- (1.) This appeal is directed against judgment dated 06-09-1996 passed by Additional Sessions Judge, Jashpurnagar, District Raigarh in Sessions Trial No. 122/96. By the impugned judgment, accused/appellant Bolwaram has been convicted under Sections 304 Part II and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo simple imprisonment for 2 months for the offence under Section 304 Part II IPC and rigorous imprisonment for 3 years and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo simple imprisonment for 1 month for the offence under Section 201 IPC, with a direction to run the sentences concurrently. Case of the prosecution, in brief, is as under: On 28-02-1996, deceased Nekul had gone to Village Manora along with his wife Jeneviva (PW-10). In Village Manora, they met with appellant Bolwaram. Thereafter, they went together to the house of Kuntibai (PW-5) and they consumed there country made liquor (handiya). Jeneviva (PW-10) came back to her village and the appellant and the deceased went to the house of the appellant where some quarrel took place between them. The appellant assaulted the deceased with a tangi. The deceased died. The appellant threw the dead body of the deceased in Laljhariya Nala with the help of co-accused Samunder Singh (acquitted). When the deceased did not return, Jeneviva (PW-10) started search of the deceased and she went to the house of the appellant, but the appellant did not allow Jeneviva (PW-10) to enter his house. Jeneviva (PW-10) lodged missing report (Ex.-P/7D) in Police Station Jashpurnagar. Jahuran Bibi (PW-1) and Safa Khan (PW-4) (father of the deceased) went to the house of the appellant. The house of the appellant was smeared with/spreaded up with cow-dung. Thereafter, intimation was given to Police Station Jashpurnagar vide Ex.-P/7D. Pant, shirt, hair, lathi, pieces of bones, one pair chappal and one tangiya were found in Laljhariya Nala. Having seen above articles, it was identified that the pant and chappals were belongings of the deceased. Dehati Merg (Ex.-P/8) and thereafter Dehati First Information Report (Ex.-P/9) were recorded. The Investigating Officer reached the place of occurrence and the plaster of wall of the house of the appellant was seized vide Ex.-P/1. Blood stained soil and plain soil were also seized from the place of occurrence vide Ex.-P/2. One full-shirt, one half-shirt, hair of head, 8 pieces of bone and pieces of wood, which were stained with blood were seized from the place of occurrence vide Ex.-P/3. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.-P/4 and at his instance, a tangi was seized from the appellant vide Ex.-P/5. The seized articles were sent to Primary Health Centre, Manora for examination vide Ex.-P/I I. Doctor R.S. Paikara (PW-9) examined the bones and gave his report vide Ex.-P/11 A. The seized articles were sent to Forensic Science Laboratory, Raipur. Report (Ex.-P/12) was received therefrom. In Ex.-P/12, it is found that article A-full-pant of the appellant, article B-tangi, article C-soil, article D1-shirt, article D2-pieces of shirt, article E-pieces of full-pant and article F-pieces of wood were found stained with blood. After completion of the investigation, charge sheet was filed against the appellant and co-accused Samunder Singh in the Court of Additional Chief Judicial Magistrate Jashpurnagar, who, in turn, committed the case to the Court of Session, Raigarh, from where it was received on transfer by the Additional Sessions Judge, Jashpurnagar, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Samunder Singh of the charges framed against him.
(2.) Shri Raghavendra Pradhan, learned counsel for the appellant argued that the dead body of the deceased was not recovered. The prosecution has not been able to prove that the death of the deceased was homicidal in nature. The report was lodged after 25 days. He further argued that the finding of guilt recorded on the basis of evidence of last seen together, memorandum statement of the appellant and recovery of tangiya, clothes and broken wood is unreasonable. The above circumstances are not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, it cannot be said that it was the appellant who committed murder of the deceased. Learned counsel further argued that the seized articles were not properly identified. It is well settled that a strong suspicion is no substitute for a proof, therefore, the finding of guilt recorded by the learned Additional Sessions Judge is not sustainable and the appellant is entitled for acquittal.
(3.) Shri Anand Verma, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court.;