Judgment : (Sanjay K. Agrawal, J.) 1. This criminal appeal preferred under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 30.03.2019 passed by learned Additional Sessions Judge (F.T.C.) Sarguja, Ambikapur, in Sessions Trial No.40/2016, by which the appellant herein has been convicted under Sections 302 & 201 of I.P.C. and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment and fine of Rs. 500/- in default of payment of fine, additional simple imprisonment for 1 month. U/s.201 of I.P.C. : Rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of fine, additional simple imprisonment for 1 month. Both the sentence to run concurrently. 2. Case of the prosecution, in short, is that on 23.12.2015 at 5:00 P.M. at village Kunmera, under Sarna bridge on the road of Kursipar and Togri, Police Station- Sitapur, the appellant herein assaulted one Prabha (now deceased) by heavy stone, by which she suffered grievous injuries and died and in order to screen himself from the offence, hide the dead body near Sarna bridge; thereby the offence has been committed. It is alleged that the appellant & deceased though not married, but they were living as husband & wife on the date of offence. The matter was reported to the police, pursuant to which, Dehati Merg Intimation was registered vide Ex.P-3, Dehati Nalsi was registered vide Ex.P-4, Merg Intimation was Registered vide Ex.P-4A, FIR was registered vide Ex.P-21, Inquest was conducted vide Ex.P-2 and dead body of deceased Prabha was subjected to post-mortem, which was conducted by Dr. Rajesh Bhajgawali (PW-5), who proved the post-mortem report vide Ex.P-14, according to which, cause of death was stated to be cardio respiratory arrest due to skull fracture and brain haemorrhage and death was homicidal in nature. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. 3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 & 201 of I.P.C. and sentenced as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Ratnesh Kumar Agrawal, learned counsel for the appellant, would submit that it has not been proved that the deceased was legally wedded wife of the appellant. He further submits that Lalita Lakda (PW-7) who has lastly seen the appellant along-with deceased has already turned hostile and not supported the case of the prosecution. Even otherwise, the appellant and deceased both were lastly seen on 21.12.2015, but the dead body was recovered on 24.12.2015 vide Ex.P-3 (Dehati Merg Intimation) and Vinod Kumar Bhagat (PW-2) to whom the appellant is allegedly given extra judicial confession has turned hostile and not supported the case of the prosecution, therefore, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Prabha was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-14, proved by Dr. Rajesh Bhajgawali (PW-5), according to which, cause of death was stated to be cardio respiratory arrest due to skull fracture and brain haemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra , [ (1984) 4 SCC 116 ] , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. 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.” 10. The trial Court has culled out the following incriminating circumstances in paragraph 20 of its judgment, which states as under : 20- bl v|ru izdj.k esa fuEufyf[kr ifjfLFkfr;ksa ij vfHk;kstu ds lk{; ls izekf.kdrk ij fopkj fd;k tkuk gS %& 1& D;k e`frdk dh e`R;q ekuoo/k Lo:i dh gS\ 2& D;k fnukad 21-12-2015 dks fo’kk[kkiVue ls vkus ds i'pkr~ e`frdk izHkk ,oa vfHk;qDr dk ?kVuk ds iwoZ rd ,d lkFk jguk ik;k x;k\ 3& D;k vfHk;qDr us ?kVuk ds i'pkr vfHk;kstu lkf{k;ksa ds le{k ?kVuk ds laca/k esa U;kf;dsRrj laLohd`fr dh xbZ Fkh\ 4& D;k ?kVukLFky ls vfHk;qDr ds eseksjs.Me dFku ds vk/kkj ij mldh fu’kkunsgh ij mldh QqyiSaV ,oa pM~Mh dh cjkenxh gqbZ\ 5& D;k ?kVukLFky ls vfHk;qDr dh fu’kkunsgh ij ?kVuk esa iz;qDr iRFkj dh cjkenxh gqbZ\^^ 11. In order to consider the correctness of the findings so recorded by the trial Court, we will consider the aforesaid incriminating circumstances one by one. 12. The first incriminating circumstance that the death of deceased was homicidal in nature is a correct finding of fact based on evidence available on record. 13. The second and third incriminating circumstances are that the appellant and deceased both were seen together prior to date of incident and the appellant has given extra judicial confession, which the trial Court has found established. However, in this regard, there is no evidence except the self- serving statement of Sunita (PW-6), Lalita Lakda (PW-7) and Novas Ekka (PW-8) that the appellant and deceased both were living together as husband & wife and furthermore, Lalita Lakda (PW-7) had seen the appellant and deceased when they have left Vishakhapatnam on 21.12.2015 and thereafter, the dead body of deceased was recovered as per the statement of Jeevan Minj (PW-1) on 24.12.2015 after a considerable time gap of 72 hours. 14. In the matter of Navneethakrishnan v. State by Inspector of Police , (2018) 16 SCC 161 , their Lordships of the Supreme Court have clearly held that evidence of last seen is an important piece of evidence, but accused cannot be convicted solely on the basis of evidence of last seen together and it requires corroboration and held as under :- “18. … It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” 15. However, in shape of corroboration, the prosecution has brought that the appellant has given extra judicial confession to Vinod Kumar Bhagat (PW-2) on 22.12.2015; however, PW-2 has been declared hostile and has not supported the case of the prosecution and on being leading question asked, he has only stated that the appellant has informed him that, on account of anger, he has assaulted the deceased and thereafter, he has assaulted her by stone. 16. It is a settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan v. State of Tamil Nadu , (2012) 6 SCC 403 ]. 17. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab , 1995 Supp (4) SCC 259 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :- “15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial 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 extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra- judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. , (2011) 11 SCC 754 and Pancho v. State of Haryana, (2011) 10 SCC 165 .) The principles 16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused : (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 18. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 18. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh , Criminal Appeal No. 1304 of 2018 , judgment dated 16/03/2023 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar , 2023 LiveLaw (SC) 197 , the following principle of law has been laid down by their Lordships in paragraph 5 of the report :- “EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION 5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ” 19. The fourth and fifth incriminating circumstances are that pursuant to memorandum statement of the appellant, his full- pant & underwear was recovered from the spot and the weapon of offence i.e. stone was also recovered from the spot. In view of the evidence available on record, full-pant & underwear of the appellant and the stone, which was used for commission of offence, have not been recovered pursuant to memorandum statement of the appellant, but it has been recovered from the spot and therefore, it is of no use to the prosecution. In view of the evidence available on record, full-pant & underwear of the appellant and the stone, which was used for commission of offence, have not been recovered pursuant to memorandum statement of the appellant, but it has been recovered from the spot and therefore, it is of no use to the prosecution. Furthermore, only on the basis of recovery of weapon of offence, on which, stains of blood or human blood was also even not found, in view of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh , (2019) 7 SCC 781 , since blood was not found, recovery is of no use to the prosecution and only on the basis of recovery, the appellant could not have been convicted. 20. In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellant for offences under Section 302 & 201 of I.P.C. being the perpetrator/ author of the crime in question in light of the incriminating circumstances culled out in para 20 of the impugned judgment and same are liable to be set aside. 21. Accordingly, the impugned judgment of conviction and order of sentence dated 30.03.2019 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence punishable under Section 302 & 201 of I.P.C. The appellant is in jail since 28.12.2015, he be released from jail forthwith, if not required in any other offence. 22. In the result, the appeal is allowed. 23. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.