JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against impugned judgment dated 13/12/2019 passed in Sessions Trial No. 08/2018 whereby learned Additional Sessions Judge Gharghoda, Distt. Raigarh has convicted him for offence punishable under Section 302 and 201 of IPC and sentenced to undergo life imprisonment with fine of Rs. 500/­ in default of payment of fine, further R.I. for 2 months and R.I. for 5 years with fine of Rs. 500/­ in default of payment of fine, further R.I. for 2 months, respectively. 2. Case of the prosecution, in brief, is that on 09/01/2018 at about 10 PM at village Gharghoda, the appellant herein firstly caused the death of his wife Jankunwar Rathiya by strangulating her neck and thereafter, burnt her body and committed the said offences. 3. Further case of the prosecution is that complainant Anand Rathiya (P.W.­1), son of appellant/accused and the deceased, informed the Police on 09/01/2018 that on 08/01/2018 at about 9 PM, his mother Jankunwar Rathiya (deceased) was sitting in the courtyard and was warming her hands after lighting a fire and he and his father, the appellant/accused, were sleeping inside the house. At about 3 AM, the appellant/accused woke the complainant and told him that Jankunwar Rathiya has died after burning in fire. On the basis of the said information, merg intimation was registered vide Ex. P/1 and FIR was lodged against the appellant vide Ex. P/8. Spot map was prepared vide Ex. P/3 and after issuing summons to the witnesses under Section 175 of CrPC vide Ex. P/5, inquest was conducted vide Ex. P/6 and thereafter, dead body of deceased Jankunwar Rathiya was sent for postmortem which was conducted by Dr. A.K. Minj (P.W.­4) and the postmortem report has been filed as Ex. P/7 in which cause of death is said to be asphyxia as a result of throttling and the nature of death is said to be homicidal. Memorandum statement of the appellant/accused was recorded under Section 27 of the Evidence Act, 1872 and after recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offences punishable under Section 302 and 201 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 4. The appellant/accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined 6 witnesses and brought into record 9 documents. Statement of the appellant/accused was recorded wherein he denied guilt, however, examined none in his defence. 5. Learned trial Court, after appreciating the oral and documentary evidence on record, holding the death of deceased Jankunwar Rathiya to be homicidal in nature; relying upon the memorandum statement of the appellant/accused (Ex. P/4) and on the basis of the theory of last seen together, convicted the appellant/accused for offences punishable under Sections 302 and 201 of IPC. 6. Mr. Amit Singh Chauhan, learned counsel for the appellant/accused, would submit that postmortem report is only a corroborative piece of evidence and on that basis, the appellant cannot be convicted for offence punishable under Section 302 of IPC. He would further submit that on the basis of memorandum statement (Ex. P/4), no recovery has been made, as such, it is not covered by Section 27 of Evidence Act and is hit by Section 25 of the Evidence Act. Furthermore, even if the theory of last seen together is found proved by the prosecution, the appellant cannot be convicted solely on that basis, therefore, his conviction for the aforesaid offences is liable to be set aside. 7. Per Contra, Mr. Afroz Khan, learned State counsel, would submit that prosecution has been able to bring home the offence and the trial Court has rightly convicted the appellant/accused for offence punishable under Sections 302 and 201 of IPC, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 9. Learned trial Court has convicted the appellant/accused on the basis of the following incriminating circumstances found against him :­ (i) that, the death of deceased Jankunwar Rathiya was homicidal in nature. (ii) that, the appellant/accused himself has admitted in his memorandum statement (Ex. P/4) under Section 27 of the Evidence Act that out of anger, he strangulated his wife and caused her death and thereafter, burnt her body. (iii) that, it has been duly established by the testimony of Anand Rathiya (P.W.­1) that the appellant was last seen together with the deceased. 10. P/4) under Section 27 of the Evidence Act that out of anger, he strangulated his wife and caused her death and thereafter, burnt her body. (iii) that, it has been duly established by the testimony of Anand Rathiya (P.W.­1) that the appellant was last seen together with the deceased. 10. The first question that requires consideration is, whether the trial Court was justified in convicting the appellant/accused for offence punishable under Section 302 of IPC finding the death of deceased Jankunwar Rathiya to be homicidal in nature ? 11. Learned trial Court has recorded a clear­cut finding that death of deceased Jankunwar Rathiya was homicidal in nature relying upon the medical opinion of Dr. A.K. Minj (P.W.­4) who has conducted postmortem of the deceased. He has clearly recorded in the postmortem report (Ex. P/7) that cause of death is asphyxia due to throttling and the nature of death is homicidal. True it is that the death of deceased was homicidal in nature has duly been proved and has rightly been held by the trial Court, but as it is well­settled law that postmortem report, even though duly proved by the Doctor conducting it, is a corroborative piece of evidence and conviction cannot rest only on that basis. As such, though it has been proved that death of deceased Jankunwar Rathiya was homicidal in nature, but on that basis, the trial Court could not have convicted the appellant/accused for offence punishable under Section 302 of IPC. 12. The next question for consideration is, whether the trial Court is justified in relying upon the memorandum statement of the appellant/accused (Ex. P/4) under Section 27 of the Evidence Act ? 13. After taking the appellant/accused into custody, his memorandum statement was recorded vide Ex. P/4 under Section 27 of the Evidence Act in the presence of two witnesses namely Ramprasad (P.W.­2) and Sudarshan (P.W.­3) wherein the appellant/accused himself has admitted that on the fateful day of the incident, he and his wife Jankunwar Rathiya (deceased) were sitting in the courtyard warming their hands after lighting fire and his wife was repeatedly asking him to eat food and on that account, he became angry and strangulated her and caused her death. Thereafter, he wrapped her body in a bed sheet and burnt it and at about 3 AM, he falsely informed his son Anand Rathiya (P.W.­1) that Jankuwar Rathiya died after getting burnt in fire. 14. At this stage, it would be relevant to notice Section 27 of the Indian Evidence Act, 1872, which states as under :­ “27. How much 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 Evidence Act is applicable only if confessional statement leads to discovery of some new fact. Relevance is limited as relates distinctly to fact thereby discovered (see : Navaneethakrishnan v. State by Inspector of Police, AIR 2018 SC 2027 ). 16. The Supreme Court, in the matter of Asar Mohammad and others v. 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 self­probatory 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 v. King Emperor, AIR 1947 PC 67 observed as under: ­ “13. It is a settled legal position that the facts need not be self­probatory 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. 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 v. 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 v. 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. Now it would be relevant to notice the provision contained under Section 25 of the Indian Evidence Act, 1872, which states as under :­ “25. Confession to police officer not to be proved. ­ No confession made to a police officer, shall be proved as against a person accused of any offence.” 18. Now it would be relevant to notice the provision contained under Section 25 of the Indian Evidence Act, 1872, which states as under :­ “25. Confession to police officer not to be proved. ­ No confession made to a police officer, shall be proved as against a person accused of any offence.” 18. Section 25 of the Evidence Act makes confessional statement of accused before police officers inadmissible is evidence which cannot be brought on record by prosecution to obtain conviction (see : Ram singh v. Central Bureau of Narcotics, AIR 2011 SC 2490 ). 19. The Supreme Court in the matter of Aghnoo Nagesia v. 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. 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. 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 sub­s (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.” 20. Reverting to the facts of the present 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 statement of the accused. In the instant case, the appellant/accused has admitted to strangulating his wife out of anger and causing her death and moreover, no incriminating article has been seized pursuant to the memorandum statement of the appellant/accused. As such, the memorandum statement (Ex. P/4) of the appellant/accused under Section 27 of the Evidence Act is inadmissible in evidence and it would be hit by Section 25 of the Evidence Act in view of the decision rendered by the Supreme Court in Aghnoo Nagesia (supra). 21. The question that needs consideration now is, whether the theory of last seen together has been duly proved by the prosecution against the appellant and whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC on that basis ? 22. In the matter of Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 it has been held by their Lordships of the Supreme Court have held that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :­ “31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19­7­ 1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 23. Likewise in the matter of State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :­ “34. From the principle laid down by this Court, the circumstance of last­seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ” 24. Similarly, in the matter of Kanhaiya lal (supra), their Lordships of the Supreme Court have clearly held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non­explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant. It has been held in paragraphs 15 and 16 as under :­ “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. It has been held in paragraphs 15 and 16 as under :­ “15. The theory of last seen – the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588. 16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.” 25. In the matter of Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction. 26. Finally in the matter of Navneethakrishnan (supra), 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. 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.” 27. Reverting to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court in the matter of Anjan Kumar Sarma (supra), it is quite vivid that prosecution has only proved that the death of deceased Jankunwar Rathiya was homicidal in nature. The memorandum statement of the appellant/accused vide Ex. P/4 has been found to be inadmissible in evidence and the theory of last seen together has also not been duly established. Even if, the testimony of Anand Rathiya (P.W.­1) is relied upon establish that appellant/accused was last seen together with the deceased, then also no other connecting links have been satisfactorily made out and no other incriminating circumstance which leads to the hypothesis of guilt against the appellant/accused has been proved. As such, in absence of proof of other circumstances, only the theory of 'last seen together' cannot be made the sole basis for conviction of the appellant herein as it would be unsafe to rest conviction only on the theory of 'last seen together' in absence of other corroborative piece of evidence available on record. We are of the considered opinion that learned trial Court is absolutely unjustified in convicting the appellant herein for offence punishable under Sections 302 and 201 of IPC only on the basis of the theory of 'last seen together' finding it fully established in absence of motive for offence on the part of the appellant and in absence of other incriminating material against the appellant. 28. In conclusion to the aforesaid legal discussion, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court vide impugned judgment dated 13/12/2019. The appellant is acquitted of the charges levelled against him and he be released forthwith, if not required in any other case. 29. Accordingly, the instant appeal stands allowed.