JUDGMENT :

G.K. ILANTHIRAIYAN, J.

These Criminal Appeals are directed as against the judgment passed in S.C No.57 of 2020 by the Mahila Court, Pudukkottai, dated 05/03/2022, thereby convicting A1 under Sections 364, 404, 201, 120-B r/w 302, 302 IPC; A2 under Sections 404, 201, 120-B r/w 302, 302 IPC; and A3 under Sections 404, 201 and 302 IPC.

2.The case of the prosecution is that A1 and A2 are friends. A2 borrowed money from the deceased Panchavarnam often and he used to repay the same. While being so, A2 borrowed a sum of Rs.1,00,000/- from the deceased for his marriage expenses and failed to repay the same. Therefore, there was a dispute with regard to the money transactions between A2 and the deceased. A1 had introduced the deceased to A2. Therefore, it was informed to A1, for which A1 assured that the loan amount would be repaid by A2. Therefore, A1 and A2, while they were consuming alcohol, decided to do away with the life of the deceased, as she was giving torture to A2 to repay the loan amount. Therefore, both conspired together and, on 04.09.2019, A1 picked up the deceased on his two-wheeler to redeem the jewels which were pledged by the deceased from the money to be settled by A2. A1 kidnapped the deceased on his motorcycle by stating sweet-coated words and took her to the place where A2 and A3 had already dug a pit with an intention to bury the deceased. Thereafter, A2 pushed the deceased down and strangulated her neck by closing her mouth and nose, thereby causing suffocation and murdered her. Thereafter, all the accused buried the body in the pit already dug and robbed 7-1/2 sovereigns of jewels and cash of Rs.3,00,000/- from her.

3.On the complaint, the respondent Police registered an FIR in Crime No.110 of 2019 under “Woman Missing”. After completion of the investigation, a final report was filed for the offences punishable under Sections 364, 302, 397, 201 and 120(B) IPC. Thereafter, the Trial Court framed charges as against A1 under Sections 120(B), 364, 302, 404 and 201 IPC; against A2 under Sections 120(B), 302, 404 and 201 IPC; and against A3 under Sections 302, 404 and 201 IPC.

4.Before the Trial Court, in order to prove the charges, the prosecution examined 15 witnesses as PW1 to PW15 and marked 40 documents as Exs.P1 to P40, besides producing material objects MO1 to MO25. On the side of the accused, they examined 2 witnesses as DW1 and DW2 and did not mark any document.

5.On perusal of the oral and documentary evidence, the Trial Court found the accused guilty and accordingly convicted and sentenced them as detailed below:-

A1-Kalimuth

A2-Sivakumar 

A3-Lallenboi 

All the sentences were directed to run concurrently by the accused.

6.Aggrieved by the same, separate appeals have been filed by all the three accused.

7.The learned counsel appearing for A3 submits that even according to the case of the prosecution, A3 along with A2 dug up a pit to bury the body; except this allegation, no other material is available to convict him of the crime. In fact, he was implicated as an accused only on the confession statement of the co-accused. There was no recovery from A3 and even then, the Trial Court convicted A3 for the offence under Section 302 IPC. There is no material to connect A3 along with A1 and A2 to prove the charge under Section 302 IPC. The Trial Court, only based on the extra-judicial confession statement, which was recorded from A2 and marked as Ex.P7, convicted A3. A3 did not participate in the conspiracy between A1 and A2. Therefore, the entire conviction imposed on A3 is liable to be set aside and Crl.A.(MD) No.810 of 2022 filed by A3 is to be allowed.

8.The learned counsel appearing for A1 and A2 submits that A2 borrowed a loan from the deceased and failed to repay the said amount; it was one of the motives as projected by the prosecution to do away with the life of the deceased. Further, A2 voluntarily surrendered and gave a voluntary confession statement on 21/09/2019 and only based on the confession stateme