HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.623 of 1991 {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellants. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. / Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (1 9—3-201 0) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 17—5—1991 passed by the 15‘ Additional Sessions Judge, Ambikapur in Sessions Trial No.7/87, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Ramjanam and sharing common intention, convicted the appellants under Section 302 read with Section 34 of the l.P.C. and sentenced each of them to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for one year. 2. Counsel for both the parties submit that appellant No.1 Ram Prasad has been released on probation after completion of substantive part of D sentence. APPELLANTS: 1. Ram Prasad son of Lalman Vaishwar (in Jail) aged 55 years; 2. Jamuna S/o Ram Prasad Vaishwar, aged 24 years Both R/o Vishalpur, PS Chandani Distt. Surguja M.P. (now C.G.) Versus RESPONDENT: State of Madhya Pradesh (now Chhattisgarh) . Learned counsel for the appellants seeks to withdraw the appeal on behalf of appellant No.1 Ram Prasad. . Counsel for the appellants is permitted to withdraw the appeal on behalf of appellant No.1 Ram Prasad. The appeal is dismissed as withdrawn as it relates to appellant No.1 Ram Prasad. . Conviction is impugned on the ground it is based only on the statement of chance witness whose evidence does not inspire confidence‘ it is not trustworthy and safe to rely. . Case of the prosecution, in brief, is that on the fateful intervening night of 16th & 17m April, 1985 at about 12 mid night Ramjanam (since deceased) was sleeping in his house, Ramlalan (PW-1), who was also staying in the house, was sleeping within close distance in the same house. The appellants came along with other co-accused, they were holding tabbal (betel axe) and all the accused persons assaulted Ramjanam, who was sleeping, with stick, axe & betel axe and chopped his head, Ramjanam died on the spot. Head of the deceased was hanging on the cot. After hearing the sound, Ramlalan (PW-1) & Ramanjore (PW—2) — elder brother of Ramjanam woke up, then the appellants & accused persons fled away from the spot. On second day morning Ramanjore (PW-2) lodged F.l.R. vide Ex.P—1. Merg was recorded vide EXP-14: After summoning the witnesses vide Ex.P-10, inquest over the dead body of Ramjanam was prepared vide Ex.P-2. Dead body ofRamjanam was sent for autopsy to District Hospital, Surguja vide Ex.P—13. Dr. Shivendra Kumar Chaurasia (PW-1 1) conducted autopsy vide Ex.P-14A and found seven incised wounds over different parts of the body of the deceased. The deceased died as a result of fatal injuries sustained by him. Blood stained and plain soil were recovered from the spot vide EXP—9. Blood, € stained cot and other clothes were seized vide Ex.P-11. During the course of investigation; appeilant Ram Prasad was taken into custody, he made discioser statement of axe vide Ex.P-3 and the same was recovered at the instance of Ram Prasad aiong with blood stained cloth vide Ex.Pp4. Appellant Jamuna made discioser statement of betel axe vide Ex.P-5 and the same was recovered from Jamuna vide Ex.P-6. Accused Shivbaran (since deceased) made discioser statement of stick vide Ex.P-7 and the same was recovered from Shivbaran vide Ex.P-8. Patwari prepared spot map vide EXP-16. 7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was tiled before Judicial Magistrate First Class, Surajpur who in turn, committed/ the case to the Court of Sessions, Ambikapur, from where 15‘ Additional Sessions Judge, Ambikapur received the case on transfer for trial. 8. In order to prove the guilt of the accused persons the prosecution has examined as many as eleven witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 9. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. 10.l have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 11.Learned counsel for appellant Jamuna vehemently argued that conviction is substantially based on the evidence of Ramlalan (PW-1) i who is chance witness, resident of the place just one k.m. away from the place of incident and whose presence at the time of incident was not o ?1. natural. Ramlalan (PW-1) is the person who has claimed that he has seen the incident and if his evidence is disbelieved, there is no evidence to connect appeilant Jamuna with the crime in question. 12.0n the other hand, learned State counsel opposed the appeai and submitted that although Ramlalan (PW-1) is a chance witness, but his presence is well corroborated by the promptly lodged F.I.R. Ex.P—1 and the evidence of Ramanjore (PW-2) — brother of the deceased. Evidence of chance witness itself is not inadmissible in evidence, his evidence only requires minute scrutiny. 134ln order to appreciate the arguments advanced on behalf of thetparties, we have examined the evidence adduced on behalf of the prosecution. 14.ln the present case, homicidal death of deceased Ramjanam as a result of fatal ante—mortem injuries has not been substantially disputed on behalf of appellant Jamuna, otherwise also established by the evidence of Dr. Shivendra Kumar Chaurasia (PW-11) and autopsyreport Ex.P- 14A which reveal that neck of deceased Ramjanam was chopped and death was homicidal in nature. 15.As regards complicity of appellant Jamuna in the crime in question, conviction is based on the evidence of eyewitness Ramlalan (PW-1) & Ramanjore (PW—2). Admittedly, Ramlalan (PW-1) is a chance witness. He is resident of same village just one k.m. away from the place of incident. On the date of incident, he came to the house of Ramanjore for taking ghee and on the request of Ramanjore he stayed there in the night. He has deposed that deceased Ramjanam was sleeping in his courtyard just 10-11 steps from him. During mid night he heard the sound of causing injury on which he woke up and saw that accused Shivbaran (since deceased) was pressing the deceased with stick and appellant Jamuna & Ram Prasad were assaulting him with axe & small betel axe (tab/i). He asked the accused persons on which they threatened him that if he will cry, they will kill him also. He hid himself below the cot. After causing fatal injuries to Ramjanam and causing his death, the accused persons fled away from the spot, then Ram‘anjore came and started weeping, thereafter, other persons also came. 16.Ramanjore (PW—2) — brother of deceased Ramjanam has deposed in his evidence that on the date of incident Ramlalan (PW-1) was staying in his house andwas sleeping in the house where Ramjanam was sleeping. During mid night the accused persons came after opening the temporary door of kitchen garden and when he asked, they tried to flee from the spot, they were holding betel axe, axe & stick and he saw fatal injuries, on the body of his brother Ramjanam, dead body was lying on the cot. Second day he went to the Police Station and lodged report. Defence has cross-examined this witness at length. ln his detailed cross- examination, he has specifically stated that at the time of incident and on the date of incident, Ramlalan (PW-1) was present in his house and he was sleeping in the same house. He has also stated that he was in a position to identify the accused, he had identified the accused and had lodged the named F.I.R. 17.Defence has also cross-examined Ramlalan (PW-1) in detail, but in his detailed cross-examination he was stuck to his version and he has specifically stated that he has seen the incident. Although Ramlalan (PW-1) is a chance witness, but he was not simply a by-passer, on the date ofincident he came to the house of Ramanjore and at the request of Ramanjore he stayed in the house of the deceased. Evidence of r . chance witness itself is not inadmissible in evidence, it only requires ‘ u close scrutiny. 18.ln the matter of Bahal Singh v. State of Haryana (AIR 1976 SC 2032), the Apex Court has held that statement of chance witness is not necessarily incredible or unbelievable but does require cautious and close scrutiny. Para 10 of the said judgment reads as under:- ‘f10. As to the presence of P.Ws.4 and 5 at the time ‘ and place of occurrence the trial Court entertained grave doubts. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P.Ws.4 & 5 were agnatic relations of the deceased—one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial Court. There was not any compelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their collateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge.” 19.0n the basis of the law propounded, we have closely and minutely examined the evidence of Ramlalan (PW-1), his evidence inspires confidence, it is trustworthy and safe to rely. Further, his evidence is well corroborated by the evidence of Ramanjore (PW-2) — brother of the a deceased and the promptly lodged F.I.R. 20.Evidence of these two witnesses are sufficient for drawing inference that appellant Jamuna & other two accused persons were the persons who