Judgment Inder Singh Uboweja, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31.08.2009 passed by the 1st Additional Sessions Judge, Bilaspur in Sessions Trial No. 104/2009, whereby and whereunder the trial Court, after holding the appellant guilty for causing homicidal death amounting to murder of Omprakash Baiga and for concealing the evidence, convicted the appellant under Sections 302 and 201 of the Indian Penal Code (for short, 'the IPC') and sentenced him to undergo imprisonment for life & fine of Rs. 200/-, in default, additional R.I. for one month and to undergo R.I. for 5 years & fine of Rs. 300/-, in default, additional R.I. for two months. Conviction is impugned on the ground that without there being an iota of evidence against the appellant, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 2. As per case of prosecution, deceased - Omprakash Baiga was real nephew of the appellant. There was love affair between deceased, Omprakash and the daughter of appellant/accused namely Ramkali (PW-4). On the date of incident i.e. on 15.01.2009 in between 11.00 to 11.30 p.m. at village Choonakhodra (Umariya), deceased Omprakash went to appellant's house to meet with his girl friend Ramkali. It is alleged that on seeing the deceased by the accused, he gave stick (lathi) blow and thereafter committed murder by throttling and gagging his neck and after that with intent to disappear the evidence put the dead body in a bag and taken it into Karga Pahar and thereafter thrown in a ditch, which is 30 meter depth under the Karga mountain in forest area. On 19.01.2009, a missing report (Ex. P-24) of the deceased was lodged by Anjor Singh Baiga (PW-1), father of the deceased, which was recorded in Rojnamcha Sanha. During course of searches of Omprakash, some information was received by Anjor Singh Baiga (PW-1), he reported aforesaid incident at police chowki, Belgahna, which has been recorded as Dehati Nalishi (Ex. P-10). On the basis of which, FIR (Ex. P-29) was lodged at police station, Kota. 3. During the course of investigation, appellant was taken into custody, he made disclosure statement that in which place he has thrown the dead body of deceased - Omprakash vide Ex. P-4. The same was recovered at the instance of the appellant vide Ex. P-18. P-10). On the basis of which, FIR (Ex. P-29) was lodged at police station, Kota. 3. During the course of investigation, appellant was taken into custody, he made disclosure statement that in which place he has thrown the dead body of deceased - Omprakash vide Ex. P-4. The same was recovered at the instance of the appellant vide Ex. P-18. Dead body of Omprakash was identified by witness vide Ex. P-1. Bloodstained and plain soil was recovered from the spot vide Ex. P-15. Two bloodstained bags, one shawl and one lungi of the deceased were seized from the spot vide Ex. P-17. One bloodstained stick, one lungi, one sweater and one axe were also seized from the house of the appellant vide Ex. P-16. Spot map was prepared by the police vide Ex. P-12. Patwari prepared spot map vide Ex. P-35. 4. After summoning the witnesses vide Ex. P-2, inquest over the dead body was prepared vide Ex. P-3. Dead body was sent for autopsy to Primary-Health Center, Tenganmada vide Ex. P-25. Dr. N.R. Kanwar (PW-11) conducted autopsy vide Ex. P-22 and found following injuries and symptoms:-- i. Eye balls were hemorrhagic; ii. Contusion of 8 c.m. x 2 c.m. x 1 c.m. over frontal head; iii. Contusion over left hand side; iv. Swollen over the left elbow; v. Contusion of 17 c.m. x 2/4 c.m. over back side scapular region; vi. One abrasion on right leg; vii. Semen discharge; viii. Multiple post mortem abrasions were over back side of the body. Mode of death was asphyxia due to throttling and gagging and death was homicidal in nature. 5. Seized articles were sent for chemical examination to FSL vide Ex. P-32. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Kota, who in turn committed the case to the Court of Sessions Judge, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as thirteen witnesses. Accused was examined under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question is claimed. 7. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as thirteen witnesses. Accused was examined under Section 313 of the Code, in which he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question is claimed. 7. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for both the parties and perused the judgment impugned and record of trial Court. 9. Mr. Shrawan Chandel, learned counsel for the appellant, vehemently argued that case of the prosecution is substantially based on the circumstantial evidence and in case of circumstantial evidence, the prosecution is required to complete the chain of circumstances to establish that except the appellant none other is the author of crime. In the present case, the prosecution has utterly failed to complete the chain of circumstances for drawing an inference that only the appellant has caused the homicidal death of the deceased and none else. All important witnesses have been declared hostile witnesses and they have not supported the case of prosecution. Confession of the appellant before Anjor Singh Markam (PW-6) is not so clear and could not be the basis for conviction. He further submits that if the case of prosecution is taken on its face value, then also the act attributed to the appellant, after considering all the facts, it does not travel beyond the scope of Section 304 Part-I of the IPC. 10. On the other hand, Mr. Mahesh Mishra, learned Panel Lawyer for the State opposed the appeal and submits that the prosecution had proved its case beyond shadow of doubt. Confession made to the prosecution witness, Anjor Singh (PW-6) is admissible under the law and it was free & voluntarily. As per Sections 25, 26 & 27 of the Evidence Act, confessional statement made to the police, except the disclosure part, is not admissible in evidence, but nondisclosure part of the memorandum is admissible in evidence, without any explanation on behalf of the appellant and is sufficient to prove the fact that only the appellant has committed the offence and none else. 11. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 12. 11. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of the deceased as a result of throttling and gagging of neck has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. N.R. Kanwar (PW-11) and autopsy report (Ex. P-22) that the death of deceased - Omprakash was homicidal in nature. Prosecution witnesses Smt. Shantibai Baiga (PW-3), Ku. Ramkali Baiga (PW-4), Jai Singh (PW-5), Panchuram (PW-7) have been declared hostile, they have not supported the case of prosecution. 13. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on extra judicial confession being made before Anjor Singh Markam (PW-6) and non confessional part of the memorandum statement of the appellant. As per evidence of Anjor Singh Markam (PW-6), he deposed that Anjor Singh Baiga (PW-1), father of deceased - Omprakash came to him and intimated that his son Omprakash was missing, he suggested him to make effective search for him, but Anjor Singh Baiga (PW-1) was suspecting that his son has been killed by the appellant. Anjor Singh Baiga (PW-1) and Mahanguram Baiga (PW-2) have supported the statement of Anjor Singh Markam (PW-6) that they were searching for Omprakash. Anjor Singh Markam (PW-6) has also stated that after Anjor Singh Baiga (PW-1) has left appellant came to him and confessed that he has killed Omprakash and dead body was thrown in Jharokhi jungle, thereafter, appellant has left his house. The defence has cross-examined this witness at length, but has not been able to elicit anything to discredit testimony of this witness to the extent that before him appellant has not given extra judicial confession about murder of Omprakash. Investigating Officer R.K. Sahu (PW-12) and witness Anjor Singh Markam (PW-6) have proved the memorandum (Ex. P-14) of the appellant and at his instance dead body of Omprakash was seized from Jharokhi chattan (jungle) and dead body was identified by father of deceased namely Anjor Singh Baiga (PW-1). Aforesaid evidence is sufficient for drawing inference that the appellant has caused homicidal death of Omprakash, he is the only person who was author of the crime and none else. 14. Aforesaid evidence is sufficient for drawing inference that the appellant has caused homicidal death of Omprakash, he is the only person who was author of the crime and none else. 14. As regards the question of motive, motive aids in criminality and in direct evidence it loses its importance. In the present case, as per case of prosecution deceased was in love with daughter of the appellant and the appellant was unhappy and got annoyed about such relation and this matter was discussed in village meeting. This fact finds place in memorandum of the appellant vide Ex. P-14. Non confessional part shows that on incident, night deceased came to his house secretly by keeping his presence hidden to meet to his daughter Ramkali (PW-4) and this was not tolerable and acceptable for him. 15. Section 304 IPC provides punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely, result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while depriving of power of self control under grave and sudden provocation while exercising in good faith the right of private defence of person or property and in a sudden fight in the heat of passion without premeditation knowledge of consequences which may result in doing an act is quite different the intention which denotes that a particular consequence should ensure, for attracting the former part of Section 304, an element of intention is a factor whereas for attacking the later part, an element of knowledge as a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 16. The appellant and the deceased were close relatives, appellant is a real uncle of deceased and deceased was close associate with daughter of the appellant, he was in love with Ramkali (PW-4), daughter of the appellant, although she has denied relation but her father has disclosed this fact in his non-confessional statement (Ex. P-14), which shows that appellant was so much got annoyed to accept this relation and when on fateful night deceased came to his house for meeting with his daughter, he got annoyed and under grave and sudden provocation for saving her daughter future life in a sudden heat of passion without premeditation, knowledge of consequences which may result in doing act, he was throttling and gagging the neck of deceased. This shows that there was no intention of the appellant to commit murder of the deceased. On the above act, though intention cannot be attributed to the appellant, but the knowledge can well be attributed to him that by pressing neck, the deceased would die. This act of the appellant comes within the purview of Section 304 Part-I of the IPC. However, at the time of convicting and sentencing the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid circumstances and thereby committed an illegality. Consequently, the appeal is partly allowed. Conviction and sentence of the appellant under Section 201 of the I.P.C. Is hereby maintained whereas conviction of the appellant under Section 302 of the IPC is hereby altered to Section 304 Part-I of the IPC and he is sentenced to undergo R.I. for 10 years and fine of Rs. 200/- in default of payment of fine further undergo R.I. for one month. The appellant is in custody, he will serve remaining sentence.