JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 15/06/2012 passed by learned Sessions Judge, Raigarh in Sessions Trial No. 118/2010 whereby the appellant/accused has been convicted for offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and fine of Rs. 5,000/­ and in default of payment of fine additional R.I. for one year.

2. The case of the prosecution, in brief, is that on 10/08/2010 at about 01:00 PM, the appellant murdered one Dileshwar Rathiya in his own house with the help of axe by assaulting him and causing grievous injuries and thereby, committed the aforesaid offence.

3. Further case of the prosecution, in brief, is that on 10/08/2010 (on the day of Hareli festival) at about 01:00 PM, Sukhlal (P.W.­2) and Indal (P.W.­4) were already in the house of the appellant when they also called Dileshwar Rathiya, who also came to the house of the appellant, after having lunch at his home wearing a lungi. When he came to the house of the appellant, he was firstly served liqour and thereafter, the appellant went inside on the pretext of bringing some snacks, but he returned with an axe and assaulted Dileshwar Rathiya over his chest on account of which he succumbed to death and the appellant, after leaving the said axe in the courtyard of his house absconded along with his family from the spot. Police received the said information through phone call and after reaching the spot, Punimati (P.W.­1), wife of deceased Dileshwar Rathiya, narrated the incident and on that basis, dehati merg intimation was registered (Ex. P/14) and dehati First Information Report (Ex. P/13) was lodged against the appellant herein. Thereafter, on the basis of dehati merg intimation and dehati First Information Report, numberi merg intimation was registered (Ex. P/18) and First Information Report (Ex. P/17) was lodged against the appellant for offence punishable under Section 302 of IPC. After summoning the witnesses, inquest report (Ex. P/1) was prepared and the body of deceased Dileshwar Rathiya was sent for postmortem to District Hospital, Raigarh wherein Dr. Prakash Kumar Chitwani (P.W.­7) conducted the postmortem and submitted his report (Ex. P/7). From the spot, blood­stained as well as plain soil and blood­stained axe were seized. Bloodstained gamcha was also seized and it was sent for chemical examination (but no report has been brought on record). Statements of the witnesses were recorded and the appellant was arrested. After due investigation, the appellant/accused was charge­sheeted for offence punishable under Section 302 of IPC which was registered and committed to the Court of Sessions, Raigarh 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 as many as 10 witnesses and brought into record 19 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, and he exhibited four documents in support of his case.

5. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant/accused for offence punishable under Section 302 of IPC on the basis of testimonies of Sukhlal (P.W.­2) and Indal (P.W.­4) and sentenced the appellant/accused for the aforesaid period against which this appeal has been preferred by him.

6. Mr. Vikas Kumar Pandey, learned counsel for the appellant/accused, would make the following submissions :­

(i) Indal (P.W.­4), who is said to be eyewitness, has not supported the case of the prosecution and he has clearly stated in paragraph 4 of his statement that he has not seen the appellant/accused assaulting deceased Dileshwar Rathiya and therefore, learned trial Court is absolutely unjustified in convicting the appellant/accused for the aforesaid offence on the basis of