JUDGMENT : [Sanjay K. Agrawal, J.] 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 13.02.2014 passed by learned Second Additional Sessions Judge, Balod, District Balod, in Sessions Trial No.85/2013, by which the appellant herein has been convicted for the offence under Sections 302 & 201 of Indian Penal Code and sentenced as under with a direction to run the sentences concurrently : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment with fine of Rs.500/-, in default of payment of fine, 60 days simple imprisonment. U/s. 201 of I.P.C. : Rigorous imprisonment for 7 years with fine of Rs.300/-, in default of payment of fine, 30 days simple imprisonment. 2. Case of the prosecution, in short, is that on 03.08.2012 at 11:00 a.m. at village Usaritola forest, Police Station- Dondilohara, the appellant assaulted his wife Sonibai by stone and also strangulated her and in order to screen himself from the offence, buried the dead body nearby and thereby the offence has been committed. Further case of the prosecution is that the appellant used to quarrel with his wife Sonibai and also used to beat her and on the date of offence, he had taken his wife to Usaritola forest to collect firewood where the deceased Sonibai said to have demanded money to go to her parental house to celebrate Rakshabandhan, which the appellant did not extend favour and on the contrary, he assaulted her by stone and when she fell down, he is said to have strangulated her by which she died and thereafter, he brought pickaxe and spade from his house and buried the dead body. On 11.08.2012, a missing report was lodged and thereafter, Dehati Nalsi (Ex.P-17) was registered at Zero number and thereafter, on 20.08.2012 at 10:10 a.m., the Merg Intimation vide Ex.P-16 was registered at the instance of appellant that he had killed his wife when she demanded money to go to her parental house to celebrate Rakshabandhan and then buried the dead body at that place, pursuant to which, vide Ex.P-1, dead body exhumation panchnama was prepared in the presence of panch witnesses and dead body was exhumed and thereafter, the offence was registered. Thereafter with the permission of S.D.M., Dondilohara, from the house of the appellant, pickaxe was recovered vide Ex.P-4 and blood smeared soil was seized vide Ex.P-7. Thereafter with the permission of S.D.M., Dondilohara, from the house of the appellant, pickaxe was recovered vide Ex.P-4 and blood smeared soil was seized vide Ex.P-7. Inquest was conducted on 20.08.2012 vide Ex.P-3 and thereafter, the dead body was sent for post-mortem, which was referred to the Medical College, Raipur, and post-mortem was conducted by Dr. R.K.Singh (PW- 9), who has proved post-mortem report vide Ex.P-16A. According to the post-mortem report, dead body was of a female in moderate to advanced stage of decomposition and death was due to injuries to head and neck region caused by hard and blunt object and death was homicidal in nature. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 27 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offences under Sections 302 & 201 of I.P.C. and sentenced as above, against which the present appeal has been preferred. 5. Mr. Vivek Sharma, learned counsel for the appellant submits that though the merg intimation was registered as per Ex.P-16 at the instance of the appellant, but it could not be said to be memorandum statement under Section 27 of the Evidence Act and trial Court has erred in holding that the merg intimation registered at the instance of the appellant is a memorandum statement and recovery made pursuant to Ex.P-16 would be admissible under Section 27 of the Evidence Act. At the best, it would be relevant fact under Section 8 of the Evidence Act but on that basis conviction cannot be recorded. Ex.P-9 dated 21.02.2012 by which motive is sought to be established is also not relevant and motive cannot be established on that basis and otherwise motive is a weak piece of evidence, therefore, impugned judgment is liable to be set aside. 6. Mr. Ex.P-9 dated 21.02.2012 by which motive is sought to be established is also not relevant and motive cannot be established on that basis and otherwise motive is a weak piece of evidence, therefore, impugned judgment is liable to be set aside. 6. Mr. Sudeep Verma, learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, therefore, conviction of the appellant for the offences under Sections 302 & 201 of I.P.C. is well merited and the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. Two questions arise for consideration firstly, whether the death of the deceased Sonibai was homicidal in nature and whether the accused/appellant is the author of the crime. 9. Since both the questions are related to each other therefore both the questions are considered and answered together. 10. In the instant case, there is no direct evidence available on record and case of the prosecution is solely based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 11. In the instant case, the appellant is said to have assaulted his wife in Usaritola forest and thereafter killed her and buried the dead body into nearby place and lodged the merg intimation vide Ex.P-16 admitting his guilt, then the wheels of investigation started running and the dead body was exhumed by Ex.P-1 and then, it was sent for post-mortem, which was conducted by Dr. R.K.Singh (PW-9) and ultimately the trial Court holding that since the dead body was recovered at the instance of the appellant in presence of Pusauram (PW-1) and Khemlal (PW-2) and accused was also in custody during the time, therefore, it would be admissible in evidence under Section 27 of the Evidence Act. 12. Section 27 of the Evidence Act states as under : “27. 12. Section 27 of the Evidence Act states as under : “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 13. A careful perusal of Section 27 of the Evidence Act would show that it requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. 14. In the matter of Chandran v. The State of Tamil Nadu, (1978) 4 SCC 90 their Lordships of the Supreme Court refused to rely the recovery of evidence since no confessional statement of the accused was produced under Section 27 of the Evidence Act. Similarly, in the matter of State of Karnataka v. David Rozario & Anr., (2002) 7 SCC 728 the Supreme Court held as under : “5. ………..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 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 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 noninculpatory 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. Decision of Privy Council in Pulukuri Kotayya v. King Emperor ( AIR 1947 PC 67 ), is the most quoted authority for 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. Damu S/o. Gopinath Shinde and Ors., (2000) Crl.LJ 2301]…….” 15. The principles of law laid down in the matter of Chandran (supra) and David Rozario (supra) has been followed with approval by their Lordships of the Supreme Court in Boby v. State of Kerala, 2023 LiveLaw (SC) 50 and it has been clearly held that in absence of confessional statement of the accused leading to recovery of the material object, recovery of dead body cannot be said to the instance of appellant therein. Their Lordships pertinently observed in para 26 as under : - “26.This Court has elaborately considered asto how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of Boby (accused No.3/ appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No.3/ appellant herein).” 16. Reverting to the facts of this case in light of the aforesaid principles of law, it is quite vivid that in the instant case admittedly no confessional statement has been recorded at the instance of the appellant herein leading to recovery of dead body. Reverting to the facts of this case in light of the aforesaid principles of law, it is quite vivid that in the instant case admittedly no confessional statement has been recorded at the instance of the appellant herein leading to recovery of dead body. Rather it is case of the prosecution and finding recorded by the trial Court that appellant lodged merg intimation vide Ex.P-16 admitting his guilt, pursuant to which the dead body of the deceased exhumed and then wheels of investigation started running and, as such, the dead body was recovered pursuant to merg intimation vide Ex.P-16 given by the accused would not amount to memorandum statement of the appellant in absence of his statement under Section 27 of the Evidence Act and the finding recorded by the trial Court is absolutely perverse and is liable to be set aside. 17. In the matter of Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 the Supreme Court has clearly held that the first information report lodged by the accused giving confession to the crime is not admissible in law and it would be relevant to the extent of Section 8 of the Evidence Act. It has been observed as under :- “9. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police office- is absolutely protected under S. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26 , unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them. 10. They are based upon grounds of public policy, and the fullest effect should be given to them. 10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under S. 21 of the Evidence Act and is relevant, see Faddi v. State of Madhya Pradesh, Cri. Appeal No.210 of 1963, dated 24.1.1964 ( AIR 1964 SC 1850 ), explaining Nisar Ali v. State of U.P., (S) AIR 1957 SC 366 and Dal Singh v. King Emperor, 44 Ind App 137: ( AIR 1917 PC 25 ). But a confessional first information report to a police officer cannot be used against the accused in view of S. 25 of the Evidence Act.” 18. In view of the principles of law laid down by the Supreme Court in Aghnoo Nasesia (supra), the confessional statement of the appellant herein made by Ex.P-16 to the police officer that he has murdered his wife and buried the dead body into nearby forest would not be admissible in evidence and his statement at the best would be relevant under Section 8 of the Evidence Act. 19. Now the question would be whether on the basis of subsequent conduct of accused, which is relevant under Section 8 of the Evidence Act, appellant can be convicted for the offence under Section 302 of I.P.C. 20. Very recently in the matter of Subramanya v. State of Karnataka, 2022 SCC OnLine SC 1400, the Supreme Court 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. 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.” 21. The last circumstance that has been found proved by the trial Court is, motive of the accused that earlier vide Ex.P-9, he had assaulted his wife on 21.02.2012. The motive is the weak piece of evidence and conviction cannot be based only on the basis of motive. 22. In conclusion the prosecution has failed to prove its case beyond reasonable doubt by leading direct and circumstantial evidence, as such, the prosecution has failed to establish the five golden principles, which constitute the panchsheel of proof of a case based on circumstantial evidence laid down by the Supreme Court in Sharad Birdhichand Sarda (supra) and only on the basis of subsequent conduct, the accused/appellant herein cannot be convicted in light of the decision rendered by the Supreme Court in Subramanya (supra). Accordingly, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offences under Sections 302 & 201 of I.P.C. are hereby set aside. The appellant is acquitted of the charges under Sections 302 & 201 of I.P.C. The appellant is on bail, he need not surrender, however, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the Cr.P.C. 23. In the result, the appeal is allowed to the extent indicated herein above.