JUDGMENT : D.N. Patel, J. 1. This criminal appeal has been preferred by the appellant-accused feeling dissatisfied with the judgment and order of conviction and sentence dated 8th June, 2010 and 10th June, 2010 respectively passed by learned Additional Sessions Judge, FTC-V, West Singhbhum in Sessions Trial No. 268 of 2006, whereby, this appellant has been convicted for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years. 2. The case of the Prosecution: The case of the prosecution is that on 21.08.2006 the informant Tisu Kayam gave written report to police that on 20.08.2006 (Sunday) at 12:00 noon he had gone to jungle for cutting grass and his wife had gone to field. His minor daughter Palomai Kayam aged about 4 years was at home. At 4:00 P.M., when informant came back to his house, he found his daughter weeping. When informant asked his daughter, then by indication she complained about the sexual intercourse done against her by Dibai Kayam (accused). The informant alleged that his daughter was fully naked and she took informant near a Mahua tree, where the alleged offence said to have taken place, but, he found nothing there. Thereafter informant along with his daughter went to the house of villager Dakua Pradhan Kayam and other villagers and informed them about the incident. After that, informant along with Dakua went to the house of Dibai Kayam and make enquiry about the incident, and then Dibai Kayam (accused) admitted that he had committed rape upon the minor girl of Tisu Kayam near a Mahua tree. Thereafter villagers caught hold Dibai Kayam and kept him in the house of Dakua. On the next day i.e. 21.08.2006, panchayat was held, where Dibai Kayam confessed that he had committed the offence, and then villagers brought Dibai Kayam to Police Station and handed over him to police. Seven witnesses were examined by the prosecution PW-1 Dr. Neeru Jha She is a Doctor and is a member of Medical Board who has examined victim Palomai Kayam and has proved the medical report i.e marked as Ext.1 PW-2 Kandey Ram Tamsoi He is a Hearsay witness. He has proved his signatures in the paper prepared in panchayat and seizure list of panchayat paper i.e marked as Ext.2 and 3 respectively. He has proved his signatures in the paper prepared in panchayat and seizure list of panchayat paper i.e marked as Ext.2 and 3 respectively. He has also proved the written report i.e marked as Ext.4 PW-3 Smt. Mugali Kayam She is the mother of victim. She deposed that in panchayat accused Dibai Kayam has confessed that he had committed rape. PW-4 Uday Kayam He is a Hearsay witness. He deposed that in panchayat accused Dibai Kayam has confessed that he had committed rape. PW-5 Pradhan Kayam He is a Hearsay witness. He deposed that in panchayat accused Dibai Kayam has confessed that he had committed rape. He has proved his signature in the paper prepared in Panchayat i.e marked as Ext.2/1. He has proved his signature and signature of Mangal Singh Munda (dead) in the written report i.e marked as Ext.4/1 and 4/2 respectively. PW-6 Tisu Kayam He is the father of victim and is informant of this case. He has supported the case of prosecution and has proved his signature in the written report i.e marked as Ext.4/3 PW-7 Saluka Kayam He is a Hearsay witness. He has proved his signature in the paper prepared in the panchayat i.e marked as Ext.2/2. 3. Arguments canvassed by the learned counsel for the appellant: It has been submitted by the learned counsel for the appellant that the prosecution has failed to prove the offence of rape beyond reasonable doubt. It is further submitted by the learned counsel for the appellant that the whole 3 conviction is based upon extra judicial confession and nothing beyond that. It is also submitted that the whole conviction is based upon the presumption and surmises by the learned trial court in view of the fact that even as per the medical evidence, no rape has been committed by this appellant. It is further submitted that extra judicial confession cannot be the basis for conviction, when there is no corroborative evidence before the learned trial court to that effect. It is thus submitted that these aspects of the matter have not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by the learned trial court dated 8th June, 2010 and 10th June, 2010 respectively, in Sessions Trial No. 268 of 2006 deserves to be quashed and set aside. It is thus submitted that these aspects of the matter have not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by the learned trial court dated 8th June, 2010 and 10th June, 2010 respectively, in Sessions Trial No. 268 of 2006 deserves to be quashed and set aside. It is further submitted that even otherwise also, this appellant has neither been enlarged on bail during trial nor at the appellate stage the sentence awarded to him by the trial court has been suspended and is in judicial custody since 2006 and thus he has already undergone 10 years of imprisonment, by now. 4. Arguments canvassed by the learned counsel for the State: Learned A.P.P. appearing on behalf of the State submitted that the confession made by this appellant before Panchayat, held in the village, has been proved by P.Ws. 2, 4 and 5. Moreover, looking to the medical evidence, it appears that Dr. Neeru Jha, who is P.W.1, in her deposition has clearly narrated that rape has been committed upon the minor girl (Palomai Kayam). The deposition given by Dr. Neeru Jha is a corroborative piece of evidence to the depositions of P.Ws. 2, 4 and 5. Moreover, looking to the evidence of P.W.3 (mother of the victim) and P.W.6 (father of the victim), it appears that they have clearly narrated the whole incidence. Thus, no error has been committed by the trial court in convicting the appellant for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 10 years. Hence, this appeal may not be entertained by this Court. REASONS: 5. Having heard learned counsels for both the sides and looking to the evidences on record, it appears that the prosecution has failed to prove the offence of committing rape by this appellant upon the minor girl, beyond reasonable doubt mainly for the following reasons: (i) It appears that the occurrence has taken place on 20th August, 2006 at about 12:00 noon, when the informant had gone to the jungle for cutting grass and his wife had gone to the field, as stated in the First Information Report, lodged by P.W.6- father of the victim. The victim was aged about 4 years as on the date of occurrence. The victim was aged about 4 years as on the date of occurrence. When the informant returned at home, he was informed by the victim about the rape, committed by this appellant upon her, as per the allegation levelled in the First Information Report. The victim in this case has not been examined as a witness. (ii) Looking to the medical evidence of Dr. Neeru Jha (P.W.1), it appears that there were no marks of violence on the body of the victim girl. Further, no spermatozoa, either alive or dead, was found. Moreover, opinion has been given by the doctor that there can be an attempt of rape. (iii) It further appears from the evidences on record that there is extra judicial confession by this appellant before the village people in a Pachayati, held in the village. (iv) Looking to the evidences given by P.Ws. 2, 4 and 5, it appears that they are hearsay witnesses. Only on the basis of the paper, signed by this appellant in a Pachayati, held in the village, these prosecution witnesses have given their depositions, otherwise they had no personal knowledge at all, about the incident. (v) Thus, the prosecution has failed to prove the offence of rape committed by this appellant upon the victim girl, beyond reasonable doubt. Even as per the medical evidence, no rape has been committed by this appellant. There cannot be a conviction based upon presumption and surmises. On perusal of the evidences given by P.Ws. 2, 4 and 5, it appears that none of these witnesses has stated that extra judicial confession was made by this appellant before him and that too voluntarily. On the contrary, looking to the evidences on record, it appears that this appellant was confined to a particular place and on the next day, Panchayati was held, where this appellant confessed his guilt. Thus, there was no free confession about the occurrence by this appellant. This aspect of the matter has not been properly appreciated by the trial court. If an accused is confined to a particular place and thereafter he is confessing the guilt, it has got no value in the eyes of law. Even, as per the evidence given by P.W.5, this appellant was caught hold by the villagers and on the next day Pachayati was held, where the appellant confessed the guilt. If an accused is confined to a particular place and thereafter he is confessing the guilt, it has got no value in the eyes of law. Even, as per the evidence given by P.W.5, this appellant was caught hold by the villagers and on the next day Pachayati was held, where the appellant confessed the guilt. Even as per the deposition given by P.W.6 (father of the victim girl and informant in this case), as stated in paragraph 2, this appellant was confined to a particular place, before he made confession. Such type of confession cannot be relied upon. (vi) Much has been argued by the learned A.P.P. about the Pachayati and the papers prepared during Panchayati. Nothing is helpful to the prosecution, mainly for the reasons that:- (a) When accused was confined to a particular place and thereafter he was brought before the Panchayat and has confessed the guilt, it has got no evidenciary value in the eyes of law. (b) Neither P.W.2 nor P.W.4 nor P.W.5 has stated that confession was made by this appellant before him. (c) Neither Chandra Mohan Jojo, who has prepared the papers of Panchayati nor the Village Head-popularly referred as “Munda”, has been examined by the prosecution in this case. These aspects of the have not been properly appreciated by the trial court while convicting the appellant for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for years. (vii) It has been held by the Hon'ble Supreme Court in the case of State of Rajasthan v. Raja Ram, reported in (2003) 8 SCC 180 in paragraph 18, which reads as under: “18. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall.) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe’s Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words “appear to him” in the last part of the section refer to the mentality of the accused.” (emphasis supplied) (viii) It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Jagbir Singh and Another, reported in (2003) 11 SCC 261 in paragraph 20, which reads as under: “20. Great emphasis was laid by the learned counsel for the State on the evidence of PW 4, the Additional CJM that the accused had admitted that the signature was his. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of the police officials. The second circumstance is the alleged extra-judicial confession before PW 10. The High Court has analysed the evidence in great detail. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of the police officials. The second circumstance is the alleged extra-judicial confession before PW 10. The High Court has analysed the evidence in great detail. It is on record that the accused Jagbir was being taken to various places and at different points of time he was being pressurized to make a statement. Though the accused was claimed to have made the statement in the presence of a large number of persons, a combined reading of the evidence shows that nobody else speaks about the so-called extra-judicial confession, not even those who have been examined as PWs. Though PW 10 said that there were many persons who had heard it, no other person has stated about it. The statements of PWs 7 and 10 go to show that the accused was being interrogated by PWs and other villagers as well as his father and other relatives. Interrogation continued for about 3 days when allegedly Jagbir confessed his guilt. Though the first information report was lodged by PW 7 after knowing about the extra-judicial confession, there is no mention about this vital fact. In a given circumstance, omission to mention about the particular aspect may not render the prosecution version suspicious. But when circumstances in the present case are taken in their entirety the alleged extra-judicial confession is not believable. In order to make an extra-judicial confession a reliable evidence it has to be shown that the same was voluntary. The factual scenario as presented by the prosecution goes to show that the alleged extra-judicial confession cannot be termed to be voluntary even if it was said to have been made, as claimed. The High Court was right in discarding the alleged extra-judicial confession.” (emphasis supplied) (ix) It has been held by the Hon'ble Supreme Court in the case of Sahadevan and Another v. State of T.N., reported in (2012) 6 SCC 403 in paragraph 16, which reads as under: “16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” (emphasis supplied) In the instant case, looking to the depositions of the prosecution witnesses, it appears that before confessing his guilt, the appellant was confined to a particular place and thereafter, he was brought before the Panchayat, before whom he confessed his guilt and, thus, the said confession, made by the appellant cannot be termed as voluntary confession. (x) Even otherwise also, as per the medical evidence given by P.W.1- Dr. Neeru Jha, there were no marks of violence; hymen was intact; no dead or alive spermatozoa was present and at the highest, there can be an attempt of rape, as suggested by the doctor. 6. As a cumulative effect of the aforesaid evidences on record, the prosecution has failed to prove the offence of rape committed by this appellant, beyond reasonable doubts. Hence, we hereby quash and set aside the judgment and order of conviction and sentence dated 8th June, 2010 and 10th June, 2010 respectively passed by learned Additional Sessions Judge, FTC-V, Singhbhum West, in Sessions Trial No. 268 of 2006. The appellant namely Dibai Kayam @ Dibay Kayam, who is in custody, shall be released forthwith, if not required in any other case. 7. Accordingly this Criminal Appeal is, hereby, allowed and disposed of.