Ajay Kumar Nirankari, J.

1. The instant criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. against the judgment dated 06.03.2014 passed by 6 th Additional Sessions Judge, District Sagar in Sessions Trial No. 548/2012 (State of M.P. Vs. Hoti Lal) whereby the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo for Life imprisonment with fine of Rs.1,000/- and Section 201 of IPC and sentenced to undergo R.I. of 3 years with fine of Rs.1,000/- respectively, with default stipulation.

2. The case of prosecution, in a nutshell, is that on the basis of information given by Smt. Kiran Bai in respect of death of her minor son Rishabh. The police station Gopalganj, District Sagar has registered a Merg No.20/2012 and started merg inquiry. Subsequently, an FIR under Sections 302 and 201 of IPC was registered against the appellant with the allegation that the complainant along with her husband and their three minor children resided at Baghraj Ward, Village Tili. On 17.09.2012, the complainant with her children returned back to her home after obtaining medical treatment for one of them. During this period, her neibhbour took away her minor child Rishabh for watching television. When Rishabh did not return at night, she was under impression that Rishabh might have stayed at the house of appellant Hotilal. In the morning, on asking about Rishabh, appellant Hotilal said he was not aware about Rishabh. After sometime, she got the information that in cremation ground of village one dead body of a child was found in a jute bag. From the hole of said jute bag, the complainant identified the body of her son. She also found that the blood stains were also found from the cremation ground towards the house of appellant Hotilal.

3. After registration of the FIR, the police authority recovered the dead body and sent it for postmortem, prepared the spot map, statements of witnesses were recorded, seized the blood-stained soil and simple soil from the incident place, arrested the accused/appellant, seized a dari (carpet), mat, blanket and four stones along with blood stained soil jute bag from the house of appellant. The memorandum statement of the appellant under Section 27 of Indian Evidence Act was recorded and seized the articles. All seized articles were sent for chemical analysis to the State Judicial Science Laboratory.

4. After completion of investigation, filed the charge-sheet before the JMFC, District Sagar after receiving the chargesheet, committed the case and forwarded the same to the Sessions Court for trial. Fromwhere the case was triable to the 6th Additional Sessions Judge, District Sagar in Sessions Trial No.548/2012.

5. Learned trial Court framed the charges under Sections 377, 302 and 201 of IPC. The appellant refused to accept the charges and wished to face the trial.

6. The prosecution, in order to substantiate its case, examined 16 witnesses as PW-1 to PW-16 and also exhibited the documents as Ex.P/1 to P/22. The appellant has not examined any witness in support of his defence. He only exhibited the police statements under Section 161 of Cr.P.C. Rishi, Gomti Bai Patel, and Pavan Kumar Patel, which were marked as D-1 to D- 13. In the statement recorded under Section 313 of Cr.P.C. the appellant stated that he is innocent and has falsely been implicated in the murder of the deceased on account of previous enmity.

7. Learned trial Court vide judgment dated 06.03.2014 held the appellant guilty of committing murder of deceased Rishabh, accordingly, convicted the appellant for life imprisonment with fine of Rs. 1,000/- under Section 302 of IPC and rigorous imprisonment for three years with fine of Rs.1,000/- under Section 201 of IPC. The charge under Section 377 of IPC was not found proved and the appellant has been acquitted from the said charge.

8. Being aggrieved by the impugned judgment dated 06.03.2014 passed by 6th Additional Sessions Judge, District Sagar, the appellant has been preferred the instant appeal before this Court.

9. Learned counsel for the appellant has advanced the argument that the appellant is innocent person and has not committed the said alleged offence. He also submitted that the police authority has not properly linked the chain of circumstantial evidence only on the last seen theory, on the basis of which appellant has been held guilty. It is further submitted that learned trial Court has not considered this aspect that the appellant has been falsely implicated in the present case on account of previous enmity with respect to the murder of the deceased. The learned trial Court has also not considered this aspect that there was no motive that the appellant to commit the murder of deceased. He further advanced the argument that only on the basis of last seen theory a person could not be convicted. Learned trial Court has also committed illegality in shifting the burden of proof on the appellant. Though the prosecution has to establish its case beyond any reasonable doubts. He also submitted that mere presence of blood stains on the clothes of the appellant, he could not be held guilty of committing the murder. The FSL report has not duly been proved from the witness of FSL unit. In support of his contention, the learned counsel for the appellant relied on the judgments of Hon'ble Apex Court in the cases of Mohan Vs. State of M.P. reported in 1993 0 Supreme (MP) 206, Anjan Kumar Sarma Vs. State of Assam reported in AIR 2017 SCW 617, Dinesh Kumar Vs. The State of Haryana (Criminal Appeal No.530/2022, decided on 04.05.2023), Kansa Behera Vs. State of Orissa report in AIR 1987 SC1507, Vijay Shankar Vs. State of Haryana reported in AIR 2015 SCW 5324, Prabhu Vs. State of U.P. reported in AIR 1963 SC 1113 and Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and another reported in (2012) 4 SCC 722. Thus, he prays for allowing and setting aside the impugned judgment passed by the trial Court.

10. Learned counsel for the State has advanced the arguments that the learned trial Court after proper appreciation the material available on record rightly reached to the conclusion that the appellant is guilty of committing the murder of deceased Rishabh. He further submitted that on the last night of incident, at about 9:00 p.m., the appellant took away the deceased from his house for watching television and on the next day, the dead body of deceased was recovered. It was also submitted that a dari, mat and blanket were recovered from the house of appellant as well as blood stained soil were also recovered and on the seized articles, the human blood was found but due to insufficient quantity, the blood group could not be identified on the seized articles and have not proved the motive of committing the offence. The entire prosecution story could not be discarded on that basis. As per the postmortem report, two incised wounds were found on the neck of the deceased and one abrasion on his cheek. The cause of death has been opined to be shock due to injuries to vital organs and major vessels i.e. carotid arteries and trachea and the duration of death was within 24 hours prior to the time of examination. It was also submitted that the prosecution has properly linked the chain of circumstantial evidence. Accordingly, the judgment is well-reasoned and speaking and does not warrant any interference. Thus, he prays for dismissal of the present criminal appeal.

11. We have perused the record and heard the arguments advanced by both the counsel for the parties.

12. The sole question for adjudication before us is that whether the learned trial Court was fully justified in holding the guilty under Sections 302 and 201 of IPC and awarding the life imprisonment.

13. It is the case of circumstantial evidence. On the information of PW-1, a merg was registered and after completion of merg enquiry, the FIR was registered. PW-1 has consistently alleged that on 18.07.2012, the complainant along with her children returned home after obtaining the medical treatment for her daughter. At about 9:00 p.m., the appellant called the deceased and took him away the deceased for watching television. In the night, the deceased did not return back his home, on asking, the appellant stated that he was not aware about the deceased. Thereafter, the dead body of the deceased was found in a jute bag at the cremation ground. (PW-2) Sangeeta and (PW-3) Rishi Raikwar have also supported the statement of PW-1.

14. In view of the above, it is clear that the deceased lastly seen together with the appellant on 18.07.2012 and on the next day, dead body of the deceased was recovered. As per postmortem report (Ex.P/14), two incised wounds were found on the neck of deceased and one abrasion on his cheek. As per postmortem report, the cause of death has been opined to be shock resulting from injuries to vital organs major vessels i.e. carotids arteries and trachea and the death of the deceased was homicidal in nature. (PW-11) Dr. R.K. Khare, who conducted the postmortem of deceased has supported the postmortem report. The appellant has not brought any material in his cross- examination for doubting on postmortem report. The I.O. (PW-16) deposed before the trial Court in his chief-examination that on getting the information about the dead body, a merg was registered then an FIR was registered and started the investigation. During the investigation, spot map was prepared, the blood-stained soil and simple soil have been recovered from the incident place, arrested the accused persons. The memorandum of the appellant under Section 27 of Indian Evidence Act was duly recorded and, an axe was recovered from the house of the appellant at his instance. The blood-stained clothes of appellant were also seized in the presence of independent witness. The appellant cross-examined the PW-16 in detailed but he remained unsuccessful to bring any material for doubting the investigation. He was also submitted that he has no motive to commit the murder of deceased and the last seen together is not sufficient for conviction in support of said contention. He has relied on the case of Mohan (supra). The relevant para is reproduced as under:-

          "The question, therefore, arises: as to why the accused would commit the murder of deceased Nora by throttling her-as is alleged by the prosecution. The motive for committing the jurder is not known, and nor the same is established from the prosecution evidence on record. Besides this, from the version of Dr. Chandra Bhan Prasad (P.W.7), who had performed the autopsy on the dad body of Nora, it is clear that he was not sure about the exact cause of her death-as was stated by him in para 8 of his deposition. Dr. Chandrabhan Prasad had not found any finger mark on the nectk of the deceased. Dr. Chandrabhan Prasad has stated in his cross- examination, that the death could be homicidal and it could also be accidental. This statement of Dr. Chandrabhan Prasad also goes to show that this witness was not sure as to whether death of Nora was homicidal or accidental in nature."

15. On bare perusal of aforesaid citation, it appears that the facts of the cited case are quit different with the facts of the present case. In the cited case, there was no substantial material on record except the last seen, whereas, the substantial material piece and link of circumstantial evidence was properly established by the prosecution. The appellant has relied on the case of Anjan Kumar Sharma (supra) wherein the Hon'ble Apex Court has held the suspension cannot take place of legal proof for something, there is no proof on the seized article human blood was found. However, in the present case, the human blood was duly found on the clothes of appellant, mat and blanket seized from the house of appellant as well as axe recovered from his house at his own instance. Thus, the appellant is also not getting any benefit of said citation. Learned counsel for the appellant has further advanced the arguments that initial burden lies on the prosecution to establish its case beyond any reasonable doubt, and that such burden cannot be shifted on the appellant/accused to prove his innocence. In support of this contention, appellant relied on the law laid down by the Hon'ble Apex Court in the case of Dinesh Kumar (supra). It is not in dispute that the initial duty and burden on the prosecution is to establish its case beyond any reasonable doubt. It is also settled legal proposition that once the prosecution beyond any reasonable doubt, prima facie, established its case, then the burden is shifted on the accused to explain the circumstances and proved his or/her innocence. In the present case, the blood-stained soil, clothes, axe and mate were recovered from the house of the appellant. In FSL report, the stains on these articles were confirmed to be of human blood. In such circumstances, the burden automatically be shifted on the appellant to explain the circumstances or evidence which establishes his guilty prima facie there is no explanation of appellant in the present case that how the blood stained were found on his clothes, soil, axe and mat recovered from his house. Thus, the law of Hon'ble Apex Court is not held in any manner. Similarly, the law laid down by Hon'ble Apex Court in the case of Kansa Behra (supra), Vijay Shankar (supra) and Prabhu (supra) is not helping the appellant in any manner because the said fact is quite different of the present case.

16. Learned counsel for the appellant has also advanced the argument that the prosecution has to establish and prove the medical/expert information by examining the competent authority of medical/expert mere production of a document is not itself proved. In support of its contention, the appellant relied on a judgment of Hon'ble Apex Court in the case of Govindraju @ Govinda (supra). The relevant para No.45 is reproduced as under:-

          "45. The applicability of the principle of `adverse inference' pre- supposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the Constable appears in the Police investigation but still they were not examined. It is true that in their absence the post mortem report and FSL report were exhibited and could be read in evidence. But still the lacuna in the case of the prosecution remains unexplained and the chain of events unconnected. For instance, the Head Constable could have described the events that occurred right from the place of occurrence to the death of the deceased. They could have well explained as to why it was not possible for one Police Officer, one Head Constable and one Constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. Similarly, the doctor could have explained whether inflicting of such injuries with the knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability. This Court in the case of Takhaji Hiraji (supra) clearly stated that material witness is one who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the Court. The fact that the witnesses who were necessary to unfold the narrative of the incident and though not examined, but were cited by the prosecution, certainly raises a suspicion. When the principal witnesses of the prosecution become hostile, greater is the requirement of the prosecution to examine all other material witnesses who could depose in completing the chain by proven facts. This view was reiterated by this Court in the case of Yakub Ismailbhai Patel v. State of Gujarat."

17. In the present case, the seized articles were sent for chemical analysis to the State Judicial Science Laboratory, District Sagar and the report thereof was exhibited as Ex.P/14. At the time of its exhibition the appellant did not raise any objection in respect of credibility of said DNA report. Mere also the report of expert is just an opinion and the Court is not bound to accept the said opinion. The Court is duty bound to consider the expert report with other material evidence. In the present case, there is no explanation that as to how blood stained soil, clothes, mat and a blanket were recovered from his house and on all articles human blood was found. The statements under Section 313 of Cr.P.C. the accused has not suggested with the said blood-stained in which human blood was found is of him or how the blood-stained was found on that articles. Accordingly, the said citation is not helping the appellant in any manner.

18. In overall consideration of facts and material available on record, we reached to the conclusion that the impugned judgment passed by learned trial Court is just proper and based on proper appreciation and reasoning. The appellant on the grounds as well as arguments raised at the time of final hearing have not brought any material on record for creating a doubt suspect on the material available on record, accordingly, finding recorded by the trial Court was fully justified and not warranted any interference.

19. Thus, the present appeal fails and is hereby dismissed.

20. Let a copy of this judgment be sent to the trial Court along with its record for information and necessary compliance.