JUDGMENT : T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20.03.2012 passed by the Sessions Judge, Bastar at Jagdalpur in ST. No. 106/08, whereby & whereunder the trial Court after holding the appellants guilty for causing homicidal death of deceased Jairam, amounting to murder, in sharing common intention, convicted them under Section 302/34 of the Indian Penal Code (for short 'the IPC') and sentenced each of them to undergo rigorous imprisonment till death & fine of Rs. 5,000/-, in default to undergo additional R.I. for 01 year. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 2. As per case of the prosecution, father of deceased Jairam and appellant No. 2-Lakhmu were brothers, they have encroached upon the government land over which father of the deceased was in possession. After the death of father of Jairam, present appellants demanded part of land from deceased Jairam which he denied. Both the appellants came to the house of the deceased and after taking meals they stayed in his house and went along with the deceased for sleep in the verandah. At about 5.00 a.m. in the morning the appellants assaulted the deceased by axe. On hearing the sound, Samluram (P.W. 1), son of deceased, came out from the room along with his mother Ullasi Bai (P.W. 2) and wife Talabai (P.W. 7). The appellants were fleeing away from the spot. They saw injured dead body of the deceased. They shouted and with the help of others they detained the appellants. Samluram (P.W. 1) went to the Police Station Bhanpuri and lodged the FIR vide Ex. P-1 and Merg vide Ex. P-2. The Investigating Officer left for scene of occurrence and and after summoning the witnesses vide Ex. P-4, inquest over the dead body of the deceased was prepared vide Ex. P-5. Spot map was prepared vide Ex. P-3. Bloodstained soil and plain soil was recovered from the spot vide Ex. P-6. Dead body was sent for autopsy to the Civil Hospital, Bhanpuri vide Ex. P-11 where Dr. Gopesh Kumar (P.W. 11) conducted autopsy vide Ex. P-8 and noticed one incised wound over left side of chest of 6 x 1.7 x 7 c.m. size. P-3. Bloodstained soil and plain soil was recovered from the spot vide Ex. P-6. Dead body was sent for autopsy to the Civil Hospital, Bhanpuri vide Ex. P-11 where Dr. Gopesh Kumar (P.W. 11) conducted autopsy vide Ex. P-8 and noticed one incised wound over left side of chest of 6 x 1.7 x 7 c.m. size. Mode of death was shock on account of rupture of lungs and injury to other blood vessels. Death was homicidal in nature. Clothes of the deceased were sealed and seized vide Ex. P-7. Patwari prepared the spot map vide Ex. P-10. During the course of investigation, appellant No. 1 Mankuram was taken into custody, he made disclosure statement of axe vide Ex. P-13 and the same was recovered at his instance vide Ex. P-14. Bloodstained clothes of appellant No. 1-Mankuram was seized vide Ex. P-15. Seized articles were sent for chemical examination to the FSL vide Ex. P-20 and presence of blood upon the axe and clothes of the appellants were confirmed vide Ex. P-22. Statements of witnesses were recorded under Section 161 of the Cr. P.C. 3. After completion of investigation, charge-sheet was filed in the Court of Chief Judicial Magistrate, Jagdalpur who, in turn, committed the case to the Court of Sessions, Bastar for trial. In order to prove guilt of the appellants, the prosecution has examined as many as 11 witnesses. Statements of the appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence & false implication in the crime in question. 4. After providing opportunity of hearing to the parties, the trial Court has convicted and sentenced the appellants as mentioned above. 5. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 6. Learned counsel for the appellants vehemently argued that conviction is substantially based on the circumstantial evidence of last seen. Samluram (P.W. 1), Ullasi Bai (P.W. 2) & Talabai (P.W. 7) have deposed that they have seen the appellants along with the deceased at the time of incident and thereafter the appellants tried to flee from the spot. As per FIR (Ex. P-1), both the appellant were detained on the spot, but as per evidence of Samluram (P.W. 1) only appellant No. 1-Mankuram was detained and appellant No. 2-Lakhmuram fled from the spot. As per FIR (Ex. P-1), both the appellant were detained on the spot, but as per evidence of Samluram (P.W. 1) only appellant No. 1-Mankuram was detained and appellant No. 2-Lakhmuram fled from the spot. Ullasibai (P.W. 2) has also deposed the same thing, but Talabai (P.W. 7) has deposed in Para-3 of her evidence that when she came out from the house, she only saw her husband Samluram (P.W. 1), Ullasibai (P.W. 7) & the deceased and other persons were not present which shows that none of the appellants was detained on the spot which falsifies the evidence of the aforesaid prosecution witnesses. He further submits that on account of land dispute there was enmity, therefore, their evidence does not inspire confidence and trustworthy. Their evidence is not sufficient for placing reliance. He further submits that even otherwise this is the case of single blow in which the appellants are in custody since 7.6.2008. 7. On the other hand, learned Panel Lawyer for the State opposed the appeal and argued that evidence of Samluram (P.W. 1), Ullasibai (P.W. 2) & Talabai (P.W. 7), who have witnessed part of the incident, are sufficient for proving guilt of the appellants and on the basis of aforesaid evidence, the trial Court has rightly convicted and sentenced the appellants. 8. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 9. In the present case homicidal death of deceased Jairam as a result of fatal injuries found on the dead body of the deceased has not been substantially disputed on behalf of the appellants. Even otherwise from the evidence of Samluram (P.W. 1), Ullasibai (P.W. 2) & Talabai (P.W. 7), Dr. Gopesh Kumar (P.W. 9) & autopsy report (Ex. P-8), it is established that the death of the deceased was homicidal in nature. 10. As regards the complicity of the appellants in crime in question, conviction is substantially based on the evidence of Samluram (P.W. 1), Ullasibai (P.W. 2) & Talabai (P.W. 7). As per evidence of Samluram (P.W. 1), there was land related dispute between the parties, the appellants came to his house and after taking meals they stayed in his house. They went for sleep in the verandah along with his father deceased Jairam. As per evidence of Samluram (P.W. 1), there was land related dispute between the parties, the appellants came to his house and after taking meals they stayed in his house. They went for sleep in the verandah along with his father deceased Jairam. At about 5.00 a.m. he heard some sound then he woke-up and came out from the room and saw that the appellants are trying to flee from the spot. On seeing injured body of his father, he shouted whereupon Kamo, Baldev came and they caught hold appellant No. 1-Manku, however, appellant No. 2-Lakhmu managed to flee from the spot. Thereafter he went to the police station and lodged FIR (Ex. P-1) and Merg (Ex. P-2). Ullasibai (P.W. 2) has deposed that after hearing the sound when she came out from the room, she saw her injured husband and that the appellants were trying to flee from the spot. They caught hold appellant No. l-Mankuram. Talabai (P.W. 7) also deposed the same thing. 11. As per FIR (Ex. P-1), both the appellants were detained on the spot but as per evidence of these witnesses only appellant No. 1-Mankuram was detained and appellant No. 2-Lakhmuram fled from the spot. There is contradiction and omission in the evidence of the aforesaid prosecution witnesses relating to detention of the appellants but there is no contradiction and omission relating to the fact that both the appellants came to their house and after taking meals they went for sleep at night in the verandah and the deceased also went for sleep in the same verandah. At morning the deceased died as a result of injury and the appellants were trying to flee from the spot. These evidences clearly reveal that only the appellants are the authors of crime and none else. These evidences are further sufficient to establish the fact that the appellants have caused homicidal death of the deceased. 12. As regards the question of motive, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. These evidences are further sufficient to establish the fact that the appellants have caused homicidal death of the deceased. 12. As regards the question of motive, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. As per case of the prosecution, there was some land dispute between the parties the deceased had denied to handover share to the appellants and on account of such dispute, the incident took place and they have caused only single blow to the deceased although they were having opportunity to cause repeated blows to the deceased but after causing single injury that too by the axe lying on the spot they themselves were fleeing from the spot which shows that at the time of causing injury, the appellants were having knowledge that by their act the deceased may die but they have not caused injury with intent to cause homicidal death of the deceased. Therefore, the act attributed to the appellants squarely falls within the purview of Section 304 Part-II of the IPC. 13. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellants as mentioned above but while convicting and sentencing the appellants, the Court below has not taken into consideration the aforesaid facts and circumstances of the case and thereby committed illegality. 14. Consequently, this appeal is partly allowed. Conviction of the appellants under Section 302/34 of the IPC is hereby altered into Section 304 Part-II read with Section 34 of the IPC and they are sentenced to the period already undergone. The appellants are in custody from 7.6.2008 and thereby they are in custody for about six years seven months and five days. They be released forthwith if not required in any other case. Certified copy as per rules.