The main legal point established in the judgment is the inadmissibility of a confession made to a police officer under Sections 25 and 27 of the Evidence Act.

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. 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 inad