JUDGMENT :

(Goutam Bhaduri, J.)

1. This present appeal is against the impugned judgment of conviction and order of sentence dated 29.10.2020 passed by the First Additional Sessions Judge, Mahasamund in Sessions Trial No.H- 14/2019, whereby the appellant has been convicted and sentenced as below:-

2. The prosecution case, in brief, is that when on 23.11.2018, the complainant Manohar Singh went for bath at 7 AM to Mahanadi Barrage, at that time he saw a dead body was lying and having seen the same, he found that the injury was caused on his head by a stone, as such, he reported the said incident to Police Station Tumgaon. The Police Station Tumgaon registered the merg No.59/18 and upon enquiry, it was found that the dead body of one Keshav Das Manikpuri. The dead body was subjected to postmortem and it was found that the death was homicidal in nature, as such, case under Section 302 of the IPC was registered against the appellant. After due investigation, the accused Chaman Lal Jangde was found to be involved in the crime and he was arrested and during custody, when enquiry was conducted, a weapon used for commission of the said offence i.e. bamboo stick and stone were recovered at the instance of the appellant-accused. Further, the shirt, which was stained with blood, was also recovered from the accused. On the basis of the statement of prosecution witnesses that the appellant was last seen in company of the deceased as also on the basis of tower location of mobile call of accused, the charge sheet was filed after collection of evidence. During the course of trial, the appellant abjured the guilt and claimed to be tried. The prosecution examined as many as 15 witnesses and after evaluating the evidence, convicted the appellant as aforesaid. Hence, this appeal.

3. Learned counsel for the appellant would submit that there is no direct evidence to the case and the conviction of the appellant is solely based on the circumstantial evidence. Referring to the statement of Sewaram Sahu, PW-5, Narendra Kumar Sahu, PW-8 and Punaram Dhritlahre, PW-9, learned counsel for the appellant would submit that only on the basis of last seen evidence, the appellant has been inculpated. He would further submit that before the incident, the accused and the deceased were seen in a liquor shop, wherein other congregation of the people was also present, therefore, accusation which was shifted over the appellant without any evidence is only on doubt & fake story was planted by the prosecution. He would further submit that according to the prosecution, alleged weapon, bamboo stick and the stone were recovered at the instance of the accused, but they were from the open place. Consequently, it cannot be attached to the accused and place was in access to the general public.

4. He would further submit that recovery of bloodstained shirt from the accused after 2 days is improbable to accept that the accused when he was apprehended, considerable time had passed. It is stated that he would continue to wear the same bloodstained shirt and then appear before the police. It is stated that the recovery of shirt was at the police station which makes the recovery doubtful. He placed reliance in the case of Jabir and others vs. The State of Uttarakhand, reported in AIR 2023 SC 488, to submit that the last seen theory cannot be solely relied. Further, reliance has been placed in the case of Balwan Singh and others vs. The State of Chhattisgarh and others, reported in AIR 2019 SC 3714, to submit that the nature of recovery must be proved beyond reasonable doubt and when it is not being recovered from the open place, it cannot be attached to the accused. Reliance has also been placed by learned counsel for th