JUDGMENT : [Sanjay K. Agrawal, J.] 1. The appellant herein has preferred this appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 1-8-2013 passed by the Additional Sessions Judge (Fast Track Court), Raigarh in Sessions Trial No.131/2012, by which the appellant herein has been convicted under Sections 302 & 201 of the IPC and sentenced to undergo imprisonment for life & pay a fine of Rs.3,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one year and rigorous imprisonment for four years & pay a fine of Rs.1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months, respectively. 2. Case of the prosecution, in short, is that on 29-5-2012 at 08.00 a.m., in Village Senaaama Jungle, Police Station Dharamjaigarh, the appellant assaulted Bhanwar Singh Rathiya, aged 85 years, on his neck and his wife Ramkunwar Bai, aged 70 years, on her back and also strangulated them and further, in order to screen himself from the aforesaid offence, buried both the dead bodies therein and thereby committed the offence. It is the further case of the prosecution that on 29-5-2012 at 8.00 a.m., the two deceased persons – Bhanwar Singh Rathiya and his wife Ramkunwar Bai, both, were going to the Department of Forest, Bankaruma Jungle for getting lease of forest land then the appellant, who was sitting in the said forest, assaulted them by wooden log and also strangulated them and buried the dead bodies in the forest. On 2- 6-2012, Kalash Ram Rathiya (PW-1) made missing complaint before Police Chowki Rairumakhurd, Police Station Dharamjaigarh, District Raigarh about the missing of his uncle and aunt Ramkunwar Bai (both deceased) that they have went to collect their land patta on 29-5-2012 and they were missing. The aforesaid information was recorded in roznamcha sanha and exhibited before the trial Court as Ex.P-28A proved by Dilkishore Giri (PW-9). On 7-6-2012 at 9.00 a.m., on suspicion, the police made interrogation of the present accused/appellant and his memorandum statement was recorded vide Ex.P-18 in which he has disclosed that he has murdered his uncle Bhanwar Singh Rathiya and aunt Ramkunwar Bai across the road of Senama Jungle and buried their dead bodies in the Juma Pani Nala Jungle. On 7-6-2012 at 9.00 a.m., on suspicion, the police made interrogation of the present accused/appellant and his memorandum statement was recorded vide Ex.P-18 in which he has disclosed that he has murdered his uncle Bhanwar Singh Rathiya and aunt Ramkunwar Bai across the road of Senama Jungle and buried their dead bodies in the Juma Pani Nala Jungle. He further disclosed that the wooden log used by him for the commission of offence was concealed in the cattle shed of his house. The said statement was recorded in presence of Rajesh Lakra (PW-5) and Kamhar Singh (not examined). On 7-6-2012 at 9.00 a.m. itself on the strength of the disclosure statement of the appellant, the police reached to the Juma Pani Nala Jungle and the dead bodies were exhumed from the place pointed out by the appellant herein vide recovery panchnama Ex.P-3 in presence of Rajesh Lakra (PW-5), Kamhar Singh (not examined) and Kalash Ram Rathiya (PW-1). Memorandum statement was recorded at Village Chirodih and dead bodies were recovered at the Juma Pani Nala Jungle. After recovery of dead bodies, the police has registered dehati nalsi at zero number vide Ex.P-6 on 7-6-2012 at 9.20 a.m. and the police has also registered dehati morgue intimation regarding the death of Bhanwar Singh vide Ex.P-29 at 9.30 a.m. and the police has identified the dead bodies as of Bhanwar Singh & Ramkunwar Bai vide Ex.P-4 at 9.45 a.m.. The police has also registered dehati morgue intimation vide Ex.P-30 qua the death of Ramkunwar Bai. Spot map was prepared vide Ex.P-23 by Patwari Nareshchand Patel (PW-7). Dead bodies were sent for postmortem vide Exs.P- 31 & P-32 and postmortem was conducted vide Exs.P-24 & P-25 by Dr. B.L. Bhagat (PW-8). On the strength of the memorandum statement of the appellant, wooden log used by the appellant was recovered from the cattle shed of the house of the appellant vide Ex.P-21 and the seized wooden log and other articles were sent for chemical examination to the FSL vide Ex.P-36, but the FSL report has not been brought on record. Thereafter, on 7-6-2012 at 5.05 p.m., the police registered first information report (FIR) against the appellant for the offences punishable under Sections 302 & 201 of the IPC and morgue intimation was registered regarding death of Bhanwar Singh vide Ex.P-8 and that of Ramkunwar Bai vide Ex.P- 9. 3. Thereafter, on 7-6-2012 at 5.05 p.m., the police registered first information report (FIR) against the appellant for the offences punishable under Sections 302 & 201 of the IPC and morgue intimation was registered regarding death of Bhanwar Singh vide Ex.P-8 and that of Ramkunwar Bai vide Ex.P- 9. 3. Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellant before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial from where the learned Additional Sessions Judge (FTC), Raigarh received the case on transfer for trial and for hearing and disposal in accordance with law. 4. The trial Court has framed charges against the appellant for offences punishable under Sections 302 & 201 of the IPC and proceeded on trial. The appellant abjured guilt and entered into defence stating that he has not committed the offence and he has been falsely implicated. 5. The prosecution in order to bring home the offence examined as many as 11 witnesses and exhibited 39 documents Exhibits P-1 to P-39. No witness has been examined on behalf of the defence and no document has been exhibited. Statement of the appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence. 6. The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him calling in question the impugned judgment. 7. Mr. Ashish Gupta, learned counsel appearing for the appellant, would submit that as per the statement of Kalash Ram Rathiya (PW-1), the fact of dead body of Bhanwar Singh lying near the Juma Pani Nala Jungle already came to the notice of the police much prior to making of disclosure statement by the accused and also from the statement of Rajesh Lakra (PW-5) vide Ex.P-22 which has been admitted by the Investigating Officer – J. Lakra (PW-10) in his statement before the Court in paragraphs 11 & 12 and as such, recovery of dead body cannot be said to be at the instance of the appellant herein and therefore that part of recovery against the appellant is inadmissible in accordance with law. Furthermore, wooden log has been recovered and it has been sent for chemical examination to the FSL, but except the query report, FSL report has not been brought on record and therefore in absence of the FSL report ascertaining either blood or human blood on the recovered weapon of offence, recovery is of no use to the prosecution in view of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another, (2019) 7 SCC 781 . The extra judicial confession allegedly made by the appellant to Dhanesh Ram (PW-6) is also inadmissible in accordance with law as the extra judicial confession is made in the meeting held in the village. Therefore, the impugned judgment deserves to be set aside and the appeal deserves to be allowed by acquitting the appellant of the charges levelled against him. 8. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and would submit that pursuant to the memorandum statement of the appellant, two dead bodies have been recovered which goes to show that the appellant is the author of the crime and he has rightly been convicted by the trial Court. Moreover, wooden log has also been recovered from the appellant and in the query report it has been stated that the injuries found on the deceased persons could have been caused by the said wooden log. As such, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question would be, whether the death of the deceased persons was homicidal in nature? 11. Considering the statement of Dr. B.L. Bhagat (PW-8) and further considering the postmortem reports Exs.P-24 & P-25 and also considering the finding recorded by the trial Court, we are of the considered opinion that the death of deceased Bhanwar Singh Rathiya and Ramkunwar Bai was homicidal in nature and we accordingly hold so. 12. Now, the question is, whether the appellant, who has committed the murder of two of his relatives, is the author of the crime, which the trial Court has found in favour of the prosecution holding that pursuant to the disclosure statement given by the accused, the dead bodies of two persons were recovered and weapon of offence has also been recovered. On inviting the opinion of the doctor by showing the wooden log, it has been held that by the said wooden log, such injuries by which the two persons died, could have been caused. We will discuss each of the circumstances which have been projected by the prosecution and found proved by the trial Court one by one. 13. The first circumstance is, pursuant to the memorandum statement of the appellant, dead bodies of deceased persons Bhanwar Singh Rathiya & Ramkunwar Bai have been recovered. 14. On 7-6-2012 at 9.00 a.m., the appellant is said to have given his disclosure statement to the police recorded vide Ex.P-18 at Village Chirodih pursuant to which the dead bodies of two persons were exhumed vide Ex.P-3 from the place shown by the accused in presence of Rajesh Lakra (PW-5), Kamhar Singh (not examined) and Kalash Ram Rathiya (PW-1). The memorandum statement is said to have been given at Village Chirodih, whereas recovery panchnama Ex.P-3 of the dead body of Bhanwar Singh has been recorded on 7-6-2012 at same time on which the memorandum statement was recorded and that of Ramkunwar Bai Ex.P-4 has been recorded after 45 minutes. Witnesses to Exs.P-3 & P-4 are Kalash Ram Rathiya (PW-1), Rajesh Lakra (PW-5) and Kamhar Singh, who has not been examined. 15. Kalash Ram Rathiya (PW-1) in his statement before the Court in paragraph 1 has clearly stated that he has lodged missing report before the police station and after lodging report, he came to know through Sanat Yadav & Kamhar Singh (both not examined) that when they had gone to the forest for eating mango, then some smell was coming near the mango tree, thereafter, he was called by the police on which he went along with the villagers then the dead body of Bhanwar Singh was lying therein. In paragraph 5, he has admitted that on the place of incident, he came to know through Sanat Yadav & Kamhar Singh (both not examined) who informed him then villagers went to the spot and exhumed the dead body. He has further admitted that the place of incident was not informed by the appellant herein. 16. Rajesh Lakra (PW-5), who is witness to Exs.P-3 & P-4, has not supported the case of the prosecution, though he has admitted the signature. 17. The Investigating Officer – J. Lakra has been examined as PW-10. He has further admitted that the place of incident was not informed by the appellant herein. 16. Rajesh Lakra (PW-5), who is witness to Exs.P-3 & P-4, has not supported the case of the prosecution, though he has admitted the signature. 17. The Investigating Officer – J. Lakra has been examined as PW-10. In his statement before the Court, in cross-examination paragraph 11, he has stated that in the statement recorded under Section 161 of the CrPC (Ex.P-22), it has been disclosed by Rajesh Lakra (PW- 5) to him that on 7-6-2012 when he along with Kamhar Singh Rathiya, Dhanesh Yadav & Sanat Yadav reached to the Juma Pani Nala Jungle for plucking mangoes, clothes of some one were appearing and it was smelling then he suspected that it was the dead body of Bhanwar Singh. The Investigating Officer (PW-10) has clearly admitted with regard to the dead body of deceased Bhanwar Singh and about the place of incident, firstly it was suspected by Rajesh Lakra (PW-5), Kamhar Singh Rathiya, Dhanesh Yadav (PW-6) & Sanat Yadav out of whom Kamhar Singh Rathiya & Sanat Yadav have not been examined, however, the fact remains that they have gone for plucking mangoes. 18. Thus, from the statement of Kalash Ram Rathiya (PW-1), the statement of Rajesh Lakra (PW-5) recorded under Section 161 of the CrPC as Ex.P-22 and the statement of Investigating Officer J. Lakra (PW-10), it is quite established that on the information being given by Rajesh Lakra (PW-5), Kamhar Singh Rathiya (not examined), Dhanesh Yadav (PW-6) & Sanat Yadav (not examined), the fact of dead bodies, particularly of Bhanwar Singh, lying in the Juma Pani Nala Jungle came to the notice of the police, thereafter, the villagers and police reached to the spot and exhumed the dead bodies of Bhanwar Singh & Ramkunwar Bai and thereafter, the memorandum statement of the appellant has been recorded stating that pursuant to the information given by the appellant herein, the dead bodies of Bhanwar Singh & Ramkunwar Bai have been exhumed which has been relied upon by the trial Court to base the conviction. 19. Now, the question is, where a fact has already been known by the police, there can be a discovery again of that fact as a result of a statement made by the accused subsequent to original discovery? 20. 19. Now, the question is, where a fact has already been known by the police, there can be a discovery again of that fact as a result of a statement made by the accused subsequent to original discovery? 20. The Supreme Court in the matter of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 , has clearly held that discovery of incriminating articles alleged to have been recovered at the instance of accused is inadmissible in evidence if the police already knew where they were hidden. It has been observed in paragraph 20 of the report as under: - “20. … But those discoveries are inadmissible in evidence because the police already knew where they were hidden. ...” 21. Similarly, in the matter of Makhan Singh v. State of Punjab, AIR 1988 SC 1705 , it has been clearly held by the Supreme Court that investigating officer getting information about dead bodies being buried in a field before accused made statement leading to recovery, exclusive knowledge to accused of bodies being buried cannot be attributed on the basis of recovery from open field and therefore evidence under Section 27 of the Evidence Act is not a circumstance against accused. It has been observed in paragraph 14 of the report as under:- “14. Then we are left with the recovery of the dead bodies. Investigating Officer S.I. Puran Singh (PW-8) admitted in cross-examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed. This clearly indicates that he could get some information from the statement of Amrik Singh. As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field. The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none else. It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none else. Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant.” 22. Reverting to the facts of the case in light of the aforesaid legal position qua recovery, it is quite vivid that in instant case, as per the statements of Kalash Ram Rathiya (PW-1), who is witness to Exs.P-3 & P-4 and Rajesh Lakra (PW-5), more particularly the statement of Investigating Officer J. Lakra (PW-10), it is clearly established on record that about the dead bodies of the Bhanwar Singh & Ramkunwar Bai and the place of incident, it had already came to the notice of Rajesh Lakra (PW-5), Kamhar Singh Rathiya (not examined), Dhanesh Yadav (PW-6) & Sanat Yadav (not examined) when they had gone for plucking of mangoes and when they informed to the police, pursuant to the said information, the police along with villagers as well as Kalash Ram Rathiya (PW-1) reached to the spot and exhumed the dead bodies, particularly of Bhanwar Singh. Therefore, it cannot be held that the appellant had exclusive knowledge of the dead bodies being buried and consequently, discovery of dead bodies particularly of Bhanwar Singh alleged to have been recovered at the instance of the accused, is inadmissible in evidence, as the police had already came to know the place where the dead body of Bhanwar Singh was hidden and exhumed the dead body. Furthermore, the appellant is said to have made memorandum statement on 7-6- 2012 at 9.00 a.m. at Village Chirodih which is clearly apparent from the memorandum statement and dead body of Bhanwar Singh was immediately recovered on 7-6-2012 at the same time at the Juma Pani Nala Jungle. As per the spot map, there is far distance between the two places – Village Chirodih and the Juma Pani Nala Jungle. Furthermore, the prosecution has failed to examine Kamhar Singh Rathiya & Sanat Yadav who had firstly reported the matter to Kalash Ram Rathiya (PW-1) and thereafter, the wheels of investigation started running. 23. As per the spot map, there is far distance between the two places – Village Chirodih and the Juma Pani Nala Jungle. Furthermore, the prosecution has failed to examine Kamhar Singh Rathiya & Sanat Yadav who had firstly reported the matter to Kalash Ram Rathiya (PW-1) and thereafter, the wheels of investigation started running. 23. In view of the aforesaid evidence available on record, we hold that the alleged discovery of dead body of Bhanwar Singh pursuant to the memorandum statement of the appellant is inadmissible in evidence, as the police had already came to know about the place of incident and the dead body of deceased Bhanwar Singh. We hold so accordingly. 24. Now, the next circumstance that has been relied upon the trial Court is the weapon of offence wooden log which has been seized pursuant to the memorandum statement of the appellant from the cattle shed of his house. The said weapon of offence was sent for chemical examination to the FSL, but no FSL report was brought on record. The Supreme Court in Balwan Singh (supra) has clearly held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. In the instant case, for the reasons best known to the prosecution, the FSL report indicating whether the weapon of offence wooden log was stained with human blood or not, has not been brought on record. Therefore, it could not be ascertained, whether the wooden log was used as the weapon of offence for causing the murders of Bhanwar Singh & Ramkunwar Bai. Accordingly, the said part of recovery pursuant to the disclosure statement of the appellant is also of no use to the prosecution. We hold so accordingly. 25. The next incriminating circumstance is the extra-judicial confession which the appellant has allegedly made to Dhanesh Yadav (PW-6), but Dhanesh Yadav (PW-6) in his statement before the Court has clearly stated that the appellant has informed about the incident in the meeting of the villagers. We hold so accordingly. 25. The next incriminating circumstance is the extra-judicial confession which the appellant has allegedly made to Dhanesh Yadav (PW-6), but Dhanesh Yadav (PW-6) in his statement before the Court has clearly stated that the appellant has informed about the incident in the meeting of the villagers. As such, this circumstance is of no use to the prosecution because, in paragraph 6, Dhanesh Yadav (PW-6) has resiled from his previous statement and stated that no meeting was held in the village and has also clearly stated that the appellant has not given any extra-judicial confession to him with regard to the incident. As such, the alleged extra-judicial confession to villagers is involuntary and it cannot be accepted, as the same is a weak piece of evidence. No other circumstances have been brought on record. 26. In view of the aforesaid legal analysis, in our considered opinion, the prosecution has failed to establish the five golden principles as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , to prove a case based on circumstantial evidence beyond reasonable doubt. Consequently, we are unable to sustain conviction and sentences imposed upon the appellant under Sections 302 & 201 of the IPC. 27. Accordingly, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 1-8-2013. The appellant is acquitted of the charges under Sections 302 & 201 of the IPC. He is in jail. He be released forthwith, if not required in any other offence. 28. The appeal stands allowed.