JUDGMENT :

[Goutam Bhaduri, J.]

Heard.

1. Instant appeal is against the judgement dated 8/01/2013 passed by the Second Additional Sessions Judge, Raipur in Sessions Case No.123/2012 whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo RI for life with fine of Rs.500/-, in default of payment of fine amount, to undergo additional RI for 6 months and under Section 25 & 27 of Arms Act, the appellant has been sentenced to undergo RI for three years with fine amount of Rs.500/-, in default of payment of fine amount, additional RI for six months and both the sentences were directed to run concurrently.

2. The prosecution case, in brief, is that the accused Durgesh Dewangan and Sanjay Diwan (since deceased) were the friends and used to hobnob with each other. On the date of incident on 19/02/2012 in between 3 pm to 8.30 pm they consumed liquor. Thereafter, certain more liquor was demanded by the deceased, the same could not work out and in the process, certain obscene words were uttered by the deceased against the wife of the accused. Being enraged by such act, the accused went back to his house and came back with a chopper with an intention to eliminate deceased Sanjay Diwan. Having found him in the house, he assaulted him on various parts of the body, thereafter concealed the chopper in the house of the deceased behind the pot at the roof. The merg (Ex.P/2) was registered at the behest of the father of the deceased. The dead body of the deceased was subjected to postmortem and it was reported to be homicidal in nature vide postmortem report (Ex.P/14). Thereafter, FIR (Ex.P/1) was registered and investigation was carried out. Subsequently, the accused was apprehended and on his memorandum he admitted to have committed the guilt. Further at his instance, the weapon used for commission of crime was seized from the house of the deceased as also the T-shirt and pant were also seized. The said seized articles were sent for FSL and after recording the statement of the various witnesses and after committal, the charge sheet was filed.

3. During the course of trial, the appellant abjured his guilt. The prosecution examined as many as 17 witnesses and after trial the appellant was convicted under Section 302 of IPC and Section 25, 27 of Arms Act. Hence, this appeal.

4. Learned counsel for the appellant would submit that the conviction is based on circumstantial evidence of last seen theory of PW-8, PW-9 and PW-11. He would further submit that if their statements are examined, no body has stated the happening of the incident and fact that after first consumption of liquor when the accused went back to his house, he again entered to the house of the deceased there is no evidence. He would submit that therefore there is a strong apprehension that the author of the crime may be some one different. He would submit that when the conviction is based on circumstantial evidence, then prosecution has to establish the chain of evidence to prove the guilt, it cannot be on the presumption. He would submit that even the alleged weapon which was used in the crime and the T-shirt and the full pant which were seized alleging that it contained the blood stains, though it was sent for FSL but the report is not filed by the prosecution even to show the presence of human blood, therefore the conviction is completely illegal and only on the basis of presumption. Thus, the accused needs to be acquitted.

5. Per contra, learned State counsel would submit that statement of the PW-8, PW-9 and PW-11 would categorically demonstrate the fact of motive and the intention. Referring to the statement of PW-11, State counsel would submit that after reading the statement, the commission of the crime is established which is followed by the motive and since after quarrel the accused went back and came back with a weapon to cause the murder the chain is established. He would submit that order of conviction is well merited which do not call for a