IMPORTANT POINT
The prosecution must prove homicidal death beyond reasonable doubt; circumstantial evidence alone, including last seen theory, is insufficient for conviction.

JUDGMENT :

Rajani Dubey, J.

1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 17.12.2019 passed by learned Sessions Judge, Bemetara, District- Bemetara (C.G.) in Sessions Case No. 16/2019 whereby the trial court has convicted the appellant and sentenced him as under:-

2. Facts of the case in nut shell are that on 25.12.2018, deceased-Indira Bai was in the house along with her Aunt Sabana Bai & Grandmother Baisakhin Bai. On the same day Mantruram returned to his home and enquired about the deceased- Indira Bai and then he came to know that she was not at home. During search, he came to know that his daughter- Indira Bai was lying dead at Neelgiri farm. The appellant was chasing the deceased for last one year for which Mantruram & his wife restrained them for talking to each other. On the date of the incident, the appellant called the deceased at Neelgiri farm and strangled her by her scarf. On the basis of morgue intimation, inquest memo was prepared and thereafter, the postmortem of the body was conducted. One mobile and bicycle were seized from the place of the incident. Spot map was prepared. On the basis of information of Mantruram, FIR bearing Crime No. 146/2018 was registered against the respondent. On 26.12.2018, the accused/appellant was taken into custody and his memorandum statement was recorded. After completion of usual investigation, the charge-sheet was filed before the learned trial Court for the offence punishable under Section 302 of IPC followed by framing of charges, to which appellant abjured his guilt and prayed for trial.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 19 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. The appellant did not adduce any evidence in his defence.

4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 17.12.2019, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Section 302 of IPC and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

5. Ms. Sharmila Singhai, learned Senior Advocate appearing for the appellant submits that the impugned judgment is contrary to law, facts and circumstances of the case and, therefore is liable to be set-aside. The learned trial Court completely failed to appreciate that the prosecution has failed to prove that both the seizure witnesses have not supported the case of the prosecution as in the present case there were no eye witnesses to the incident. Learned trial Court completely failed to appreciate the evidence of Dr. Vinay Kumar Tamrakar (P.W-13) and Dr. Nidhi Meshram (P.W-14) who have not given their opinion regarding nature of death. In these circumstances, it is very much probable that the deceased has committed suicide. Learned trial Court completely failed to appreciate that the conviction is based on circumstantial evidence, whereas the prosecution has completely failed to prove the complete chain of circumstances. The learned trial Court convicted the appellant only on the basis of memorandum statement whereas it is a settled proposition of law that the accused cannot be convicted only on the basis of memorandum as it is inadmissible in the evidence.

She further submits that the deceased and appellant were having love affair for last many years but it does not mean that the appellant has committed the murder of deceased. The learned trial Court gravely erred in relying upon the statement of Sabana bai (P. W.-7) as in one place she st