JUDGMENT :

Goutam Bhaduri, J

Heard.

1. The present appeal is against the judgment of conviction and order of sentence dated 31.12.2019 passed in Sessions Trial No.71/2017 by the Second Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, C.G. whereby the appellant has been convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.1000/- and in default of payment of fine additional six months S.I. was also ordered.

2. The prosecution case, in brief, is that on 23.07.2017 at about 6 PM the son of the deceased Ajay came running and informed Mangal Sai and others that while he was playing near his house, the accused called his father Motiram to his home and after some time he heard the noise and saw that his father was in a scuffle and quarrel with the accused. When the dispute aggravated at that time the accused went inside the house, came out with an axe and thereafter made an assault to his father whereby he fell down. Subsequently, the incident was narrated to other witnesses, who then went inside and saw that Motiram is dead and there was a cut injury on his right temple, near the elbow of his right hand, which appeared to have been caused by a sharp weapon. The motive was projected by the prosecution that the deceased Motiram after consumption of liquor used to clamp the charges that the appellant had illicit relation with the wife of the deceased and asked him not to visit his house, therefore, under those background the dispute took place and assault was made, which resulted into death. Thereafter the report was made, the dead body was subjected to postmortem, which confirmed that the death was homicidal in nature and the accused was taken into custody and on his instance a blood stained axe and the T-shirt were recovered. The map of the spot was prepared and after recording the statement of the witnesses, the charge-sheet was filed.

3. The case was committed by the learned Magistrate to the Additional Sessions Judge. During the trial the appellant abjured his guilt and claimed to be tried. The prosecution on their behalf examined as many as 11 witnesses and exhibited 23 documents. The learned trial Court after evaluating the evidence and facts, convicted the accused as aforesaid. Hence this appeal.

4. Shri Anil Pillai, learned counsel duly assisted by Shri Anupam Dubey, learned counsel for the appellant, would submit that the prosecution has failed to prove the fact that the assault was made by the accused. He would further submit that instead the learned trial Court was driven by the statement that the conduct of the accused was to the extent and burden of proof under Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872') was shifted to the accused despite the fact that no witness has stated that the accused was present at the time of incident in his house. Giving an illustration he would submit that in a given number illustrating that out of 10 points, 9 points may have been proved by the prosecution but has failed to establish chain of point 10, which may cause the burden of proof to be discharged by the accused. He would further submit that the finding of the learned trail Court on res gestae under Section 6 of the evidence Act would also be against the judicial principles in as much as the same cannot be used to form an opinion of commission of crime barring the investigation stage. He would further submit that though the prosecution banked upon the circumstantial evidence but those facts have not been proved, therefore, the wrong finding has been arrived.

5. Per contra, learned State counsel would submit that the accused has been rightly convicted for the reason that the dead body was found at his home. He would further submit that at the instance of the accused, one T-shirt and the axe were recovered, which was having a human blood and no plausible explanation has been given by the accused o