JUDGMENT :

Goutam Bhaduri, J.

1. The present appeal is against the judgment of conviction and order of sentence dated 13-2-2020 passed by the Additional Sessions Judge, Khairagarh, District Rajnandgaon, in ST No.04/2019 whereby the trial Court sentenced the accused to undergo RI for life with fine of Rs.1,000/- for the offence under Section 302 of the Indian Penal Code (for short ‘the IPC’) and RI for seven years with a fine of Rs.500/- for the offence under Section 201 of the IPC.

The trial Court also imposed default sentence in case of failure to pay the fine. However, acquitted the appellant from the charge under Sections 363, 366 and 376 ¼M½¼ts½ of the IPC.

2. Filtering the unnecessary details, the prosecution case is that a report was made on 8-10-2018 by PW-1 G at Police Station Chhuikhadan stating that on 6-10-2018 his daughter R (since deceased) went to Chhuikhadan college but did not return till late night. Having searched for her she was not found, as such the missing report was lodged by the police station. During search on 18-10-2018 the appellant was arrested. On the basis of doubt and having enquired it was revealed that on 6-10-2018 the appellant took the deceased on his motorcycle bearing registration No.CG- 08-F-2433 to Juranadhi Jungle where he committed forceful sexual intercourse and on being insisted by the deceased to end the relation, she was strangulated and her dead body was concealed at the same place. On the basis of memorandum, from the spot the clothes of the deceased, bones, teeth and hairs were seized. After the seizure and identification, the charge sheet was filed for the offence under Sections 363, 366, 376, 302 & 201 of the IPC.

3. During the course of trial the appellant/accused abjured his guilt and claimed to be tried. The prosecution examined as many as 20 witnesses. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned above. Thus, this appeal.

4. Learned counsel appearing for the appellant would submit that the appellant has been convicted only on the basis of doubt. He would further submit that the dead body of the deceased was already in the knowledge of general public and the same was discovered from the open public place and the statement of Kotwar PW-9 Manthir Ram Maithil Kshatriya and Head Constable PW-15 Arvind Sahu would show that there is inconsistency in between recovery of dead body and recording of memorandum. Learned counsel would also submit that the statement of PW-3 Khorbahra Das Janghel would show that the police already knew that the dead body was lying in Jungle, therefore, before memorandum was recorded the dead body of the deceased was recovered and the articles which were seized were at a time. He would submit that how the death has occurred has not been proved by the prosecution. According to the learned counsel the dead body was not identified and the articles which were seized were in general nature and the specific belongings of the deceased were not identified by her father. He would next submit that when the recovery is made from an open place and the chain of recovery is not proved, the appellant cannot be convicted and it would lead to show that he was falsely implicated. Learned counsel would place reliance upon the decisions rendered by the Supreme Court in the matters of Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217, Mani v State of T.N., AIR 2008 SC 1021 and Bijender Alias Mandar v State of Haryana, (2022) 1 SCC 92 to submit that the recovery and chain of circumstances have not been proved and further the accused was not given proper opportunity to explain, therefore, the wrong finding was arrived at by the learned trial Court. Learned counsel would also submit that the entire conviction is based on the presumption and hence no conviction could have been passed on this evidence. Therefore, the appeal deserves to be allowed by setting aside the impugned