The recovery of evidence must be unimpeachable and not shrouded with elements of doubt to sustain the guilt of the accused.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 28.3.2012 passed by the Additional Sessions Judge, Katghora, in Sessions Trial No.41/2011, whereby the learned Additional Sessions Judge has convicted the appellant herein for offence under Section 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.500/, in default of payment of fine to further undergo simple imprisonment for six months.

2. The case of the prosecution, in brief, is that on 5.12.2010 in between 9 a.m. to 14 p.m. the appellant caused murder of Ramgopal @ Gopi at village Matin in the bank of Matindai tank and thereby committed the offence punishable under Section 302 of the IPC. It is further case of the prosecution that the deceased had evil eye on the appellant's sister and he had administered some medical herbs to the appellant by which he has become weak and on that count the appellant on 5.12.2010 in between 9 a.m. to 14 p.m. caused murder of Ramgopal @ Gopi. The matter was reported by Kamlesh Kol (PW8) to the police station Bando, pursuant to which, dehati nalishi was registered vide Ex.P15 and on the basis of dehati nalishi, FIR was registered vide Ex.P14. Inquest was conducted in the presence of panchas. Dead body of the deceased was sent for postmortem to Community Health Center, Podi Uproda, where Dr.G.S.Jatra (PW10) conducted postmortem vide Ex.P12 and opined that cause of death was neurogenic shock and haemorhagic shock due to rupture of spinal cord and bleeding from injured parts. After more than two months from the date of offence i.e. on 13.2.2011 memorandum statement of the appellant was recorded vide Ex.P1 and on that basis, bloodstained axe was recovered from Dhourabar forest vide Ex.P2, which was sent to FSL after more than one month on 26.3.2011 (Ex.P22) and FSL report has been received after more than seven months on 28.10.2011 (not exhibited) in which in fullpaint and axe recovered from the appellant, blood was found, but whether it was human blood and blood group could not be ascertained though it was sent for Serologist for chemical examination. The appellant was chargesheeted in the Court of Judicial Magistrate First Class, Katghora, who in turn, committed the case to the Court of Session, Korba, from where the Additional Sessions Judge, Katghora, received the case on transfer for trial.

3. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 24 documents Exs.P1 to P24. Statement of the accused/appellant under Section 313 of the CrPC was recorded, in which he denied guilt and entered into defence stating that he has not committed the offence and he has falsely been implicated in offence in question. However, the accused examined none in his defence.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.3.2012 convicted the appellant for offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against which, this appeal has been preferred by the appellant herein.

5. Mr.Vikas Pandey, learned counsel for the appellant, would submit that the appellant herein has been convicted only on the basis of his memorandum statement (Ex.P1), which has been made after two months from the date of incident on 13.2.2011 (Ex.P1) and recovery has been made from open place accessible to one & all and that too it was sent to FSL after more than one month and FSL examination was made after more than seven months on 28.10.2011, which has even not been exhibited as a document and as such, merely on the basis of recovery, which is a weak piece of evidence, the appellant cannot be convicted and as such, conviction and sentence of the appellant deserve to be set aside.

6. On the other hand, Mr.Sudeep Verma, learned Deputy Government Advocate for the respondent/State, would submit that though