions of A1 and A2. Except the extra judicial confessions referred to above, there is no other legal evidence to connect the accused with the crime. Even assuming that Ex.P.11 is reliable, even then, from it's contents, it could be easily seen that A2 cannot be held guilty of the offence of murder, since the confessions (Exs.P.7 and P.11) reveal that it is only A1, who, by way of caution, all of a sudden, throttled the victim to death and A2 questioned A1 in committing such a dastardly crime. In stating that Exs.P.7 and P.11 are reliable, learned State counsel contended that the evidence of P.Ws.10 and 11 as one block and the evidence of P.Ws.13 and 14 as the other block are trustworthy since the recovery stated to have been made at the instance of A1 after his arrest and the recovery stated to have been made at the instance of A2 after his arrest had been disowned by these witnesses. This conduct on the part of P.Ws.10 and 11 with reference to A1 and the evidence of P.Ws.13 and 14 with reference to A2 namely, turning hostile with reference to the recovery, only shows that these witnesses are not obliging witnesses to the police. According to the learned Additional Public Prosecutor, this conduct as referred to above would add the colour of truth to their evidence. Once it is found that the evidence of the above referred to witnesses is truthful, learned Additional Public Prosecutor would contend that even assuming that there are striking similarities in using the words in both the confessions, that would not destroy the very credibility of those two statements. Once it is found that the evidence of the above referred to witnesses is truthful, learned Additional Public Prosecutor would contend that even assuming that there are striking similarities in using the words in both the confessions, that would not destroy the very credibility of those two statements. According to the learned Additional Public Prosecutor, there is no legal bar to sustain a conviction on the extra judicial confession alone, without looking for any corroboration, if the extra judicial confession and the evidence of witnesses connected therewith are found to be reliable. 12. In the light of the arguments advanced by the learned senior counsel for the appellants and the learned Additional Public Prosecutor appearing for the State, we examined the entire materials. Before analysing the materials, let us refer to the case laws brought to our notice by the learned senior counsel for the appellants. In 1994 Crl.L.J.Pg.142 (Kailash Vs. State of Uttar Pradesh), the Hon'ble Supreme Court of India found from the records that the accused is stated to have given an extra judicial confession to P.W.10, against whom, a case under section 307 I.P.C was instituted in the same police station and about 8 or 10 months back (probably, before he gave evidence), the final report was filed by the police. The Supreme Court also found that P.W.10 admitted that the accused might have opposed P.W.10's brother in the election. On those facts only, the Supreme Court found that there was no reason for the accused to confess 20 days after the crime to P.W.10, who himself is an accused in another case. The Supreme Court also held that the defence that P.W.10 was deposing at the instance of the police was not without force. Therefore we have no doubt at all that the Hon'ble Supreme Court in that judgment doubted the credibility of P.W.10. In 1998 Crl.L.J.Pg.3086 (Ravirajan Vs. State (Madras High Court), the learned Sessions Judge himself adversely commented upon the evidence of the Village Administrative Officer, before whom the accused is shown to have given an extra judicial confession. Therefore we have no doubt at all that the Hon'ble Supreme Court in that judgment doubted the credibility of P.W.10. In 1998 Crl.L.J.Pg.3086 (Ravirajan Vs. State (Madras High Court), the learned Sessions Judge himself adversely commented upon the evidence of the Village Administrative Officer, before whom the accused is shown to have given an extra judicial confession. The conviction in that case was under section 304-II I.P.C. In the appeal filed by the convicted accused, a learned single Judge observed that when the police station is nearer to the place where the accused was found, then, there was no need for him to travel to a long distance to surrender before the Village Administrative Officer. On facts, we find that the above judgment does not apply to the case on hand. In 2006 (3) Crimes Pg.93 (Sunny Kapoor Vs. State – U.T of Chandigarh), the Hon'ble Supreme Court of India, on facts, found that there was no need for the accused in that case to confess to a person (P.W.11), whom they never knew. But in the case on hand, the confessions are made to two different Village Administrative Officers, who invariably managed the village affairs. In 2006 (4) CTC Pg.735 (Nataraj Vs. State), to which one of us is a party (RBJ), this court found that the extra judicial confession does not bare the signature of the accused. Absence of signature in the confession statement was in the forefront when this court held that in such a situation giving the extra judicial confession to the Village Administrative Officer would not be accepted. In the unreported judgment dated 31.10.2006 in Crl.App.No.485/2004, to which one of us is again a party (RBJ), on facts, it was found that there was no reason at all for the accused, who had stood the test of time in not disclosing the crime, to suddenly change their mind and give the confession. We state that when this court gave the two judgments referred to above, the judgment of the Supreme Court in (2006) 1 SCC Crl. Pg.470 (Sivakumar Vs. State), about which, we will refer hereunder, was not brought to our notice. That judgment of the Supreme Court had made us change our view. The above referred to judgment of the Supreme Court emphasizes, before acting upon the extra judicial confession, the credibility of the person before whom the confession statement is given. Pg.470 (Sivakumar Vs. State), about which, we will refer hereunder, was not brought to our notice. That judgment of the Supreme Court had made us change our view. The above referred to judgment of the Supreme Court emphasizes, before acting upon the extra judicial confession, the credibility of the person before whom the confession statement is given. The confession statements in this case show that the accused have become aware that the police are narrowing down on the culprits and therefore they have decided to confess. In contrast to the above judgments, learned Additional Public Prosecutor brought to our notice a judgment of the Hon'ble Supreme Court of India in the case reported in (2006) 1 SCC (Crl.) Pg.470 (Sivakumar Vs. State) wherein, the Supreme Court refers to it's earlier judgment reported in 2003 SCC Crl. Pg.1965 (State of Rajasthan Vs. Raja Ram). The relevant portion in that earlier judgment is found extracted in paragraph 46 of the judgment reported in (2006) 1 SCC (Crl.) Pg.470. We extract paragraph 46 hereunder: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." Therefore it is clear that to act on the extra judicial confession of an accused, the court must go by the reliability of the witness, who gives evidence in regard thereto and if the witness, who gives evidence regarding the extra judicial confession is not reliable, then, there cannot be any difficulty in doubting the extra judicial confession. In all the case laws brought to our notice by the learned senior counsel, it was found, on the facts of each case, that the extra judicial confession could not be relied. Therefore it is clear to our mind, we repeat once again, that the reliability or truthfulness or the credibility of a witness, who gives evidence in court about the accused confessing, would play a major role in enabling the court to decide whether to accept or not to accept the extra judicial confession. 13. Having the above principle in our mind, especially when the State is wholly depending upon the extra judicial confession of A1 and A2 alone, we carefully went through the evidence of P.Ws.10 and 11, who speak about Ex.P.7 and the evidence of P.Ws.13 and 14, who speak about Ex.P.11. Before proceeding to analyse this crucial aspect of the prosecution case, let us clear our mind as to the cause of death and as to whether there is evidence of any rape. P.W.20 is the Doctor, who did post mortem on the dead body and his evidence, coupled with the post mortem report and final opinion, shows that death is due to strangulation. From the post mortem report, we find that the left corn of hyoid bone is found fractured. The second and third ribs on the right side are also found fractured. Therefore there cannot be any doubt that the victim girl died due to homicidal violence. Let us now examine whether the victim girl was raped at all and if so, what is the evidence? The post mortem report shows that there is a bleeding vaginal rupture and on dissection it is found that vaginal tear is present with a bleeding hymen. White fluid was seen on the uterus and vaginal canal. Let us now examine whether the victim girl was raped at all and if so, what is the evidence? The post mortem report shows that there is a bleeding vaginal rupture and on dissection it is found that vaginal tear is present with a bleeding hymen. White fluid was seen on the uterus and vaginal canal. However, the vaginal smear taken and examined, did not show any semen in that smear. We find from the post mortem report that except the presence of semen in the vaginal smear, all other symptoms for a rape on the victim girl are present. Those symptoms are, we repeat, that vaginal bleeding rupture and vaginal tear present with bleeding hymen. Therefore there cannot be any difficulty at all for us to hold that the victim girl was not only raped but was also strangulated to death. P.W.20 had not been cross examined at all regarding his opinion on the cause of death and the symptoms of rape found on the dead body. P.W.20 had very firmly stated in his evidence that if the victim girl had been forcefully raped by a number of persons, the injuries as found noted by him on her vagina would be present and he had stated so even during investigation. Therefore we conclude our discussion on this subject by holding that the prosecution had definitely established that the victim girl was raped and then strangulated to death. To sustain a conviction for gang rape, the prosecution must show that one woman is raped by one or more in a group of persons acting in furtherance of the common intention and then each of the persons in the group shall be deemed to have committed gang rape. 14. Now we pass on to the next stage namely, whether Exs.P.7 and P.11 could be safely acted upon as reliable piece of evidence incriminating against the accused and in that context, the evidence of P.Ws.10 and 11 with reference to Ex.P.7 and the evidence of P.Ws.13 and 14 with reference to Ex.P.11 are trustworthy. As rightly contended by the learned senior counsel, it is true that, that portion of the confession statement given by A1 and A2 respectively (Exs.P.7 and P.11) as to how they came to assemble; took charge of the situation and then committed the crime, is more or less expressed in the same words. As rightly contended by the learned senior counsel, it is true that, that portion of the confession statement given by A1 and A2 respectively (Exs.P.7 and P.11) as to how they came to assemble; took charge of the situation and then committed the crime, is more or less expressed in the same words. It is also true that P.W.10 is the Village Administrative Officer at Kandili itself, where the Investigating Police Station is situated and P.W.13 is having his office at Sundarampalli, which is 17 Kms away from the Investigating Police Station. We are informed in court that sundarampalli also comes within the territorial jurisdiction of the Investigating Police Station. It is not in dispute that Ex.P.7 is shown to have been given on 25.11.1995 and Ex.P.11 is shown to have been given on 26.11.1995. Therefore, in normal circumstances, we would have sustained the argument of the learned senior counsel that, having regard to the time and place at which two different persons came to give two separate confession statements to two different persons, there cannot be a striking similarity in the expressions used in those statements. There cannot be any doubt that there is a striking similarity in using the words of expressions in both the confessions about the modus operandi adopted in committing the crime. Before analysing the reliability of the witnesses who speak about the confessions, we went through the confession statements themselves. Both the confession statements are inculpatory in nature and give a clear picture as to how the victim girl in this case came to be forcibly taken on the occurrence day evening; raped and then murdered. Therefore, if the evidence of P.Ws.10, 11, 13 and 14, who speak about these confessions, are found to be trustworthy, then, there would be no difficulty at all in upholding the conviction. 15. In the light of the materials noted above, we examined with care and caution the evidence of P.Ws.10 and 11 as one block of evidence and the evidence of P.Ws.13 and 14 as the other block of evidence. We have already referred to their evidence. According to the prosecution, after A1 and A2, on their production on two different dates in the police station, came to be arrested by P.W.25 and when they were examined at that time, each of the accused gave a voluntary confession statement. We have already referred to their evidence. According to the prosecution, after A1 and A2, on their production on two different dates in the police station, came to be arrested by P.W.25 and when they were examined at that time, each of the accused gave a voluntary confession statement. Pursuant to the confession statement of A1, M.O.3 is shown to have been recovered from his house and pursuant to the confession of A2, Ex.P.6 (letter) is shown to have been recovered from A2's house. It must be noticed here that, as far as the recovery of Ex.P.6 is concerned, the prosecution case is patently false and in any event, it is definitely shown to be false. P.W.9 is the author of Ex.P.6 and that letter is addressed to the victim in this case. Unless this letter is shown to have been with the victim on the day on which she was raped and murdered, it would not have been possible at all for either A1 or A2 to come into possession of the said document. The confession statements do not disclose as to how the accused came into possession of Ex.P.6 and ultimately A2 came into possession of the same. P.W.9 in his evidence had stated that at the request of the police, he wrote this letter (Ex.P.6) one week after the crime. This evidence had come when he was re-examined by the State itself with permission from the court. It must be noticed that neither in his initial chief examination nor in his cross examination at the first instance, P.W.9 came with such an answer. The State had not chosen to treat P.W.9 as hostile when he came to be re-examined by them, during which time, he had disclosed that he wrote Ex.P.6 one week after the commission of the crime as requested by the police. He affirmed the same when he was further cross-examined. Therefore, when P.W.9 had deposed on the line stated above and since he is found not treated as hostile, we hold that it is not possible to ignore his evidence as to how; under what circumstances and on what date Ex.P.6 came into existence. He affirmed the same when he was further cross-examined. Therefore, when P.W.9 had deposed on the line stated above and since he is found not treated as hostile, we hold that it is not possible to ignore his evidence as to how; under what circumstances and on what date Ex.P.6 came into existence. If Ex.P.6 is shown to have come into existence long after the commission of the crime, then, the logical conclusion is that, neither of the accused could have been in possession of Ex.P.6 at the time when it is shown to have been recovered. We leave it as it is. But however, why we are referring to this is, to find out the credibility of the evidence of P.Ws.13 and 14. M.O.3, the Diary, stated to have been recovered at the instance of A1, is an innocuous piece of material and there is no material against the accused in it. It is true that P.W.1 identifies M.O.3 as the diary belonging to his sister. 16. Let us now go to the next stage namely, the reliability of P.Ws.10 and 11 as one block of evidence and the evidence of P.Ws.13 and 14 as the other block of evidence. If really P.Ws.10 and 11 on the one hand and P.Ws.13 and 14 on the other hand are obliging witnesses to the prosecution, then, they could have supported the entire prosecution case blindly. But however, it is seen that all of them have turned hostile when P.Ws.10 and 11 denied any knowledge about the recovery of M.O.3 at the instance of A1 and when P.Ws.13 and 14 denied any knowledge about the recovery of Ex.P.6 at the instance of A2 respectively as referred to above. This circumstance is a clear indication to conclude that the above referred to witnesses are not persons ready to oblige the police for the mere asking. As such we are totally impressed with the evidence of these witnesses. Such type of witnesses we seldom come across. Therefore we are not inclined to reject the submission made by the learned Additional Public Prosecutor that the above referred to conduct of the witnesses turning hostile with reference to a particular portion of the prosecution case, would add credibility to their evidence and accordingly, we accept the said argument. This means, the credibility/truthfulness of the evidence of P.Ws.10, 11, 13 and 14 cannot be doubted. This means, the credibility/truthfulness of the evidence of P.Ws.10, 11, 13 and 14 cannot be doubted. It must be noticed that P.W.11, who witnessed Ex.P.7, belongs to the same village as that of the accused. Except putting a suggestion to him in the cross examination that he had signed the document only in the police station, which he had denied, no other question worth mentioning had been put to him. Therefore we see no reason at all as to why P.W.11 should depose against the accused. No animus against the accused is brought out in his evidence. 17. It is contended by the learned senior counsel for the accused that while P.Ws.10 and 13 would state that when they were talking with their friends (P.Ws.11 and 14), each of the accused came to confess, while P.Ws.11 and 14 would state that as they were going towards the office of the respective Village Administrative Officers, they found the respective accused there talking with the concerned Village Administrative Officers. It is true that such a position appears on record. It must be noticed that the occurrence was in the year 1995 and these witnesses were examined commencing from 2004 onwards. Therefore there is a possibility of a human error in remembering facts - which may not have a real bearing on the prosecution case, which had happened several years before. But one thing is clear from the evidence of P.Ws.11 and 14 and that is, they heard the respective accused confessing to the respective Village Administrative Officers on the death of the victim in this case. Since we have found that P.Ws.10, 11, 13 and 14 are trustworthy witnesses, merely because there appears to be a striking similarity in the contents of Exs.P.7 and P.11 as to the modus operandi adopted by the accused in committing the crime, that by itself would not destroy the prosecution case. The contents of Exs.P.7 and P.11 on all the crucial aspects may have a striking similarity. But it may be an accidental coincidence as well. It is not as though the words used are peculiar only to one individual and not known to the other and on the other hand those words are common words. The sequence of events found disclosed in Exs.P.7 and P.11 are one and the same. But it may be an accidental coincidence as well. It is not as though the words used are peculiar only to one individual and not known to the other and on the other hand those words are common words. The sequence of events found disclosed in Exs.P.7 and P.11 are one and the same. Therefore in telling the sequence of events, the words that are commonly used alone are used. Under these circumstances, we are not inclined to reject Exs.P.7 and P.11 on the sole ground that the contents of those two documents on the crucial aspect have a striking similarity. In this context, it must be noticed that A2, in his confession, had stated that he questioned A1 as to why he committed the act of throttling the victim? For all the reasons stated above, we have no difficulty at all in holding that Exs.P.7 and P.11 are true and voluntary disclosures made by A1 and A2 to P.Ws.10 and 13 respectively; P.Ws.11 and 14 witnessed the respective confessions; the evidence of P.Ws.10, 11, 13 and 14 are trustworthy and reliable and therefore Exs.P.7 and P.11 can be safely acted upon. 18. Even then one more question will survive for our consideration and that is, whether A2, on his confession statement and in the context of the confession statement of A1, could be found guilty under section 302 I.P.C? From the confession statement, it is seen that, after the accused committed rape one after the other, A1 thought that if the victim is allowed to go, she may expose all of them and therefore throttled her neck with his hands resulting in her death and on noticing this, A2 questioned him as to why he did like that? Therefore it is clear that A2 would not have even thought that A1, all of a sudden, would throttle the victim to her death. If that is the position, then, based on the confession statement referred to above, A2 cannot be found guilty of the offence of murder. Therefore he is acquitted and the appeal stands disposed of on the following lines: "The conviction and sentence of A1 under sections 376(2)(g); 302 and 201 I.P.C are sustained and the appeal as far as A1 is concerned, is dismissed. The conviction and sentence of A2 under sections 376(2)(g) and 201 I.P.C are confirmed. Therefore he is acquitted and the appeal stands disposed of on the following lines: "The conviction and sentence of A1 under sections 376(2)(g); 302 and 201 I.P.C are sustained and the appeal as far as A1 is concerned, is dismissed. The conviction and sentence of A2 under sections 376(2)(g) and 201 I.P.C are confirmed. However, the conviction of A2 under section 302 I.P.C is set aside and he is acquitted of the said offence. The fine amount, if any, paid by A2 for the said offence is directed to be refunded to him".