Judgment : This appeal is directed against the judgment of conviction and sentence passed by the Additional District Sessions Court/Fast Track Court No. 1, Erode in S.C. No. 215 of 2008 date 8. 2009. 2. The gist of the prosecution case would be briefly stated as follows: (a) The deceased Jayalakshmi was a mentally unsound woman, aged 23 years. On 9. 2007 at about 9.00 a.m. both the accused, taking advantage of her being mentally affected and with an intention to rape her and kill her at a place near the old building belonging to the Corporation adjacent to Central Bus stand of Erode, had attempted to rape her and pulled her down and since she did not co-operate the first accused with an intention to kill her had inserted a stick into her private parts and also had caused injured on her private parts and the second accused, in order to screen and conceal the said offence, had assaulted on the face of the Jayalakshmi with stones and disfigured her face and removed the clothes worn by her and had stolen the gold nose screw weighing, 210 mg valued at Rs. 250/-and thereby the first accused committed the offence under Sections 376(2)(g) read with 511,317,201 and 404 IPC and the second accused committed the offence under Sections 376(2)(g) read with 511, 302 read with 109 and 210 IPC. (b) The case was registered by the Station House Officer or Erode Town Police Station in Crime No. 1307 of 2007 and after the completion of investigation, final and after the completion of investigation, final report has been filed-before the Judicial Magistrate II, Erode the same was taken on file in P.R.C. No. 797 of 2008 and thereafter and it was promptly committed to the file of Principal District and Sessions Judge, Erode and it was taken on file in S.C. No. 215 of 2008 and was made over to Fast Track Court – 1, Erode for disposal. (c) The trial Court had framed necessary charges against the accused 1 and 2 and had examined 20 witnesses and 36 documents besides 21 M.Os. on the side of the prosecution in order to substantiate the charges framed. 3. The case of the prosecution as spoken by the witnesses in brief would be as follows: (a) P.W.2 is the mother of the deceased Jayalakshmi. On 9. on the side of the prosecution in order to substantiate the charges framed. 3. The case of the prosecution as spoken by the witnesses in brief would be as follows: (a) P.W.2 is the mother of the deceased Jayalakshmi. On 9. 2007, when the deceased Jayalakshmi was living with P.W.2 and witness Matheswaran, the father of the deceased at Kumarapalayam East, Cauvery Nagar, she went out by 7. a.m. for answering her nature calls. But she did not return to the house. Therefore, P.W.2 searched for her till 12.30 p.m. on that day and P.W.2 heard from one Revathy that she had seen Jayalakshmi an about 7. p.m. near Vinayaka Medicals. The same was informed by the said Revathy on the next day morning only. The father of Jayalakshmi Mr. Matheswaran also searched for her and since he could not find out Jayalakshmi, he gave a complaint to the Kumarapalayam Police Station and the Kumarapalayam police had registered the case in Crime No. 698 of 2007, as woman missing. The Kumarapalayam Police were also searching for the said Jayalakshmi. (b) In the meantime, on 9. 2007, P.W.4 had seen the dead body of a woman without any dress and a stick inserted at her private part and he immediately informed others. P.W.5 the Sweeper of Erode Corporation, P.W.6 Auto driver and other persons like P.W.1 P.W.3 and P.W.10 had witnessed the dead body. P.W.1 a Police Constable immediately rushed to the Erode Town Police Station and gave a complaint what he saw near the cycle stand of the Central Bus Stand at Erode and P.W.19 Sub Inspector of Police had registered a case in Cr. No. 1307 of 2007 under Section 317 IPC and had sent it through express Tapal to Judicial Magistrate II, Erode. The said F.I.R. was received by the Court by 11.30 a.m. P.W.20, the investigating Officer had commenced the investigation and had taken the dogs squad to the scene of occurrence and had prepared an Observation Mahazar and a rough sketch on an inspection of the place of occurrence. He caused the photographer to take photos of the place of occurrence. The said F.I.R. was received by the Court by 11.30 a.m. P.W.20, the investigating Officer had commenced the investigation and had taken the dogs squad to the scene of occurrence and had prepared an Observation Mahazar and a rough sketch on an inspection of the place of occurrence. He caused the photographer to take photos of the place of occurrence. He had seized blood stained two stones, one chappal, blood stained saree, green colour Jacket, Saffron colour skirt, maroon colour plastic bangles, blood stained white colour bra, the sample-stones, sample earth and blood stained earth available at the scene of occurrence through seizure mahazar in the presence of witnesses. The inquest was conducted by the investigation in between 12.45 p.m. and 3.30 p.m. and he also prepared the inquest report. P.W.17 had investigator also examined the witnesses and recorded their statement. (c) Thereafter he had caused the dead body to the Government Hospital with a requisition to perform autopsy, through P.W.17 and also sent a requisition to keep it in mortuary for three days as the body was not identified by any person. P.W.17, investigator had also examined the witnesses and recorded their statement. P.W.14 had performed autopsy on 9. 2007 at 4.00 p.m. and he had given his opinion that the death would have happened due to the profused bleeding caused by the insertion of stick on the private part of the body of the deceased woman and also due to shock caused to her. After the performance of autopsy by P.W.14 doctor, P.W.17 had seized the shirt, plastic bangles, glass bangles, “passi mani” from the body of the deceased in the presence of witnesses. The investigator had also seized the stick measuring 27, cms from the Doctor, who performed autopsy and removed the stick from the private part of the dead body. The investigator had sent the nail, hair, and smear collected from the body of the deceased, the stick and her skull for chemical examination. The investigator had informed all the police stations in respect of the case and on information from Kumarapalayam police, went to Kumarapalayam on 19. 2007 and examined P.W.2 and her husband. They had identified the deceased woman as their daughter on seeing the photographs taken on dead body of the deceased woman. They have also identified M.Os.2 to 13 as belonging to their daughter, Jayalakshmi. 2007 and examined P.W.2 and her husband. They had identified the deceased woman as their daughter on seeing the photographs taken on dead body of the deceased woman. They have also identified M.Os.2 to 13 as belonging to their daughter, Jayalakshmi. (d) On information received by the investigator on 21. 2008, he examined P.W.6 and he had given a statement that he saw A1 and A2 gone on their way to the place of occurrence at the time when the occurrence was stated to have taken place. P.W.9 was owning a share auto and the accused were working under him. P.W.7 Mubarakk used to collect the rents for the said auto and hand over the collections on the owner P.W.9 On 21. 2008 (sic) at about 2. p.m, the first accused appeared before the Village Administrative Officer P.W.12 at his office and wanted to give an extra judicial confession. P.W.12 had recorded the statement given by the first accused which was produced as Exhibit P-3. He had also prepared the requisition and had taken the first accused with him to the Erode Town Police Station. P.W.20 had arrested the first accused and recorded the confession given by the first accused to him. In the confession given by him it is stated that he would identify the place where he had concealed the nose screw taken from the body of the deceased. In accordance with the said confession leading to the recovery. The 1st accused took the investigator to a transformer and had taken away a polythene bag containing the nose screw secreted under the transformer. P.W.20 had seized the polythene cover M.O.16 with the nose screw M.O.1 under the cover the seizure mahazar. P.W.20 had also arrested A2 on the identification A1 and took them to the Police Station and sent them to jurisdictional Court seeking for judicial remand. (e) Subsequently, on 21. 2008, P.W.20 had taken P.W.2 and her husband Matheswaran and had shown M.O.1 to them and they also identified that the said nose screw belonged to their daughter deceased Jayalakshmi. He had produced P.W.6 and P.W.7 before the Judicial Magistrate for recording witnesses statement under Section 164 (2) Cr.P.C. The Judicial Magistrate No. 1, Erode P.W.13 had recorded the witness statement of P.W.6 and P.W.7 as per the procedure. He had produced P.W.6 and P.W.7 before the Judicial Magistrate for recording witnesses statement under Section 164 (2) Cr.P.C. The Judicial Magistrate No. 1, Erode P.W.13 had recorded the witness statement of P.W.6 and P.W.7 as per the procedure. The investigator had thus conducted the investigation by collecting all the materials from the laboratories and completed the recording of statement by examining the witnesses and had filed the final report before the Court. The same was taken on file in P.R.C.No. 797 of 2008 and thereafter the accused were questioned on the incriminating circumstances spoken by the prosecution witnesses and for that, the accused had baldly denied them as false and they did not examine any witness, even though they stated that they got witnesses. 4. Mr. N. Manokaran, the learned counsel for appellants/accused 1 and 2 would submit in his argument that the appellants were wrongly convicted and sentenced by the lower Court for the offences they did not commit and the said conclusive of the lower Court were not in accordance with law. He would further submit that there was no ocular evidence and the lower Court did not peruse the circumstances of the case and without verifying, the circumstantial evidence not completed, had come to a conclusion, pointing the accused guilty. He would also submit that the body of the deceased was not identified by the witnesses who were said to be the mother and father of the deceased person. The clothes worn by the deceased as mentioned in Exhibit P-29 were not identified by the mother P.W.2 and it had created suspicion over the death of her daughter Jayalakshmi. 5. He would also submit that the conviction under Section 376(2)(g) read with 511 was not based upon any medical evidence since nothing was detected from the injury on the private part of the deceased woman. The mere injury on the private part will not in any way conclude to have committed the offence under Sections 376(2)(g) read with 511 IPC. He would also submit that the alleged last seen witnesses P.W.6 and P.W.7 have turned hostile and there was no other link in the prosecution case to connect the accused to the guilt and therefore, the finding of the lower Court is liable to be set aside. He would also submit that the alleged last seen witnesses P.W.6 and P.W.7 have turned hostile and there was no other link in the prosecution case to connect the accused to the guilt and therefore, the finding of the lower Court is liable to be set aside. It is also urged that the extra judicial confession said to have been recorded by P.W.12 was given after a delay of 4 months from the date of incident and therefore/P.W.12, who is a Village Administrative Officer, a procured witness for the purpose of implicating the accused in the undetected case cannot be relied. The evidence of P.W.8 and P.W.9 cannot be relied due to the material contradictions spoken by them in their evidence. The extra judicial confession given to P.W.11 is a very weak piece of evidence and the conviction ended on the sole evidence of P.W.12 would not inspire any confidence and the lower Court ought to have given the benefit of doubt with the accused. He would further submit that the prosecution had not examined the person who registered the crime No. 698 of 2007 at Kumarapalayam police station and the person who gave the complaint and therefore the mentioning of the nose screw, in the complaint has not been proved by the prosecution. Therefore, the recovery relied upon by the prosecution cannot be sustained. He would further insist in his argument that the arrest and recovery of the first accused have been falsified and, consequently the entire case of the prosecution should be considered as falsified and, therefore, the conviction and sentence passed by the lower Court should have been set aside and the appeal be allowed. 6. The learned Additional Public Prosecution had also submitted his argument. 7. Having considered the arguments of both sides, this Court could see that the daughter of P.W.2, namely, Jayalakshmi was not mentally sound and on 9. 2007 at about 7.00 a.m. when she went away for answering the calls of nature, she did not return home and, therefore, the complaint was given by her father i.e. P.W.2’s husband to the Kumarapalayam police station and the case was registered in Exhibit P.29. The evidence of D.W.1 would go to show that the said case was investigated by him. The evidence of D.W.1 would go to show that the said case was investigated by him. In the meanwhile the dead body of a woman was found without clothes near the cycle stand of Erode Corporation bus stand and it was found by the witnesses, namely, P.W.4 and P.W.6 and the case has been registered under Section 174 Cr.P.C. by the Erode Town Police and was investigated by the investigator. The dead body of the said woman was found with injuries and her face was completely smashed with the stones and they were also seized by the investigator available from near the dead body and the certificate issued by the doctor and the inquest conducted by the investigator would go to show that the deceased woman died due to sexual injuries and shock caused due to the injuries on her face. During autopsy, a stick was found inserted in the private part of the deceased woman and the same was also sent for chemical examination. Therefore, it is shown to the Court that the body of the deceased woman found on 9. 2007 near the cycle stand of the Erode Corporation bus Stand was caused due to the sexual injury and facial injury caused by some persons after the commission of attempting to rape her. 8. The evidence of P.W.2 would go a long way to show that the dead body recovered near the Erode Central bus stand was her daughter Jayalakshmi as P.W.2 had identified her body in the photograph taken by the investigator. She had also identified the clothes worn by the dead body which were seized promptly by the investigator as belonging to her daughter Jayalakshmi. The evidence of P.W.2. would go to show that dead person found in the place of occurrence was Jayalakshmi. The nose screw was also seized by the investigating officer from A1 through the confession leading to recovery. In the aforesaid circumstances, there is no doubt for coming to a conclusion that the dead body found in the scene of occurrence in the case on the file of the Erode Police station in Crime No. 1307 of 2007 was none other than the Jayalakshmi, daughter of P.W.2, for whom the case was registered by the Kumarapalayam Police in Exhibit P.29 F.I.R. of Kumarapalayam Police Station. 9. 9. As far as the commission of offence by the A1 and A2 are concerned, there is no ocular evidence produced by the prosecution to substantiate its case. It is true that the case is purely rested upon the circumstantial evidence. The prosecution had examined P.W.6 and P.W.7 who were stated to be the persons witnessed the accused 1 and 2 with a woman in their share auto immediately before the time of occurrence. However, they did not support the case of the prosecution and were treated as hostile. The statement of P.W.6 and P.W.7 recorded by the Judicial Magistrate, P.W.7 recorded by the Judicial Magistrate P.W.13 under Section 164(2) Cr.P.C. were produced as Exhibits P-8 and P-9. Those statements were not put in the cross examination of P.W.6 and P.W.7 and therefore their statement given before the Magistrate were also not helpful to the prosecution. After the passing of 4 months investigation commented, on 21. 2008 at about 2.00 p.m., the first accused appeared before P.W.12 Village Administrative Officer and gave a confession statement Exhibit P-3. The said confession statement was promptly recorded by P.W.12 and he has spoken in his evidence as P.W.12 about the recording of extra judicial confession. 10. Even though the said confession was recorded after 4 months, the evidence of P.W.12 inspired confidence in the mind of this Court to come to a conclusion that the said extra judicial confession cannot simply he rejected. Immediately after the completion of recording extra judicial confession, P.W.12 had taken the first accused with him to the police station and the investigator had arrested him and, the first accused had given a confession to the investigator and it was recorded by him and in the said confession he had also given a confession leading to recovery to which P.W.12 was a witness. In pursuance of the said confession leading to recovery, the first accused had taken the investigator to a transformer near the place of occurrence and he had identified a place under the transformer, a polythene bag containing the nose screw taken from the body of the deceased woman was recovered. M.O.1 is the said nose screw. The witnesses stood over the recovery and had spoken about the recovery of M.O.1 through Exhibit P-6 seizure mahazar. 11. M.O.1 is the said nose screw. The witnesses stood over the recovery and had spoken about the recovery of M.O.1 through Exhibit P-6 seizure mahazar. 11. When the documents produced by the defence are perused, we could see that the accused was taken to Coimbatore prison on 21. 2008 and he was subjected to medical check up before he was admitted in the prison. The said document showing the examination of D.W.2, doctor, who examined him in the prison, will not in any way make the extra judicial confession, arrest and recovery recorded by the Village Administrative Officer, P.W.12 and the investigation conducted by the investigating officer as invalid. 12. In the aforesaid circumstances, it is relevant to point out the judgment of Hon’ble Apex Court as cited by the learned Additional Public Prosecutor in between Velyayuda Pulavar v State By Sub-Inspector of Police (2009) 6 scale 537 . The relevant passage in the said judgment would run as follows: “Each and every piece of information mentioned in the extra-judicial confession needs not be corroborated by independent evidence. It is well settled that conviction can be recorded solely on the basis of the extra judicial confession if it is found to be credible and worthy of acceptance. P.W.1’s evidence coupled with that of P.W.3 makes the position clear that there was a voluntary extra-judicial confession made by the appellant before the Village Administrative Officer (P.W.1). That being so, we find no scope for interference in this appeal.” The aforesaid of Hon’ble Apex Court would go a long way to show that the extra judicial confession, if it inspires confidence in the mind of Court, there is no other piece of any comborating evidence necessary to support the extra judicial confession. Keeping in mind the aforesaid dictum laid down by the Hon’ble Apex Court, we have to scrutinize the further case of the prosecution. 13. According to P.W.12, nose screw M.O.1 was also seized on the confession leading to recovery given by the first accused. The evidence of P.W.2 would go a long way to show that the said nose screw was belonging to her daughter Jayalakshmi. Exhibit P29, F.I.R. registered by the Kumarapalayam Police station on the complaint given by the husband of P.W.2, would disclose that his daughter Jayalakshmi missed and she was wearing green saree, green jacket, and the nose screw. The evidence of P.W.2 would go a long way to show that the said nose screw was belonging to her daughter Jayalakshmi. Exhibit P29, F.I.R. registered by the Kumarapalayam Police station on the complaint given by the husband of P.W.2, would disclose that his daughter Jayalakshmi missed and she was wearing green saree, green jacket, and the nose screw. The evidence D.W.1 would go to show that he had conducted investigation of the case registered under Exhibit P-29. Therefore, there is no necessity for examining the author of F.I.R. to prove Exhibit P-29. 14. In the aforesaid circumstances, the nose screw as worn by Jayalakshmi, the daughter of P.W.2 was recovered through confession of the first accused and it has been promptly proved. The aid confession would go to show that the dead body found near the cycle stand of Erode bus stand was wearing the said nose screw. Apart from that, the evidence of P.W.2 would identify the dead body belongs to her daughter Jayalakshmi. In all these circumstances the prosecution evidence would support mutually and thereby the links of circumstantial evidence are promptly connected and completed and therefore we have to come to a conclusion that the crime of murder caused the death of Jayalakshmi, daughter of P.W.2 and it was done by A1. 15. As regards A2 is concerned, there is nothing available incriminating A2, that he assisted A1 in the commission of the said crime murder. Since the evidence adduced by the witnesses examined by the prosecution as P.W.6 and P.W.7 were turned hostile in respect of the last scene theory, the connected link for A2 in participating the crime with A1 has not been proved. In these circumstances, the lower Court was not correct in fastening A2 with the crime committed by A1 against the said Jayalakshmi. No doubt, the said crime caused against a mentally unsound woman is heinous. Instead of helping the mentally unsound person, the first accused had committed the crime without any humanity or humility in his heart but had caused serious injury on her private part by inserting the stick to an extent of 8 cm. The evidence of doctor would go to show that the death was caused due to the profused bleeding and also the injury on the private part of the deceased woman. The evidence of doctor would go to show that the death was caused due to the profused bleeding and also the injury on the private part of the deceased woman. Therefore, there may not be any deviation from the conviction of the first accused in respect of the charges framed against him. As regards A2 is concerned, the extra judicial confession given by A1, will not bind on him and there is nothing available to convict A2 as charged against him. In the aforesaid circumstances, we are of the considered opinion that the prosecution had proved the charges beyond reasonable doubt only as against A1. However, the prosecution had failed in its attempt to prove the charges framed against A2 and, therefore, it has become necessary for this Court to interfere with the judgment of conviction and sentence passed as against A2 and set aside the same. 16. The learned counsel for the appellants would submit that there was nothing proved in respect of the commission of offence of rape by the 1st accused as against the deceased woman. Considering the scientific report and other chemical analysis report, we are of the considered view that it is only an attempt to commit rape but there was no rape committed as against the deceased woman. In that circumstances, the sentence of 10 years Rigorous imprisonment imposed as against A1 for the offence under Sections 376(2)(g) read with 511 IPC is severe in nature and, therefore, this Court is inclined to modify the sentence to that of 7 years Rigorous imprisonment for the said offence. 17. In fine, the appeal is partly allowed and the Conviction and sentence passed against A2 is set aside. The conviction and sentence passed against A1 are confirmed except the modification of the sentence passed against A1 under Section 376(2)(g) read with 511 IPC from 10 years Rigorous imprisonment to 7 years Rigorous imprisonment. The sentences passed against A1 under Section 302 to undergo life imprisonment and to pay fine of Rs.2000/- and in default to undergo 3 months rigorous imprisonment and under Section 201 I.P.C. to undergo 3 years rigorous imprisonment and under Section 404 IPC to undergo 3 years rigorous imprisonment do remain unaltered. The sentences passed against A1 are to run concurrently. A2 shall be released from custody forthwith, if not required in any other case. The sentences passed against A1 are to run concurrently. A2 shall be released from custody forthwith, if not required in any other case. The fine amount, if paid by A2, shall be refunded.