The main legal point established in the judgment is the requirement for circumstantial evidence to conclusively and consistently point towards the guilt of the accused, as well as the need to consider all possible hypotheses and adopt the view favorable to the accused when two views are possible.

JUDGMENT :

Goutam Bhaduri, J

Heard.

1. This criminal appeal preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 20/01/2020 passed by the Fifth Additional Sessions Judge, Ambikapur, District-Surguja, C.G. in Sessions Trial No.21/2017 whereby Akhilesh Vishwakarma (A/1) & Ramesh Dewangan (A/2) have been convicted and sentenced as under:-

Whereas Ramesh @ Guddu Vishwakarma (A/3) and Usha Vishwakarma (A/4) have been convicted under Section 201/34 of IPC and sentenced to undergo R.I. for 3-3 Years and fine of Rs.1000-1000/-, in default of payment of fine 1-1 month additional R.I.

2. The prosecution case, in brief, is that the dead body of deceased Karamdev Vishwakarma was found on 30/10/2016 at a place known as Kawalpara. Gaurishankar Vishwakarma (PW-2), who lodged the report stated that his uncle, the deceased, went to recover his dues of loan on 29/10/2016 and did not return back. Thereafter, the dead body was subjected to postmortem and it was reported that the death was homicidal in nature and the accused persons were apprehended as they had a monetary dispute in between them. The allegation was that the deceased had advanced money to the accused persons and was demanding it back. The accused having enraged by such demand hatched a plan, called the deceased to a particular place, consumed liquor and thereafter caused the suffocation by muffler and by assault on his abdomen by a screwdriver. The prosecution based its case on last seen theory as also recovery of the articles and extra judicial confession.

3. During the course of trial, the prosecution examined as many as 20 witnesses and exhibited 59 documents. The learned Sessions Judge after evaluating the facts & evidence convicted and sentenced the accused persons as aforesaid. Hence this appeal.

4. Ms. Priyanka Rai, learned Amicus curiae leading the arguments duly assisted by Shri R.V. Rajwade and Shri Keshav Prasad Gupta, learned counsel for the appellants would submit that the learned Sessions Judge has convicted the accused only on presumption. She would further submit that there is no direct evidence or the circumstantial evidence which has connected the spot, to come to an irresistible conclusion about assault made by Akhilesh Vishwakarma (A/1) & Ramesh Dewangan (A/2). She would further submit that the last seen theory is further negated by the own evidence of the prosecution as from the spot certain incriminating articles were seized i.e. the liquor bottle and glasses but finger prints did not match, therefore, it would destroy the last seen theory and in absence of any evidence about the seizure, inasmuch as, the seizure witness have not supported the prosecution case, the conviction cannot be made. She would further submit that the FSL report is also inconclusive about the group of blood resulting into the fact that benefit of doubt holds to head high in acquittal. She placed her reliance in the cases of Sharad Birdichand Sharda Vs. State of Maharashtra {AIR 1984 SC 1622} and Ramesh Bhai & another Vs. State of Rajasthan {(2009) 12 SCC 603}.

5. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellants and would submit that the motive in this case has been proved beyond the reasonable doubt as the accused persons were reluctant to return the money which they had received from the deceased and having demanded back the same, they hatched a plan, called the deceased to a particular spot and suffocated him to death by a m