JUDGMENT : Majgaon P.S. (Kumardungi O.P) Case No. 28 of 2007 was lodged in the year 2007 against Donka Tiria for committing murder of his minor daughter and causing disappearance of her dead body. Lipi Tiria has stated in her fardbeyan which was recorded at 12:00 noon on 07.07.2007 by the officer-in-charge, Kumardungi PS that she was married to Donka Tiria in the year 1998. Two female children were born who unfortunately had died and when she again became pregnant her husband left for to work at a brick-kiln. While staying with her brother she gave birth to Sombari Tiria and was bringing up her. One day she got an information that her husband has come back home and therefore she had gone to Barosain with her brother on 04.07.2007. There she found that her husband had brought another woman and when she enquired from him he tried to escape from the house. In the meantime her maternal uncle Dulu Sinku came out from his house and started scolding them. Annoyed with the conduct of her husband, she left the minor child with her husband and came back to her brother's house. However, she started feeling blue in absence of her daughter and, therefore, started for Barosain with her brother and others to bring back her daughter, the next day. The informant has further stated that when she enquired about her daughter from her husband he told her that he has killed her and thrown away her dead body in the water. After the investigation a charge-sheet was filed against the appellant and he has faced the trial on the charge under sections 302 and 201 of the Indian Penal Code (in short ‘IPC’). In the trial, the prosecution has examined eleven witnesses. However, the informant was not produced during the trial. The learned Additional Sessions Judge, FTC-I, Chaibasa has held that the prosecution has proved the charges against the accused and, accordingly, he has convicted and sentenced him to RI for life under section 302 IPC and RI for three years under section 201 IPC. 2. Mr. Vishal Kumar Tiwary, the learned counsel for the appellant has contended that there is no witness who has seen murder of Sombari Tiria and conviction of the appellant is based on his confessional statement and extra-judicial confession which is considered a weak piece of evidence. 2. Mr. Vishal Kumar Tiwary, the learned counsel for the appellant has contended that there is no witness who has seen murder of Sombari Tiria and conviction of the appellant is based on his confessional statement and extra-judicial confession which is considered a weak piece of evidence. The learned counsel has relied on the decision in "Sahadevan v. State of Tamil Nadu”, (2012) 6 SCC 403 to contend that there must be other independent cogent materials and circumstance of definite character to corroborate the extra-judicial confession of the appellant so as to complete the chain of the circumstances, before a finding on guilt of the appellant can be recorded. 3. With reference to the judgment in “Naval Kishore Singh v. State of Bihar” (2004) 7 SCC 502 which was referred and relied in Criminal Appeal No. 635 of 2020, the learned counsel for the appellant would contend that the extra-judicial confession allegedly made by the appellant was not put to him when he was examined under section 313 CrPC and while so this piece of evidence must be excluded from consideration. 4. The case of the prosecution against the appellant is based on circumstantial evidence. It needs no reiteration that in a case of circumstantial evidence an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with innocence of the accused and the circumstances from which an inference of guilt of an accused are drawn must have been proved beyond reasonable doubt. The first circumstance against the appellant according to the prosecution was that he has brought another lady in the house with whom he was residing and that was the reason Lipi Tiria became infuriated and left home leaving the child with her husband, the appellant. From the fardbeyan of the informant it is gathered that after a quarrel between the couple the informant has left for her brother's place. However, neither the informant nor Dulu Sinku was examined during the trial and not even name of the other lady staying with the appellant has been disclosed by the prosecution. From the fardbeyan of the informant it is gathered that after a quarrel between the couple the informant has left for her brother's place. However, neither the informant nor Dulu Sinku was examined during the trial and not even name of the other lady staying with the appellant has been disclosed by the prosecution. The testimony of PW-1, the brother of the informant, is full of contradictions; one example of which is found in his examination-in-chief wherein he has stated that when he tried to intervene and stop the quarrel between the appellant and his wife the appellant chased to assault him and then he along with his sister came back home. His statement is quite contrary to the story narrated by his sister in the fardbeyan. 5. The evidence of a hostile witness is not altogether discarded and a part of his evidence which supports the prosecution can be used during the trial. In "Syad Akbar v. State of Karnataka” (1980) 1 SCC 30 , the Hon'ble Supreme Court has observed that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution has dubbed him 'hostile' and cross-examined him. In the trial, PW-2, PW-3, PW-4 and PW-10 were declared hostile and we find that no part of their evidence can be utilized by the prosecution. The case of the prosecution against the appellant is seriously shaken on account of Munda of village Barosain turning hostile - according to the prosecution the appellant has confessed his guilt before him. 6. On murder of Sombari Tiria by the appellant except the confessional statement and the extra-judicial confession of the appellant there is no other material. According to the prosecution the dead body was found in the paddy field on 07.07.2007. The dead body was in a decomposed condition can be found from the medical evidence. PW-11 who has conducted the post-mortem examination has observed rigor mortis absent; face and neck swollen, and; eyes and tongue protruded. The doctor has rendered an opinion that the cause of death was violent asphyxia caused by throttling and the death had occurred before 48-72 hours of the post-mortem examination. The prosecution evidence on recovery of the dead body of Sombari Tiria is quite inconsistent. The doctor has rendered an opinion that the cause of death was violent asphyxia caused by throttling and the death had occurred before 48-72 hours of the post-mortem examination. The prosecution evidence on recovery of the dead body of Sombari Tiria is quite inconsistent. PW-2 and PW-3 who were declared hostile during the trial have stated in their examination-in-chief that the police enquired from them about Budhram's ditch; PW-5, PW-6, PW-7 and PW-8 have deposed in the Court that the appellant confessed before Munda of village Barosain who is PW-10 that he has killed his daughter and thrown her dead body in the water; but it is the case of the prosecution that the appellant has led the police to the place where he had thrown the dead body of his daughter. From the evidence of PW-2 and PW-3 it would transpire that the appellant was not accompanying the police who was searching for the dead body and there was no attempt by the witnesses after the appellant allegedly confessed his crime before PW-10 to search for the dead body. Above all, the dead body was found in an open place accessible to general public and the distance between the village Barosain and the place from where the dead body was recovered was about three kilometers. The investigating Officer has deposed in the Court that there are fields of Budhram Hembrom and Tirka Sinku around the place from where the dead body was recovered and it was almost a thorough fare as there is a road leading to Dhouri river from Maranda village. The prosecution evidence is not that the dead body of Sombari Tiria was concealed and in his cross-examination the investigating Officer has admitted that no one has seen the appellant carrying the dead body to that place. 7. An extra-judicial confession is a weak piece of evidence, however, if made voluntarily and fully consistent with other evidence it can establish guilt of the accused. It is quite a settled position in law that a conviction though can be recorded on the basis of extra-judicial confession of an accused as a rule of prudence the Courts seek corroboration. If the extra-judicial confession is surrounded by suspicious circumstances its credibility is substantially eroded and consequently it looses its importance. It is quite a settled position in law that a conviction though can be recorded on the basis of extra-judicial confession of an accused as a rule of prudence the Courts seek corroboration. If the extra-judicial confession is surrounded by suspicious circumstances its credibility is substantially eroded and consequently it looses its importance. In "Pakkirisamy v. State of Tamil Nadu" (1997) 8 SCC 158 , the Hon'ble Supreme Court has held that it is a rule of caution that the Courts would generally look for an independent reliable corroboration before placing any reliance upon extra-judicial confession. In "Sunil Rai v. UT, Chandigarh" (2011) 12 SCC 258 , the Hon'ble Supreme Court has observed that the extra-judicial confessional statement made orally before a person with whom the maker of the confession had no intimate relationship is not very strong piece of evidence and in any event it can be used only for corroboration. 8. In "Sahadevan v. State of T.N.” (2012) 6 SCC 403 , the Hon'ble Supreme Court has observed as under: "16 .... (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 9. Not only the evidence of PW-7 and PW-8 who were not declared hostile to the effect that the appellant made an extra-judicial confession before PW-10 is in the realm of hearsay, because PW-10 has not stated in the Court about extra-judicial confession of the appellant, the so called extra-judicial confession of the appellant cannot be even looked into for any purpose. 10. The last piece of evidence against the appellant is his confessional statement and recovery of the dead body. 11. Section 27 of the Evidence Act is an exception to the restrictions under section 25 and section 26 of the Evidence Act. 10. The last piece of evidence against the appellant is his confessional statement and recovery of the dead body. 11. Section 27 of the Evidence Act is an exception to the restrictions under section 25 and section 26 of the Evidence Act. Section 27 carves out a limited exception to the extent that certain statements made by an accused in police custody can be proved by the prosecution provided the disclosure by the accused leads to discovery of a fact in consequence of information received from an accused while in custody of a police officer. In "Suresh Chandra Bahri v. State of Bihar" 1995 Supp (1) SCC 80 the Hon'ble Supreme Court has observed as under: "71. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false ....." 12. From the prosecution evidence on recovery of the dead body, we find that the story how the dead body was recovered is in conflict with the evidence laid by the prosecution during the trial. PW-7 and PW-8 have deposed in the Court that the police did not visit the village whereas the Investigating Officer has started that he has visited the village and at the pointing of the appellant the dead body was recovered. The recovery of the dead body at the pointing of the appellant as a fact has not been established by the prosecution and it is not proved by the prosecution that a new fact was discovered on disclosure of the appellant. Therefore, no part of the confessional statement of the appellant would fall within section 27 of the Evidence Act so as to permit the prosecution to prove that part of his confessional statement. Therefore, no part of the confessional statement of the appellant would fall within section 27 of the Evidence Act so as to permit the prosecution to prove that part of his confessional statement. The examination of the appellant under section 313 CrPC is also highly unsatisfactory and it can be noticed that only three proforma questions were put to him during his examination and the material circumstance that he has made extra-judicial confession was not put to him. The principles of natural justice and fair trial require that every incriminating circumstance appearing against the accused in the prosecution evidence should be put to him to afford an opportunity to him to offer an explanation, but any failure to do so would not ipso facto result in acquittal of the accused. The accused is required to take a plea of substantial prejudice and demonstrate from the prosecution evidence how prejudice was caused to him by not attracting his attention to a piece of evidence, and that, the failure to afford an opportunity to him to explain the incriminating evidence has resulted in the failure of justice. Where the trial is conducted otherwise in a fair manner, the charge was spelt out clearly to the accused and evidence is taken in his presence, a ground of violation of the principles of fair trial that the inculpatory materials were not brought separately to the notice of the accused would not avail any benefit to the accused. The law which is quite established now that the accused must demonstrate prejudice caused to him because some incriminating material was not put to him is applied in a case like the present one which is based on circumstantial evidence - a circumstance on which the prosecution has heavily relied upon but was not put to the appellant must be excluded from the consideration. 13. Having examined the materials on record, in the end, we find that the prosecution has failed to establish that the chain of circumstances is so complete that no other reasonable inference except guilt of the appellant is possible. The prosecution has failed to establish the charge under sections 302 and 201 IPC and, therefore, the conviction and sentence inflicted upon the appellant in Sessions Trial No. 245 of 2007 are unsustainable. 14. The prosecution has failed to establish the charge under sections 302 and 201 IPC and, therefore, the conviction and sentence inflicted upon the appellant in Sessions Trial No. 245 of 2007 are unsustainable. 14. Accordingly, the judgment of conviction of the appellant, namely, Donka Tiria under sections 302 and 201 IPC dated 25.11.2010 and the order of sentence of RI for life under section 302 IPC and RI for three years under section 201 IPC dated 26.11.2010, passed by the learned Additional Sessions Judge, FTC-I, West Singhbhum at Chaibasa in Sessions Trial No.245 of 2007 are set-aside. 15. Mr. Saket Kumar, the learned APP states that the appellant, named above, is in custody. 16. Accordingly, the appellant, namely, Donka Tiria shall be set free forthwith, if not required in connection to any other case. 17. In the result, Criminal Appeal (DB) No.90 of 2011 is allowed. 18. Let lower Court records be transmitted to the Court concerned, forthwith. 19. Let a copy of the judgment be transmitted to the Court concerned.