IMPORTANT POINT
The main legal point established in the judgment is the standard of proof 'beyond reasonable doubt' required for conviction in criminal cases.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Instant appeal is against the judgment of conviction and order of sentence dated 19/12/2019 passed by the Sessions Judge, Raipur in Sessions Case No.34/2017 whereby the appellant has been convicted for life under Section 302/34 of IPC and fine of Rs.1000/- was imposed, in default of payment of fine amount, further RI for 3 months has been ordered.

2. The prosecution case, in brief, is that the complainant Jageshwar Chandrakar (PW-2) on 18/10/2016 was standing alongwith Chitresh Kekde near Kalyani Grocery Shop, Dhanlaxmi Nagar, Khamtarai, at about 9:30 pm Rajesh Das Manikpuri the present appellant alongwith his nephew Nagesh Das came on a motorcycle and over an old enmity which was existing, dispute started between them. At the same time, thereafter Rajesh Das Manikpur and Dhanesh Bande went back and came armed with a hammer and a knife and started assaulting on the head of deceased and Nagesh Das Manikpuri assaulted by knife whereby Chitresh Kekde fell down to the ground. He was initially taken to Ambedkar Hospital and thereafter was taken to Narayana Hospital, Raipur. Dehatai Nalashi (Ex.P-2) was registered and initially the offence under Section 307 IPC was registered. Subsequently, the injured succumbed to the injuries. In between the incident of assault and the death, the police started investigation and memorandum statement was recorded by Ex.P-14 and at the instance of Rajesh Das Manikpuri, hammer was recovered from a pond and the other articles i.e. motorcycle, the cloths were also recovered. The police after the death, seized bed head ticket from hospital of Chitresh Kekde by Ex.P-38 and the dead body was subjected to postmortem. The death was said to be caused due to cardio respiratory failure due to the head injury and was homicidal in nature. The police after investigation and after recording statement filed the charge sheet.

3. One of the other accused who was said to be involved in the crime absconded. During the trial, the appellant abjured his guilt and claimed to be tried. The prosecution had examined as many as 22 witnesses and in defence six witnesses were examined. Prosecution further exhibited 39 documents and eventually the learned Sessions Judge, convicted the accused. Hence, this appeal.

4. Learned counsel for the appellant would submit that there is a major contradiction appears in the eye witness statement as presence of Saddam Hussain (PW-11) and Bharat Verma (PW-12) is eliminated by the injured witness Kailash Vishwakarma (PW-17). She would further submit that no MLC has been produced wherein the deceased was first taken into and the death was not immediate and it was after certain time. She would further submit that in the circumstances, it would lead to show that out of sudden scuffle and dispute, the incident occurred and there was no pre-meditated mind. Consequently, the conviction under Section 302 is liable to be set aside.

5. Per contra, learned Additional Advocate General would submit that the evidence of the eye witnesses Saddam Hussain (PW-11), Bharat Verma (PW-12) and Kailash Vishwakarma (PW-17) categorically establishes the fact how the incident happened and it lasted for quite a time which shows that initially the accused was not armed, subsequently with an intention to assault to cause murder, the hammer blow was made on the head and by knife over the vital part of the body on the face. He would submit that the nature of such injury which is affirmed by the postmortem report Ex.P-20 would show that death was due to head injury and the deceased succumbed to it. With respect to the omission, he would submit that minor omission has been made but this fact has not been eliminated that eye witnesses were present who has seen the incident, therefore the order is well merited, which do not call for any interference.

6. We have heard the learned counsel for the parties, perused the evidence.

7. According to the prosecution, the incident happened on 18/10/2016 at