Point of Law: Conviction set aside - Assault – Injuries causing death –Recovery of weapon - no serological report on record to show that the blood stains found over the seized articles were of human blood

JUDGMENT :

1. This appeal is directed against judgment dated 22.12.2000 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No.143 of 2000, whereby each of the Appellants has been convicted and sentenced as under:

2. Prosecution case, in short, is that Appellant No.1 is son of Appellant No.2. Vinod Kumar (PW1) and Rajesh (PW2) are sons of deceased Girwar. The Appellants and the deceased were neighbour and their houses were situated adjacent to each other. On 31.12.1999 at about 5 p.m., the deceased was making a staircase of wood. Since a wood fixed in the roof of the house of the Appellants was obstructing the work of the deceased, he cut the said wood. On this, the Appellants entered the house of the deceased and threatened him of life. After this incident, the deceased went to deposit money in a bank at Gandai. In the evening at about 7:30 p.m., he was returning his village. Allegedly, the Appellants, armed with lathi and irta (a tool in one side of which an iron nail is fixed and during cultivation this tool is used for removing the mud collected over the surface of the plough), were hidden in the way and waiting for the deceased. They assaulted the deceased with the lathi and irta and as a result of which the deceased succumbed. Dehati morgue intimation (Ex.P1) and Dehati First Information Report (Ex.P2) were lodged by Vinod Kumar (PW1). Later on, First Information Report (Ex.P19) was registered. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charge under Section 302 of the Indian Penal Code.

3. To rope in the Appellants, the prosecution examined as many as 8 witnesses. Statements of the Appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the guilt, pleaded innocence and false implication. 1. witness was examined in defence.

4. On completion of the trial, the Trial Court acquitted the Appellants of the charge framed under Section 302 of the Indian Penal Code, but convicted and sentenced them as mentioned in 1st paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellants submitted that the Appellants are convicted without there being clinching and sufficient evidence on record. Their conviction is mainly based on the statement of Rajesh (PW2), younger son of the deceased, who claimed himself to be the sole eyewitness of the case. It was further argued that the statement of Rajesh (PW2) is not reliable. Immediately after the incident, as stated by witnesses Vinod Kumar (PW1) and Rajesh (PW2), they and other villagers reached at the spot and Rajesh (PW2) told there that the incident was witnessed by him. But, Dehati morgue intimation (Ex.P1) and Dehati FIR (Ex.P2) do not contain the fact that Rajesh (PW2) had witnessed the incident. Instead, it is reported in Ex.P1 and P2 that the Appellants would have caused the murder. Thus, it is clear that Rajesh (PW2) did not witness the incident. He, as an after thought, claimed himself to be the eyewitness of the incident. Therefore, his statement is not reliable. It was further argued that there is no other circumstantial evidence on record on the basis of which the Appellants could be held guilty. With regard to seizure of the weapons of offence, it was argued that though the seized weapons contained blood stains, there is no serological report on record to establish that the blood stains found over the seized weapons were of human blood. Therefore, from the seizure of the weapons also, the prosecution does not get support. Looking to the entire evidence adduced by th