Revati Mohite Dere, C.J.

1. By this appeal, the appellant has impugned the judgment of conviction dated 14th February, 2020 and order of sentence dated 20th February, 2020, passed by the learned Sessions Judge/Addl.DC, Ri-Bhoi District, Nongpoh, in Session Case No.22 of 2017. The appellant has been convicted Serial No.01 Supplementary List for the offence punishable under Section 302 of the IPC and is sentenced to suffer rigorous imprisonment for life and to pay fine of ₹25,000/-, in default of payment of fine, to further undergo simple imprisonment for five months. The appellant has also been convicted for the offence punishable under Section 201 read with Section 34 of the IPC and is sentenced to suffer rigorous imprisonment for three years and to pay fine of ₹10,000/-, in default of payment of fine, to further undergo simple imprisonment for one month. Both the sentences are directed to run concurrently.

2. Co-accused-Prabhat came to be convicted for the offence punishable under Section 201 read with Section 34 of the IPC. However, it appears that soon after the judgment was pronounced, he absconded and as such, we are concerned only with the appeal filed by the appellant.

3. The prosecution case in brief is as under;

4. According to the prosecution, the appellant murdered her husband in 2015 and thereafter, buried his body in Chibra village on the hill side. It is further the prosecution case that on 30th January, 2017, the Pillangkatta Police Outpost received telephonic information from Shri John D. Sangma (PW1), headman of Iongkhuli village that the appellant had admitted to him of killing her husband- Dhantharu Mushahary (deceased) in 2015 and, that his dead body was buried in Chibra village. On receipt of the said information, the in-charge officer of Pillangkatta Police Outpost informed the Superintendent of Police, Ri-Bhoi District, Nongpoh, pursuant to which, the appellant came to be arrested. During the course of investigation, the police recorded the statements of witnesses, recorded 164 statement of the co-accused-Prabhat (absconding), collected evidence and thereafter, filed chargesheet against the appellant and coaccused- Prabhat in the Court of the learned Magistrate First Class.

5. Since one of the offences alleged i.e. Section 302 of the IPC was triable by the Court of Sessions Court, the case was committed to the Court of Sessions for trial. Thereafter, on 22nd February, 2018, the learned Sessions Judge framed charge against the appellant, to which, she pleaded not guilty and claimed to be tried.

6. The prosecution in support of its case examined as many as 15 witnesses, who are as under;

                   1. PW1-Shri John D. Sangma

                   2. PW2-Smti Kristina M. Sangma

                   3. PW3-Dr. D.M. Momin

                   4. PW4-Smti. Serin Ch. Marak

                   5. PW5-Shri Tim M. Sangma

                   6. PW6-Shri Chobin J. Sangma

                   7. PW7-Shri Bimol Sangma

                   8. PW8-Shri Myntoilang Kshiar

                   9. PW9-Shri Phelson Pyngrope

                   10. PW10-Shri Jengson B. Marak

                   11. PW11-Smti. Danida Dehlia Syngai

                   12. PW12-Smti. R.M. Kharsyntiew, CJM

                   13. PW13-Inspector J. Rabha

                   14. PW14-S.I. Kamal Thapa

                   15. PW15-Dr. P. Suiam

7. Thereafter, the statement of the appellant was recorded under Section 313 CrPC. The appellant did not examine any witness. The learned Sessions Judge after hearing the learned counsel appearing for the appellant and the prosecution, convicted the appellant and co-accused as stated aforesaid in paragraph 1.

8. Admittedly, the prosecution case rests on circumstantial evidence. The law relating to circumstantial evidence is no longer res integra. In the landmark case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, the Apex Court has laid down the five golden principles to be followed in a case based on circumstantial evidence. They are;

                   “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established,

                   (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.”

9. Keeping in mind the aforesaid principles, we now proceed to consider the circumstances relied upon by the prosecution to bring home the guilt of the appellant. The circumstance on which reliance is placed are;

                   (i) extra-judicial confession allegedly made by the appellant to some of the witnesses;

                   (ii) confession of co-accused-Prabhat recorded under Section 164 CrPC; and

                   (iii) discovery of the dead body, at the behest of the appellant, allegedly under Section 27 of the Evidence Act, pursuant to which, the dead body was exhumed.

10. In order to prove the circumstance of extra-judicial confession, the prosecution examined PW1-Shri John D. Sangma, PW2-Smti. Kristina M. Sangma, PW4-Smti. Serin Ch. Marak and PW5-Shri Tim M. Sangma. PW1-Shri John D. Sangma is the first informant to whom the appellant allegedly made an extra-judicial confession, pursuant to which, FIR was lodged. The said witness was declared hostile right at the outset, and as such, his testimony offers no assistance whatsoever to the prosecution.

11. PW2-Smti. Kristina M. Sangma was also examined to prove extra-judicial confession made by the appellant to her. In her evidence i.e., the examination-in-chief, PW2 deposed that the appellant had come to her house and told her to take her to the police station, as she had murdered her husband and thrown his body; that she told her that she wanted to surrender before the police, and as such, accompanied her to the house of the headman of the village i.e. John D. Sangma (PW1), who took the appellant to the Pillangkatta Police Outpost. It has come in the cross-examination of PW2-Smti. Kristina M. Sangma that she cannot state, whether the appellant had committed the alleged offence of murder of her husband, as she was not an eyewitness in the case.

12. The prosecution examined Smti. Serin Ch. Marak as PW4. PW4 has stated that towards the end of 2017 (she does not remember the date and month), when she was present, she heard the appellant telling the headman that she had killed her husband, pursuant to which, she accompanied PW2 to PW1-John D. Sangma’s house, where the appellant disclosed the same to PW1. Similar is the evidence of PW5-Tim M. Sangma.

13. Thus, from the aforesaid evidence, it appears that an extra-judicial confession was made by the appellant to these aforesaid witnesses.

14. As far as the second circumstance is concerned, i.e. confession made by co-accused-Prabhat to the Magistrate under Section 164 is concerned, we find that the said confession does not inspire confidence, nor does the said confession, in any way point to the complicity of the appellant in the crime. In order to prove the confession of co-accused- Prabhat, the prosecution examined the Chief Judicial Magistrate as PW12, who recorded the said confession. PW12- the Chief Judicial Magistrate has in her evidence deposed that co-accused-Prabhat in his statement recorded under Section 164 CrPC, disclosed that the appellant had called Prabhat (coaccused), when he was asleep stating that, there was a quarrel and a fight in her house, pursuant to which, Prabhat (coaccused) visited the house; that on reaching the appellant’s house, he saw the body of the appellant’s husband lying on the floor of the veranda; that the person was already dead; that there were four boys who were sitting in the veranda besides the dead body and drinking alcohol; that he wanted to run home but the four boys held him; that the co-accused- Prabhat told one “Mami” to surrender before the police, as they had done something wrong; that those four boys told him that they should bury the dead body and asked him to help them or else they will beat him up; that co-accused (Prabhat) held the dead body and buried it near the house alongwith four boys. It appears from the evidence of PW12, that the appellant was also produced before the Magistrate, however, she declined to give her confessional statement.

15. Considering the aforesaid evidence, i.e. confession allegedly made by co-accused-Prabhat, we find that there is nothing in the said confession which pinpoints to the complicity of the appellant in the crime. On the contrary, the confession reveals that the dead body was lying in the veranda, when he reached the house and that there were four boys sitting around the dead body. This evidence does not in any way show the complicity of the appellant in the crime. To the contrary, it raises more question with respect to who were the four boys and what investigation the police had done with respect to the presence of the four boys around the dead body, which was lying in the veranda; and the disposal of the dead body thereafter.

16. Coming to the third circumstance i.e. discovery of the dead body at the instance of the appellant is concerned, we find that the said evidence as has come on record is completely flawed. First and foremost, we find that there is no memorandum panchnama of the appellant to show that the appellant had made any disclosure statement; that she would show the dead body which was concealed by her. From the evidence of the panchas and witnesses i.e., PW6 to PW11, it appears that it is the police who showed them the spot, pursuant to which, the body was exhumed from the said spot. The said recovery evidence is shaky and as such, implicit reliance cannot be placed on the same.

17. As noted above, the procedure contemplated for recording panchnama under Section 27 of the Evidence Act is not followed and as such, it is difficult to place implicit reliance on the evidence of the witnesses examined in support thereof and the prosecution case, that the dead body was discovered at the instance of the appellant under Section 27 of the Evidence Act. In addition to the aforesaid, the prosecution has miserably failed to prove that the dead body which was exhumed/discovered at the instance of the appellant was that of the appellant’s husband i.e., the deceased, inasmuch as, no DNA report was placed on record.

18. Thus, from the aforesaid, it is evident that the prosecution has miserably failed to prove two vital circumstances qua the appellant i.e., circumstance of extrajudicial confession and confession of the co-accused-Prabhat.

19. Thus, the only circumstance which the prosecution has been able to prove is an alleged extra-judicial confession made by the appellant to PW1, PW2, PW4 and PW5. As far as extrajudicial confession is concerned, the law relating to the same is well settled. The Apex Court in the case of Sahadevan & anr v. State of Tamil Nadu reported in (2012) 6 SCC 403, in paragraph 16 held as under:

                   “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 precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial 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.”

20. Having regard to the facts as have unfolded herein above, the evidence on record clearly shows that apart from the extra-judicial confession, there is no other circumstance which pinpoints to the complicity of the appellant in the alleged crime. It may be noted that the incident is of 2015, reported in 2017. The person to whom the extra-judicial confession was made i.e. PW1, the first informant has turned hostile and as such, not supported the prosecution. Infact, the prosecution has also failed to prove that the dead body was of the deceased i.e. appellant’s husband. Thus, the prosecution has failed to prove that the circumstances which unequivocally point to the guilt of the appellant. Neither is the chain of evidence complete to show that in all human probability, it is the appellant and the appellant alone, who is the perpetrator of the same. Infact, the police have failed to investigate the role of the four persons sitting near the dead body, as disclosed by co-accused-Prabhat in his 164 statement.

21. In this view of the matter, we find it difficult to sustain the conviction and sentence awarded to the appellant. The appeal is accordingly allowed and the judgment and order of conviction and sentence passed by the learned Sessions Judge/Addl.DC, Ri-Bhoi District, Nongpoh, in Session Case No.22 of 2017, is quashed and set aside.

22. The appellant be set at liberty forthwith, if not required in any other case. Fine, if any, deposited to be refunded to the appellant.

23. As far as the recommendation made to the Secretary, DLSA, Ri-Bhoi District, Nongpoh by the trial court to award compensation of ₹3 lakhs in the ratio of 2:1 to the custodian of the minor children of the deceased victim (L) Dhantaru Mushahary under the Victim Compensation Scheme, we direct the Secretary, DLSA to submit a report whether any such compensation has been awarded to the minor children of the deceased victim (L) Dhantaru Mushahary. The Secretary, DLSA to submit a report to this Court within eight weeks from today.

24. Registry to forward/communicate this order to the Secretary, DLSA, Ri-Bhoi District, Nongpoh by e-mail/Fax to enable the Secretary to submit its report.

25. The appeal is allowed and disposed of on the aforesaid terms.

26. List this appeal for recording compliance on 15th September, 2026.

27. All parties to act on the authenticated copy of this order.