The main legal point established is the requirement for corroborative evidence to establish guilt, the limitations of the memorandum statement under Section 27 of the Evidence Act, and the inadmissibility of the statement under Section 25 of the Evidence Act.

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. 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 t