JUDGMENT : RAJANI DUBEY, J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 15.07.2019 passed by the learned Session Judge, Raipur in ST No.172/2017, whereby the appellant has been convicted under Sections 302, 307, 316 and 201 of IPC and sentenced to undergo life imprisonment with fine of Rs.1000/-, RI for 7 years with fine of Rs.1000/- RI for 5 year with fine of Rs.500/- and RI for 3 years with fine of Rs.500/- respectively, with default stipulations. 2. The prosecution case, in brief, is that the complainant Sushila Patel, mother of the deceased Karishma lodged a report at the police station concerned alleging that on 07.05.2007 she and her daughter came to Village Kurud and they called the appellant, upon which the appellant came there on motorcycle and took her daughter Karishma for treatment to a hospital, after some time he came back and took Sushila and on the away he assaulted her on her head, due to which she sustained severe injuries, thereafter a case was registered against the appellant and on the memorandum of the appellant, the dead body of the deceased Karishma was found. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. There was some dispute between the appellant and the complainant which was simple in nature. The memorandum and seizure witnesses have not supported the case of the prosecution and the appellant has been convicted only on the basis of conjectures and surmises. Apart from it, the medical report as well as the FSL report of the deceased also does not support the prosecution case. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Umesh Tukaram Padwal and another vs. State of Maharashtra , (2019) 3 SCC (Cri) 620 and the judgment rendered by this Court in the matter of Virendra Kumar Dhruve vs. State of C.G. 2024 (2) CGLJ 228. 4. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Umesh Tukaram Padwal and another vs. State of Maharashtra , (2019) 3 SCC (Cri) 620 and the judgment rendered by this Court in the matter of Virendra Kumar Dhruve vs. State of C.G. 2024 (2) CGLJ 228. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. He further submits that the dead body of the deceased Karishma was recovered pursuant to the memorandum statement of the appellant and the injured eye witness categorically stated against the appellant. Therefore, the appeal is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 302, 316, 307 & 201 of IPC against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court convicted and sentenced the appellant, as mentioned in para 1 of the judgment. 7. Now the first question for consideration is whether the death of deceased Karishma was homicidal in nature or not? 8. PW-3 Sushila Patel, mother of deceased, stated that Karishma was her daughter. She was working in mobile shop. Prior to the incident, she was ill then she took her to hospital thereafter she came to know that she is pregnant and when she enquired then she told the name of the accused and the accused told her daughter that tomorrow they will go to doctor for treatment. The accused also told her that she will have also to accompany them, thereafter she and her daughter reached Kurud at about 9 am on the next day and the accused came there and took her and her daughter with him on a motorcycle to a village not known to them, where the accused left her by saying that he is taking Karishma to a doctor for treatment. After 2 hours, he came back without her daughter and told that he has got admitted her daughter in the hospital and took her with him and on the way he assaulted her on her head by a bottle, upon which she received severe injuries. 9. After 2 hours, he came back without her daughter and told that he has got admitted her daughter in the hospital and took her with him and on the way he assaulted her on her head by a bottle, upon which she received severe injuries. 9. The inspector B. Kujur (PW-17) stated that as per information of Smt. Sushila Patel, he lodged dehati merg (Ex-P/30) and he admitted his signatures on A to A part of the same and he identified thumb impression of Sushila Bai and stated that he also lodged dehati nalisi vide Ex-P/31 and admitted his signatures on A to A part of the same and identified thumb impression of Sushila Bai. He also prepared body identification memo vide Ex- P/9. Sushila Bai identified the body of her daughter. He also issued notice for inquest of deceased karishma Patel vide Ex-P/10 and prepared inquest memo vide Ex-P/11 and also gave application for postmortem of body of Karishma. 10. Dr. Smt. S. D. Kanwar (PW-13) conducted postmortem of deceased Karishma and she discussed the injuries found on the body of the deceased as under:- After postmortem she opined that mode of death is asphysia caused by anti mortem strangulation and gave her report (Ex-P/19). In the cross-examination, she admitted that it is true that she did not state nature of death in Ex-P/19 but she denied this suggestion that nature of death can be suicidal. She also admitted this suggestion that if any person commits suicide by hanging, then he suffocates and dies. 11. Looking to the statement of Dr. S. D. Kanwer (PW-13), it is clear that nature of death was not opined by her that as to whether death was homicidal or suicidal so other evidence is also important to decide this fact that whether death of deceased Karishma was homicidal in nature or not. 12. As per PW-17 B. Kujur, he lodged dehati merg intimation and dehati nalisi vide Ex-P/30 & Ex-P/31 but both the documents do not disclose this fact that the dead body of Karishma was recovered pursuant to the memorandum statement of the appellant. 12. As per PW-17 B. Kujur, he lodged dehati merg intimation and dehati nalisi vide Ex-P/30 & Ex-P/31 but both the documents do not disclose this fact that the dead body of Karishma was recovered pursuant to the memorandum statement of the appellant. The police recorded memorandum statement of the accused vide Ex-P/1 and as per this memorandum, he narrated the whole story and in recovery part he stated that he threw SIM card of mobile phone of Karishma and after reaching home he burnt the blood stained clothes shirt, pant, baniyan. He stated that he would got recovered sleeper wearing at the time of incident as well as activa. As per seizure memo (Ex-P/2), one SIM of IDEA company, one chip and mobile bag was recovered. Ex-P/4 was also prepared by the IO, but as per this memo no recovery was made. 13. The memorandum and seizure witness (PW-2) Nand Lal Patel supported the memorandum statement of the accused and admitted his signatures on A to A part of the same, but it is clear from memorandum (Ex-P/1) that only sleeper and Activa were recovered and one SIM Card was seized as per seizure memo vide Ex-P/2 & Ex-P/5. 14. PW-14 Dr. Saroj Diwan examined Sushila Patel on 07.05.2017 and found injuries on her head and finger and also advised for x- ray and gave her report (Ex-P/16). She opined that as per x-ray report fracture was found and she also opined that the head is not the vital part and when in query report (Ex-P/20) it was asked to whether the head is vital part or not, then she answered that head is vital part of the body. Thus, looking to the statement of PW-14 Dr. Saroj Diwan and report (Ex-P/16), it is clear that on 07.05.2017 Sushila Patel sustained head injuries and injuries on her finger. Thus it is proved that the doctor’s report supported the statement of PW-3 that the accused assaulted her by glass bottle, as result of which she sustained injuries on her head and finger. 15. Dr. Smt. S. D. Kanwar (PW-13) opined that the deceased was 20 weeks pregnant but no DNA was conducted by the prosecution in this case. Thus it is proved that the doctor’s report supported the statement of PW-3 that the accused assaulted her by glass bottle, as result of which she sustained injuries on her head and finger. 15. Dr. Smt. S. D. Kanwar (PW-13) opined that the deceased was 20 weeks pregnant but no DNA was conducted by the prosecution in this case. As per seizure memo, some parts of shirt and full pant and baniyan of the accused were seized as per article C and as per FSL report no blood was found in Article C and only the blood was found in Article-D i.e. sandle of the accused, but it was not opined that whether this blood is human blood or not. 16. The prosecution also examined PW-15 Awadh Jain, Nodal officer of Vodafone, IDEA Company, who stated that Ex-P/22, P/23 & P/24 are the call details of mobile number 9644636346 and he identified signatures of Nodal Officer Vibhor Rastogi and in para 3, he stated that mobile number of his company is 9753940547, subscriber of which is Santosh Patel, S/o Manharan Patel and the call details from 07.04.2017 to 08.05.2017 were asked by the police station concerned which are from Ex-P/25 to Ex-P/27, but both the above mobile numbers were not related to deceased Karishma or the accused Homeshwar Sahu. 17. The close scrutiny of statement of all the witnesses and documents, it is clear that the prosecution has only proved this fact that Sushila Patel and her daughter Karishma went to Kurud and in Kurud the accused met them and took Karishma from motorcycle and after sometime he came alone and took Sushila Patel and on the way assaulted her and went away. As per prosecution, the dead body was recovered as per memorandum of accused but in memorandum (Ex-P/1), the accused only stated about his activa, his sandle and his clothes. 18. The Hon’ble Apex Court in Umesh Tukaram Padwal (supra) held in paras 17, 18 & 22 as under:- “17. Insofar as the circumstance regarding the recovery of the body of the deceased at the instance of Accused No. 1 is concerned, we are of the considered opinion that the prosecution has manipulated the records to reflect such recovery. The voluntary disclosure statement of Accused No. 1 was recorded by PW10, the Sub Inspector of Police, and marked as Ext. Insofar as the circumstance regarding the recovery of the body of the deceased at the instance of Accused No. 1 is concerned, we are of the considered opinion that the prosecution has manipulated the records to reflect such recovery. The voluntary disclosure statement of Accused No. 1 was recorded by PW10, the Sub Inspector of Police, and marked as Ext. P39 (considering only the portion relevant under Section 27 of the Indian Evidence Act, 1872). According to the prosecution, Accused No.1 led the police to the spot from where the body of the deceased had been thrown down into the valley of Goraksha Gad, and that the body was ultimately found on a tree in an inaccessible part of the valley. 18. PW10 has deposed that after Accused No. 1 expressed his willingness to reveal the spot from where the body of the deceased had been disposed, PW10 prepared the memorandum panchnama at Ex-P/39 recording the disclosure statement of Accused No.1 in the presence of two panchas, both of whom signed the statement along with PW10. One of the panchas was examined as PW4 to support the aspect of recovery of the dead body. The other pancha was not examined. PW4 affirmed that the said panchnama contained his signature. However, he admitted in his cross examination that he had also visited the police station on 12.07.2002 and 13.07.2002, and further that Accused No.1 did not state anything in his presence before the police. Thus, it is clear that the evidence of PW4 belies the evidence of PW10 that the disclosure statement of Accused No.1 was recorded in the presence of the panchas on 14.07.2002. It seems that the prosecution wants to make their case watertight by taking PW4’s assistance and bringing him as a witness to the disclosure statement as well. In this regard, the defence is justified in arguing that the prosecution has tried to improve its case from stage to stage by introducing material which was originally absent. 22. Thus, the evidence relied upon by the prosecution is full of irreconcilable inconsistencies which cast serious doubt on the presence of the panchas during the recording of the disclosure statement and the recovery of the body of the deceased. In our considered opinion, the prosecution has made a botched attempt to improve its case regarding the recovery of the dead body from time to time. In our considered opinion, the prosecution has made a botched attempt to improve its case regarding the recovery of the dead body from time to time. Having regard to the totality of the facts and circumstances, we are not satisfied with the evidence on record as well as the reasons assigned by the Courts below in relying on the circumstance of the recovery of the dead body at the behest of Accused No. 1.” 19. This Court in Virendra Kumar Dhruve (supra) held in paras 12, 13, 14, 16 & 17 as under:- “12. The Hon’ble Supreme Court in the matter of Aghnoo Nagesia (supra) held that when the appellant constructively in police custody and therefore the information contained in the First Information Report leading to the discovery of dead-bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discoveries of the dead bodies and the tangi in consequence of the information, the discovery of blood stained chadar from the appellant's house, however the discovery of dead-bodies, tangi and blood stained chadar from the appellant’s house and another facts were not found sufficient to convict the appellant for the offence under Section 302 of IPC. 13. Similarly, in the matter of Kanbi Karsan Jadav (Supra), considered the issue whether the mere recovery of the dead body from the possession of the appellant on his pointing out necessarily lead to the conclusion of offence answered in paragraphs 9 and 10 as under:- “9. the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. But there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder. 10. Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder. 10. Thus, we have besides the evidence of the approver three important facts which connect the appellant with the commission of the offence. His pointing out the dead body, his pointing out the silver buttons of the deceased which were stained with human blood and the presence of his hairs on a pania (scarf) on which there were the hairs of the deceased also. In our opinion this would be sufficient evidence in the circumstances of the present case to connect the appellant with the commission of the offence.” 14. In view of the decisions rendered by their Lordships of the Supreme Court in the matters of Aghnoo Nagesia (supra) and Kanbi Karsan Jadav (supra), the mere fact that the dead body was discovered from the statement of the appellant would not lead to conclusion of the offence of murder unless other circumstances implicating the accused are established. 16. The Hon’ble Supreme Court in the matter of Subramanya V. State of Karnataka3, has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under: “95.In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 17. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 17. In view of the aforesaid discussion, we are of the considered opinion that the trial Court is unjustified in convicting the appellant for the offence under Section 302 of the IPC on the basis of the fact that the dead body was discovered from the statement of the appellant, but in view of the decisions rendered by the Supreme Court in the matters of Aghnoo Nagesia (supra) and Kanbi Karsan Jadav (supra) it would not lead to conclusion of the offence of murder unless other circumstances implicating the accused are established and also on the basis of subsequent conduct of the appellant under Section 8 of the Evidence Act, as it would be unsafe to convict the appellant on the basis of his subsequent conduct that too for offence of murder in view of the decision of the Supreme Court in the matter of Subramanya (supra). Accordingly, we are of the considered opinion that the appellant is entitled for acquittal on basis of principles of benefit of doubt. The conviction of the appellant for the offence under Section 302 of I.P.C. is hereby set aside and he is acquitted of the said charge. He is reported to be in jail since 30.03.2016. Accordingly, the appellant be released from jail forthwith, if not required in any other case.” 20. In light of above, it is clear that the prosecution has utterly failed to prove the death of deceased being homicidal in nature beyond reasonable doubt and also has failed to prove recovery of dead body at the instance of the appellant. The prosecution has only proved this fact that the accused assaulted Sushila Bai (PW-3), but the learned Trial Court did not appreciate all these aspects of the matter and wrongly convicted the appellant under Sections 302, 316 & 201 of IPC without there being any clinching evidence. Thus, we are of the considered opinion that for all these sections, the appellants is entitled for acquittal on the principle of benefit of doubt, but since the prosecution has proved the offence under Section 307 of IPC against the appellant, as such his conviction and sentence under the said offence is hereby maintained. 21. Consequently, the appeal is partly allowed. 21. Consequently, the appeal is partly allowed. The appellant is acquitted of the charges under Sections 302, 316 & 201 of IPC and his conviction and sentence under Section 307 of IPC is affirmed. 22. The appellant is in jail since 09.05.2017, thus he has already served the jail sentence for more than 7 years, as such he be released forthwith if he is not required to be detained in any other offence. 23. 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/- 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. 24. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. The copy of this judgment be also sent to the concerned Jail Superintendent for information and necessary action.