rfs:-:,;-.,"^\ .«»•'^s.'t HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.229 of 2006 Upas Manjhwar, S/o Munna Manjhwar, aged 30 years, R/o Village Parpatiya, Daldalipara, Police Station Kamleshwarpur, Distt. Sarguja Versus State of Chhattisgarh, Through Police Station Kamleshwarpur, Distt. Sarguja (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure} Present: Mr. Ashok Mishra, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Wlr. R.L. Jhanwar, JJ ORAL JUDGMENT (7-4-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 1-3-2006 passed by the 3 Additional Sessions Judge (FTC), Ambikapur in Sessions Trial No.240/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Etwar, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo Rl for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 7-3-2005 at about 6 p.m. the appellant, who was sitting beside Etwar Manjhwar (since deceased), has cased fatal injury over chest of Etwar resulting in his instantaneous death. Somaru (PW-3) in whose front of house the incident took place has lodged FIR promptly vide Ex.P-4. Merg was "^•^. fe,^;s!-®®ai5^ ^s^i •!^ (^ recorded vide Ex. P-5. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-16, prepared inquest over the dead body of the deceased vide Ex.P-6. Dead body was sent for autopsy to Primary Health Centre, Kamleshwarpur vide Ex.P-4. Dr. S.N. Bhoi (PW-1) conducted autopsy vide Ex.P-1 and found following injury: - > Incised wound of 12 c.m. x 6 c.m. x 5 c.m. over left side of chest, heart was found cut. Mode of death was shock and death was homicidal in nature. Spot map was prepared vide Ex.P-10. Blood stained and plain soil were recovered from the spot vide Ex.P-9. During the course of investigation, the accused was taken into custody, he made discloser statement of axe vide Ex.P-7 and same was recovered at the instance ofthe accused vide Ex.P-8. Seized articles were sent for chemical examination vide Ex.P-15 and presence of blood over axe recovered from the accused was confirmed vide Ex.P-17. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as five witnesses. The accused was examined under Section 313 ofthe CrPC in which he denied the circumstances appearing against him, pleaded innocence and fatse imptication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued that conviction is based on the evidence of solitary witness Somaru (PW-3) which does not inspire confidence, it is not trustworthy, even as per evidence of Somaru (PW-3), there was some darkness and he was not in a position to identify the person who has caused injury upon the deceased and, therefore, the evidence of solitary witness Somaru (PW-3) is not sufficient for conviction of the appellant that too under Section 302 of the IPC. 9. On the other hand, learned State counsel opposed the appeal and submitted that the incident took place on 7 March, 2005 at 6 p.m., at that time, sufficient light was present and the witness has identified the appellant, even he has chased the appellant to some extent. Evidence of Somaru (PW-3) is sufficient for drawing definition conclusion that only the appellant has caused homicidal death of deceased Etwar. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 11.1n the present case, homicidal death of deceased Etwar as a result of fatal injury found over vital part of his person has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. S.N. Bhoi (PW-1) and autopsy repori: Ex.P-1 that death of deceased Etwar was homicidal in nature. 12.Conviction of the appellant is substantially based on the evidence of Somaru (PW-3). As per his evidence, on the fateful day the appellant and the deceased were sitting in his court yard, at the time of incident he was chaining the cattle, at that time, the appellant assaulted Etwar by axe over his chest and tried to escape from the place. This witness chased the appellant to some extent and then he went to the police station and lodged report. In para 4 of his cross-examination and in the question put to him, he has specifically deposed that the appellant has caused injury to the deceased. In para 5 of his cross-examination he has further deposed that the appellant has caused injury to the deceased. 13.At the time of incident only Somaru (PW-3) was present on the spot and his evidence is well corroborated by the promptly lodged FIR and medical evidence. Evidence of this witness is trustworthy, it inspires confidence and same is safe to rely. After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. On close scrutiny of evidence, we do not find any illegality or infirmity in conviction & sentences imposed upon the appellant requiring any interference. Some. 14.Consequently, the appeal is devoid of_merit, same is liable to be and it is hereby dismissed._ Sd/- T.P. Sharma Judge Sd/- R-L. Jhanwar Judge -to/"