JUDGMENT

S. B. SINHA, J. : — The appellant herein was a labourer. He is said to have committed a series of offences involving heinous crimes. He is involved also in a case of rape and murder of a minor girl Savita. She was sister of Shankar Bhursinh (complai¬nant). He lodged a First Information Report on 1.07.1998 inter alia stating that he with a view to earn his liveliood came with his family to Karamsad town. He was staying in a shed opposite to Tirupati Petrol Pump. He was sleeping in that shed. He woke up at about 2 a.m. for answering the call of nature. At that time her sister was sleeping along with other family members. When he woke up again, he did not find Savita. It was raining on that night. Searches were made for her. On the next day morning ,her dead body was found lying in the surrounding field belonging to Malabhai and Kanbhai. Her neck was tied with a frock which was worn by her. She was found to be dead. The blood was found to have been oozing out from her private part. The knicker worn by her was also missing. He informed the police. The appellant was arrested by the investigating officer Mr. R.G. Patel on 12.08.2002. He purported to have made a confession about commit¬ting rape and murdering Savita. He also allegedly showed the place of incidence to the investigating officer. He prepared panchnama of the scene of offence and recorded statement of the concerned witnesses. He then sent the frock worn by the deceased to Foren¬sic Science Laboratory. The appellant purported to have made a confessional statement before PW-2 Ambalal.

2. Principally relying on or on the basis of said judicial confession made by the appellant, he was found guilty of commis¬sion of offence. The learned Sessions Judge took into considera¬tion the fact that he has been found guilty of commission of similar offences as also other offences and, thus, imposed death penalty on him. The High Court affirmed the said judgment of conviction and sentence by its judgment dated 2.03.2005.

3. The High Court while recording that the confession was found not only to be true but having been voluntarily made, opined that the same could be relied upon. At the same time, the High Court proceeded on the basis that the accused was free to make retraction of his confession when his statement under Sec¬tion 313 of the Code of Criminal Procedure was recorded. The High Court furthermore noticed that oath should not have been adminis¬tered to the accused but opined that the same is not of much significance but proceeded on the basis that the decisions of the Apex Court have often said that the Court cannot solely rely on the retracted confession and make it a foundation for convicting the accused. But, while purporting to keep the confessional statement of the appellant aside, it examined the purported circumstances used against him. We are afraid, nothing has been brought on record to show existence of any circumstance which would lead to the conclusion that the appellant alone is guilty of commission of the offence.

4. Rape and murder of Savita is not in dispute before us. It is also not disputed before us as that apart from the purported judicial confession there is no other material which can be said to be sufficient to establish the guilt of the appel¬lant. The Chief Judicial Magistrate, Nadiad recorded the confes¬sion on the basis of an application made by the said Mr. R.G. Patil. An application was also filed to record the confession of the appellant in another case bearing No. I.C.R. 123 of 1997.

5. The confession was recorded on 7.09.2000. He was in judicial custody for a period of 16 days. His statement is as under :

“The incident is of two years old I do not remember the exact date. On that day I was at my house and at night say around 12.00 I went to the field which is at opp.Karamsad Petrol Pump. I don’t know whose field is this. On being reached to the field I saw that there was one shed with a _____, and under that shed one girl was sleeping.