IMPORTANT POINT
The sufficiency of circumstantial evidence and the admissibility of dying declarations in cases of alleged homicide.

JUDGMENT ON BOARD :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 26.10.2017 passed by learned Sessions Judge, Kabirdham, in Sessions Trial No.41/2016, by which, the appellant herein has been convicted for offence under Sections 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine amount, 6 months additional rigorous imprisonment.

2. Case of the prosecution, in short, is that in the intervening night of 18.08.2016 to 19.08.2016, at village Kodwa Godan, Police Station Kukdur, the appellant herein assaulted his wife Tijan Bai (now deceased) by bamboo stick on her head, by which, she suffered grievous injuries and died; thereby the offence has been committed. Further case of the prosecution is that Shyam Lal Patel (PW-1) on 19.08.2016 reported the matter to the Police Station Kukdur, pursuant to which, merg intimation was recorded vide Ex.P-1, FIR was registered vide Ex.P-25, inquest was conducted vide Ex.P-3 and dead body of deceased Tijan Bai was subjected to post-mortem, which was conducted by Dr. B.L.Raj (PW-6), who proved the post-mortem report vide Ex.P-14, according to which, cause of death was stated to be coma caused by injuries to skull bone and bleeding inside the brain and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-9, bamboo stick was seized vide Ex.P-10, which was sent for chemical examination to FSL along-with the other seized articles and as per the FSL report (Ex.P-29), blood was not found on the seized bamboo stick. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to D-3.

4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred.

5. Mr. Govind Dewangan, learned counsel for the appellant would submit that the statement of the appellant vide Ex.P-20 proved by Rituraj Singh Visen (PW-8) would cease to be dying declaration as he is alive and, as such, this could not have been taken by the trial Court as one of the incriminating circumstance in light of the decision of the Supreme Court in the matter of Gajula Surya Prakasarao v. State of Andra Pradesh, (2010) 1 SCC 88. Further the prosecution has failed to bring home the offence beyond reasonable doubt and there is no direct evidence against the appellant herein. He further submits that as per FSL report, no blood was found on the seized bamboo stick, therefore, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781 even if the recovery is proved beyond reasonable doubt and human blood was not found, recovery is of no use to the prosecution and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt.

6. Mr. H.A.P.S.Bhatia, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed.

7. We have heard learned counsel for the parties, considered their rival submissions made herein- above and went through the records with utmo