(5) HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 761 of 2005 Appellant (in jail) Vs. Respondent. Rajkumar s/o. Purno Ram, aged about 18 years, occupation - Agriculture r/o. village Pemla, Raidandh, Thana:Bagbahar, Distt. Jashpur (CG) State of Chhattisgarh through Station House Officer, Bagbahar, Jashpur (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. Rajesh Pandey with Shri Dashrath Prajapati, counsel for the appellant. ' Mr. Akhil Mishra , Panel Lawyer for the State. ORALJUDGMENT (Delivered on 20-7-2011) PerT.P. Sharma. J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 18-8-2005 passed by Sessions Judge, Jashpur, in Sessions Trial No. 44/2005, whereby and whereunder while acquitting four other co-accused persons, learned Sessions Judge after holding the appellant guilty for the commission of culpable homicide, amounting to murder of his sister, Rajkumari, convicted the appellant under Section 302 IPC and sentenced him to /r^^ 'i '%sy^ j •-e^" ,jj --^' ":^ ® undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine to undergo further Rl for three months. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned while acquitting the other co-accused persons for same set of evidence and thereby committed illegality. As per the case of prosecution, unfortunate deceased Rajkumari, sister of present appellant wasresiding separately from appellant and her relatives i.e., mother, father and sister for the last two years and was residing in the house of Nanku Ram (PW/2). The relation between appellant and deceased was strained. Deceased Rajkumari had lodged Roj Namcha vide Ex.P/2, P/3, P/4, P/5, P/6 and P/7 against her parents, brother and sister including the present appellant. On fateful day of 23-2-2005 at 12.30 noon when deceased Rajkumari was collecting her goats, present appellant went near the place of incident by bicycle, tried to dash her and then some altercation took place between them, thereafter he along with other co-accused persons tide her neck by scarf of deceased and caused instantaneous death. The incident wais witnessed by PW/1 Chaitan Ram. Appellant himself wentto Police Station Bagbahar and lodged morgue report vide Ex.P/8 stating that he has seen dead body of Rajkumari near pond. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/10 preparedinquest over the body of the deceased vide Ex.P/11, 5. during course of investigation Investigating officer recorded the statements of witnesses and on the basis of Dehati Nalsi (Ex.P/15), first information report was lodged vide Ex.P/16, spot map was prepared by Investigating Officer vide Ex.P/12, one ball patta (hair belt), button of shirtand tops were sized on the spot where dead body of deceased was lying vide Ex.P/13, blood stained soil and plain soil were seized vide Ex.P/14, blood stained clothes of appellant were seized vide Ex.P/17, clothes of deceased were seized vide Ex.P/18, seized articles were sent for chemical examination vide Ex.P/19, spot map was prepared by Pawari vide Ex.P/1 and dead body of deceased was sent for autopsy to Community Health Centre, Kansabel, where Doctor S.Tirkey (PW/5)conducted postmortem vide Ex.P/9 and found the following injuries; i) mouth, nose, forehead, eyes were stained with mud and sand; ligature mark was found around neck 2 cm width; iii) lacerated wound was found over the side of left eye of 3.3 x 3 cm and eye-ball was missing; iv) abrasion found around right eye, forehead and bridge of nose; v) abrasion over right arm in the size of 16 cm x5 cm; vi) abrasion over left elbow in the size of4 cm x 3 cm and vii) multiple small abrasion over both hands and forearm and opined that cause of death was asphyxia due to strangulation and death was homicidal in nature. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Jashpur, who in turn committed the case to the Court of /"- y Sessions Judge, Jashpur. Learned Sessions Judge, received the case on transfer, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. 6. In order to prove the guilt of the appellant, prosecution examined as many as six witnesses. Accused persons were examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances appearing against them and pleaded innocence and false implication. 7. After affording an opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court asalso the impugned judgment 9. Mr. Rajesh Pandey, learned counsel appearing for the appellant vehemently argued that in the present case conviction is based on evidence of solitary eye-witness Chaitan Ram (PW/1) who was a chance witness, not the resident of same village. Learned counsel further submits that the court below has acquitted four other accused persons but convicted and sentenced the present appellant on the basis of same set of evidence which is not permissible under the law. Learned counsel further submits that although evidence of this witness can be relied but, being a chance witness, the prosecution is required to adduce evidence to corroborate the evidence of a chance witness. In absence of corroboration from independent sources, statement of solitary eye- witness chance witness is not safe to rely. His evidence may be .^ ^:^^%^^^_. ^ "^ ^ 10. 5& sufficient for drawing suspicion that appellant may have committed the offence, but it is not sufficient for drawing definite conclusion that only the appellant has committed the offence. He further submits that even otherwise, as per evidence of PW/1 Chaitan Ram, appellant was coming by bicycle and he was not holding any weapon, all of a sudden due to hot talks some altercation took between appellant and deceased and thereafter both assaulted each other. During the course of such altercation present appellant tide the neck of deceased by her scarf, resulting into her death which shows that the appellant has not caused homicidal death with intent to cause her death but the incident took placeon sudden provocation and ona spur of moment therefore, the act attributed to the appellant does not travelbeyond the scope ofSection 304 Part II ofthelPC. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that deceased was real sister of present appellant and she was residing in the house of PW/2 Nanku Ram. Appellant has tried to cause injuries to deceased several times. She had lodged Rojnamcha vide Ex.P/2 to Ex.P/7 which shows that the relation between the appellant and deceased was strained. He further submits that some altercatipn took place between the appellant and deceased and appellant assaulted the deceased, thereafter he tide the neck of deceased by her scarf, as aresult of she died shows his grave intention of causing homicidal death with intent to ^ (J^ cause her death and the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, homicidal death of the deceased Rajkumari as a result of strangulation/throttling has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor S. Tirkey (PW/4) and autopsy report (Ex.P/9) death of Rajkumari was homicidal in nature. 13. As regards complicity of the appellant in the crime in question is concerned, conviction is substantiallybased on the evidence of PW/1 Chaitan Ram, resident of Saraitola, present incident took place at village Raidandh which is far away from village of present appeliant, definitely PW/1 Chaitan Ram was a chance witness and his presence on the spot was co-incidence but only onthe ground that his presence on the spot was co-incidence, his evidence cannot be discarded. The court is required to scrutinize his evidence minutely and sought corroboration by independent source. While dealing with question of reliability of such witness in case of State of Bihar vs. Ram Balak Singh, reported in AIR 1966 SC 1441 Supreme Court has held that the evidence of a person passing on the road in the village cannot be discarded only on the ground that it was co-incident. As per evidence of Chaitan Ram (PW/1), he was going to the house of appellant at village -A '\s, c. Raidandh for inviting them for marriage. While he was passing near the place of incident deceased requested him to stay near the place of incident till collection of her goats from field and after collecting goats deceased came near this witness, at the same time appellant came by bicycle and dashed her, some altercation took place between the appellant and deceased, thereafter both assaulted each other. He along with Tobha tried to intervene the quarrel, appellant tide the neck of deceased by her scarf and caused her death, thereafter he crushed the body of deceased and dragged her. The defence has cross examined this witness at length. He has admitted in his cross examination that after incident he came back to his village. His statement was recorded by Police on the next day. There were some omissions and contradictions in his statement and his previous statement recorded by Police vide Ex.D/1 under Section 161 of the Code. He has admitted in his deposition that the altercation took place between appellant and deceased all of a sudden but denied the suggestion that he has not seen the incident and has falsely implicated the appellant. As per his evidence, other witnesses were also presenton the spot. Present appellant dragged the dead body of deceased upto pond which finds support from merg intimation vide Ex.P/8 lodged by the appellant in which the appellant has not made any confessional statement. Merg lodged by appellant vide Ex.P/8 is admissible to the extent that. the dead body of deceased Raj Kumari was found near pond on 23-2-2005 at about 12.30 pm and deceased Rajkumari was residing separately from them in the house of ^ Nanku. As per evidence of PW/1 Chaitan Ram, after causing such injuries to the deceased, appellant dragged the dead body from the place of incident upto pond which finds corroboration by spot map (Ex.P/12) which shows dragging marks and by seizure of articles from dragging place vide Ex.P/13. Evidence of PW/1 Chaitan Ram who is a chance witness finds corroboration from merg vide Ex.P/8 lodged by the appellant himself, spot map (Ex. P/12) and seizure vide (Ex.P/13).. His presence also finds support from Dehati Nalsi (Ex.P/15). The evidence of PW/1 Chaitan Ram is well corroborated by other evidence which is sufficient for drawing an inference that the present appellant has caused homicidal death ofhis sisterRajkumari. 14. As regards question of intention is concerned, as per evidence of PW/1 Chaitan Ram, when deceased was collecting her goats appellant came by bicycle. He was not holding any weapon. Prosecution has not adduced any evidence to show that the appellant was having definite information about the presence of deceased on the spot. The altercation took place between the appellant and deceased they assaulted each other, they are brother and sister. The present appellant tide the neck of deceased by the scarf which she was wearing. This shows that present appellant caused homicidal death on a sudden provocation and sudden quarrel without pre-meditation, but at the time of causing such injuries he was having sufficient knowledge that by such act the deceased may die. ,^t-^^ft, ..^•'jfe.. 15. Evidence adduced on behalf of the prosecution is sufficient for drawing an inference that the appellant has not committed homicidal death of the deceased Raj Kumari with intent to cause her death and the act attributed to the appellant does not travel beyond the scope of Section 304 Part II of the IPC. While convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life, the trial Court has not considered the aforesaid material aspect of the case and thereby committed illegality. 16. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part II and he is sentenced to undergo Rl for seven years with fine of Rs.500/-, in default of payment of fine to undergo additional Rl for three months. He is in custody since 25-2-2005, he is entitled for set off as per law. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^'iju