The evidence of an extra-judicial confession must be corroborated by other evidence and the witnesses who testify to it must be credible. The acquittal of a co-accused bars the conviction of the remaining accused under Section 34 of the Penal Code.

JUDGEMENT

Behera, J.:- In the early hours of June 13, 1971, Biswanath Gouda (hereinafter referred to as the deceased) of village Saranpur in the district of Koraput was found lying dead in his house with a Chadar covering the dead body. The appellant Moti, who was the second wife of the deceased, had, it was alleged, along with Ratan Gouda, who was said to be her paramour, killed the deceased in furtherance of their common intention, during the preceding night, the appellant by means of a knife and Ratan by means of the blunt side of an axe and having first given out that the deceased died of gastric trouble, the appellant later made an extra-judicial confession before Tularam Naik (PW 2) and Raghunath Ganda (PW 3) to the effect that she and Ratan killed the deceased. On drawing up the first information report (Ext. 5), the Officer-in-charge (PW 8) of the police station at Papadahandi took up the investigation. As the investigation was not completed for a long time, the appellant and the co-accused, namely, Ratan Gouda, were discharged. In August, 1971, a charge-sheet was placed and the co-accused Ratan Gouda, on being produced on the strength of a warrant issued against him, was tried and acquitted of the charge of murder. The appellant was said to be absconding and after she was produced in custody in July, 1978, she was committed to the court of session and tried being charged under S.302 of the Indian Penal Code.

2. To bring home the charge to the appellant, the prosecution had examined eight witnesses. The case of the appellant was one of denial and false implication. No witness had been examined on her behalf.

3. The learned Sessions Judge found that the death was homicidal in nature and this fact has not been disputed at the Bar before us in view of the clear evidence of the Medical Officer (PW 5) who had conducted the autopsy over the dead body of the deceased. The learned Judge did not rely on the evidence that while the appellant was in custody, her statement had led to the discovery of a knife (MO I), a Saree (MO II) and a Chadar (MO III) from the backyard of the house of the deceased and rightly so, as besides the absence of evidence that M.O. I was the weapon of attack or that any of the articles was on the person of the appellant or the deceased at the time of the occurrence, the recoveries had been made from an unfenced backyard and it could not be said that the appellant was the author of concealment of these articles. The learned Judge also discarded the evidence of P.W. 3 that during the night, the appellant had been seen going to the co-accused Ratan Gouda and the evidence of P.W. 7 with regard to the purchase of a pair of rings (M.O. IV) by the appellant and an old man, which could have nothing to do with the commission of the offence of murder. The confession of the co-accused Ratan implicating only himself, as deposed to by P.W. 6, according to the learned Judge, could not be and was not to be utilised against the appellant. The learned Sessions Judge, however, accepted the evidence with regard to the extra-judicial confession allegedly made by the appellant before P.Ws. 2 and 3 and found that the fact that the appellant and the deceased were the only two persons present in the house and the medical evidence corroborated the extra-judicial confession made by the appellant. The learned Judge did not convict the appellant under S.302 of the Penal Code with which she stood charged and although the co-accused Ratan Gouda had, in a separate trial, been acquitted of the charge of murder, held that his acquittal would not stand as a bar to finding the appellant guilty under Section 302 read with S.34 of the Penal Code and the appellant was accordingly convicted of the offence of murder by the application of S.34 of the Penal Code and sentenced thereunder to undergo imprisonment for life.

4. Mr. N.K. Behera, the learned Advocate appearing on behalf of the appellant, has submitted that the order of conviction cannot b