JUDGMENT : K.R. Mohapatra, J - The convict in Criminal Trial No. 42 of 2002 (S.C. No. 56 of 2002/S.C. No. 143 of 2001) has filed this appeal under Section 374 Cr.P.C. assailing the judgment and order of conviction and sentence dated 29.04.2004 passed by learned Ad hoc Addl. Sessions Judge, Jeypore in the aforesaid case convicting him under Section 302 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs.2000/- and in default, to undergo R.I. for a further period of six months. 2. Briefly stated, the prosecution was launched against the appellant on the basis of the F.I.R. lodged by one Gopi @ Gopinath Harijan (P.W.3) at B. Singpur Police Station on 18.12.2000. From the F.I.R., it revealed that on 17.12.2000, which was a Sunday, the deceased along with about 20 numbers of co-villagers purchased a bullock from one Prabhudan Harijan for a consideration of Rs.620/-. After purchase, the bullock was brought to the field of one Narasing Ganda @ Harijan (P.W.6) for slaughtering to share the meat amongst the aforesaid co-villagers, who purchased the bullock. The appellant was engaged by them on payment of Rs.20/- to slaughter the bullock and remove the skin. After slaughtering, when the villagers were dividing the meat amongst themselves, the deceased detected that the accused had concealed about ? Kg. of meat under the skin of the bullock. Thus, he took out the same and mixed with the lot for division. Subsequently, when the deceased was washing his hand by leaning forward, the accused suddenly stabbed him from behind with a knife over the testicles, as a result which the deceased fell down on the ground receiving severe bleeding injury. The accused thereafter ran away from the spot with the knife. The villagers present there shifted the deceased to his house, where he narrated the incident to his daughter and son-in-law (P.W.2) and asked to take him (the deceased) hospital for treatment. However, the deceased breathed his last on the way to hospital. As it was dark by then, the F.I.R. was lodged on the next morning at about 8.30 A.M. On receiving the F.I.R., the Police registered B. Singpur P.S. Case No. 56 of 2000 under Section 302 I.P.C. and took up investigation. 3. However, the deceased breathed his last on the way to hospital. As it was dark by then, the F.I.R. was lodged on the next morning at about 8.30 A.M. On receiving the F.I.R., the Police registered B. Singpur P.S. Case No. 56 of 2000 under Section 302 I.P.C. and took up investigation. 3. In course of investigation, the Investigating Officer recorded the statements of witnesses, held inquest of the corpse and sent the dead-body for postmortem. The Investigating Officer (for short 'I.O.') also seized the sample earth and blood stained earth from the spot. The accused was arrested and his statement was recorded under Section 27 of the Evidence Act. He led the I.O. to the house of his aunt, namely, Kamala, wherefrom the weapon of offence was recovered and seized in presence of the witnesses. The wearing apparels of the appellant were seized and he was forwarded to the court. Subsequently, the wearing apparels of the deceased were also seized. The nail clippings and sample blood of the appellant were also collected. After receiving the post-mortem report (Ext.17), the I.O. made a query (Ext. 13) to the Medical Officer (P.W.10) to verify as to whether the injury found on the corpse of the deceased was possible by the weapon of offence (M.O.1) to which the Medical Officer answered in affirmative (Ext.13/2). All the seized articles were forwarded to R.F.S.L., Berhampur for further examination. On completion of investigation, charge-sheet was submitted against the appellant for commission of offence under Section 302 I.P.C. 4. The plea of defence was of complete denial. In his statement under Section 313 Cr.P.C., the appellant stated that due to previous enmity, he has been falsely implicated in the alleged occurrence. 5. In order to bring home the charge, the prosecution examined as many as ten witnesses, out of whom, P.Ws. 3, 4, 5 and 6 are eyewitnesses to the occurrence. P.W. 9 is the Investigating Officer and P.W. 10 is the Medical Officer, who conducted autopsy of the dead-body. P.W. 1 is a witness to the seizure and also a witness to discovery of the weapon of offence at the instance of the appellant. He is also a witness to the inquest held by the Police. P.W.2 is the son-in-law of the deceased before whom the deceased had narrated the incident. P.W. 1 is a witness to the seizure and also a witness to discovery of the weapon of offence at the instance of the appellant. He is also a witness to the inquest held by the Police. P.W.2 is the son-in-law of the deceased before whom the deceased had narrated the incident. P.W.7 is the scribe of the F.I.R. P.W. 8 is the Constable in whose presence wearing apparels of the appellant were seized at the police station. 6. Taking into consideration the evidence of the witnesses, materials available on record and point of law involved, learned trial court convicted the appellant under Section 302 I.P.C. and sentenced him as aforesaid. 7. Assailing the impugned judgment and the order of conviction and sentence, learned counsel for the appellant submitted that learned trial court has not assessed the evidence from its proper perspective, which has resulted in grave miscarriage of justice. Motive of the appellant to commit the crime has not been proved, which is vital to establish a link between the appellant and the offence committed. Injury on the corpse of the deceased was not possible by the weapon of offence (M.O.1). Due to previous enmity between the appellant and the deceased, he has been implicated in the alleged occurrence. In the alternative, learned counsel for the appellant argued that if the prosecution story is believed in toto, it can, at best, make out a case under Section 304 Part-II, I.P.C. and not a case under Section 302 I.P.C. inasmuch as the appellant had only dealt a single blow on the deceased by means of a knife without any mens rea to commit murder of the deceased. This aspect has been completely brushed aside by learned trial court. Hence, he prayed for setting aside the impugned judgment and the order of conviction and sentence. 8. Miss. S. Ratho, learned Addl. Government Advocate, on the contrary, refuting the submission of learned counsel for the appellant submitted that categorical evidence of eye-witnesses, namely, P.Ws. 3, 4, 5 and 6, coupled with dying declaration of the deceased before his son-in-law (P.W.2.) as well as post-mortem report (Ext. 17) proves the offence under Section 302 I.P.C. against the appellant beyond any reasonable doubt. Elaborating her submission, she submitted that the eye-witnesses had seen the incident from a close proximity. 3, 4, 5 and 6, coupled with dying declaration of the deceased before his son-in-law (P.W.2.) as well as post-mortem report (Ext. 17) proves the offence under Section 302 I.P.C. against the appellant beyond any reasonable doubt. Elaborating her submission, she submitted that the eye-witnesses had seen the incident from a close proximity. All the eyewitnesses have narrated the incident vividly which has not been shaken in their respective cross-examination. The Medical Officer (P.W. 10) in his deposition referring to post-mortem report (Ext. 17) has categorically stated that the injury on the corpse of the deceased was 1" length x ?" width x 3" depth, which is possible by M.O.1. He also deposed that the injury sustained by the deceased can cause death of a person in ordinary course of nature and is possible by a sharp cutting weapon. On the query (Ext. 13) made by the I.O. (P.W.9) as to whether the injury is possible by M.O.1, the Medical Officer submitted his opinion vide Ext. 13/2 answering it in affirmative. The statement of the deceased before his son-in-law (P.W.2) can be treated to be his dying declaration within the meaning of Section 32(1) of the Indian Evidence Act. The deposition of P.W.2 is credible being not successfully challenged in the cross-examination. Therefore, the impugned judgment and the order of conviction and sentence need no interference. 9. At the outset it is apt to state that learned counsel for the appellant does not challenge the death of the deceased to be homicidal in nature. Thus, accepting the death of the deceased to be homicidal, we proceed to scrutinize the submissions of learned counsel for the parties and the materials available on record. 10. On perusal of the exhibits and other materials on record, it is quite clear that P.Ws. 3, 4, 5 and 6 are the co-villagers and are eyewitnesses to the occurrence being present at the spot and taking part in division of the meat of the bullock. All of them knew the appellant and had seen the occurrence from a close proximity. The F.I.R. (Ext.3) as well as the statement of the witnesses discloses that occurrence took place on 17.12.2000 at about 5 P.M. Thus, in absence of any material to the contrary, it can be safely said that there was sufficient light to see the occurrence and identify the appellant. All the eye-witnesses, namely, P.Ws. The F.I.R. (Ext.3) as well as the statement of the witnesses discloses that occurrence took place on 17.12.2000 at about 5 P.M. Thus, in absence of any material to the contrary, it can be safely said that there was sufficient light to see the occurrence and identify the appellant. All the eye-witnesses, namely, P.Ws. 3, 4, 5 and 6 have categorically stated in their evidence that they had seen the appellant stabbing the deceased from behind when the latter was washing his hand after division of the meat. The evidence of eye-witnesses is trustworthy being not shaken in their cross-examination. Further, P.W.2 (son-in-law of the deceased) in his evidence in unambiguous terms has stated that when he (P.W.2) reached, he found his father-in-law in injured condition and on being asked he (deceased) told that the accused (appellant) had assaulted him on his testicles by means of a knife. The disclosure of the deceased about the incident before P.W.2 can be treated to be his dying declaration under Section 32(1) of the Evidence Act. The defence has not even put a suggestion to P.W. 2 challenging such statement. Hence, it is established beyond any reasonable doubt that the appellant is the author of the crime. 11. Learned counsel for the appellant raised a plea that solitary injury on the corpse of the body was not possible by M.O.1. On scrutiny of the evidence of the Medical Officer (P.W.10), it appears that in his examination-in-chief he categorically stated that the injury was antemortem in nature and can be possible by M.O.I. He, however, in his cross-examination, stated that injury found by him on the corpse of the deceased could not be possible by knife with bend, but the same has no relevance, since there is no material on record to show that M.O.I was a knife with bend. Thus, the contention of learned counsel for the appellant has no force. 12. The submission of learned counsel for the appellant that prosecution has failed to establish any motive of the appellant for commission of the alleged offence is also equally fallacious, inasmuch as the witnesses, namely, P.Ws. 3, 4, 5 and 6, who are present at the spot and taking part in division of the meat, have categorically stated in their evidence that during division of the meat, the deceased detected that the appellant had concealed about ? Kg. 3, 4, 5 and 6, who are present at the spot and taking part in division of the meat, have categorically stated in their evidence that during division of the meat, the deceased detected that the appellant had concealed about ? Kg. of meat under the skin of the bullock. The deceased brought out the same and mixed it with the lot for division. He, therefore, stabbed the deceased from behind when he was washing his hand after division of meat. Although there was no quarrel on the said issue between the deceased and the appellant, he out of shame and anger of being caught for stealing of the meat had stabbed the deceased from behind. Thus, the motive of the appellant to commit the crime is well established. 13. Learned counsel for the appellant alternatively contended that accepting the story of the prosecution in toto, no offence under Section 302 I.P.C. is made out and it can at best make out a case under Section 304, Part-II, I.P.C., as the appellant had no mens rea to commit murder of the deceased. 14. Although from the discussion made above, it is established that the appellant had committed an offence of culpable homicide, but there is no material on record to hold that the appellant had any mens rea to commit murder of the deceased. Admittedly, the injury caused on the vital part of the body of the deceased was sufficient in ordinary course of nature to cause death of the deceased. It also gets corroboration from the testimony of the Medical Officer (P.W.10). He, however, in his cross-examination, has stated that had the bleeding been checked within five to ten minutes, the deceased would have survived. The appellant having sufficient knowledge that injury caused on the body of the deceased would cause death of the deceased in ordinary course of nature, had inflicted the injury. Thus, taking into consideration the totality of the facts and circumstances of the case and the materials available on record, we are of the opinion that although the offence committed by the appellant amounts to culpable homicide, but the same does not amount to murder. 15. Hence, the impugned judgment and order of conviction and sentence warrants interference. Thus, taking into consideration the totality of the facts and circumstances of the case and the materials available on record, we are of the opinion that although the offence committed by the appellant amounts to culpable homicide, but the same does not amount to murder. 15. Hence, the impugned judgment and order of conviction and sentence warrants interference. Taking into consideration the discussion made above, we modify the same and convict the appellant under Section 304 Part-I of the I.P.C. and sentence him to undergo R.I. for a period of ten years. It is stated at the Bar that the appellant is in custody for more than 13 years. Hence, he shall be set at liberty forthwith, unless his detention is required in any other case. 16. However, taking into consideration the fact that due to the poor financial condition, the appellant was being defended by a State defence counsel before learned trial court and is being represented by the Legal Aid Counsel in this appeal, we set aside the sentence imposing fine of Rs.2000/-. 17. With the aforesaid modification in the impugned judgment of conviction and sentence, we allow the appeal in part to the extent stated above. Final Result : Allowed