JUDGMENT : Sanjay K. Agrawal, J. 1. Assailing legality, validity and correctness of the judgment of conviction and order of sentence dated 14-6-2019 passed by the Sessions Judge, Janjgir-Champa in Sessions Trial No.78/2018, the appellant herein namely, Deepak (A-1) has preferred this appeal under Section 374(2) of the CrPC, by which he has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months, whereas, co-accused persons – Ghasiram (A-2), Ramkhilawan @ Guduwa (A-3) & Puniram Banjare (A-4) have been acquitted of the said charge. 2. Case of the prosecution, in short, is that on 29-7-2018 at about 8:45 a.m., at Village Kera, Main Road, Police Station Nawagarh, District Janjgir-Champa, the appellant herein while driving the Bolero vehicle bearing registration No.CG-12/AJ-1665 rashly and negligently, dashed the boundary wall of the house of Sanju Jangde (PW-1) and also dashed Shiva Banjare (since deceased) from backside by which he sustained grievous injuries and thereafter died during the course of treatment, and thereby committed the offence. The date of incident was 29-7-2018 and the place of incident was house of Sanju Jangde (PW-1) at Village Kera, Main Road, District Janjgir-Champa. Mahendra Kumar Dewangan (PW-4) being Sarpanch of Village Kera, immediately lodged FIR vide Ex.P-4 in which he has stated that the appellant while driving the Bolero vehicle rashly and negligently dashed the boundary wall of the house of Sanju Jangde (PW-1) and also caused injury to Shiva Banjare and accordingly, offences under Sections 279 & 337 of the IPC were registered against the appellant herein. The FIR was registered on 29-7-2018 at 9:50 a.m., whereas deceased Shiva Banjare died on 29-7-2018 at 10:55 a.m.. Merg intimation Ex.P-12 was recorded and inquest was conducted vide Ex.P-29. Dead body was subjected to postmortem which was conducted by Dr. P.S. Kurre (PW-14) vide Ex.P-25 in which cause of death was stated to be hypovolemic shock due to rupture of internal organs leading to cardio respiratory arrest and death was stated to be accidental in nature. Merg intimation Ex.P-12 was recorded and inquest was conducted vide Ex.P-29. Dead body was subjected to postmortem which was conducted by Dr. P.S. Kurre (PW-14) vide Ex.P-25 in which cause of death was stated to be hypovolemic shock due to rupture of internal organs leading to cardio respiratory arrest and death was stated to be accidental in nature. However, immediately thereafter, on third day i.e. on 31-7-2018, wife of the deceased namely Pramila Bai was examined under Section 161 of the CrPC in which she has stated that murder of her husband has been caused pursuant to which offence under Section 302 of the IPC was registered and the investigating officer proceeded in that line and thereafter, Crime Details Form Ex.P-5 was prepared by Anand Kumar Sahu (PW-23) – Investigating Officer. Patwari prepared spot map vide Ex.P-13. Thereafter, investigation was conducted. 3. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellant herein along with other three accused persons was charge-sheeted for offence under Section 302 read with Section 120B of the IPC and the case was committed to the Court of Session for hearing and disposal in accordance with law. 4. The prosecution, in order to prove the offence against the appellant herein and other accused persons, examined as many as 24 witnesses and brought on record 31 documents Exs.P-1 to P-31. The defence has not examined any witness, however, brought into record one document Ex.D-1 – statement of Smt. Photobai recorded under Section 161 of the CrPC. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 5. The trial Court after appreciating oral and documentary evidence on record, while acquitting three co-accused persons, proceeded to convict the appellant herein for offence under Section 302 of the IPC, against which he has preferred this appeal. 6. Ms. Reena Singh, learned counsel appearing for the appellant, would submit that the appellant has been falsely implicated in the offence in question, as there is no evidence available on record against him. 6. Ms. Reena Singh, learned counsel appearing for the appellant, would submit that the appellant has been falsely implicated in the offence in question, as there is no evidence available on record against him. She would however, submit that since it is an accidental death, at the most, offence under Section 304A of the IPC would be made out instead of Section 302 of the IPC and since the appellant had already undergone the maximum sentence of two years prescribed under Section 304A of the IPC, as he is in jail since 18-8-2018, he be sentenced to the period already undergone by him. 7. Mr. Vivek Mishra, learned State counsel, would oppose the appeal and support the impugned judgment of conviction and order of sentence and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted him under Section 302 of the IPC, therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. It is not in dispute that the date of incident was 29-7-2018 whereon the vehicle driven by the appellant herein and owned by the acquitted co-accused namely, Ghasiram (A-2) dashed the house of Sanju Jangde (PW-1) by which the house got damaged as well as by the rash and negligent driving of the appellant herein, the vehicle hit deceased Shiva Banjare from backside as a result of which Shiva Banjare suffered grievous injuries. Mahendra Kumar Dewangan (PW-4), who was at the relevant point of time Sarpanch of Village Kera, immediately reported the matter to the police vide FIR Ex.P-4 pursuant to which offences punishable under Sections 279 & 337 of the IPC were registered against the appellant herein, however, later-on, on the basis of the statement of Pramila Bai – wife of the deceased, recorded under Section 161 of the CrPC on the 3rd day of the incident i.e. on 31-7-2018, offence punishable under Section 302 of the IPC was registered which culminated into charge-sheeting the appellant and other co-accused persons under Section 302 read with Section 120B of the IPC and, after full-fledged trial, the appellant herein has been convicted under Section 302 of the IPC, whereas the other three co-accused persons have been acquitted of the said charge. 10. Now, the question is, whether the trial Court is justified in convicting the appellant herein under Section 302 of the IPC for which the trial Court has solely relied upon the statement of Pramila Bai (PW-19) – wife of the deceased, as eyewitness to the incident. 11. Firstly, FIR was lodged by Mahendra Kumar Dewangan (PW-4), who was Sarpanch of Village Kera, vide Ex.P-4 by which offences under Sections 279 & 337 of the IPC were registered at Police Station Nawagarh, District Janjgir-Champa under Crime No.125/2018 immediately after one hour of the incident in which he has clearly stated that the appellant herein while driving the vehicle rashly and negligently dashed the wall of the house of Sanju Jangde (PW-1) and caused the accident by which Shiva Banjare has also suffered injuries, and the report has been lodged accordingly. Thereafter, Shiva Banjare died on 29-7-2018 at 10:55 a.m. i.e. on the same day of the incident which has been recorded in the merg intimation Ex.P-12, wherein it has been mentioned that the deceased died during the course of treatment, pursuant to which inquest was conducted vide Ex.P-29 and the dead body was subjected to postmortem which was conducted by Dr. P.S. Kurre (PW-14) vide Ex.P-25 in which the doctor has clearly recorded that the nature of death is accidental. In the statement before Court also Dr. P.S. Kurre (PW-14) has stated that it was apparent for him that the death was accidental in nature. 12. P.S. Kurre (PW-14) vide Ex.P-25 in which the doctor has clearly recorded that the nature of death is accidental. In the statement before Court also Dr. P.S. Kurre (PW-14) has stated that it was apparent for him that the death was accidental in nature. 12. However, upon the statement of Pramila Bai (PW-19) recorded under Section 161 of the CrPC on 31-7-2018, the Investigating Officer started investigating the matter from the angle of commission of murder punishable under Section 302 of the IPC, as Pramila Bai (PW-19) in her statement under Section 161 of the CrPC as well as before the Court has stated that on the fateful day, she was sitting near the door of her house from where she has seen the incident by which the appellant has firstly dashed her husband from backside by his vehicle and after reversing the vehicle, he again dashed her husband by which her husband suffered injuries and died. However, the correctness of the statement Pramila Bai (PW-19) can be examined in light of the two spot maps, one prepared by the Investigating Officer on the same day which is Ex.P-5 (Crime Details Form) proved by Mahendra Kumar Dewangan (PW-4) – Sarpanch of the village and another prepared by the Patwari vide Ex.P-13. 13. In this regard, the Supreme Court in the matter of Shingara Singh v. State of Haryana and another, (2003) 12 SCC 758 held that the omission to show essential feature in the site plan is more than lapse on the part of the Investigating officer and observed in para-29 as under : “The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined.” 14. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined.” 14. Similarly, in the matter of Baldev Singh and another v. State of M.P., (2003) 9 SCC 45 it has been held by the Supreme Court that site plan is not a mere formality and it is essential feature to highlight the importance of the site plan, and observed as under : “13. … The site plan prepared by Arvind Khare does not show the presence of cycles or the bushes although the site plan mentions the place wherefrom the two witnesses claim to have seen the incident.” 15. The Supreme Court in the matter of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh and others, (2021) 10 SCC 598 , in para-3, has issued the following guidelines regarding site plan : “3. SCENE MAHAZAR/ SPOT PANCHANAMA i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama. ii. The site plan shall be prepared by the Investigating Officer by hand, and shall disclose a. the place of occurrence, b. the place where the body (or bodies) was / were found, c. the place where material exhibits and/or weapons, d. blood stains and/or body fluids had fallen, e. the place where bullet shells, if any, were found or have caused impact, f. the source of light, if any and g. adjoining natural and man-made structures or features such as walls, pits, fences, trees/bushes, if any and h. elevation of structures and their location. iii. The preparation of this sketch by the Investigating Officer shall be followed by a scaled site plan prepared by police draftsman, if available, or such other authorized or nominated draftsman by the State Government, who shall prepare the scaled site plan after visiting the spot. iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.” 16. iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan.” 16. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid cases, it is quite vivid that in the spot map Ex.P-5 (Crime Details Form), Investigating Officer Anand Kumar Sahu (PW-23) has mentioned that the place of incident is near the house of Sanju Jangde (PW-1), but one thing that is pertinent to mention is that in the Crime Details Form (Ex.P-5) prepared by the Investigating Officer on the date of offence, he has not mentioned from which place Pramila Bai (PW-19) has seen the incident and where she was standing/sitting. Furthermore, Investigating Officer Anand Kumar Sahu (PW-23) has stated in his evidence that Mahendra Kumar Dewangan (PW-4) has reported the matter to the police vide FIR Ex.P-4 with regard to the road accident and he has also stated in paragraph 3 of his statement before the Court that house of the deceased / Pramila Bai (PW-19) is not near the place of incident as shown in Ex.P-5 and there is some distance adjoining to the road, but in paragraph 4, he has clearly stated that if one comes to the main road after exit from the house of the deceased/Pramila Bai (PW-19), the place of incident can be seen. As such, Investigating Officer Anand Kumar Sahu (PW-23) and Sarpanch Mahendra Kumar Dewangan (PW-4) have clearly stated that the house of the deceased/Pramila Bai (PW-19) is not adjoining to the place of occurrence. 17. Similarly, Dharmendra Yadav (PW-10) – Patwari, who has prepared the spot map Ex.P-13, has stated in his statement before the Court that house of the deceased/Pramila Bai (PW-19) is not situate near the place of incident, rather it is at some distance and he has also stated that house of the deceased/Pramila Bai (PW-19) is in the field. Such statement of Patwari – Dharmendra Yadav (PW-10) is further corroborated by the statement of Pramila Bai (PW-19) – eyewitness to the incident, who has stated in her statement before the Court that her house is situate in their field. Such statement of Patwari – Dharmendra Yadav (PW-10) is further corroborated by the statement of Pramila Bai (PW-19) – eyewitness to the incident, who has stated in her statement before the Court that her house is situate in their field. As such, it is established that the house of the deceased/Pramila Bai (PW-19) is not adjoining to the place of incident and therefore her statement that she has seen the incident cannot be accepted. In that view of the matter, we reject the testimony of Pramila Bai (PW-19) as eyewitness. 18. From the aforesaid facts, it is firmly established that: – 1. The place of incident is Village Kera, Main Road, boundary wall of Sanju Jangde (PW-1) and immediately after the incident, on the report of Mahendra Kumar Dewangan (PW-4) – Sarpanch of the village, FIR Ex.P-4 was registered by Investigating Officer Anand Kumar Sahu (PW-23) for offences punishable under Sections 279 & 337 of the IPC in which also Mahendra Kumar Dewangan has stated that Sanju Jangde (PW-1) and one Sukmat Bai Banjare have seen the incident and the name of Pramila Bai (PW-19) is missing as eyewintess, which is relevant fact under Section 11 of the Evidence Act, 1872 as laid down by their Lordships of the Supreme Court in the matter of Ram Kumar Pande v. The State of Madhya Pradesh, AIR 1975 SC 1026 . 2. As per the postmortem report Ex.P-25 proved by Dr. P.S. Kurre (PW-14), nature of death was accidental. 3. As per the two spot maps Exs.P-5 & P-13, Pramila Bai (PW-19) is said to have witnessed the incident from her house, whereas her house is situate in the field at some distance from the place of incident from where the place of incident is not visible, which is proved by her own statement and the statements of Dharmendra Yadav (PW-10) – Patwari and Investigating Officer Anand Kumar Sahu (PW-23), who have clearly stated that if one comes out from the house of the deceased/Pramila Bai (PW-19), then only the place of incident is visible. As such, Pramila Bai (PW-19) has no occasion to witness the incident from her house as stated by her. 4. As such, Pramila Bai (PW-19) has no occasion to witness the incident from her house as stated by her. 4. Statement of Pramila Bai (PW-19) under Section 161 of the CrPC was recorded on the third day of incident i.e. on 31-7-2018, whereas the incident has occurred on 29-7-2018 and as such, she (PW-19) had ample opportunity to manipulate, which causes serious doubt about the genuineness of the prosecution case for the alleged murder of her husband. 5. Sanju Jangde (PW-1), Sukhmat Bai (PW-2), Manjeet Sarthi (PW-8), Chandrama Prasad Khunte (PW-9) & Rashan Tandan (PW-11) – eyewitnesses have not supported the case of the prosecution and the prosecution has declared them hostile. 19. Thus, for the foregoing reasons, we are unable to subscribe the view taken by the trial Court that the appellant is guilty of the offence of murder. However, it appears from the record that the appellant having driven the vehicle rashly and negligently caused the death pursuant to which FIR for the offences punishable under Sections 279 & 337 of the IPC was registered and investigation started, and Dr. P.S. Kurre (PW-14), who conducted postmortem, has stated that the nature of death is accidental. Mahendra Kumar Dewangan (PW-4) – Sarpanch of the village, who has lodged the FIR, has also stated the same thing in the FIR Ex.P-4 and the FIR also indicates that it was proved by Mahendra Kumar Dewangan (PW-4) that the appellant has caused the accident. 20. Furthermore, Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. (See Naresh Giri v. State of M.P., (2008) 1 SCC 791 .) 21. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. (See Naresh Giri v. State of M.P., (2008) 1 SCC 791 .) 21. In view of the evidence of Mahendra Kumar Dewangan (PW-4) followed by registration of FIR Ex.P-4 by Investigating Officer Anand Kumar Sahu (PW-23) and the postmortem report Ex.P-25 in which death is held to be accidental in nature and in view of the finding arrived herein-above, we are of the considered opinion that at the best, offence under Section 304A of the IPC would be made out against the appellant herein for which the maximum sentence prescribed is imprisonment for two years, or with fine, or with both. Accordingly, we hereby alter the conviction of the appellant from Section 302 of the IPC to one under Section 304A of the IPC and sentence him thereunder to suffer imprisonment for two years which he had already undergone as he is in jail since 18-8-2018. He be released forthwith, if not required in any other case. 22. The criminal appeal is allowed to the extent indicated herein-above. 23. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for necessary information and action, if any.