Judgment : Rajani Dubey, J. 1. This criminal appeal under Section 374(2) of the Cr.P.C. is directed against the impugned judgment and order of sentence dated 22.05.2019 passed by Second Additional Sessions Judge, Surajpur, District Surajpur (C.G.). in S.T. No. 06/2019, whereby the appellant has been held guilty of commission of offence and sentenced as described below:- 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that on the intervening night of 03.12.2018 at between 11pm-12am at village Badkapara, Surajpur, someone with an intention of killing Lal Sai Bargah assaulted on his head with an iron axe “tangi”. Thereafter, a morgue intimation was lodged in the police of Police Station Surajpur by Ambika Prasad Bargah, in which it was alleged that on 04.12.2018 at about 6:00 a.m. one Golu Rajwade of his vicinity informed him that the body of his father was lying nearby the house of the appellant and thereafter, an F.I.R. was lodged against the unknown person vide crime no. 490/18 by the complainant Ambika Prasad Baiga and the case was taken up for investigation. Subsequently, the police investigated the matter and on the basis of memorandum statement the police arrested the appellant for the commission of the alleged offence. Thereafter, the matter was reported to the police of Police Station Surajpur, District Surajpur (C.G.) and they have registered the offence punishable under Section 302 of IPC against the unknown person. 3. After completion of due and necessary investigation, charge-sheet was led before the learned Chief Judicial Magistrate, Surajpur, District Surajpur (C.G.) who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 302 of IPC. The appellant having abjured guilt was subjected to trial. 4. In order to establish the charges against the appellant, the prosecution has examined as many as 16 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, 01 witness has been adduced by the appellant in his defence. 5. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, 01 witness has been adduced by the appellant in his defence. 5. After hearing learned counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence, this appeal. 6. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel appearing for the appellant submits that the impugned judgment and sentence passed by learned trial Court is bad-in-law as well as facts available on record. Learned trial Court failed to appreciate that there are major contradictions and omissions in the statements of prosecution witnesses, hence, the warrant of conviction of the appellant is bad-in-law. Learned trial Court has failed to appreciate that the memorandum and seizure witnesses have not supported the case of the prosecution and the entire case of prosecution is based upon the memorandum and seizure from the appellant, so the conviction of the appellant is without there being any cogent evidence available on record and the same is liable to be set aside. Learned trial Court has failed to appreciate that there is no motive or mens rea established by the prosecution and in absence of the same on the part of the appellant, the conviction of the appellant is bad-in-law. As such, the impugned judgment is liable to be set aside. 7. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Kanhaiya Lal vs. State of Rajasthan reported in (2014) 4 SCC 715, in the matter of Ram Adhin vs. State of C.G. reported in (2017) 3 CGLJ 397, in the matter of Raja Khan v. State of C.G. reported in ( 2025) 3 SCC 314. 8. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court minutely appreciated the oral and documentary evidence and thereby rightly convicted the appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court. 9. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection. 10. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Sections 302 of IPC. Learned Trial Court after minutely appreciating the oral and documentary evidence convicted the appellant for offence under Section 302 of IPC and sentenced as mentioned in opening para of this judgment. 11. First question which we have to consider is as to whether death of the deceased person Lal Sai Bargah was homicidal in nature or not? 12. PW-01 Ambika Prasad has stated that the deceased was his father and on 03.12.2018 at about 10 pm his father was at home and he further stated that after 10 pm he slept and he is unaware of his father’s whereabouts. Thereafter, on 04.12.2018 at about 7am, his neighbour Golu Rajwade informed him that his father was dead and lying in front of house of the accused/appellant Hemant Baiga, upon receiving the said information, he went to Hemant's house to see his father, who was lying dead on the ground. 13. PW-08 Surendra Yadav, son of the deceased has stated that on the night of 03.12.2018, his mother, father, brother and grandparents were present in the house, after having dinner his father Lal Sai Bargah told him that there is grass outside the house which is eaten by other people's cattle at night so, he will go outside to check the same and then he will sleep. After having his dinner he came back to his room at around 10 pm and slept, whereas at that time, his father Lal Sai Bargah was sitting near bonfire. On the next day morning i.e., 04.12.2018 at around 06 am, his neighbour Golu Rajwade informed him regarding his father, so that he can bring back his father who was lying dead in front of house of the accused/appellant Hemant Baiga, upon receiving the said information, he went along with his brother Ambika Prasad, nephew Rishi and with mother Leelawati to Hemant's house to see his father, who was lying dead on the ground. Thereafter, they went to police station-Surajpur for lodging report against the accused person. 14. Thereafter, they went to police station-Surajpur for lodging report against the accused person. 14. PW-15 Pramod Dadsena Sub Inspector has stated that he lodged morgue intimation on the information of Ambika Prasad vide Ex. P/04 regarding death of Lal Sai Bargah and also lodged F.I.R vide Ex. P/15 against unknown person. 15. PW/16 G.R. Chouhan Sub Inspector has stated that he issued notice for inquest vide Ex. P/01. PW-01 Ambika Prasad, PW-02 Ramlal, PW-08 Surendra Yadav have admitted their signatures on the inquest memo (Ex. P/01). He further submits that he prepared inquest before the witnesses and all witnesses have admitted their signatures on the inquest report vide Ex. P/06. He further stated that he gave application for postmortem of the deceased vide Ex. P/25 and admitted his signature on A to A part. 16. PW-07 Dr. Seema Gupta conducted postmortem of deceased Lal Sai Bargah and she found following injuries which are reproduced herein for ready reference as under:- and opined that cause of the death was cardio respiratory arrest due to severe blood loss due to polytrauma and nature of death was homicidal in nature. She gave her report vide Ex. P12. She also answered the query report vide Ex. P/13 and opined that all injuries can be caused by seized article (axe), however, the defence has cross-examined this witness at length, but has not been able to elicit anything in her cross-examination to discredit her testimony especially to the fact that all the injuries cannot be caused by seized article axe. So, prosecution has successfully proved this fact that death of deceased Lal Sai is homicidal in nature. 17. Now, we have to examine the evidence to ascertain whether it is the appellant who is author of the crime in question or not? 18. It is an admitted position in this case that the dead body of the deceased was found before the house of the accused/appellant Hemant Baiga. 19. PW-11 Hemant Kumar Royal has stated that on the date of incident, he was blowing the paddy and in his barn Badkapara, Surajpur, after some time as it became dark, being tired, around 09-10pm he was on his way to house of Pitambar Seth for drinking alcohol which was situated in his vicinity, at that time Lal Sai Bargah met him near his house and told him to take him along. Thereafter, both of them went to the house of Pitambar Seth and they stayed there for about half an hour, both of them had alcohol and then they left the house of Pitambar Seth and after walking to some extent, Lal Sai Bargah told Hemant Kumar at Lord Shiva Temple that he is unable to walk more and he said that he will sit there for sometime and if he told Hemant Kumar Royal that if he wishes to go to his house, then he may go. He further submits that Lal Sai Bargah told him that he will go home when his intoxication subsides, as such he came back to his house, had dinner and slept, leaving behind Lal Sai Bargah at the Lord Shiva Temple. Thereafter, he submits that on the next day morning when he woke up at around 6-7 am, then he heard gossip from people, whereby they were discussing that Lal Sai Bargah was killed by someone and thrown away. However, Pitambar Seth was not examined by the prosecution. 20. PW-1 Ambika Prasad, son of the deceased, PW-4 Leelawati, wife of the deceased, PW-6 Damodar Ram, father of the deceased, PW-8 Surendra Yadav, son of the deceased, PW-09 Rishi Kumar, grandson of the deceased have stated that on 03.12.2018, at night Lal Sai Bargah was at home had dinner with his family members together and at night about 10 pm all family members went for sleep except Lal Sai Bargah who was sitting near bonfire at his house. On the next day morning at around 6 am, one Golu Rajwade of his vicinity came to their house and informed the complainant and his family members that the body of Lal Sai Bargah was lying nearby the house of the appellant. 21. PW-10 Bhuwan Kant Rayal @ Golu has stated that on 04.12.2018 at about 6-6:30 am, one Jayshankar Dewangan, local councilor (Parshad) of his vicinity conveyed him on phone that Lal Sai Bargah of his vicinity is lying dead near the house of the appellant Hemant Kumar Baiga and the local councilor asked Golu to apprise regarding the fateful incident to the family members of the deceased, as such he apprised the same to PW-1 Ambika Prasad elder son of the deceased. The prosecution declared him hostile and cross-examined him, however, he denied the same in his police statement Ex. P/20. 22. The prosecution declared him hostile and cross-examined him, however, he denied the same in his police statement Ex. P/20. 22. The police recorded memorandum statement of accused Hemant Kumar Baiga before PW-8 Surendra Yadav and PW-13 Narendra Kumar, however, both the witnesses have denied any memorandum statement and any seizure before them. PW-8 Surendra Yadav, son of the deceased has stated that the police has not recorded any memorandum before him and did not seize any article before him. He admitted his signature on memorandum statement Ex. P/15 and seizure Ex. P/16 and Ex. P/17, but denied any proceeding before him. The prosecution has declared him hostile and cross- examined him, but he denied all suggestions of the prosecution. PW-13 Narendra Kumar admitted his signature on memorandum statement Ex. P/16 and seizure Ex. P/17 on B to B and C to C part respectively, but denied any proceeding before him. The prosecution has declared him hostile and cross-examined him, but he denied all suggestions of the prosecution and admitted suggestions of the defence that he signed all documents at the instance of police. In the F.S.L. report Ex. P/21, human blood was found in the Article D, but looking to the statements of both witnesses, it is clear that the prosecution has failed to prove this fact that Article D (axe) was recovered on the basis of memorandum of the accused/appellant. 23. Hon’ble Apex Court in the matter of Raja Khan (supra) held in paras 31 to 37 as under:- 31 . The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was considered by this Court in Bodhraj v. State of J&K, wherein it has been held as under: (SCC pp. 58-59, para 18) "18.... Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in State (UT of Delhi) v. Bal Krishan and Mohd. Inayatullah v. State of Maharashtra². The words "so much of such information" as relates distinctly to the fact thereby discovered, are very Important and the whole force of the section concentrates on them. This position was succinctly dealt with by this Court in State (UT of Delhi) v. Bal Krishan and Mohd. Inayatullah v. State of Maharashtra². The words "so much of such information" as relates distinctly to the fact thereby discovered, are very Important and the whole force of the section concentrates on them. Clearly the extent of the Information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as Imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police Influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the Inclusion In the confession of Information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, In consequence of the Information thus received from him. This Information which is otherwise admissible becomes inadmissible under Section 27 If the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 Is the one which is the information leading to discovery. This Information which is otherwise admissible becomes inadmissible under Section 27 If the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 Is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved . It is, therefore, necessary for the benefit of both the accused and the prosecution that Information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The Information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable Information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. The decision of the Privy Council in Pulukuri Kotayya v. King-Emperor is the most- quoted authority of supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Damu².] No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of Information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given ." (emphasis supplied) 32 . But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of Information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given ." (emphasis supplied) 32 . In the present case, the prosecution has produced Tirath Dhruv (PW 22) and Bhuvan Dhimar (PW 26) as the panch witnesses to prove the recovery pursuant to the disclosure made by the appellant- accused. A bare perusal of the testimonies of the said witnesses raises serious doubts regarding the version of the prosecution with respect to the alleged disclosure made by the appellant-accused herein and the recoveries pursuant to such alleged disclosure. 33 . Tirath Dhruv (PW 22) has deposed that when the appellant- accused was questioned in his presence, the appellant-accused stated that he could recover the stone, axe and the pipe. However, during his cross-examination, Tirath Dhruv (PW 22) admits that he along with another witness (not produced during trial) stayed in police station for about 5 (five) minutes during which period, he police made them sign many papers. The said witness further admits that the Memorandum of Statement (Ext. P-23) of the appellant -accused had been taken and he signed the same on the instructions of the police, without reading or understanding the contents of the said document. He admits that none of the seizure memos were prepared or signed at the spot. He states that the same were prepared and signed at the police station. Therefore, from the testimony of Tirath Dhruv (PW 22), there is grave doubt as to whether the appellant-accused had made any disclosure in front of the said witness or that any alleged recovery had in fact been witnessed by Tirath Dhruv (PW 22). 34 . Ext. P-25 i.e. the seizure memo for the stone and gandasa states that the said Items were taken out at the behest of the appellant- accused. Similarly, in Ext. P-29, It has been stated that the chains were taken out by the appellant-accused. However, Tirath Dhruv (PW 22) nowhere states that the appellant-accused was present along with the said witness and the police during the seizure proceedings (i.e. when Ext. P-25 to Ext. P-31 were prepared). In fact, none of the seizure memos apart from Ext. Similarly, in Ext. P-29, It has been stated that the chains were taken out by the appellant-accused. However, Tirath Dhruv (PW 22) nowhere states that the appellant-accused was present along with the said witness and the police during the seizure proceedings (i.e. when Ext. P-25 to Ext. P-31 were prepared). In fact, none of the seizure memos apart from Ext. P-29 and Ext. P-25 state that the recoveries therein were at the instance of the appellant-accused or the acquitted co-accused. 35 . Further, a perusal of the disclosure statement made by the appellant-accused indicates that the appellant-accused had allegedly hidden the gold chains allegedly belonging to the deceased by wrapping them in a red wrapper and then hiding them at the terrace of his house behind a green-coloured container. However, the seizure memo being Ext. P-29 states that the chains were recovered from a green-coloured blanket on the roof of the house. The said seizure memo further states that the police took possession of the articles after they were taken out by the appellant-accused in the presence of the witnesses. On the other hand, the 10 G.S. Singh (PW 25), states that at the time of seizure proceedings of Ext. P-29, he himself had not gone to the roof and the appellant-accused and the witness had gone to the roof. 36 .Pertinently, Tirath Dhruv (PW 22) in his deposition, without making any reference to the presence of the appellant-accused, states that a policeman had climbed the roof of the house of the appellant-accused from the outside and, thereafter, he along with Bhupender Dhruv climbed on the said roof from which the recovery of chains was made. Therefore, there are glaring inconsistencies with respect to the manner in which gold chains were recovered from the house of the appellant- accused and further, the presence of the appellant-accused at the time of the said recovery is itself doubtful. 37 . Similarly, Bhuvan Dhimar (PW 26) l.e. the diver who allegedly recovered the stone and the gandasa from the Kachna pond, in his testimony admits that he recovered the said items upon the instruction from the police and from the place told by the police without making any reference to the presence of the appellant-accused or the fact that the said items were recovered upon being pointed out by the appellant- accused. The fact that the items from Kachna pond were seized upon the instructions from the police is corroborated by the statement of Tirath Dhruv (PW 22), who unequivocally states that it was the police who instructed the divers to go into the pond and take out the items.” 24. This Court in the matter of Ram Adheen (supra) held in paras 14 & 15 as under:- “ 14 . In the case at hand also, except for the evidence of memorandum statement and consequent seizure of articles, there is no other circumstances proved by the prosecution against the appellant to complete the chain of circumstantial evidence, which is so intricately connected to each other that it only points towards his involvement. 15 . On careful examination of the evidence, we are not satisfied that the prosecution has proved the case against the appellant on the basis of circumstantial evidence.” 25. In the light of above cited judgments, and in the present case also except memorandum and seizure, there is no any clinching or reliable evidence proved by the prosecution against the appellant. There is no last seen evidence and the learned trial Court convicted the appellant on the basis of memorandum and seizure and FSL report, but it is clear from the statement of the accused/appellant that regarding FSL report no question was asked to him. 26. Before the learned trial Court the accused/appellant has examined himself as DW-01 and he has stated that the police falsely implicated him as accused/appellant in this case, his family members and the villagers filed various complaints in this regard before the competent officer which are Exs. D1 to D8. 27. So, it is clear that PW-08 Surendra Yadav and PW-13 Narendra Kumar have not supported the memorandum statement Ex. P/15, there is no last seen witness in this case. PW-11 Hemant Kumar Rayal has stated that he has seen the accused/appellant and the deceased together on the night of the incident, but the learned trial Court did not appreciate all these facts and convicted the appellant. As such, the findings recorded by the learned trial Court are not sustainable in the eyes of law. 28. Ex consequenti, the appeal is allowed and the impugned judgment dated 22.05.2019 is set aside. The appellant is acquitted of the charge levelled against him under Section 302 of IPC. 29. As such, the findings recorded by the learned trial Court are not sustainable in the eyes of law. 28. Ex consequenti, the appeal is allowed and the impugned judgment dated 22.05.2019 is set aside. The appellant is acquitted of the charge levelled against him under Section 302 of IPC. 29. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 30. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.