JUDGMENT : Ramesh Sinha, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment dated 06.01.2016 passed by the Additional Sessions Judge, Saraipali, District – Mahasamund (C.G.) in Sessions Trial No.64/2014, whereby the learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.2,000/-, in default of payment of fine to further undergo simple imprisonment for two months. 2. Case of the prosecution, in brief, is that on 28.07.2014 the informant Aagarati Soni (PW-1) lodged oral report regarding unnatural death of the deceased Ku. Priya Soni at Outpost Bhanwarpur, Police Station Basna stating therein that deceased Ku. Priya Soni had gone to the pond to take bath after telling her younger sister Ku. Siriya Soni at around 9.30 am and when she did not return home till around 12 o’clock, Ku. Siriya Soni told Kotwarin Chandrabai in this regard that there was no one in the house, Ku. Priya had gone to take bath and had not returned. Then the family members came home and started searching for Ku. Priya. While searching Vijay and Rajesh had shown her dead body floating on the water in the same pond where she had gone to take a bath, later others saw, deceased’s scarf (odhni) was found in a patch on the bank of the pond and the deceased’s slippers were found inside the pond. The deceased appears to have died by drowning in water while bathing. On the basis of said information of untimely death, merg intimation was registered at the police outpost Bhawarpur and in connection with the investigation about the death of deceased Priya Soni, the Bhawarpur police reached the spot and prepared the panchnama of the dead body and to know the exact cause of death, the dead body was sent for postmortem to Community Health Centre, Basna, wherein Dr. B. B. Koshariya (PW-14) conducted post postmortem vide Ex.P-14 and opined that cause of death was asphyxia due to drowning. 3. After investigation in the case, Crime No. 2989/14 was registered against the accused at Police Station, Basna under Section 302 of the IPC vide Ex.P-18. B. B. Koshariya (PW-14) conducted post postmortem vide Ex.P-14 and opined that cause of death was asphyxia due to drowning. 3. After investigation in the case, Crime No. 2989/14 was registered against the accused at Police Station, Basna under Section 302 of the IPC vide Ex.P-18. The appellant was taken into custody vide Ex.P-13, his memorandum statement was taken in presence of Premlal (PW-9) and Jainarayan (PW-6) vide Ex.P-10 and pursuant to his memorandum statement, one small steel bucket, 2 blue colour petticoat, one green half sleeve T-shirt, 1 full sleeve brown shirt, 1 pink colour scarf (odhni), 1 colurful kurta, 1 light blue salwar, 1 green sameej, 1 pink undergarment, 1 hair bun and 1 bath soap in plastic container were seized vide Ex.P-11 and one Micromax company mobile was seized vide Ex.P-12. The appellant/accused was made extra-judicial confession before Shyam Kumar Patel (PW-4) and Mohitram (PW-5) that he has committed murder of the deceased by drowning her on pond. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge-sheet was filed against the appellant/accused and it was committed to the jurisdictional Criminal Court for hearing in accordance with law for offence under Section 302 of the IPC. The appellant herein abjured the guilt and entered into defence. 5. In order to bring home the above-stated offence, the prosecution examined as many as 23 witnesses and exhibited 19 documents Exs.P-1 to P-19, whereas the accused/appellant has examined two witnesses in his defence. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 06.01.2016, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred by the appellant/accused. 7. Ms. M. Asha, learned counsel for the appellant, would submit that the prosecution has failed to prove the offence beyond reasonable doubt as death is established to be drowning, but it has not been established that death was homicidal in nature or it is the appellant who pushed the deceased into water by which she drowned & died. 7. Ms. M. Asha, learned counsel for the appellant, would submit that the prosecution has failed to prove the offence beyond reasonable doubt as death is established to be drowning, but it has not been established that death was homicidal in nature or it is the appellant who pushed the deceased into water by which she drowned & died. She further submitted that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC as there is no evidence except so-called extra-judicial confession allegedly made by the accused to Shyam Kumar Patel (PW-4) and Mohitram (PW-5), therefore, it is totally irrelevant and on that basis, conviction cannot be recorded. She would further submit that conviction cannot be rested on extra-judicial confession only unless it is supported by other evidence, which are lacking in the instant case. As such, conviction without any evidence is unsustainable and liable to be set aside. 8. On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer, appearing for the respondent/State, would submit that it is the appellant who had made extra-judicial confession before Shyam Kumar Patel (PW-4) and Mohitram (PW-5) that he has committed murder of the deceased by drowning her on the pond. He further submitted that on the basis of memorandum statement (Ex.P-10) of the accused/appellant which was taken place in the presence of Jainarayan (PW-6) and Premlal (PW-9), one small steel bucket, 2 blue colour petticoat, one green half sleeve T-shirt, 1 full sleeve brown shirt, 1 pink colour scarf (odhni), 1 colurful kurta, 1 light blue salwar, 1 green sameej, 1 pink undergarment, 1 hair bun and 1 bath soap in plastic container were seized vide Ex.P-11 and one Micromax company mobile was seized vide Ex.P-12 and the statements of the aforesaid seizure witnesses have not been controverted by the accused/appellant. It has also been argued that the appellant/accused has made extra-judicial confession before Shyam Kumar Patel (PW-4) and Mohitram (PW-5) that he has committed murder of the deceased by drowning her on pond and as such, the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC and the appeal deserves to be dismissed. 9. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. 9. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. It is apparent from evidence brought on record that deceased Ku. Priya Soni had gone to the pond to take bath after telling her younger sister Ku. Siriya Soni at around 9.30 am and when she did not return home till around 12 o’clock, Ku. Siriya Soni told Kotwarin Chandrabai in this regard that there was no one in the house, Ku. Priya had gone to take bath and had not returned. Then the family members came home and started searching for Ku. Priya. While searching Vijay and Rajesh had shown her dead body floating on the water in the same pond where she had gone to take a bath, later others saw, deceased’s scarf (odhni) was found in a patch on the bank of the pond and the deceased’s slippers were found inside the pond. The deceased appears to have died by drowning in water while bathing. On the basis of said information of untimely death, merg intimation was registered at the police outpost Bhawarpur and in connection with the investigation about the death of deceased Priya Soni, the Bhawarpur police reached the spot and prepared the panchnama of the dead body and to know the exact cause of death, the dead body was sent for postmortem to Community Health Centre, Basna, wherein Dr. B. B. Koshariya (PW-14) conducted post postmortem vide Ex.P-14, wherein no external injury was found over the body of the deceased and the cause of death was shown as asphyxia due to drowning. 11. The question for consideration would be, whether recovery so made from open place pursuant to memorandum statement of the accused is admissible and it can be used against him or not ? 12. At this stage, it would be appropriate to notice Section 27 of the Evidence Act, 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.” 13. The aforesaid provision is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only: (i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody and (ii) if the information relates distinctly to the fact discovered. Under this section, (a) there must be information; (b) it does not matter whether the information amounts to confession or not; (c) that person must be in the custody of a police officer; (d) in consequence of the information a fact must be deposed to as discovered and (e) in such a case so much of the information as relates distinctly to the fact thereby discovered may be proved. 14. The Supreme Court in the matter of Trimbak v. The State of Madhya Pradesh, AIR 1954 SC 39 has held in that case that when the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. 15. Reverting to the facts of the present case in the light of principle of law flowing from Section 27 of the Evidence Act and principle of law laid down by the Supreme Court in the above-stated judgment (supra), it is quite vivid that in the instant case, on the basis of memorandum statement (Ex.P-10), one small steel bucket, 2 blue colour petticoat, one green half sleeve T-shirt, 1 full sleeve brown shirt, 1 pink colour scarf (odhni), 1 colurful kurta, 1 light blue salwar, 1 green sameej, 1 pink undergarment, 1 hair bun and 1 bath soap in plastic container were seized from open place visible and accessible to others and this fact has already been admitted by witnesses of memorandum and seizure i.e. Jainarayan (PW-6) and Premlal (PW-9). As such, recovery of said items is totally inadmissible in evidence as it has been recovered from open place or accessible to others. Therefore, recovery of said items pursuant to disclosure statement of the accused/appellant is not admissible in evidence and as such, it is of no help to the prosecution/State. 16. The Orissa High Court in the matter of Adi Bhumiani v. State, AIR 1957 ORISSA 216 relying upon Modi's Medical Jurisprudence and Toxicology has held that in the case of death by drowning, asphyxia is a common cause in the majority of cases, as water getting into the lungs gets churned up with air and mucus, and produces a fine froth which blocks the air vesicles. 17. As per postmortem report (Ex.P-14), both the lungs of the deceased were found voluminous. Therefore, it is duly established that it was death due to drowning. 18. It has been attempted by the prosecution to establish that it is the appellant who pushed deceased Ku. Priya Soni into water, therefore, he is author of the crime in question. 19. In order to prove the said fact, two alleged witnesses Agarati (PW-1) and Vijay Soni (PW-22) have been examined. We will take their statements one by one. Agarati (PW-2) in para 1 of his statement though has stated before the Court that on the date of incident there was a dispute with the accused when deceased Priya was getting ready after taking a bath and the accused has pushed Priya and drowned her in the pond, but in his cross-examination he has admitted that he had not seen the accused drowning Priya. As such, it is not proved that the accused was author of the crime. 20. Next witness Vijay Soni (PW-22) in para 1 of his statement has stated that on the date of incident, around 10-11 am, he was that the accused was sitting near the same pond where Priya had died. When he asked the accused, he told that he had put a net in the pond. In para 3, he has further stated that on the second day after the dead body was found, accused Bhogiram had gone away from the village. When he came back in the evening, the prominent people of the village interrogated the accused regarding the incident, then accused confessed in front of everyone that he had strangulated Ku. In para 3, he has further stated that on the second day after the dead body was found, accused Bhogiram had gone away from the village. When he came back in the evening, the prominent people of the village interrogated the accused regarding the incident, then accused confessed in front of everyone that he had strangulated Ku. Priya Soni threw her in the pond, but it is evident from the postmortem report that there is no injury found over the dead body of the deceased. As such, this witness cannot be said to be reliable witness particularly in absence of external injury over the body of the deceased, cause of death to be drowning. 21. The next piece of evidence that has been put-forth by the prosecution is extra-judicial confession, which has allegedly made by the accused/appellant to Shyam Kumar Patel (PW-4) that he has committed murder of the deceased and thrown body of Ku. Priya Soni in pond and to Mohitram (PW-5) that while he was taking bath in the pond he emerged Priya into water due to which she became unconscious then he left and came back home. The accused also told that after sometime he went back to the pond where he had emerged Priya, saw her lying in the water, thereafter he took her from one end to the other and left her. 22. At this stage, it would be appropriate to notice relevant judgments qua extra-judicial confession. The Supreme Court in the matter of C.K.Raveendran v. State of Kerala, AIR 2000 SC 369 has held that it is difficult to rely upon the extra judicial confession as the exact words or even the words as nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so the extra judicial confession has to be excluded from the purview of consideration for bring home the charge. 23. In the matter of Balwinder Singh v. State of Punjab, (1995) Supp (4) SCC 259 the Supreme Court has held that an extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession. 24. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession. 24. In the matter of Sakharam Shankar Bansode v. State of Maharashtra, AIR 1994 SC 1594 the Supreme Court has held that a retracted extra-judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence 25. Thus, it is quite clear that extra-judicial confession is a weak piece of evidence as it is not supported by other circumstantial evidence against the appellant. According to opinion of Dr. B.B. Kosariya (PW-14), cause of death was asphyxia due to drowning. 26. Finally, reverting to the facts of the present case in light of aforesaid legal proposition, it is quite established that deceased Ku. Priya Soni died by drowning. As per postmortem report coupled with statement of Dr. B.B. Kosariya (PW-14), it is a case of death by drowning, but it has not been established that it is only and only the appellant who is author of the crime and who pushed the deceased into water by which she drowned & died as statements of Agarati (PW-2) and Vijay Soni (PW-22) are contradictory to each other with regard to the manner in which the appellant is said to have murdered the deceased and it also suffers from material omissions and contradictions. As such, it is inadmissible in evidence in the light judgment of the Supreme Court noticed hereinabove and furthermore, extra-judicial confession is a weak piece of evidence and unless it is supported by other incriminating evidence, conviction of the accused cannot be rested upon extra-judicial confession in the light of judgments of the Supreme Court in Balwinder Singh (supra) as it has not been corroborated by other independent evidence and as such, the prosecution has failed to prove the offence under Section 302 of the IPC beyond reasonable doubt. 27. On the basis of aforesaid analysis, we are of the considered opinion that the prosecution has failed to bring home the offence under Section 302 of the IPC against the appellant beyond reasonable doubt and learned trial Court has convicted the appellant for offence under Section 302 of the IPC by recording the finding which is wholly perverse to record. 28. 28. Consequently, the criminal appeal is allowed. Impugned judgment dated 06.01.2016 passed by the Additional Sessions Judge, Saraipali, District – Mahasamund (C.G.) in Sessions Trial No.64/2014 convicting and sentencing the appellant for the offence under Section 302 of the IPC is hereby set aside. The accused/appellant is acquitted of the charge under Section 302 of the IPC levelled against him. He is in jail. He be released forthwith, if not required in any other case. 29. Keeping in view the provisions of Section 437-A CrPC, the accused-appellant, namely, Bhogiram Bariha is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure to the satisfaction of the trial Court concerned with two reliable sureties which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 30. Let the lower court records and copy of this judgment be sent to the trial court forthwith for necessary information and its compliance.