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2018 DIGILAW 167 (ALL)

SWAMIDIN v. STATE OF U. P.

2018-01-19

P.K.S.BAGHEL, RAJIV GUPTA

body2018
JUDGMENT By the Court.—The appellants who stand convicted for the offence punishable under Section 302 IPC read with Section 201 IPC by the judgment and order dated 26.4.1989 passed by the Sessions Judge, Banda whereby the appellant No. 1 has been convicted and sentenced to undergo sentence of imprisonment for life under Section 302 IPC and 4 years R.I. under Section 201 IPC. The appellant No. 2 has been found guilty under Section 201 IPC. She has been sentenced to undergo 4 years R.I. under Section 201 IPC. By this appeal, the appellants have challenged correctness of the conviction and sentence. 2. The prosecution case in brief is; Rajauwa, PW-2 on 17.6.1987 at 09:30 p.m. made an oral complaint at Police Station Kotwali, Banda, which was registered as Case Crime No. 415 at 09:30 p.m. under Section 302/201 IPC against the appellants alleging that they have murdered his young son Virendra. In his compliant he stated that he is the resident of Village Pachnehi, Police Station Kotwali District Banda. 3. It was stated that on 16.6.1987 in the evening his son Virendra Singh had informed him that he would go to Banda on the next day to attend his criminal case. He went to the house of Swamidin alongwith him. Swamidin works at his farm on casual basis and he was on friendly terms with Virendra. At times he used to stay at the house of Swamidin. On the said day he did not return to home. This did not raise any suspicion in his mind because earlier also on several occasions he had stayed at Swamidin’s home. Hence, he did not make any search for him. On the next day when he did not return in the evening then he informed the PW-5 Bhagwandin about the fact that Virendra had gone to Banda but did not return. Both of them went to enquire from Lallu who was a co-accused in the said case. Lallu informed that Virendra did not go to the Court and he had moved an adjournment application. Thereafter the complainant and PW-5 went to the house of Swamidin to enquire the whereabouts of Virendra Singh. 4. When they reached the house of Swamidin, his house was locked and on the enquiry from the children who were playing outside, it revealed that his wife was not seen since noon. Thereafter the complainant and PW-5 went to the house of Swamidin to enquire the whereabouts of Virendra Singh. 4. When they reached the house of Swamidin, his house was locked and on the enquiry from the children who were playing outside, it revealed that his wife was not seen since noon. They searched Swamidin in Harijan Basti and found him in the house of Sukhdevna. Swamidin told them that in the morning Virendra had left the house to attend his criminal case in Banda. When Swamidin was confronted with the information furnished by Lallu that he did not go to Banda to attend the criminal case, Swamidin appeared to be perplexed and said that he will also search Virendra alongwith them. 5. After moving some paces with them Swamidin tried to escape. He was caught and overpowered by the complainant and others. By that time some of the villagers, namely, Rameshwar son of Ramdeen and some other people collected on the spot. He was manhandled by some people. He made an extra-judicial confession in the presence of PW-5 Bhagwandin that in the last night he invited Virendra at his house, where Virendra consumed alcohol and after sometime he tried to misbehave with his wife Smt. Dulli in inebriated state, thereafter Swamidin brought Gadasa from inside of his house and Dulli armed with sickle (Hansiya) assassinated him, thereafter they dug a pit in their Courtyard and buried his body. After filling the pit they plastered cow dung over the pit. It has also been stated in the first information report that Swamidin had borrowed Rs. 1200/- from Virendra Singh, which he did not return despite several reminders. He made excuses for non-payment of his debt. Lastly, it was mentioned in the first information report that the accused is in the custody of villagers and Chowkidar. 6. The chik First Information Report was prepared by Head Constable Sri Hargovind Singh at 09:30 p.m. on 17.6.1987. The police party proceeded to the spot in the same night. However, they recovered the body at 06:00 a.m. on 18.6.1987. The body was recovered at the pointing out of Swamidin. He led the police to the spot, where he had buried the dead body of Virendra in his Courtyard. The inquest was prepared. The witnesses in the inquest have mentioned the injuries on the body of the deceased. However, they recovered the body at 06:00 a.m. on 18.6.1987. The body was recovered at the pointing out of Swamidin. He led the police to the spot, where he had buried the dead body of Virendra in his Courtyard. The inquest was prepared. The witnesses in the inquest have mentioned the injuries on the body of the deceased. The witnesses of the inquest stated that Swamidin and his wife have murdered Virendra Singh by Gadasa and sickles and have put him in the pit and they buried the body of the deceased in their Courtyard. It is also mentioned that Swamidin himself has took out the body of Virendra Singh from the pit. In the inquest report the nature of injuries and the clothes worn by the deceased have been mentioned. 7. The I.O. has also recovered bloodstained baniyan from Swamidin and some other clothes. Fard was prepared on the same day. Swamidin in the presence of witnesses opened his room and handed over to police a Gadasa and a Hansiya which were used in the murder, it was bloodstained. 8. The I.O. took the bloodstained soil and simple earth from the pit and prepared the inquest. The dead body was sealed and it was sent for postmortem examination. 9. The site-plan was also prepared and the bloodstained articles were sent for chemical examination. The PW-3 Dr. M.C. Mittal conducted the autopsy of the dead body of Virendra Singh at 09.00 p.m. on 19.6.1987. The postmortem report mentioned following ante-mortem injuries on the dead body: “1. Incised wound 7 cms. X 2 cms. X bone deep on the left side of head 2 cms. above and behind left ear. Margins clean cut. Tailing towards ear and down cut margins (fracture of left parietal). 2. Incised wound 5 cms. x 2 cms. x bone cut on the back of head-occipital area-tailing towards left side cut depressed fracture of occipital bone. 3. Incised wound 11 cms. x 3 cms. x bone deep on the left side of head and neck behind left ear margins clean cut tailing on left side. 4. Incised wounds, 13 cms. x 3 cms. x muscle deep and 8 cms. x 2 cms. x muscle deep on the lower part of head and neck on back side. Margins clean cut. 5. Incised would 6 x 2 cms. 4. Incised wounds, 13 cms. x 3 cms. x muscle deep and 8 cms. x 2 cms. x muscle deep on the lower part of head and neck on back side. Margins clean cut. 5. Incised would 6 x 2 cms. x muscle deep on the back of head on right side 7 cms. behind right ear. Margins clean cut. 6. Incised wound 4 x 3 cms. x muscle deep on the top of head 9 cms. above right ear. Margins clean cut. 7. Incised wound 2 cms. X .5 cm. x bone deep on the top of head. 8. Lacerated wound 3 cms. x 1.2 cms. x bone deep on the right side of arm outer aspect above elbow joint Fractured humerus bone. 9. Lacerated wound 4 cms. x 1 cm. x muscle deep on the outer aspect of right arm 1 cm. above injury No. 8. 10. Lacerated wound 6 cms. x 3 cms. x muscle deep on the medial aspect of right force arm 6 cms. down to elbow. 11. Lacerated wound 3 cms. x .5 cm. x muscle deep on the then ar aspect of right palm. 12. Incised wound 11 cms. x 8 cms. x muscle deep on the right side of abdomen waist. 13. Lacerated wound 8 cms. x 4 cms. x bone deep on the outer side of left leg 10 cms. above ankle joint. On section fracture of both bones of left leg. 14. Lacerated wound 2 cms. x .5 cm. x bone deep on the base of left thumb and on section fracture of proximal phalynx of left thumb. 15. Lacerated wound 1 cm. x 1 cm. x muscle deep on the outer side of left thigh middle part.” The PW-3 was examined. In his statement the PW-3 stated that he found that the age of the deceased was 28 to 30 years. The time of death was more than 2 days before. The entire body was smeared with mud. The rigor mortis has passed off and eyes and tongue were protruding. There was fracture of left parietal and occipital bone. The doctor has proved the postmortem report and has explained the injuries inflected on his body. According to his opinion, the death was caused due to ante-mortem injuries. His brain was lacerated and abdomen was empty. The rigor mortis has passed off and eyes and tongue were protruding. There was fracture of left parietal and occipital bone. The doctor has proved the postmortem report and has explained the injuries inflected on his body. According to his opinion, the death was caused due to ante-mortem injuries. His brain was lacerated and abdomen was empty. The cause of death, according to opinion of the doctor, was shock and hemorrhage resulting from the ante-mortem injuries about 2-1/4 days prior to postmortem examination. 10. The I.O. after completion of the enquiry has submitted the charge-sheet against the appellants and the matter was committed to the Session. 11. The prosecution in its support has examined PW-1 Head Constable Hargovind Singh, PW-2 Rajauwa (father of the deceased), PW-3 Dr. M.C. Mittal who conducted the postmortem of the deceased, PW-4 Maharanidin, PW-5 Bhagwandin, PW-6 Baldeo Singh, PW-7 Ram Pratap Singh, who are witnesses of last seen, recovery of dead body at the instance of appellants and extrajudicial confession and also proved various Fards, PW-8 Harpal Singh, Investigating Officer. 12. The defence has also examined the witnesses Jagdeo Prasad, Gram Panchayat Adhikari. 13. We have heard Sri Rahul Mishra, learned Amicus Curiae and Sri A.N. Mulla, learned A.G.A. for the State. 14. The amicus curiae submitted that there are material contradiction in testimonies of the prosecution witnesses rendering the evidence unworthy of credence. He has taken us to the evidence of prosecution witnesses in detail. He further submits that the prosecution has failed to establish that the house from which the body of the victim was recovered was in exclusive possession of Swamidin. He further submits that the case of prosecution rests on the substantial evidence as there was no eye-witness but the evidence on record shows that the prosecution has failed to complete the chain of evidence to prove its case. He submits that the entire story of the prosecution stands falsified as not only the last seen evidence but the extra-judicial confession also, on which the trial Court has placed reliance, is not trustworthy. 15. Sri Mishra has made his submission at great length and has taken the Court to the evidence of each prosecution witness, the postmortem report and some of the findings of the trial Court to demonstrate that the finding of the trial Court on aforesaid issues is perverse and against the evidence on record. 16. 15. Sri Mishra has made his submission at great length and has taken the Court to the evidence of each prosecution witness, the postmortem report and some of the findings of the trial Court to demonstrate that the finding of the trial Court on aforesaid issues is perverse and against the evidence on record. 16. In the present case there is no direct evidence with regard to any aspect of the matter. The prosecution case rests purely on circumstantial evidence. The evidence available on record, which is discussed in forthcoming part of the judgment, would show that the deceased was last seen with appellant Swamidin; he made extrajudicial confession regarding the offence and at his instance body of the deceased was recovered from his house and other bloodstained material was also recovered from his home. 17. Before adverting to the evidence it would be advantageous to bear in mind the tests laid down by the Supreme Court, which must be satisfied in case of circumstantial evidence, in the case of Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343 . 18. In respect of last seen, to gather evidence the Supreme Court has taken consistent view that the said theory comes into play where time-gap between the period when the deceased was last seen in company of accused and when he is found dead, is not very long. In fact, it should be small enough that the possibility of the commission of offence by a third person is completely ruled out. Reference may be made to the following judgments of the Supreme Court; Nizam and another v. State of Rajasthan, (2016) 1 SCC 550 ; and Riaz Ali v. State (Government of Nct) Delhi, in Crl. A. No. 909/2010. In Nizam (supra) the Supreme Court quoted with approval its earlier judgment in the following terms: “15. Elaborating the principle of “last seen alive” in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , this Court held as under: (SCC p. 265, para 23) “23. It is not necessary to multiply with authorities. The principle is well-settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. It is not necessary to multiply with authorities. The principle is well-settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd, In re. ( AIR 1960 Mad 218 )” The above judgment was relied upon and reiterated in Kiriti Pal v. State of West Bengal, (2015) 5 Scale 319 .” 19. In the light of above, it is to be seen whether in the facts and circumstances of the case, prosecution has proved the above-mentioned facts of circumstantial evidence. 20. PW-2 Rajauwa is father of deceased Virendra Singh and is complainant who lodged first information report on 18.6.1987 at 09:30 p.m. He deposed that Swamidin was engaged at his farm. His son Virendra Singh was on friendly terms with Swamidin and used to visit his house and occasionally he stayed at his house. 20. PW-2 Rajauwa is father of deceased Virendra Singh and is complainant who lodged first information report on 18.6.1987 at 09:30 p.m. He deposed that Swamidin was engaged at his farm. His son Virendra Singh was on friendly terms with Swamidin and used to visit his house and occasionally he stayed at his house. A day before his murder Virendra Singh accompanied Swamidin to his house and the P.W.-2 did not make any effort to search him in the night for the two reasons that occasionally he stayed at the house of Swamidin and he had also told that on the next date he will go to attend his criminal case under Section 307 I.P.C. 21. On the next day when he did not return till 4.00 p.m. he alongwith Bhagwandin went to Lallu, who was also co-accused in the matter, who told him that Virendra Singh did not attend the Court and he sent an application for adjournment. Thereafter, he went to Swamidin’s house but it was locked. He inquired the whereabouts of Swamidin from his neighbours. After a search he found that Swamidin was hiding in the house of Sukhdeo Chamar. 22. In the presence of Bhagwandin-PW-5 he asked Swamidin the whereabouts of Virendra, Swamidin told that Virendra has gone to attend his case, whereupon he was informed that Lallu told that Virendra did not go to the Court. The PW-2 then asked Swamidin to find out Virendra. Swamidin accompanied him and after some distance suddenly he tried to escape and ran away towards west. He was caught hold by them and brought at the house of Swamidin and again asked whereabouts of Virendra. 23. Then in the presence of PW-2, PW-5 Bhagwandin, Rameshwar and some other persons he admitted his guilt and told that yesterday in the evening he took Virendra to his house and in the night he offered him alcohol and thereafter he and his wife, both the appellants, murdered Virendra Singh with Gadasa and sickles and after killing him they dug a pit in the Courtyard (Angan) and buried him and after his burial plastered it with cow dung. 24. He left Swamidin in the custody of chowkidar and went to police station to lodge the first information report where on his oral complaint the first information report was registered. 24. He left Swamidin in the custody of chowkidar and went to police station to lodge the first information report where on his oral complaint the first information report was registered. He further stated that the S.O. went to the spot and Swamidin unearthed the pit and took out the dead body of Virendra from the pit. 25. He deposed that Swamidin was not paid monthly salary. In lieu of his labour he was used to offer the grains, as his engagement was not on regular basis and whenever he needed, he was given the loan which was adjusted against his wages. 26. About 2 months back of murder of his son Virendra, Virendra has demanded the loan amount and the said amount was paid to him in two times and Rs. 600/- he has taken just before 10-15 days of his murder. He had taken the loan for purchasing the bull. This arrangement by Swamidin was going on for the last 3-4 years. As he was not engaged on regular basis, he worked only for 1-2 days in a month. It was also stated that Swamidin has 3-4 sons. His father was 4 brothers Dhukhwa, Baliya, Banjudhwa. His two sons Shiv Dhani and Shiromani are living in Banda and his other brothers were living separately. 27. The PW-5 Bhagwandin is a witness of last seen. He has deposed that at about 6:00 p.m. in the evening while he was going to his house, he had seen that Virendra was going with Swamidin towards latter’s house. Next day PW-2, Rajauwa, met him in the evening at 5 to 5:30 p.m. and asked him about Virendra. Therefore, both of them went to the house of Swamidin in search of Virendra. 28. In his deposition he has given the detailed facts regarding extrajudicial confession by Swamidin and the recovery of dead body at the instance of Swamidin from the Courtyard of his house. This witness was subjected to lengthy cross-examination. 29. We have carefully perused the statement of the witness with the help of amicus curiae, we find that his statement corroborates the oral evidence of PW-2 Rajauwa regarding last seen together evidence. Testimonies of PW-2 and PW-5 are clearly establishing that deceased Virendra was last seen with appellant Swamidin. 30. This witness was subjected to lengthy cross-examination. 29. We have carefully perused the statement of the witness with the help of amicus curiae, we find that his statement corroborates the oral evidence of PW-2 Rajauwa regarding last seen together evidence. Testimonies of PW-2 and PW-5 are clearly establishing that deceased Virendra was last seen with appellant Swamidin. 30. The prosecution has laid much emphasis on the recovery of dead body of deceased Virendra from the Courtyard of appellants at the instance of the appellant No. 1. The appellant No. 1 has not denied the recovery from the house in question, his only defence is that he does not live in that house but two other persons Balaiya, his children and son of Bahora live there. 31. Appellant Swamidin’s defence is that he lives in the house, from where the dead body of the deceased Virendra Singh was recovered, alongwith Balaiya and his son also. In the same house son of Bahura, another co-sharer also lives. The said statement has been given by the appellant under Section 313 of Cr.P.C. He has not denied that he lives in Village Pachnera. 32. PW-6 Baldeo Singh has deposed that in his presence Swamidin has dug the pit where he had buried the body of the deceased Virendra. He is the witness of the Fard. He was cross-examined but nothing has been pointed out which dents his statement. He has also given the details of topography of the area. PW-7 Ram Pratap is also a witness of recovery and he has signed the Fard (Exhibit Ka-11). He has stated that Swamidin in his presence produced Gadasa and Sickle and a Safi and all these three articles were bloodstained. He has further stated that in his presence Swamidin dug his Courtyard and the body of Virendra was taken out from the pit. A cot was also lying there where quilt and baniyan were found. Fard of these materials were also prepared. In his cross-examination he has stated that when Swamidin was asked about the dead body, he pointed out the place and later on he himself dug his Courtyard and took out the body of deceased Virenda. 33. From a perusal of the aforesaid statement of PW-6 and the statement of Harpal Singh, Inspector, I.O., it is evident that recovery of the dead body was made at the instance of Swamidin from his own house. 33. From a perusal of the aforesaid statement of PW-6 and the statement of Harpal Singh, Inspector, I.O., it is evident that recovery of the dead body was made at the instance of Swamidin from his own house. 34. The site plan shows that the body was recovered from the place alleged which is a Courtyard of the house. On the north side of the Courtyard there is a portion shown to be of Balaiya and towards the east the appellants portion is marked as ‘D’. Bahuri’s Kotha and one room is shown towards west and south of the Courtyard. Thus, there are three co-sharers of the house, namely, Swamidin, Balaiya and Bahuri. The moot question is that whether the house was in exclusive possession of appellant Swamidin or he was in joint possession of the house alongwith Bahuri and Balaiya. 35. Sri Rahul Mishra, learned Amicus Curiae has straneously urged that the house, from where the body was recovered, is joint and Balaiya, his son and son of Bahori, Pachcha live in the said home. 36. As mentioned above, the appellant’s defence is that he was not living in that house and only Balaiya and his sons were living at the time when incident occurred. To establish the aforesaid fact the defence has examined DW-1 Jagdwo Prasad, Gram Panchayat Adhikari of the Vikas Khand Badowarkhurd who had produced the family register of the village. He deposed that in 1972 in House No. 102 three families were living including Swamidin. They were living in a separate portion of the house. After 1972 there was portion among the three families and they started living separately in their partition. After their partition three separate numbers i.e. 102A, 102B and 102C were allotted. Against the column of the owner alongwith Swamidin the appellant, the name of Balaiya was also recorded. 37. After 1978 there was further partition in the family, thereafter only Swamidin and his family was living in House No. 102 and Balaiya had constructed a separate house which was numbered as 472/102. The DW-1 has clearly stated that Balaiya had constructed his separate house which is at some distance from the earier house and he started living in his newly constructed separate house. The statement of DW-1 that Balaiya had constructed separate house and he was living alongwith his family in 472/102 is also corroborated by PW-2 Rajauwa. The DW-1 has clearly stated that Balaiya had constructed his separate house which is at some distance from the earier house and he started living in his newly constructed separate house. The statement of DW-1 that Balaiya had constructed separate house and he was living alongwith his family in 472/102 is also corroborated by PW-2 Rajauwa. From the said evidence it could be safely held that Swamidin appellant No. 1 was in exclusive possession of ancestral house, although Balaiya and Bahuri were living earlier in the ancestral house but they have locked their portion which is evident from the site plan also. This fact is further corroborated by the evidence of PW-5 Bhagwandin, it was stated by him that Swamidin had opened the lock of the main entrance of house in their presence. Thus the following facts are established; (i) The body of the deceased was recovered from the Courtyard of Swamidin at his instance; (ii) The house in question was in exclusive possession of Swamidin; (iii) The defence of the appellant that Balaiya alongwith his children and Bahori’s son were living in the house is found to be false. 38. In the case of Gilbert Pereira v. State of Karnataka, (2004) 12 SCC 281 , the Supreme Court had occasion to deal with a case of circumstantial evidence where a body of the girl was recovered from the house. It was found that the accused in the said case had access to the house and he had also the key to open the house. This fact was found to be material and as one of the important chain in the circumstantial evidence. 39. In the present case also there is evidence on record that the appellant No. 1 had opened the lock of the main entrance of the house in the presence of PW-2 and PW-5 Bhagwandin. 40. The prosecution has also successfully established a recovery of the bloodstained Baniyan, sickle and Gadasa from the house of Swamidin, and a recovery of the weapon of murder at the instance of appellant. The PW-7 Ram Pratap is the resident of the same village. He deposed that in his presence the police had recovered a bloodstained baniyan and Swamidin had brought Gadasa, sickle and a Saafi from his room. All these three articles were bloodstained. The fard was prepared of these articles and the witnesses had signed it. The PW-7 Ram Pratap is the resident of the same village. He deposed that in his presence the police had recovered a bloodstained baniyan and Swamidin had brought Gadasa, sickle and a Saafi from his room. All these three articles were bloodstained. The fard was prepared of these articles and the witnesses had signed it. As discussed above, the Fard witnesses have deposed that the dead body of the deceased was also recovered from the Courtyard in their presence. The appellant himself dug the pit and brought out body of the deceased. 41. It is a trite that if a recovery is made at the instance of the accused and his statement is voluntary then it can be said that the fact has been established that the body was really recovered as a result of the information given by the accused. The Supreme Court in the case of Shanti Devi w/o Shanker Lal v. State of Rajasthan, (2012) 12 SCC 158 , held thus: “17. The subsequent factum of recovery of the body of the deceased at the instance of the appellant was one other strong circumstance against the appellant in roping her involvement in the elimination of the deceased and thereby providing no scope for any other hypothesis other than her guilt in the killing of the deceased. The other recoveries made from the body of the deceased duly identified by PW 2 was yet another relevant circumstance to show that the deceased was none other than the father of PW 2 and husband of PW 1. 18. Therefore, the analysis of the above circumstances alleged and found proved definitely formed a chain of circumstances having been closely linked together without giving any scope for any other conclusion than a definite tendency unerringly pointing towards the guilt of the accused.” In the case of Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509 , the Supreme Court relying on its earlier judgment in Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310 , has held as under: “54. In Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310 , this Court had said that, when on the basis of information given by the accused there is a recovery of an object of crime which provides a link in the chain of circumstances, then such information leading to the discovery of object is admissible.” In State of U.P. v. Devendra Singh, (2004) 10 SCC 616 , the deceased was seen with the accused and the body was found in the filed of the accused. The Supreme Court observed that said circumstances were sufficient to establish the guilt of the accused. Relevant part of the order reads as under: “8. ...The dead body was found in the field of the accused and evidence on record also shows that the accused initially prevented PW-1 and others from searching his field, but after a lot of persuasion he permitted the persons searching for the dead body to go to his field and in fact the dead body was recovered therefrom. The said solid circumstance is sufficient, coupled with the initial repulsion exhibited by the accused to substantiate the guilt of the accused.” Sri Rahul Mishra has also contended that trial Court has misdirected itself by relying on extrajudicial confession of the appellant No. 1. In this regard he has taken us to the deposition of PW-2 and PW-5. 42. Rajauwa, PW-2, and Bhagwandin, PW-5, are witnesses of extrajudicial confession. From the reading of deposition of both the witnesses it is evident that their statement is natural and inspire confidence. The PW-5 is also a witness of last seen. He has stated that Rajauwa had come to him searching his son Virendra. Both of them went to the house of Swamidin because in the previous evening both had seen deceased Virendra in the company of Swamidin. When they found that the house of Swamidin was locked, they searched him and found Swamidin in the house of Sukhdeo Chamar and when they asked him about Virendra, he showed his eagerness to search him alongwith them but after moving some paces he tried to escape and when he was overpowered, in presence of both the witnesses he made extrajudicial confession and at his instance the body was recovered. 43. 43. Considering the evidence of PW-2 and PW-5 in its entirety we think that the trial Court has rightly recorded the finding regarding extrajudicial confession, and we are of the same view also regarding extrajudicial confession which the appellant No. 1 has made. Recently, the Supreme Court in the case of Charandas Swami v. State of Gujarat and others, (2017) 7 SCC 177 , has referred and relied on its earlier judgment in the case of Aftab Ahmad Anasari v. State of Uttaranchal, (2010) 2 SCC 583 . Relevant part of the judgment in Chandrandas Swamid (supra) reads as under: 63... “25. In Aftab Ahmad Anasari v. State of Uttaranchal after referring to the decision in Palukuri Kotayya, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that: (Aftab Ahmad Anasari case (2010) 2 SCC 583 , SCC p. 596, para 40) ‘40. ...the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits.” 44. It is trite that an extrajudicial confession has an inherent weakness. Before recording a conviction on the basis of an extrajudicial confession the Court has to be satisfied that the extrajudicial confession has been made voluntarily and without any inducement. The Supreme Court in a long line of decisions has held that despite inherent weakness of an extrajudicial confession, being a piece of evidence, it cannot be ignored if it is proved to be voluntary and truthful. In other words, if it inspires the confidence, it can be acted upon. The Supreme Court in a long line of decisions has held that despite inherent weakness of an extrajudicial confession, being a piece of evidence, it cannot be ignored if it is proved to be voluntary and truthful. In other words, if it inspires the confidence, it can be acted upon. Reference may be made to the judgment of the Supreme Court in the case of R. Kuppusamy v. State represented by Inspector of Police, Ameiligari, (2013) 3 SCC 322 , wherein the Court held as under: “7. It is common ground that there is no eye-witness to the occurrence leading to the death of the unfortunate female child who was just about ten months old. The prosecution case rests entirely on the extra judicial confession attributed to the appellant which has been found by the trial Court as also the High Court to be voluntary and truthful. 8. That a truthful extra judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against the person making the confessions was not disputed before us at the hearing. What was argued by Ms. Mahalakshmi Pavani, counsel appearing for the appellant, was that an extra judicial confession being in its very nature an evidence of a weak type, the Courts would adopt a cautious approach while dealing with such evidence and record a conviction only if the extra judicial confession is, apart from being found truthful and voluntary, also corroborated by other evidence. There was, according to the learned counsel, no such corroboration forthcoming in the present case which according to her was sufficient by itself to justify rejection of the confessional statement as a piece of evidence against the appellant. Reliance, in support of the contention urged by the learned counsel, was placed upon the decisions of this Court in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 and Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 .” In the said judgement, The Court has relied its earlier judgment in the case of Guru Singh and Shardaram, Balbir Singh and Jaspat Singh v. State of Punjab. 45. 45. Therefore, considering the evidence available on record in its entirety it appears that the findings recorded by the trial Court regarding commission of offence by the appellant No. 1 do not need any interference and we affirm its findings regarding the appellant No. 1. 46. As regards the findings of the trial Court convicting and sentencing the appellant No. 2, the wife of appellant No. 1 under Section 201 I.P.C., we find that the trial Court has recorded a finding that there is no evidence on record regarding commission of offence by the appellant No. 2 under Sections 302/34. 47. We have also carefully perused the statements of prosecution witnesses to find out any evidence against the appellant No. 2, we do not find any such evidence. Hence, in absence of any evidence against the appellant No. 2 there is no justification to convict the appellant No. 2 only on the ground of suspicion. The finding of the trial Court convicting the appellant No. 2 under Section 201 IPC is not justified. The findings of the trial Court suffer from perversity. It is clearly based on no evidence and is based on the surmises and conjectures. As noted above, we do no find any evidence against the appellant No. 2 for punishing her under Section 201. No witness has deposed that she has caused its appearance of the evidence of murder. She has denied the charges in her statement. 48. Having due regard to the entirety of the evidence against the appellant No. 2, we are of the view that she is not guilty under Section 201 I.P.C. and the finding of the trial Court convicting her under Section 201 I.P.C. is accordingly set aside. The appeal of the appellant No. 2 is allowed. She need not to surrender and her sureties are discharged, if she is not wanted in any other case. 49. The conviction and sentence imposed upon the appellant-Swamidin vide impugned judgment and order dated 26.4.1989 is hereby confirmed. He is on bail. His bail is cancelled. The Chief Judicial Magistrate, Banda shall cause the appellant No. 1 to be arrested and lodged in jail to serve out the sentence. The appeal of the appellant No. 1 is dismissed. 50. Before parting this case we would like to record our deep appreciation for valuable assistance provided by learned amicus curiae Sri Rahul Mishra. 51. The Chief Judicial Magistrate, Banda shall cause the appellant No. 1 to be arrested and lodged in jail to serve out the sentence. The appeal of the appellant No. 1 is dismissed. 50. Before parting this case we would like to record our deep appreciation for valuable assistance provided by learned amicus curiae Sri Rahul Mishra. 51. Let a copy of this judgment and lower Court record be sent to the Lower Court for its intimation and necessary compliance. 52. Judgment be certified and placed on record.