JUDGMENT : Mr. Gopal Krishan Vyas, J. The instant criminal appeal has been filed by the accused appellant, Deep Singh @ Deepi, under Section 374 (2) of Cr.P.C. against the judgment dated 16th March, 2011 passed by learned Addl. Sessions Judge (Fast Track) No.1, Bikaner (Trial Court) in Session Case No. 78/2009 by which the learned trial court convicted the accused appellant for the offence under Section 302 of IPC and passed sentence against him for life imprisonment with a fine of Rs.2,000/-, in default of payment of fine to further undergo three months' simple imprisonment. 2. Briefly stated, the facts of the case are that on 06.08.2009 at about 05.00 PM, complainant Munsab Ali (PW.4) submitted a written report (Ex.P/12) at Police Station-Chhattargarh, District Bikaner, stating therein that today at about 03.00 PM when I went at RD-465 Mandi for household work, Rajjak, my aunts son, was going near the shop of Sakhan Ram, and after purchasing the goods, when he reached near Choraha, at that time, accused appellant having an axe (“Kulhari”) in his hands, came there from Suratgarh road and inflicted axe blow upon the neck of Rajjak due to previous enmity. As a result of aforesaid injury, Rajjak fell down and thereafter accused appellant inflicted 2-3 more injuries, upon hearing the cry, the accused appellant ran away while taking axe with him. 3. As per complainant's contention, he along with two other persons, namely, Akhtar and Maqsood Ahmed, took injured Rajjak at Damolai Hospital, however, as per advice of the doctor and looking to his critical condition, the injured was referred to PBM Hospital, Bikaner, where Rajjak was declared died. 4. Upon the aforesaid written report (Ex.P/12), a formal F.I.R. No.109/2009 (Ex.P/13) was registered on 06.08.2009 at Police Station Chhatargarh. After registration of the FIR, accused appellant was arrested vide Arrest Memo (Ex.P/8) in the presence of Maqsood Ahmed (PW.3) and Samiullah. During investigation, upon information given by the accused appellant under Section 27 of the Evidence Act, the weapon of offence i.e., axe was recovered vide Ex.P/9 again in the presence of two witnesses, namely, Maqsood Ahmed and Samiullah on 07.08.2009 at 05.00 PM. 5. The shirt and hose ("Kurta" and "Payjama") of accused Deep Singh @ Deepi were also recovered vide Ex.P/10 in the presence of two persons, namely, Maqsood Ahmed and Samiullah. 5. The shirt and hose ("Kurta" and "Payjama") of accused Deep Singh @ Deepi were also recovered vide Ex.P/10 in the presence of two persons, namely, Maqsood Ahmed and Samiullah. The Site Plan and details of site were recorded vide Ex.P/3 and Ex.P/3A respectively on 07.08.2009 by the S.H.O., Police Station-Chhatargarh, in the presence of aforesaid these persons. The "Panchayatnama" of the dead body of deceased was prepared in the presence of Maqsood Ahmed, Munsab, Gaffar Ali Sheikh, and Akhtar. The blood smeared soil was taken from the place of occurrence vide Ex.P/5 and simple soil/mud was also taken from the site vide Ex.P/6. The clothes of the deceased, Rajjak, having blood upon them, were also recovered vide Ex.P/7 in the presence of Maqsood Ahmed and complainant, Munsab. The dead body of Rajjak, the deceased, was subjected to post-mortem by the medical jurist at PBM Hospital, Bikaner, in which three injuries were mentioned. Out of three injuries one injury was incised wound upon backside of the neck and two injuries were abrasions. In the post-mortem report (Ex.P/16) prepared on 07.08.2009, the medical jurist gave its opinion that the case of death was shock due to spinal injury ante mortem caused by a sharp weapon. It was further opined that said injury was self-sufficient to cause death in ordinary course of nature. 6. After recording the statements of witnesses u/s 161 Cr.P.C., all the recovered articles were sent to FSL for chemical examination, and in turn, the FSL report (Ex.P/28) dated 10.08.2009 was received in which blood of “B” group was found upon the clothes and all the articles. 7. The investigating officer after completing the investigation, filed a charge sheet against the accused appellant under Section 302 IPC in the court of Addl. Civil Judge-cum-Judicial Magistrate No.3, Bikaner. The learned Judicial Magistrate committed the case for trial to the court of Sessions Judge, Bikaner, but later on the case was transferred for trial by the learned Sessions Judge, Bikaner to learned Addl. Sessions Judge (Fast Track) No.1, Bikaner. 8. The learned trial court after hearing the arguments framed charges for the offence under Section 302 of IPC. The appellant denied the charge levelled against him for committing offence under Section 302 of IPC and prayed for trial. 9. Sessions Judge (Fast Track) No.1, Bikaner. 8. The learned trial court after hearing the arguments framed charges for the offence under Section 302 of IPC. The appellant denied the charge levelled against him for committing offence under Section 302 of IPC and prayed for trial. 9. During the course of trial, the prosecution examined 8 witnesses in support of its case including eye witnesses, namely, PW.4 Munsab Ali and PW.6, Akhtar. In documentary evidence, total 31 documents were exhibited from the prosecution side. After recording evidence of prosecution, the statement of the accused appellant were recorded u/s 313 Cr.P.C., in which the accused appellant denied all the allegations levelled by the prosecution witnesses against him, and said that he has falsely been implicated in this case. No witness was examined from defense side. 10. The learned trial court after hearing final arguments of prosecution as well as accused appellant convicted the appellant, Deep Singh @ Deepi, for committing offence u/s 302 of IPC vide the judgment dated 16.03.2011 and passed sentence for life imprisonment with fine. 11. In this appeal, the accused appellant is challenging the validity of aforesaid judgment. 12. At the threshold, learned counsel for the appellant submit that the appellant is not challenging or disputing the incident, which is said to be have occurred on 06.08.2009 at 03.00 PM on the Choraha of the Village RD-465, in which on account of injuries inflicted on the person of deceased, Rajjak, he died. However, the learned counsel for the appellant submitted that the prosecution has concealed/hide the actual incident because the whole investigation was made in the presence to two relatives of deceased, namely, Maqsood Ahmed (PW.3) and Samiullah, however, in the trial witness, Samiullah, has not been produced to prove the prosecution case with regard to recovery of articles. Learned counsel for the appellant further submitted that even if the entire prosecution story is accepted, then also, no offence u/s 302 IPC is made out because the main ingredient of murder, which is motive, is absent. He further submitted that to prove the prosecution case, in all statements of 8 witnesses were recorded, including investigating officer and Dr. Sanjeev Buri (PW.7). The prosecution has relied upon the testimony of eye-witness, Munsab Ali and two other witnesses, Maqsood Ahmed (PW.3) and Akhtar (PW.6). 13. He further submitted that to prove the prosecution case, in all statements of 8 witnesses were recorded, including investigating officer and Dr. Sanjeev Buri (PW.7). The prosecution has relied upon the testimony of eye-witness, Munsab Ali and two other witnesses, Maqsood Ahmed (PW.3) and Akhtar (PW.6). 13. As per arguments, upon perusal of the statement of PW.3 Maqsood Ahmed, and PW.6 Akhtar, it will reveal that both these witnesses are planted witnesses because according to their statements, they reached on the place of occurrence after hearing the noise of PW.4, Munsab Ali, author of FIR, and they stated before the Court that in front of them, two injuries were caused by accused appellant by an axe when Rajjak fell down on the way. However, in the postmortem report (Ex.P/16) three injuries are mentioned upon the body of deceased, but out of three injuries, the Injury No.1 was incised wound, which was said to be caused by a sharp weapon whereas the two other injuries were abrasions, opined to be caused by a blunt weapon. Meaning thereby, only one injury caused by sharp weapon, found upon the body of deceased and two other injuries, which were simple abrasions as per opinion of the doctor, the spinal injury was sufficient to cause death in ordinary course of nature. 14. Learned counsel for the appellant further submitted that the 'motive' which has come on record as per statement of eye-witness, PW.4 Munsab Ali, the animals (cows and buffalos) of deceased entered into the agricultural field of accused appellant, therefore, he was having enmity with deceased, Rajjak but such type of 'motive' cannot be considered as a motive to kill a person, therefore, the story of the prosecution for committing offence u/s 302 of IPC is not trustworthy. 15. Learned counsel for the appellant invited our attention towards the statement of witness Munsab Ali (PW.4) and argued that this witness categorically stated in the court on oath that he and deceased, Rajjak, were in the market situated in Village RD-465 Mandi on 06.08.2009, when they were standing near the shop of Shrawan, at that time, Deep Singh, accused appellant, came from Suratgarh road, having an axe in his hands and inflicted injury upon the neck of Rajjak. Due to said injury Rajjak fell down and thereafter two more injuries were caused by him. Due to said injury Rajjak fell down and thereafter two more injuries were caused by him. If the aforesaid statement of said witness is accepted, then, it will reveal that there was no premedication and there is no evidence that Deep Singh came there with an intention to kill Rajjak, so also, there is no evidence to show that he was having any knowledge that Rajjak will found in the market. Therefore, the whole prosecution case for committing offence u/s 302 of IPC is not sustainable in the eye of law. 16. Learned counsel for the appellant also invited our attention towards the statement of PW.7, Dr. Sanjeev Buri, who has categorically stated that postmortem report (Ex.P/16) was prepared by him after due examination of body of deceased, Rajjak. Three injuries were found on the person of Rajjak, and out of three injuries, Injury No.1 was found upon the neck, was the cause of death, due to shock. Meaning thereby, the prosecution case does not travel beyond offence under Section 304 Part-I of IPC and because it is a case of culpable homicidal, not amounting to murder, therefore, he prayed that conviction of the appellant for the offence u/s 302 IPC may be set aside and may be altered for the offence u/s 304 Part-I of IPC. 17. In support of his contention, learned counsel for the appellant invited our attention towards the judgment reported in 2012 Cri.L.R. (SC) 506-Arjun v. State of Maharashtra, and towards a recent judgment of Hon'ble Apex Court in the case of Ranjit Sarkar v. State of Tripura, reported in 2015 (4) Crimes P.72 and submitted that as per aforesaid judgments, the offence cannot travel beyond offence under Section 304 Part-I of IPC upon the facts of the present case. He, therefore, argued that the conviction u/s 302 IPC may be set aside and the same may be altered to offence u/s 304 Part-I of IPC and the sentence may also be reduced appropriately. 18. Per contra, learned Public Prosecutor submitted that there is no strength in the arguments of learned counsel for the appellant that offence cannot travel beyond offence under Section 304 Part-I of IPC because the accused appellant came on the spot with a sharp edged weapon i.e. axe (Kulhari) and in between the way, at about 0300 PM, he inflicted injury upon the neck of deceased, which resulted into the death. To prove the case, the prosecution has produced three witnesses, who were present on the spot viz. PW.3, Maqsood Ahmed, PW.4 Munsab Ali (author of FIR) and PW.6, Akhtar, and their testimony is supported by medical evidence, which is postmortem report and the statement of Dr. Sanjeev Buri (PW.7). It is further argued that blood group of "B" was found upon the clothes and axe recovered from the accused appellant and deceased, therefore, it cannot be said that error has been committed by the learned trial court so as to convict the accused appellant for the offence under Section 302 of IPC. He thus prayed for dismissal of the present appeal. 19. After hearing the learned counsel for the parties, it emerged from the arguments of learned counsel for the appellant that the appellant is not challenging the incident but raised objection with regard to story narrated by the prosecution. The entire prosecution case is based upon the testimony of 8 prosecution witnesses. It is also obvious from the evidence on record that occurrence took place on 06.08.2009 on the public way at Village RD-165 Mandi, where deceased went to purchase some household articles where complainant Munsab Ali (PW.4) was also there. As per prosecution case, the deceased as well as Munsab Ali, were in the market but there is no evidence on record as to how the accused appellant was having the knowledge that the deceased will found in the market. Admittedly occurrence took place on the way, that too at about 03.00 PM in the afternoon, and as per site plan (Ex.P/3) more than 15 shops were in existence but none of the shopkeeper has been made as witness to prove the prosecution case and all the witnesses are from the same community of the deceased. Admittedly occurrence took place on the way, that too at about 03.00 PM in the afternoon, and as per site plan (Ex.P/3) more than 15 shops were in existence but none of the shopkeeper has been made as witness to prove the prosecution case and all the witnesses are from the same community of the deceased. The witness, PW.3 Maqsood Ali, made following allegations in the court, which reads as under:: - ^^vkt ls djhc iksus vkB eghus igys eSa 465 vkj0Mh0 vk;k gqok FkkA djhc rhu cts dh ckr gSA eSa ijpwu dk lkeku irjke cqfM+;k ls ys jgk Fkk brus esa gh esjs ikl v[rj vk x;k vkSj eSa vkSj v[rj ckr djus yxs bruh nsj esa eqfUlc dh fpYykus dh vkokt vk;h fd jTtkd dks ekj fn;kA ge nkSM+ dj ogka igqaps geus ns[kk fd jTtkd tehu ij vkSU/ks eqag fxjk gqvk FkkA nhi flag us esjs ns[krs ns[krs gekjs lkeus nks pksVs ekjh vkSj yk[kulj jksM+ dh rjQ Hkkx x;k FkkA nhi flag ds ikl dqYgkM+h FkhA** Similarly, witness PW.6, Akhtar gave following statement in the Court, which reads as under: - ^^vkt ls djhc lk<+s vkB eghus igys dh ckr gSA eSa ml fnu 465 x;k gqvk FkkA eSa eaMh ?kjsyw lkeku ysus ds fy;s x;k FkkA eaMh esa eSa rhu lok rhu cts vk;k gqvk FkkA eSa irjke cqfM+;k dh nqdku ij lkeku ysus ds fy;s x;k Fkk] esjs ls igys edlwn ogka ij lkeku ys jgk Fkk ge nksuksa ckrphr dj jgs Fks brus esa eqUlc tksj tksj ls fpYyk;k fd jTtkd dks ekj fn;kA ge nksuksa ogka ij nkSM+dj x;sA eSaus pkSjkgs ij Jo.kjke dh nqdku ds ikl igqaps rks jTtkd ogka ij vkSU/ks eqag fxjk Fkk vkSj xnZu ls [kwu cg jgk FkkA mlds lkFk nhi flag us ekjihV dh Fkh esjs ns[krs ns[krs nks pksVsa dqYgkM+h dh vkSj ekjh FkhA ,d pksV xnZu ij yxh Fkh vkSj ,d pksV dU/ks ij yxh Fkh ,d vaxwBs ij yxh FkhA fQj gekjs tc ogka igqaps rks ns[krs ns[krs yk[kulj jksgh dh rjQ Hkkx x;k FkkA** 20. Upon perusal of the statement of all the three witnesses, it is obviously that they made allegation against the accused appellant for inflicting three injuries by an axe but as per statement of the Dr. Upon perusal of the statement of all the three witnesses, it is obviously that they made allegation against the accused appellant for inflicting three injuries by an axe but as per statement of the Dr. Sanjeev Bhuru, PW.7, who conducted the postmortem, gave details of all injuries found upon the body of deceased, which reads as under: - ^^1- xnZu ds uhpys Hkkx ij ihNs dh rjQ lh0 4 ,oa lh 5 oVhZojk ds ysoj ij 9 x 6.3 lseh0 /kkj/kkj dVk gqvk ftlds fdukjs Dyh;j vkSj ekftZu Dyh;j] ?kko dks uhps ls [kksyus ij oVhZojk lh 5 ds yscy ij LikbZuy dksM dVh gqbZ Fkh o [kwu tek gqvk FkkA 2- ck;sa dU/ks dh gM~Mh ij vUnj dh rjQ 2.1 x 1.5 lseh0 jdM+d dk fu'kku Fkk tks xgjs yky jax dk FkkA 3- ck;sa gkFk ij ihNs dh rjQ vaxwBs ds ikl 1.8 x 0.5 lseh0 yEck jdM+d dk fu'kku Fkk tks xgjs yky jax dk FkkA** 21. Upon assessment of above evidence of doctor it is established that only one incised wound was found upon the neck of deceased and two other injuries were simple in nature in the form of abrasions, which cannot be caused by an axe. Meaning thereby, the allegation for inflicting two other injuries by axe, not medically proved. Therefore, it is a case in which the prosecution has proved the fact that accused appellant inflicted one injury upon the neck of deceased, Rajjak, and that injury was the cause of death and after inflicting injury, he run away. 22. It is also obvious upon assessment of entire evidence that none of the witnesses proved the fact that accused appellant was having any knowledge that deceased will found in the market. Meaning thereby, it is a case in which the occurrence took place all of sudden, but the prosecution has hide the correct story. 23. Therefore, in the totality of the circumstances, we are of the opinion that it is a case of culpable homicide not amounting to murder because evidence of 'motive' is absent. In the case of Arjun v. State of Maharashtra (supra), the Hon'ble Apex Court held that if accused had not taken any undue advantage or acted in cruel manner, then accused cannot be punished for offence under Section 302 of IPC but can be held guilty for the offence under Section 304 Part-I of IPC. In the case of Arjun v. State of Maharashtra (supra), the Hon'ble Apex Court held that if accused had not taken any undue advantage or acted in cruel manner, then accused cannot be punished for offence under Section 302 of IPC but can be held guilty for the offence under Section 304 Part-I of IPC. The relevant para 17 of the said judgment is quoted herein below for ready reference: - "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 I.P.C. and hence it is just and proper to alter the conviction from Section 302 I.P.C. to Section 304 Part 1 I.P.C. and we do so." 24. In the case of Ranjit Sarkar v. State of Tripurara, (supra), in almost similar circumstances, the Hon'ble Supreme Court altered the conviction from the offence under Section 302 of I.P.C. to 304 Part-1 of I.P.C. and reduced the sentence from life imprisonment to the period of 10 years. The relevant paras 10 to 12, in which-relevant discussion is made, are quoted herein below for ready reference: - "10. We have carefully gone through the statement of PW-15 Dr. Ranjit Kumar Das, who conducted postmortem examination on the dead body of Anil Das on 18.6.2007. In fact, first four ante mortem injuries mentioned by the medical officer relate to single injury. The first one is stitched wound. The second is haematoma on the deeper layer of scalp over right parietal region. The third injury also relates to the same as it discloses fracture on the depressed bone of the head on anterior part of right parietal bone. The fourth ante mortem injury also relates to above three injuries, which discloses subdural hemorrhage present over cerebral hemispheres. The only ante mortem injury No. 5 is actually the second injury which is an abrasion measuring 3cm x 2cm over the dorsum of left wrist joint. 11. PW-2 Anil Das also does not state about more than one blow given by the appellant on the head of the deceased with wooden file. The only ante mortem injury No. 5 is actually the second injury which is an abrasion measuring 3cm x 2cm over the dorsum of left wrist joint. 11. PW-2 Anil Das also does not state about more than one blow given by the appellant on the head of the deceased with wooden file. The injury on the dorsum of left wrist joint could have been caused when the injured fell down on the ground. As such, in substance the evidence on record suggests only one blow given by the appellant on the head of the deceased which appears to have been given with full force. 12. In the above facts and circumstances, having re-assessed the depositions of witnesses and other evidence on record, we are of considered opinion that act on the part of the appellant is covered by Part-1 of Section 304 I.P.C. Therefore, we set aside the conviction and sentence under Section 302 I.P.C., awarded by the Trial Court and affirmed by the High Court. Instead, the appellant Ranjit Sarkar is convicted under Section 304 Part-1, and sentenced to rigorous imprisonment for a period of ten years. With this modification in the conviction and sentence, the appeal stands disposed of." 25. In the aforesaid judgments, referred above, the Hon'ble Apex Court held that if only one blow is given by the appellant to the deceased, which appears to have been given with full force, then, the offence cannot travel beyond offence under Section 304 Part-1 of I.P.C. 26. In view of above discussion and assessment of entire evidence of this case in the light of aforesaid judgments, the conviction of the appellant for the offence under Section 302 I.P.C. is not sustainable in law. Consequently, we are of the opinion that in this case the act on the part of the accused appellant is covered by Section 304 Part-1 of I.P.C. and, therefore, we set aside the conviction and sentence passed against the appellant for the offence under Section 302 of I.P.C. by learned Addl. Sessions Judge (FT) No. 1, Bikaner vide its judgment dated 6.3.2011, and the accused appellant is hereby held guilty, for the offence under Section Part-1 of Section 304 of I.P.C. and sentence off imprisonment imposed against him is hereby reduced to ten years' rigorous imprisonment, while maintaining the order of fine. Resultantly, the present criminal appeal is hereby partly allowed.