Doubts regarding the recovery of crucial evidence and the absence of key eyewitnesses can lead to the acquittal of the accused.

JUDGMENT

Pankaj Bhandari, J. - Though the matter has come up before the Court on the miscellaneous application for suspension of sentence No. 556/2022, but with the consent of learned counsel for the parties, the matter is heard finally at this stage.

2. The appellant has preferred the instant appeal aggrieved by the judgment and order of sentence dated 16.01.2016 passed by the learned Additional Sessions Judge No. 1, Bundi whereby the appellant has been convicted for offence under Section 302 of the Indian Penal Code (hereinafter referred to as "the IPC") and has been sentenced to life imprisonment and fine of Rs. 5,000/- and on non-payment of the fine, to further undergo six months simple imprisonment.

3. Briefly stated the facts of the case are that on 27.02.2014, complainant - Om Prakash lodged an FIR that on 21.02.2014 his mentally retarded brother Shivshankar hit his brother Murlidhar with an axe on his head at 11.00 a.m. and that Murlidhar expired on 27.03.2014 during treatment. The police after due investigation submitted a charge-sheet against the accused appellant. The appellant denied the charges levelled against him and sought trial. As many as 14 witnesses were examined on behalf of the prosecution and as many as 21 documents were exhibited. Explanation of the accused appellant was recorded under Section 313 Cr.P.C. and after hearing final arguments, the trial Court has convicted the accused appellant for offence under Section 302 IPC and sentenced him as hereinabove mentioned.

4. It is contended by learned Amicus Curiae appearing on behalf of the appellant that there is no eyewitness to the incident as such and all the alleged eyewitnesses have turned hostile. The recovery of the axe is doubtful as it was recovered from the place where the police had already visited and prepared the site plan. It is also contended that as per the FSL report, the axe was not found with stains of human blood and therefore, recovery cannot be used as an evidence against the accused. It is further contended that the Court below has convicted the appellant only on the ground of recovery and the statement of Gopal Mewara (PW-2), who has stated that he has seen the appellant standing near the place of occurrence with an axe in his hands. In support of his contentions, learned counsel for the appellant has placed reliance on the judgments in Musheer Khan Alias Badshah Khan & Anr. v. State of Madhya Pradesh(2010) 2 SCC 748 and Trilok Chand & Ors. v. State of Rajasthan: D.B. Criminal Appeal No. 785/2003 & one connected matter passed by this Court on 13.09.2013.

5. Learned Additional Government Advocate has opposed the appeal. It is argued that the Court below has passed the impugned judgment and order on the facts and circumstances of the case. The witnesses, who are related to the appellant, have turned hostile and merely because they have turned hostile, it cannot be inferred that the appellant is innocent. The fact is that the brother of the appellant has lodged the FIR wherein he has specifically alleged that the appellant had given blow of axe on the head of the deceased, this was an important piece of evidence.

6. It is also argued that the fact that the appellant was armed with an axe is established from the statement of Gopal Mewara (PW-2) and the recovery was also effected from him. It is further contended that it is not a case of single injury and the appellant purposely knowing pretty well that the blow of axe will result in death of the deceased gave multiple blows on his person. Hence, the impugned judgment of conviction of the accused has rightly been passed by the Court below.

7. We have considered the contentions and have gone through the material on record.

8. It is evident that as per the first information report, the incident took place on 21.02.2014 at 11.00 a.m. As per the FIR, the allegation was only of causing one injury on the head of the deceased by an axe, however, as per the postmortem report (Ex. P-19), the deceased die