JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal filed by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 24.2.2015 passed by the Sessions Judge, Dhamtari, in Sessions Trial No. 30/2014, by which the appellant has been convicted for offence under Sections 302 and 316 of the IPC and sentenced to undergo imprisonment for life and further sentenced to fine of Rs. 50/- in default of payment of fine, to further undergo R.I. for one month under Section 302 of the IPC and R.I. for ten years and further sentenced to fine of Rs. 50/- in default of payment of fine to further undergo R.I. for one month under Section 316 of the IPC. 2. Case of the prosecution, in brief, is that on 25.8.2014 at about 7 a.m. at village Charota, P.S. Bhakhara, District Dhamtari, the appellant strangulated his wife Smt.Manju Sahu and committed murder of her and since she was carrying pregnancy of 06 months on the date of commission of offence, the appellant was also chargesheeted for offence under Section 316 of the IPC. It is further case of the prosecution that on 25.8.2014 at about 10.30 a.m. Kumbhkaran Sahu (PW-1) informed to the Police Station Bhakhara that when he telephoned his soninlaw/appellant herein on his mobile that he is coming to take her daughter deceased Manju Sahu on Teej festival, then he was informed by the appellant that she has died and reason for death was on account of sudden fall on the ground. Thereafter Kumbhkaran Sahu (PW-1) came to village Charota where he found dead body of the deceased oozing blood from her neck, which he suspected and pursuant to which merg was registered vide Ex.P1 and on the basis of merg, FIR was registered vide Ex.P13. Inquest was conducted over dead body of the deceased vide Ex.P3. Dead body of the deceased was sent for postmortem to Community Health Center, Kurud, where Dr. Pankaj Nagarachi (PW-5) conducted postmortem vide Ex.P10 and opined that cause of death was asphyxia due to fracture of hyoid and cervical vertebra and death was homicidal in nature. Inquest was conducted over dead body of the deceased vide Ex.P3. Dead body of the deceased was sent for postmortem to Community Health Center, Kurud, where Dr. Pankaj Nagarachi (PW-5) conducted postmortem vide Ex.P10 and opined that cause of death was asphyxia due to fracture of hyoid and cervical vertebra and death was homicidal in nature. Investigating officer Nirbhay Singh (PW-8) made enquiry in presence of five witnesses and recorded “kathan panchnama” of the appellant vide Ex.P5 in which he stated that on account of anger, he strangulated his wife Manju Sahu by which she died. Fetus kept in plastic bag was sealed by the investigating officer, which was sent for chemical examination, but report was not brought on record. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after due investigation, the appellant was chargesheeted before the Judicial Magistrate First Class, Kurud, who in turn, committed the case to the Court of Session, Dhamtari. The accused abjured the guilt and entered into defence. 3. In order to bring home the offence, the prosecution examined as many as 8 witnesses and exhibited 17 documents Exs.P1 to P17. Statement of the accused/appellant under Section 313 of the Cr.P.C. was recorded in which he denied guilt. However, he examined none in his defence. 4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 24.2.2015 convicted the appellant for offence under Sections 302 and 316 of the IPC holding that death of the deceased was homicidal in nature and kathan panchnama (Ex.P5) has been proved in accordance with law and it is the appellant who has strangulated the deceased and sentenced him for the period as mentioned in opening paragraph of this judgment, against which, this appeal has been preferred. 5. Mr. Maneesh Shrama, learned counsel for the appellant, would submit that even though death of the deceased is said to be homicidal in nature there is no evidence to hold that the appellant has committed the offence in question as eyewitness Lokeshwari (PW-2), daughter of the deceased, has turned hostile and kathan panchnama (Ex.P5) on the basis of which the trial Court has convicted the appellant is inadmissible in evidence in view of the provisions contained in Sections 25, 26 and 27 of the Evidence Act and there is no other evidence to connect the appellant in offence in question. In that view of the matter, the appeal deserves to be allowed. 6. On the other hand, Mr. Sudeep Verma, learned Deputy Government Advocate for the respondent/State, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for the offence under Sections 302 and 316 of the IPC and as such, the appeal deserves to be dismissed. 7. We have heard learned appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The first question for consideration would be, whether death of deceased Manju Sahu was homicidal in nature? 9. The trial Court has answered this issue in affirmative. After going through the medical evidence of Dr. Pankaj Nagarachi (PW-5) and postmortem report (Ex.P10) and considering the nature of injuries, the trial Court has rightly held that death of the deceased was homicidal in nature, which has not been seriously disputed by learned counsel for the appellant. As such, the finding recorded by the trial Court that death of the deceased was homicidal in nature is the finding of fact based on evidence available on record, which is neither perverse nor contrary to record. We hereby affirm that finding. 10. There is no direct evidence/eye-witness available on record. Lokeshwari (PW-2), daughter of the appellant and the deceased, in Para-2 of her statement has clearly stated that she has not seen her father assaulting her mother. 11. The trial Court has convicted the appellant on the basis of kathan panchnama (Ex.P5) holding it to be memorandum which has been proved in accordance with law. Lokeshwari (PW-2), daughter of the appellant and the deceased, in Para-2 of her statement has clearly stated that she has not seen her father assaulting her mother. 11. The trial Court has convicted the appellant on the basis of kathan panchnama (Ex.P5) holding it to be memorandum which has been proved in accordance with law. In Para-17, the trial Court has recorded the following finding: ^^17- vfHk;kstu xokgksa ds reke lk{; ds fo'ys"k.k ls vlkŒ 08 fuHkZ; flag jktiwr] vlkŒ 01 dqaHkdj.k lkgw ,oa vlkŒ 04 Hkqou yky lkgw ds dFkuksa ds vk/kkj ij vfHk;qDr }kjk fn;k x;k eseksjsUMe ÁŒihŒ 05 Áekf.kr gqvk gSA bl Ádkj eseksjsUMe ds mijksDr nksuksa gh LOkra= lkf{k;ksa us vfHk;kstu dk leFkZu fd;k gSA vfHk;qDr dh vksj ls mijksDr vfHk;kstu lkf{k;ksa dk foLr`r :i ls Áfrijh{k.k fd;s tkus ds ckotwn mudk dFku Áfrijh{k.k esa [kafMr ugha gqvk gSA blds vykok fpfdRlh; lk{; ,oa ÁihŒ 10 ds iksLVekVZe fjiksVZ ds vuqlkj e`frdk Jhefr eatq lkgw dh e`R;q gR;ktU; Ád`fr dk gksuk Áekf.kr gqvk gSA vlkŒ 01 dqaHkdj.k lkgw tks fd e`frdk Jhefr eatw lkgw dk firk gS] mlus vius ijh{k.k esa crk;k gS fd eatw Ng% ekg ls xHkZ esa FkhA vlkŒ 05 MkDVj iadt uxkjph us vius dFku esa crk;k gS fd ckVy Øekad 03 ij xHkkZ'k; ,oa 06 ekg dk ,d f'k'kq tks fd yM+dk Fkk] dks lqjf{kr j[kk x;k FkkA bl fcanq ij vlkŒ 08 fuHkZ; flag dk ;g dFku jgk gS fd fnukad 15-09-2014 dks vkj{kd ';kelaqnj cfjgk ds }kjk ,d IykfLVd ds fMCcs esa e`frdk eatw lkgw ds xHkkZ'k; ls fudys e`r cPPkk rFkk ,d lhycan iSdsV esa e`frdk eatw lkgw ds igus gq;s diMs+ dks ykdj is'k djus ij xokgksa ds le{k ÁihŒ 15 ds vuqlkj tIr fd;k FkkA bl Ádkj mDr lk{; ls ;g Hkh Li"V gS fd ?kVuk fnukad dks e`frdk Jhefr eatw lkgw 06 ekg ds xHkZ ls Fkh vkSj tc vfHk;qDr }kjk viuh iRuh Jhefr eatw lkgw dk xyk nck;k x;k vkSj ftlls mldh e`R;q dkfjr gqbZ vkSj blh ds ifj.kkeLo:i mlds xHkZ esa iy jgs 06 ekg ds f'k'kq dh Hkh e`R;q dkfjr gqbZA vfHk;qDr ds vfHkHkk"kd dh vksj ls U;k;n`"Vkar deys'k oxSjg cuke e/; Áns'k jkT;] 2010 ¼1½ ,eŒihŒOghŒ,uŒ 75 is'k fd;k x;k gSA mDr U;k;n`"Vkar ds rF; fujkd`r fd;s tk jgs ekeys ds rF; ls fHkUu gksus ds dkj.k vfHk;qDr mldk ykHk ÁkIr djus dk vf/kdkjh ugha gSA** 12. In order to consider the correctness of the said finding, it would be appropriate to notice kathan panchanama (Ex.P5), which is said to be memorandum which has been proved by the investigating officer Nirbhay Singh (PW-8) and on that basis, the appellant has been convicted, which states as under: dFku iapukek iqfyl Fkkuk & Hk[kkjk ftyk /kerjh vijk/k Øekad&126@14 /kkjk 302 HkkŒnŒ fo/kku fnukad le; o LFkku dFku ysus dk 26-8-2014 ds 14%30 cts fnu Fkkuk Hk[kkjk esaA uke vf/kdkjh ftlus dFku fy;k & fuHkZ; flag jktiwr fujh{kd Fkkuk Hk[kkjk ftyk /kerjh uke vijk/kh ftlus dFku fn;k & gse'kadj firk LoŒ >axyw jke lkgw mez 31 o"kZ xzke pjkSVk Fkkuk Hk[kkjk ftyk /kerjh uke xokgku ftlds le{k vkjksih us dFku fd;k%& ¼1½ fgrsUæ lkgw firk LoŒ iqjkfud jke lkgw mez 43 o"kZ lkŒ lqisyk Fkkuk Hk[kkjkA ¼2½ Hkqouyky firk nhun;ky lkgw 57 o"kZ xzke csyj Fkkuk vHkuiqj ftyk jk;iqjA ¼3½ dqaHkdj.k firk nÅokjke lkgw mez 45 o"kZ lkfdu [kksjik Fkkuk vHkuiqj ftyk jk;iqjA ¼4½ vej flag firk ?kukjke lkgw mez 49 o"kZ xzke pjksVk Fkkuk Hk[kkjk ftyk /kerjhA ¼5½ egkohj firk vo/kjke lkgw mez 45 o"kZ lkŒ dYys Fkkuk vHkuiqj ftyk /kerjhA fooj.k eSa gse 'kadj lkgw xzke pjksVk dk fuoklh gaw dy fnukad 25-8-2014 dks Ákr% 7%00 cts esjh iRuh eatw lkgw ls vkilh okn fookn rhtk esa ek;ds tkus ls euk djus ij gqvk Fkk ftlds dkj.k xqLlk esa vkdj eatw lkgw dks eSus gkFk eqDdk ls ekjihV fd;k ftlls ?kj vkaxu ds iRFkj esa tehu es fxj x;hA eSa xqLlk ls vius nksuks gkFkks dh vaxqfy;ksa ls yxHkx 10 feuV rd xyk nckdj j[kk ftlls eatw lkgw dh e`R;q gks x;h ftls ijNh es fyVkdj fxjus dk cgkuk cukdj mlds Åij diM+k j[k fn;k Fkk mDr ckr xokgksa dks crk fn;k gawA gLrk{kj xokgku ¼1½ lgh@& fgrsUæ lkgw ¼2½ lgh@& Hkqouyky lkgw ¼3½ lgh@& dqaHkdj.k ¼4½ lgh@& vej flag ¼5½ lgh@& egkohj lgh@& ,lŒ,pŒvksŒ gLrk{kj iqŒvf/kŒ ,uŒ,lŒ jktiwr fujh{kd Fkkuk Hk[kkjk ftyk /kerjh 13. A careful perusal of aforesaid kathan panchnama (Ex.P5) would show that it has been recorded by investigating officer Nirbhay Singh (PW-8) at Police Station Bhakhara in presence of five panch witnesses in which the appellant is said to have stated that on account of anger, he has assaulted his wife Manju Sahu by hands & fists and thereafter he strangulated her for 10 minutes, by which she died. 14. 14. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 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.” 15. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 16. The Supreme Court in Asar Mohammad and Others vs. State of U.P. AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object.” It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya vs. King Emperor, AIR 1947 PC 67 observed as under: “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object.” The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare vs. State of Maharashtra, (2015) 1 SCC 253 in particular, paragraphs 23 to 29 thereof. The same read thus: “23. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare vs. State of Maharashtra, (2015) 1 SCC 253 in particular, paragraphs 23 to 29 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya vs. King Emperor (supra) has held thus: (IA p. 77) “......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. xxx xxx xxx xxx xxx xxx xxx xxx xxx.” 17. Reverting to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible and incriminating part of the accused statement that he has inflicted injuries on his wife and thereafter he has strangulated his wife would not be admissible under Section 27 of the Evidence Act, but the fact remains that no incriminating article has been seized pursuant to his kathan panchnama (Ex.P5). As such, that part of evidence would not be admissible. 18. The Supreme Court in the matter of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 has clearly held that confession to police whether in course of investigation or otherwise and confession made while in police custody would be hit by Section 25 of the Evidence Act and observed as under: “9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Ss. 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading “Admissions”. Confession is a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: “No confession made to a police officer, shall be proved as against a person accused of an offence.” The terms of S. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-sections (2) and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.” Their Lordships further held as under: “18. They are based upon grounds of public policy, and the fullest effect should be given to them.” Their Lordships further held as under: “18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S. 25 is lifted by S.27.” 19. In the case in hand, confessional statement (Ex.P5) made by the appellant before the police officer is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act. As such, we are of the considered opinion that alleged memorandum/kathan panchnama (Ex.P5) is hit by Section 25 of the Evidence Act and no part of it is admissible under Section 27 of the Evidence Act in view of decisions rendered by Privy Council in Pulukuri Kotayya (supra) followed by the Supreme Court in Asar Mohammad (supra). Even otherwise, no other incriminating piece of evidence is available on record to convict the appellant for offence under Sections 302 and 316 of the IPC. 20. Accordingly, conviction and sentence of the appellant under Sections 302 and 316 of the IPC are hereby set aside. He is acquitted of the charge under Sections 302 and 316 of the IPC. It is stated at the Bar that the appellant is in jail, he be released forthwith, if not required in any other case. 21. The criminal appeal is allowed to the extent indicated hereinabove.