JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 6.7.2015 passed by the Special/Additional Sessions Judge, Raipur in Special Sessions Trial No.68/2014, by which the appellant No.1 Smt. Mamta Manhare and her father appellant No.2 Santu Banjare both have been convicted and sentenced in the following manner:- Conviction Sentence Appellant No.1 - Mamta Manhare Under Section 302 of IPC R.I. for Life with fine of Rs.1000/- and in default of payment of fine amount, to undergo additional R.I. for 6 months. Appellant No.2 - Santu Banjare Under Section 201 of IPC R.I. for 3 years with fine of Rs.1000/- and in default of payment of fine amount, to undergo additional R.I. for 6 months. 2. Case of the prosecution, in short, is that on 25.11.2013 at about 4:00 p.m. in the evening at Village Bhansoj under Police Station Arang, appellant No.1 Mamta Manhare is said to have assaulted her sister-in-law Mamta Banjare to death by axe (tangi) and thereafter, knowing fully well that the offence of murder has committed by the appellant No.1 Mamta Manhare, her father appellant No.2 Santu Banjare is said to have thrown the said axe in the nearby tank in order to screen themselves from the legal punishment and thereby committed the aforesaid offence. 3. It is an admitted position that the marriage of Smt. Mamta Banjare (now deceased) was solemnized with Vedram, the son of appellant No.2, and the appellant No.1 is the daughter of appellant No.2 and that, on account of some dispute with her husband, the appellant No.1 was at that time residing at her parental house. 4. Case of the prosecution, in nutshell, is that on 25.11.2013 at about 7:30 p.m., Smt. Sonseer Banjare lodged a Dehati Nalishi at Police Station Arang alleging that on 25.11.2013 in the morning she had gone to the field for harvesting crops and at that time her husband (appellant No.2), son Vedram, daughter Mamta Manhare (appellant No.1) and her daughter-in-law Mamta Banjare (deceased) all were at the house. In the evening, when she came back, her daughter (appellant No.1) informed her that Mamta Banjare (deceased) is not getting up for cooking dinner and then she went inside the room of Mamta Banjare and found her lying dead in the bed. In the evening, when she came back, her daughter (appellant No.1) informed her that Mamta Banjare (deceased) is not getting up for cooking dinner and then she went inside the room of Mamta Banjare and found her lying dead in the bed. She immediately informed her daughter (appellant No.1) and mother-in-law Pancho Bai that Mamta Banjare has been murdered and at that time her husband (appellant no.2) had also come back, who then informed the neighbours about the murder of their daughter-in-law Mamta Banjare. On the basis of the said information, Dehati Nalishi (Exhibit P-24) was registered against unknown person. 5. Subsequently, the memorandum statements of appellant No.1 and appellant No.2 were recorded vide Exhibit P-1 and Exhibit P-2, respectively. Pursuant to the memorandum statement of appellant No.2, a bloodstained axe was recovered from the nearby tank in presence of the prosecution witnesses, vide Exhibit P-3. Thereafter, FIR (Exhibit P-25) was registered against the accused appellants and they were arrested. Panchnama of the dead-body was conducted vide Exhibit P-13, Spot Map was prepared vide Exhibit P-26 and the dead-body of deceased Mamta Banjare was sent for post-mortem which was conducted by Dr. Anupama Dhananjai (PW-8) and the post-mortem report Exhibit P-16 in which the cause of death has been opined as due to shock and hemorrhage on account of head injury and the injuries were ante-mortem in nature. The nature of death has been shown to be homicidal and the duration of death was 24hrs prior to autopsy. The seized articles were also sent for chemical analysis to FSL, the report of which is Exhibit P-28 in which bloodstains have been found on the axe (article 'E') recovered at the behest of appellant No.2, human blood has been found on the saree (article 'C') of deceased Mamta Banjare, but on the saree (article 'D') of appellant No.1 Mamta Manhare no blood was found. 6. After due investigation, appellant No.1 Mamta Manhare was charge-sheeted for the offence punishable under Sections 302 & 201 read with Section 34 of IPC and the appellant No.2 Santu Banjare was charged-sheeted for the offence punishable under Section 201 read with Section 34 of IPC before the concerned jurisdictional Court from where the case was committed to the Court of Special/Additional Sessions Judge, Raipur for trial in accordance with law. 7. 7. During trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 28 documents. In defence, Radhelal has been examined as DW-1. The statements of accused-appellants were also recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 8. After conclusion of trial, the trial Court, vide impugned judgment of conviction and order of sentence dated 6.7.2015, on appreciation of oral and documentary evidence available on record, convicted the appellant No.1 Mamta Manhare for the offence under Section 302 of IPC whereas the appellant No.2 Santu Banjare has been convicted for the offence under Section 201 of IPC and they have been sentenced as mentioned herein-above in para-1. Feeling aggrieved and dissatisfied by the impugned judgement of conviction and order of sentence, the present appeal has been preferred jointly by the two appellants herein. 9. Mr. Kalpesh Ruparel, learned counsel appearing for the appellants, would submit that the memorandum statements of appellants No.1 & 2 have not been proved by the two prosecution witnesses, namely Ramesh Kumar Dhritlahre (PW-1) who has turned hostile and Devadas (PW-2) who also has turned hostile and have not supported the case of the prosecution. He would submit that both the appellants are entitled for acquittal on the basis of benefit of doubt. 10. On the other hand, Mr. Sameer Oraon, learned State Counsel, has supported the impugned judgment of conviction and order of sentence and submits that the prosecution has been able to prove the offences beyond reasonable doubts, as the trial Court has rightly held that pursuant to the memorandum statement of appellant No.2, bloodstained axe has been recovered from the nearby tank on which blood has been found in the FSL report and the motive of offence has also been established. Furthermore, on the basis of the memorandum statement of appellant No.2, the appellant No.1 has also been implicated by virtue of Section 30 of the Indian Evidence Act, 1872 (in short, 'IEA-1872'). In addition, Section 106 of IEA-1872 has rightly been invoked by the trial Court as at the time of offence, apart from the deceased and appellant No.1, no other person was present in the house. As such, the conviction of the appellants No.1 & 2 is well founded and the appeal deserves to be dismissed. 11. In addition, Section 106 of IEA-1872 has rightly been invoked by the trial Court as at the time of offence, apart from the deceased and appellant No.1, no other person was present in the house. As such, the conviction of the appellants No.1 & 2 is well founded and the appeal deserves to be dismissed. 11. We have heard learned counsels for parties and considered their rival submissions made herein-above and have also gone through the record with utmost circumspection. 12. The first question as to whether the death of deceased Mamta Banjare was homicidal in nature, has been answered in affirmative by the trial Court relying upon the post-mortem report (Exhibit P-16) proved by Dr. Anupama Dhananjai (PW-8) which, in our considered opinion, is a finding of fact based on the evidence available on record and which is neither perverse nor contrary to record. Even otherwise, the nature of death to be homicidal has not been seriously questioned on behalf of the appellants. We, therefore, affirm the said finding of the trial Court holding that the death of deceased Mamta Banjare was homicidal in nature. 13. Now, the next question would be, as to whether the appellant No.1 Mamta Manhare is the author of crime in question under Section 302 of IPC and the appellant No.2 Santu Banjare is guilty of the offence under Section 201 of IPC for concealing the evidence in order to screen the appellant No.1 from legal punishment. Considering the nature of evidence available on record, we shall consider the case of both the appellants separately one by one:- Appeal of appellant No.1 Mamta Manhare :- 14. Since the appellant No.1 Mamta Manhare has been convicted for the offence under Section 302 of IPC and since it is not a case of direct evidence, rather is a case based on circumstantial evidence, we would prefer to notice the principles of law laid down with regard to circumstantial evidence by their Lordships of the Supreme Court in the case of Sharad Birhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been catalogued in para 153, which reads 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. 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.” 15(1). Appellant No.1 Mamta Manhare has been convicted by the trial Court finding the following incriminating circumstances established:- (i) the motive of offence on the part of appellant No.1 to commit murder is established; (ii) in her memorandum statement (Exhibit P-1), the appellant No.1 Mamta Manhare has admitted that she had caused murder of her sister-in-law Mamta Banjare and had thrown the bloodstained axe in the room, which her father (appellant No.2) had picked up and thrown in the nearby tank; (iii) the memorandum statement (Exhibit P-2) of appellant No.2 Santu Banjare admitting that he had thrown the bloodstained axe in the tank, also implicates the appellant No.1/co-accused Mamta Manhare by virtue of Section 30 of the IEA-1872; and (iv) Section 106 of the IEA-1872 is applicable to the facts of the case, as in the house in question the appellant No.1 Mamta Manhare and her sister-in-law Mamta Banjare both were alone on the date and time of offence and the appellant No.1 has not explained as how and under what circumstances, Mamta Banjare died in her house. 15(2). The correctness of the above-stated incriminating circumstances have been seriously questioned on behalf of appellant No.1. We will consider the submission raised in that behalf one by one:- (i) Motive of offence:- 16. It is a case of circumstantial evidence. Motive is quite relevant and admissible as a relevant fact under Section 8 of the IEA-1872. In the instant case, the prosecution has alleged that the appellant No.1 had seen her sister-in-law, Mamta Banjare, talking with one boy and Mamta Banjare had requested the appellant No.1 not to disclose anyone about the said fact otherwise appellant No.1 will be taken to task, thereafter, Mamta Banjare had threatened the appellant No.1 that she will implicate the appellant No.1 and her family members in a false case of dowry and her father (appellant No.2) in a false charge of rape, on account of which the appellant No.1 was unhappy and was feeling embarrassed/disappointed and that is the reason why she had assaulted her sister-in-law Mamta Banjare. PW-2 Devadas, the Kotwar of Village Bhansoj, has also clearly supported the said fact as narrated by the appellant No.1. However, the trial Court has not specifically recorded any finding that the motive of offence is established. As such, the relevance of motive will be considered later on at the time of recording the conclusion. PW-2 Devadas, the Kotwar of Village Bhansoj, has also clearly supported the said fact as narrated by the appellant No.1. However, the trial Court has not specifically recorded any finding that the motive of offence is established. As such, the relevance of motive will be considered later on at the time of recording the conclusion. (ii) Memorandum Statement of appellant No.1:- 17. The memorandum statement of appellant No.1 was recorded on 27.11.2013 at 3:30 p.m. in presence of Devadas (PW-2) and Ramesh Kumar Dhritlahare (PW-1), in which she has stated that she had assaulted her sister-in-law Mamta Banjare by axe and left the axe in the room itself and in the evening her mother and father (appellant No.2) came back to the house and came to know about the incident and then her father picked up the axe and thrown it into the tank nearby their house and her father had got the axe recovered from the said tank. But, no recovery as such was made pursuant to the memorandum statement of the appellant No.1 and, ultimately, on the memorandum statement (Exhibit P-2) of appellant No.2, the recovery of bloodstained axe was made in presence of PW-1 and PW-2. However, PW-1 Ramesh Kumar Dhritlahare, who had gone inside the tank to find out the axe, has turned hostile. But, PW-2 Devadas, has supported the case of the prosecution. The recovered axe was sent to FSL and in the FSL report (Exhibit P-28), blood has been found on the axe (tangi) i.e. article 'E'. However, PW-1 Ramesh Kumar Dhritlahare, who had gone inside the tank to find out the axe, has turned hostile. But, PW-2 Devadas, has supported the case of the prosecution. The recovered axe was sent to FSL and in the FSL report (Exhibit P-28), blood has been found on the axe (tangi) i.e. article 'E'. [The trial Court has wrongly held that on the axe (tangi), human blood was found] and applying Section 106 of the IEA-1872, the trial Court recorded the following finding:- ^^37- mijksDrkuqlkj Li"V gS fd vfHk;qDr eerk eugjs }kjk iqfyl dks fn;s x;s eseksjsaMe c;ku iz0ih01 esa mlds }kjk ?kVuk esa iz;qDr [kwu ls luk Vafx;k dejs esa j[kk gksuk] ftls mlds firk th vFkkZr vfHk;qDr larw catkjs }kjk dejs ls fudkydj ?kj ds lkeus rkykc esa Qsad fn;k tkuk vkSj Vafx;s dks vfHk;qDr larw }kjk cjken djk fn;s tkus dk c;ku fn;k tkuk izekf.kr gksrk gSA blh izdkj iqfyl vfHkj{kk esa vfHk;qDr larw }kjk fn;s x;s eseksjsaMe c;ku iz0ih2 eas [kwu ls yFkiFk Vafx;k dejs esa iM+s gksus ,oa mls mBkdj ?kj ds lkeus dh Mcjh ds ikuh esa Qsad nsus vkSj pydj cjken djk nsus ckcr~ dFku fd;k tkuk rFkk mlds vk/kkj ij vfHk;qDr larw dh fu'kkunsgh ij vfHkqDrx.k ds ?kj ds lkeus fLFkr Mcjh rkykc ls tCrh i= iz0ih3 ds eqrkfcd Vafx;k tCr fd;k tkuk izekf.kr gksrk gS rFkk mDr Vafx;k ij ,Q-,l-,y tkap fjiksVZ iz0ih28 ds vuqlkj ekuo jDr gksus dh iqf"V gqbZ gSA mijksDr ifjfLFkfr;ksa ds vfrfjDr bl izdj.k esa vfHk;kstu lk{; ,oa Lohd`r rF; ds vk/kkj ij ;g izekf.kr gksrk gS fd ?kVuk ds le; vfHk;qDrk eerk eugjs us vius llqjky ls vkdj ek;ds essa fuokljr~ FkhA vfHk;kstu lk{; ls ;g Hkh izekf.kr gksrk gS fd ?kVuk fnukad 25-11-2013 dks e`frdk eerk catkjs ,oa vfHk;qDr eerk eugjs dks NksM+dj muds ?kj ds vU; lHkh lnL; /kku dVkbZ gsrq [ksr x;s gq, FksA ?kVuk ds le; ?kj esa vfHk;qDr eerk eugjs ,oa e`frdk eerk catkjs gh ekStwn FksA^^ 18. Now, the question would be whether the memorandum statement (Exhibit P-1) of appellant No.1 Mamta Manhare is admissible against appellant No.1. In order to consider the plea, it would be appropriate to notice Section 27 of the IEA-1872, which states as under:- “27. Now, the question would be whether the memorandum statement (Exhibit P-1) of appellant No.1 Mamta Manhare is admissible against appellant No.1. In order to consider the plea, it would be appropriate to notice Section 27 of the IEA-1872, which 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.” 19. The first decision in this regard is Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 in which it has been held that the fact discovered is not equivalent to the object produced and the fact discovered embraces the place from where the object is produced and the knowledge of the accused and the information given must relate distinctly to this fact, and observed as under:- "10 . ...In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; 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 this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 20. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 20. The principles of law laid down in the matter of Pulukuri Kottaya (supra) was followed with approval by their Lordships of the Supreme Court in the matter of Udai Bhan v. The State of U.P., AIR 1962 SC 1116 wherein it has been held as under:- "7. Thus, S. 27 partially removes the ban placed on the reception of confessional statements under S. 26. But the removal of the ban is not of such an extent as to absolutely undo the object of S.26. All it says is that so much of the statement made by a person accused of an offence and in custody of a police officer, whether it is confessional or not, as relates distinctly to the fact discovered is proveable. Thus, in this case taking the recovery memos the statements in regard to the key was this that the appellant handed over the key and said that he had opened the lock of the shop of the complainant with that key. The handing over of the key is not a confessional statement but the confession lies in the fact that with that key the shop of the complainant was opened and, therefore, that portion will be inadmissible in evidence and only that portion will be admissible which distinctly relates to the fact discovered i.e., the finding of the key. Similarly the recovery of the box is proveable because there is no statement of a confessional nature in that memorandum. XXX XXX XXX 11. Thus it appears that S. 27 does not nullify the ban imposed by S. 26 in regard to confessions made by persons in police custody but because there is the added guarantee of truthfulness from the fact discovered the statement whether confessional or not is allowed to be given in evidence but only that portion which distinctly relates to the discovery of the fact. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. Applying this test, in our opinion, the evidence in regard to the discovery of the key as well as the box was rightly admitted into evidence in the present case. Apart from this we have the finding of the High Court that the appellant was seen carrying the box near about the place of occurrence when he was coming from the side of the shop of the complainant. Therefore the contention as to the non-applicability of S. 27 is without substance and must be repelled." 21. Similarly, in the matter of Mohmed Inayatullah v. The State of Maharashtra, AIR 1976 SC 483 their Lordships of the Supreme Court considered Section 27 of the IEA-1872 and following Pulukuri Kottaya (supra) with approval, held as under:- "11. The expression "Provided that" together with phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates "to the fact thereby "discovered" (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates "to the fact thereby "discovered" (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. 12. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown, ILR 10 Lah 283 = (AIR) 1929 Lah 344) (FB); Gangu Chandra v. Emperor, ILR 56 Bom 172 = (AIR 1932 Bom 286). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor, 74 Ind App 65 = ( AIR 1947 PC 67 ): Udai Bhan v. State of Uttar Pradesh, 1962 Supp (2) SCR 830 = ( AIR 1962 SC 1116 ). XXX XXX XXX 17. The facts proved by the prosecution, particularly the admissible portion of the statement made by the accused, could give rise to two alternative hypotheses, equally possible, namely: (i) that it was the accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place. The second hypothesis was wholly compatible with his innocence. In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt." 22. The second hypothesis was wholly compatible with his innocence. In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt." 22. In the matter of Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 , the conditions precedent for application of Section 27 were culled out by their Lordships of the Supreme Court relying upon the earlier decision in Mohmed Inayatullah (supra) and Pulukuri Kottaya (supra), it was observed as under:- "16. The various requirements of the Section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 17. As observed in Palukuri Kotayya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. ( AIR 1962 SC 1788 )" 23. In the recent past, in the matter of Ramanand alias Nandlal Bharti v. State of Uttar Pradesh, AIR 2022 SC 5273 following Pulukuri Kottaya (supra), the conditions necessary for applicability of Section 27 have been stated, as under:- "64. In the recent past, in the matter of Ramanand alias Nandlal Bharti v. State of Uttar Pradesh, AIR 2022 SC 5273 following Pulukuri Kottaya (supra), the conditions necessary for applicability of Section 27 have been stated, as under:- "64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under: (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible – Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483 Two conditions for application – (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered Earabhadrappa v. State of Karnataka: AIR (1983) SC 446” 24. Recently, also in the matter of Siju Kurian v. State of Karnataka, AIR 2023 SC 2239 following the principles of law laid down in "Mohmed Inayatullah" (supra), it has been held as under:- "18. Section 27 permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. The statement of an accused recorded while being in police custody can be split into its components and can be separated from the admissible portions. Such of those components or portions which were the immediate cause of the discovery would be the legal evidence and the rest can be rejected vide Mohmed Inayatullah Vs. State of Maharashtra ( AIR 1976 SC 483 ). 19. It is a trite law that in pursuance to a voluntary statement made by the accused, a fact must be discovered which was in the exclusive knowledge of the accused alone. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible under Section 27. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible under Section 27. Such statement should have been voluntarily made and the facts stated therein should not have been in the knowhow of others..." 25. As such, it is evidently clear that the first condition necessary for bringing Section 27 of the IEA-1872 into operation is the discovery of the fact albeit necessary fact, in consequence of the information received from an accused of the offence. The second condition is that the discovery of such fact must be deposed to. The third condition is that at the time of the receipt of the information, the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. 26. The Supreme Court in the matter of Mohmed Inayatullah (supra) has also held in para-18 as under:- "18. The facts proved by the prosecution, particularly the admissible portion of the statement made by the accused, could give rise to two alternative hypotheses, equally possible, namely: (i) that it was the accused who had himself deposited the stolen drums in the musafirkhana, or (ii) the accused only knew that the drums were lying at that place. The second hypothesis was wholly compatible with his innocence. In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt." 27. Returning to the facts of the case, in the light of the aforesaid judgment rendered in Mohmed Inayatullah (supra), it is quite vivid that in the instant case the appellant No.1 in her memorandum statement (Exhibit P-1) has only stated that the weapon of offence has been thrown in the tank by appellant No.2. Nothing has been recovered pursuant to the memorandum statement of appellant No.1. As such, the alleged memorandum statement of the appellant No.1 is inadmissible in evidence. It is held so accordingly. (iii) Evidentiary value of the memorandum statement of appellant No.2 against appellant No.1:- 28. Pursuant to the said memorandum statement, the axe in question was recovered from the nearby tank by PW-1 Ramesh Kumar Dhritlahare and PW-2 Devadas. As such, the alleged memorandum statement of the appellant No.1 is inadmissible in evidence. It is held so accordingly. (iii) Evidentiary value of the memorandum statement of appellant No.2 against appellant No.1:- 28. Pursuant to the said memorandum statement, the axe in question was recovered from the nearby tank by PW-1 Ramesh Kumar Dhritlahare and PW-2 Devadas. Though PW-1 has turned hostile, but PW-2 has clearly supported the case of the prosecution that he (PW-2) and PW-1 both had gone into the tank to search out the axe which PW-1 had traced out and handed over to the police and it was seized by the police. The memorandum statement of the appellant No.2 has also been used against the appellant No.1 by virtue of Section 30 of the IEA-1872. 29. Now, the question would be, whether the trial Court is justified in using the memorandum statement of the appellant No.2 against the appellant No.1 with the aid of Section 30 of the IEA-1872 which reads as under:- “30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.— When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.—“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.” 30. A careful perusal of the aforesaid provision of law would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused against another accused only if the following two conditions are fulfilled:- 1. The co-accused should have been charged in the same case along with the confessor. 2. He should have been tried together with the confessor in the same trial. 31. Section 30 of the IEA-1872 came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 (Constitution Bench) in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In the said case, their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: - “11. …The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ... 12. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ... 12. …It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526 : ( AIR 1952 SC 159 ) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind Appellant 147 ( AIR 1949 PC 257 ) has been cited with approval. XXX XXX XXX 16. …As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.” 32. The principles of law laid down in Haricharan Kurmi (supra) have been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat & Anr., AIR 2019 SC 3363 . It has also been held by their Lordships that confession of an accused person is not evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 , Nathu v. State of Uttar Pradesh, AIR 1956 SC 56 and Govt. of NCT of Delhi v. Jaspal Singh, (2003) 10 SCC 586 .) 33. In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271 , their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the IEA-1872 and have observed as under: - “11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar (supra) wherein it was observed: (Haricharan case (supra), AIR p.1188, para 12) “12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty (ILR 1911 38 Cal 559 at p.588) a confession can only be used to “lend assurance to other evidence against a co-accused”. In Periaswami Moopan, In re (1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p.77) Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) ‘… where there is evidence against the coaccused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence’. In Bhuboni Sahu v. R. (1949 SCC OnLine PC 12 : 1948-49 76 IA 147 at p.155) the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) ‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence’. It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. (supra) where the decision of the Privy Council in Bhuboni Sahu case (supra) has been cited with approval.” 12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [For example: State v. Nalini, (1999) 5 SCC 253 , paras 424 and 704: 1999 SCC (Cri) 691] 34. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [For example: State v. Nalini, (1999) 5 SCC 253 , paras 424 and 704: 1999 SCC (Cri) 691] 34. Coming to the facts of the case, in the light of Section 30 of the IEA-1872 and as interpreted by the Constitution Bench in the matter of Haricharan Kurmi (supra), confession of an accused person is not a substantive piece of evidence and it cannot be made the foundation of a conviction and can only be used in support of other evidence. It is quite vivid that at the first instance the appellant No.1 was charged for the offence under Section 302 & 201 of IPC read with Section 34 of IPC whereas the appellant No.2 was only charged for the offence under Section 201 read with Section 34 of IPC. Ultimately, the appellant No.1 has been convicted for the offence under Section 302 of IPC and the appellant No.2 has been convicted under Section 201 of IPC. As such, it is the confessional statement of the appellant No.2 on the basis of which, he has been convicted for the offence under Section 201 of IPC. Even if the said confessional statement is taken to be true and voluntary, the question would be whether such confessional statement must be considered in view of Section 30 of the IEA-1872 and must be for the same offence. However, facts of the case would show that though appellant No.1 and 2 both have been tried jointly in Sessions Trial No.68/2014 but they are not tried for the same offence. The appellant no.1 was tried for the offence under Section 302 & 201 read with Section 34 of IPC whereas the appellant No.2 was tried for the offence under Section 201 read with Section 34 of IPC. Therefore, for the two confessional statements under Section 30 of the IEA-1872, both the accused persons ought to have been charged and tried for the same offence in the trial but they have not been tried for the same offence. Therefore, for the two confessional statements under Section 30 of the IEA-1872, both the accused persons ought to have been charged and tried for the same offence in the trial but they have not been tried for the same offence. In this regard, the decision of the Nagpur High Court in the matter of Tikaram Ratiram Kurmi v. Emperor, AIR 1939 Nagpur 309 may be noticed herein in which it has been held that where the accused persons have been tried for the offence murder and one of them has been convicted only for the offence under Section 201 of IPC, his confession cannot be taken against the other accused persons, observing as under:- " ...We are of opinion that the confession must be a confession of the offence for which the accused persons have been tried and not of some other offence. Here they have been tried for murder, but Awadhram confessed only to an offence under S. 201, I.P.C. In 50 Bom 683 it was held that a statement by one accused which would justify his conviction under S. 201, I.P.C., though not a confession of complete guilt so far as the charge of murder was concerned, was an indirect admission of constructive guilt and therefore could be taken into consideration against a co-accused. That view has been dissented from in 54 Mad 75 and is not in accordance with the recent decision of the Privy Council in AIR 1939 PC 47 where it was held that an admission of an incriminating fact is not of itself a confession." 35. In the matter of In Re Gangavva v. Unknown, AIR 1946 Madras 124 the Division Bench of the Madras High Court has held that where several accused are charged under Section 302 of IPC and one of them makes a confession of an offence punishable under Section 201 of IPC, the confession cannot be taken into account against the other accused with regard to the charge under Section 302. 36. 36. Reverting to the facts of the case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Haricharan Kurmi (supra), Dipakbhai Jagdishchandra Patel (supra), Surinder Kumar Khanna (supra), Tikaram Ratiram Kurmi (supra) and Gangavva (supra) and considering the provisions contained in Section 30 of the IEA-1872, it is quite vivid that confessional statement of a co-accused is a very weak piece of evidence and unless other circumstantial evidence or ocular evidence is available, conviction cannot be rested only on the confessional statement of co-accused with the aid of Section 30 of the IEA-1872. On the basis of confessional statement, the appellant No.2 has been charged for the offence under Section 201/34 of IPC whereas the appellant No.1 has been charged for the offence under Sections 302, 201/34 of IPC and since both the appellants have not been charged with the same offence of Section 302 of IPC, the conviction of the appellant No.1 on the basis of the confessional statement of appellant No.2 is of no use to the prosecution so far as appellant No.2 is concerned. As such, the memorandum statement of appellant No.2 is not admissible against the appellant No.1 and it is held so accordingly. (iv) Applicability of Section 106 of the IEA-1872:- 37. Now, the circumstance that the trial Court has found proved is that the appellant No.1 was residing at her parental home after deserting her matrimonial home and on the date and time of offence, apart from appellant No.1 Mamta Manhare and the deceased Mamta Banjare, no one else was present in the house, as all the other family members had gone for performing some agriculture operation and, as per Exhibit P-1, they came back in the evening and found Mamta Banjare dead and the bloodstained axe was also found to be lying there in the room itself. Therefore, the appellant No.1 was required to explain in her Section 313 of CrPC statement as to how Mamta Banjare died under suspicious circumstances in her house. 38. At this stage, it would be appropriate to quote Section 106 of the IEA-1872, which states as under:- “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 39. 38. At this stage, it would be appropriate to quote Section 106 of the IEA-1872, which states as under:- “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 39. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the IEA-1872, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 40. In the matter of Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the IEA-1872 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the IEA-1872, speaking through Vivian Bose, J., observed as under: - “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).” Their Lordships further held that Section 106 of the IEA-1872 cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 41. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under :- “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 42. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 42. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 , while considering the provisions contained in Sections 103 & 106 of the IEA-1872, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 43. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar, AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 44. The Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 held in Para-22 as under: “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh, (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time.” 45. Recently, the Supreme Court in the matter of Ram Gopal v. State of Madhya Pradesh, (2023) 5 SCC 534 has held that if the evidence of theory of last seen together is supported by other corroborating piece of evidence it can be relied upon to base the conviction and has observed as under: “9. In view of the aforestated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon, etc. forming a chain of circumstances is established, the conviction could be based on such evidence.” 46. Similarly, in the matter of Ravasaheb alias Ravasahebagouda v. State of Karnataka, (2023) 5 SCC 391 , their Lordships of the Supreme Court have relied upon their earlier judgments including Ramgopal (supra) and have held as under :- “29. On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of the deceased, etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon {Satpal v. State of Haryana and Ram Gopal v. State of M.P. (supra)}.” 47. Bearing in mind the principles of law laid down in above-stated judgments, in the instant case though the trial Court has recorded the finding that the appellant No.1 and the deceased Mamta Banjare both were in the house when all the other family members had gone to the field for performing some agriculture operation, but careful perusal of the statement of the prosecution witnesses would show that none of the prosecution witnesses has stated that on the date and time of offence, except for the appellant No.1 and the deceased, no one else was present in the house and their family members had gone to the field for agriculture purpose. More particularly, as per the prosecution case, the appellant No.2 was in the house and he immediately picked up the axe which was lying there in the room and thrown the axe in the nearby tank. More particularly, as per the prosecution case, the appellant No.2 was in the house and he immediately picked up the axe which was lying there in the room and thrown the axe in the nearby tank. As such, the theory of last seen together though found established by the trial Court, but, in our considered opinion, the said finding of the trial Court is not based on cogent evidence of clinching nature to hold that the appellant No.1 and the deceased were last seen together alive. It is well settled that the theory of last seen together has to be established beyond reasonable doubt and only on the theory of last seen together being established, the burden then shifts upon the accused person to explain as to how and under what circumstances the incident took place, as in the instant case the death of Mamta Banjare. As such, the prosecution has failed to prove the theory of last seen together beyond reasonable doubt and, therefore, in view of Section 106 of the IEA-1872, the said finding of the trial Court is not based on evidence available on record. 48. The other circumstance which the trial Court has also found established is that the bloodstained axe was lying the room of the deceased and which, pursuant to the memorandum statement (Exhibit P-2) of appellant No.2, was recovered and vide FSL report (Exhibit P-28) human blood has been found on the axe. However, from perusal of the FSL report (Exhibit P-28) available at page 99 of the paper-book, it is evidently clear that no human blood has been found on the axe (article 'E') but only blood has been found on it. As such, the finding recorded by the trial Court in this regard is an incorrect finding. 49. In Balwan Singh v. State of Chhattisgarh & Anr., (2019) 7 SCC 781 it has been held by their Lordships of the Supreme Court that if recovery is proved beyond reasonable doubt and weapon of offence is found established with human blood on it then the recovery may be used against the accused person and held as under:- “24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.” 50. In the instant case, the weapon of offence i.e., axe (tangi), though was recovered at the behest of appellant No.2, but no human blood has been found on the same, as is evident from the FSL report (Exhibit P-28). In that view of the matter, in the light of the decision of the Supreme Court in Balwan Singh (supra), the recovery is of no use and that no other evidence has been brought on record. 51. In view of the aforesaid legal analysis and discussion of evidence, we are unable to uphold the conviction of the appellant No.1 Mamta Manhare for the offence under Section 302 of IPC and accordingly her conviction is set-aside and she is acquitted from the offence punishable under Section 302 of IPC. Appeal of appellant No.2 Santu Banjare :- 52. Now, so far as the appellant No.2 Santu Banjare is concerned, he has only been convicted by the trial Court for the offence punishable under Section 201 of IPC. 53. Now, the question would be that since the appellant No.1 Mamta Manhare is acquitted from the offence punishable under Section 302 of IPC, whether the conviction of appellant No.2 Santu Banjare under Section 201 of IPC can be sustained? 54. In order to judge the correctness of the finding recorded by the trial Court convicting the appellant No.2 Santu Banjare for offence under Section 201 of IPC, it would be appropriate to notice Section 201 of IPC which states as under:- “201. 54. In order to judge the correctness of the finding recorded by the trial Court convicting the appellant No.2 Santu Banjare for offence under Section 201 of IPC, it would be appropriate to notice Section 201 of IPC which states as under:- “201. Causing disappearance of evidence of offence, or giving false information to screen offender .— Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.” 55. The aforesaid provision relates to disappearance of any evidence of the commission of an offence and includes also the giving of false information with the intention of screening an offender. Sections 202 and 203 of IPC relate to the giving or omitting to give such information and Section 204 of IPC to the destruction of documentary evidence. The first paragraph lays down the essential ingredients of the offence under Section 201 of IPC. It must be proved firstly that an offence has been committed. Secondly, the accused must know or have reason to believe that the offence has been committed. Thirdly, the accused must either cause any evidence of the commission of that offence to disappear or give any information respecting the offence which he knows or believes to be false. It must be proved firstly that an offence has been committed. Secondly, the accused must know or have reason to believe that the offence has been committed. Thirdly, the accused must either cause any evidence of the commission of that offence to disappear or give any information respecting the offence which he knows or believes to be false. Fourthly, the accused must have acted with the intention of screening the offender from legal punishment. 56. The Supreme Court in the matter of Sukhram v. State of Maharashtra, (2007) 7 SCC 502 has considered prerequisites for conviction for offence under Section 201 of IPC and held that the intent to screen the offender committing an offence must be the primary and sole aim of the accused and there must be on record cogent evidence to prove that intention and a mere suspicion is not sufficient to bring home the said offence. It was observed as under:- “18. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown. 19. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown. 19. In Palvinder Kaur v. State of Punjab, AIR 1952 SC 354 this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also see Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829 , Nathu v. State of U.P., (1979) 3 SCC 574 , V.L. Tresa v. State of Kerala, (2001) 3 SCC 549 .)” 57. In Nagendra Nath Bhakta v. Emperor, AIR 1934 Cal 144, it has been held by the Calcutta High Court that removing the corpse of a murdered man from the scene of murder to another place does not come under Section 201 as the removal does not cause the disappearance of some evidence of the commission of the murder. 58. The Supreme Court in the matter of Duvvur Dasratharammareddy v. State of Andhra Pradesh, (1971) 3 SCC 247 , has held that if the evidence relating to the offence of murder and disappearance of evidence is the same and the case of the prosecution regarding the Offence of murder is not accepted, it follows that the accused cannot be convicted for the offence under Section 201 of IPC. 59. Similarly, the Supreme Court in the matter of State of U.P. v. Kapil Deo and Another, (1991) Supp (2) SCC 170. following its earlier decision in Duvvur Dasratharammareddy (supra) has held that when the evidence against the accused person, ocular as well as circumstantial, has cautiously been weighed by this Court resulting in his acquittal, it is difficult to convict the said accused for offence under Section 201 read with 34 of IPC. "8. following its earlier decision in Duvvur Dasratharammareddy (supra) has held that when the evidence against the accused person, ocular as well as circumstantial, has cautiously been weighed by this Court resulting in his acquittal, it is difficult to convict the said accused for offence under Section 201 read with 34 of IPC. "8. We have heard learned counsel for the parties and have perused the evidence and material on the record. The fact staring at us is that the prosecution case collapsed so far as Vidya Sagar, accused is concerned and he stands acquitted of the charge of murder. It is to be borne in mind that he prominently was assigned the offensive part of the crime of murder. It is he who was seen cutting the throat of the deceased with a big knife. It is he who was seen escaping from the scene of the occurrence carrying a blood-stained knife in his hand. It is he who was sought to be apprehended by the eye-witnesses and others collected there. When the evidence against him, occular as well as circumstantial, has cautiously been weighed by this Court resulting in his acquittal, we find it difficult to convict the said accused for offence under section 201 read with Section 34 I.P.C. This Court though slightly in different circumstances in Duvvur Dasratharammareddy v. State of Andhra Pradesh, [1971] 3 SCC 247, observed as follows: "If the evidence relating to the offence of murder and disappearance of evidence is the same and the case of the prosecution regarding the Offence of murder is not accepted, it follows that the accused cannot be convicted' for the offence under Section 201, I.P.C." One of the circumstances which weighed in favour of Vidya Sagar. accused was that he alone was not in the house to be solely responsible for the murder when committed and at that time besides him therein were said to be Kapil Deo and Ramapati, accused. What has been spelled out in favour of Vidya Sagar can with equal force apply to the case of Kapil Deo and Ramapati, accused. If the so called opportunity to likewise commit the crime was available to Kapil Deo and Ramapati and not a circumstance to hold Vidya Sagar as one of the inmates of the house guilty, it can conversely be said in the same manner about the guilt of Kapil Deo and Ramapati. If the so called opportunity to likewise commit the crime was available to Kapil Deo and Ramapati and not a circumstance to hold Vidya Sagar as one of the inmates of the house guilty, it can conversely be said in the same manner about the guilt of Kapil Deo and Ramapati. Their being avail- able in the house per se was not enough to hold them guilty for the offence of murder. Thus there is no occasion to convict Kapil Deo and Ramapati, accused-respondents in Criminal Appeal No. 579 of 1976 for the offence of murder in view of the verdict of acquittal in favour of Vidya Sagar. The High Court itself had observed that there was hardly any evidence to connect Kapil Deo, Ramapati & Smt. Sheo Kumari, accused with the murder of Vinod Kumar especially when the eye witnesses account given by P.Ws. 1 to 3 was not very reliable. And further that from the circumstance that the aforesaid three accused were inside the house at the time of the murder it could not be inferred that they were accessories to the crime before the occurrence took place nor could it be inferred that the murder was committed in furtherance of the common intention of all. On this basis, these three accused were given the benefit of doubt and acquitted of the charge of murder and the view of the High Court, appears to us to be correct. The acquittal of Kapil Deo and Ramapati, respondents in Criminal Appeal No. 579 of 1976 thus must be and is hereby maintained, dismissing the Criminal Appeal No. 579 of 1976." 60. Likewise, in the matter of Dinesh Kumar Kalidas Patel v. State of Gujarat, (2018) 3 SCC 313 the Supreme Court has laid down the circumstances under which the charge for the offence punishable under Section 201 of IPC can be laid and conviction can be maintained:- "10. In V.L. Tresa v. State of Kerala, (2001) 3 SCC 549 , this Court has discussed the essential ingredients of the offence under Section 201 IPC at para 12: (SCC p. 555) “12. In V.L. Tresa v. State of Kerala, (2001) 3 SCC 549 , this Court has discussed the essential ingredients of the offence under Section 201 IPC at para 12: (SCC p. 555) “12. Having regard to the language used, the following ingredients emerge: (I) committal of an offence; (II) person charged with the offence under Section 201 must have the knowledge or reason to believe that the main offence has been committed; (III) person charged with the offence under Section 201 IPC should have caused disappearance of evidence or should have given false information regarding the main offence; and (IV) the act should have been done with the intention of screening the offender from legal punishment.” 11. In Sukhram v. State of Maharashtra, (2007) 7 SCC 502 : (2007) 3 SCC (Cri) 426, this Court discussed Kalawati (supra), Palvinder Kaur (supra), Suleman Rehiman (supra) and V.L. Tresa (supra) among others. The essential ingredients for conviction under Section 201 IPC have been discussed at para18: (Sukhram case, SCC pp. 510-11) “18. The first paragraph of the section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.” 12. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.” 12. In Vijaya v. State of Maharashtra, (2003) 8 SCC 296 : (2003) SCC (Cri) 1998, though this Court held that the decision in V.L. Tresa (supra) was of no assistance to the State in the particular facts, it reiterated that: (Vijaya case, SCC p. 299, para 10) “10. ...there is no quarrel with the legal principle that notwithstanding acquittal with reference to the offence under Section 302 IPC, conviction under Section 201 is permissible, in a given case.” 13. The decisions in Vijaya (supra) and V.L. Tresa (supra) were noticed in State of Karnataka v. Madesha, (2007) 7 SCC 35 : (2007) 3 SCC (Cri) 292. While the appeal of the State was dismissed, this Court in unmistakable terms held that: (Madesha case, SCC p. 39, para 9) “9. It is to be noted that there can be no dispute that Section 201 would have application even if the main offence is not established in view of what has been stated in V.L. Tresa and Vijaya cases…” 14. Thus, the law is well-settled that a charge under Section 201 IPC can be independently laid and conviction maintained also, in case the prosecution is able to establish that an offence had been committed, the person charged with the offence had the knowledge or the reason to believe that the offence had been committed, the said person has caused disappearance of evidence and such act of disappearance has been done with the intention of screening the offender from legal punishment. Mere suspicion is not sufficient, it must be proved that the accused knew or had a reason to believe that the offence has been committed and yet he caused the evidence to disappear so as to screen the offender. The offender may be either himself or any other person." 61. Mere suspicion is not sufficient, it must be proved that the accused knew or had a reason to believe that the offence has been committed and yet he caused the evidence to disappear so as to screen the offender. The offender may be either himself or any other person." 61. Returning to the facts of the case, it is quite vivid that in view of the findings recorded herein above and the acquittal of the appellant No.1 Mamta Manhare from the offence punishable under Section 302 of IPC, it has not been established that the appellant No.2 Santu Banjare had the knowledge or reason to believe that an offence has been committed and the axe in question was thrown in the tank in order to cause disappearance of evidence for offence under Section 201 of IPC and it was done with the intention of screening the appellant No.1 Mamta Manhare from the legal punishment. As such, the conviction of appellant No.2 Santu Banjare for the offence punishable under Section 201 of IPC cannot be held to be found established. Hence, we are unable to uphold the conviction of appellant No.2 Santu Banjare for the offence punishable under Section 201 of IPC and he is also acquitted from the said offence. 62. Now, so far as motive of offence is concerned, the Supreme Court in respect of motive in Subramanya v. State of Karnataka, AIR 2022 SC 5110 has already held that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. Conclusion 63. Accordingly, the conviction of appellant No.1 Mamta Manhare for the offence under Section 302 of IPC as well as the conviction of appellant No.2 Santu Banjare for the offence under Section 201 of IPC are set-aside and they are acquitted from the said offences. Appellant No.1 Mamta Manhare being in custody, she be released forthwith, if she is not required in any other offence. Since appellant No.2 Santu Banjare is on bail, his bail-bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of CrPC. 64. As a consequence, the appeal is allowed to the extent indicated herein-above. 65. Since appellant No.2 Santu Banjare is on bail, his bail-bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of CrPC. 64. As a consequence, the appeal is allowed to the extent indicated herein-above. 65. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant No.1 is lodged and suffering jail sentence, forthwith for necessary information and action, if any.