JUDGMENT Pushpendra Singh Bhati, J. - In this appeal under Section 374(2) of the Code of Criminal Procedure, the assailment is to the defensibility and legal validity of the judgment and order dated 04.07.2015 passed by learned Additional Sessions Judge, Salumber, District Udaipur in Sessions Case No.36/2012, convicting and sentencing the accused/appellant as under:- Under Section 302 IPC Life imprisonment and a fine of Rs.1000/-, in default of payment of fine, to further undergo One year's S.I. Under Section 398 IPC Seven years' R.I. and a fine of Rs. 1000/-, in default of payment of fine, to further undergo One year's S.I. Section 4/25 of Arms Act Three months' R.I. All the substantive sentences were ordered to run concurrently. 2. Filtering the unnecessary details, the prosecution case, as unfurled, is that one Mahaveer Kumar Jain filed a written report on 26.01.2011 alleging therein that on 26.01.2011 itself, his nephew Vishal Kikawat has been attacked by an unknown person with a sharp-edged weapon, while he was closing his shop at about 8:00 p.m. and was entering his residence; as a result whereof, Vishal Kikawat suffered serious injuries in chest and thighs. On hearing the commotion, the neighbours, namely, Luv Kumar, Kush Kumar, Lokesh and others came running, whereupon, the assailant left a toy pistol and a knife cover at the spot, and those persons saw the assailant running away. Thereafter, Vishal was taken to Rishabhdev Hospital, and being seriously injured, was referred to Udaipur M.B. Hospital, where he succumbed to the injuries. On such report, the Police Station, Rishabhdev registered an FIR bearing No.59/2011 under Section 302 IPC, whereafter, the police commenced with the investigation. After thorough investigation, charge-sheet was submitted before the learned Additional Chief Judicial Magistrate, Kherwada against the accused/appellant for the offences under Sections 302, 397 and 398 of IPC read with Section 4/25 of the Arms Act, whereafter accused/appellantDharmesh @ Dharmendra was put to trial, after the case having been committed to the learned Sessions Court. 3. The prosecution produced 27 witnesses and 94 exhibits. In course of his examination under Section 313 Cr.P.C., the present accused/appellant having denied the imputations and alleged his false implication, thereby pleaded 'not guilty', he was made to stand the trial. However, the accused/appellant did not prefer any evidence in his defence. Accordingly, the trial commenced. 4. 3. The prosecution produced 27 witnesses and 94 exhibits. In course of his examination under Section 313 Cr.P.C., the present accused/appellant having denied the imputations and alleged his false implication, thereby pleaded 'not guilty', he was made to stand the trial. However, the accused/appellant did not prefer any evidence in his defence. Accordingly, the trial commenced. 4. After hearing the arguments advanced by the learned Public Prosecutor as well as learned defence counsel and after appreciating the evidence on record, the learned trial court convicted and sentenced the present accused-appellant, vide the impugned judgment and order, as above. 5. Mr. J.V.S. Deora, Learned counsel for the accused/appellant submitted that the accused/appellant has been wrongly implicated in the case, on the basis of circumstantial evidence. Learned counsel further submitted that there are no eye witnesses to the alleged incident. Learned counsel also submitted that the CCTV Camera only indicated the presence of the accused/appellant in the area, but has not caught the incident. Learned counsel further submitted that a bare reading of the FIR reflects that Luv Kumar, Kush Kumar and Lokesh etc., came subsequent to the incident, after hearing the commotion. Learned counsel also submitted that the first information report does not mention name of the accused/appellant, which reflects that the complainant/uncle Mahaveer Kumar Jain, Luv Kumar, Kush Kumar and Lokesh kumar did not know the accused person, until filing of the FIR. Learned counsel further submitted that in the statement given to the police, Luv Kumar, Kush Kumar, Lokesh Kumar, Vikas Kumar and Sandeep etc., have neither disclosed the identity of the accused, nor have expressed confidence regarding the name and appearance of the accused. Thus, as per learned counsel for the accused/appellant, identification parade itself gets shadowed in such circumstances. Learned counsel also submitted that the said witnesses are all interested witnesses, as they belong to the neighbourhood, and thus, cannot be relied upon to complete the chain of circumstantial evidence. Learned counsel has thus, emphatically submitted there was no reason why the present accused/appellant would murder deceased Vishal, as there was no motive behind the same. As per learned counsel, the allegation of loot also has not been proved, as the accused/appellant did not take away any valuables from deceased Vishal. 6. On the other hand, Mr. Learned counsel has thus, emphatically submitted there was no reason why the present accused/appellant would murder deceased Vishal, as there was no motive behind the same. As per learned counsel, the allegation of loot also has not been proved, as the accused/appellant did not take away any valuables from deceased Vishal. 6. On the other hand, Mr. Anil Joshi, learned Public Prosecutor vehemently opposed the submissions made on behalf of the accused/appellant and has submitted that the accused/appellant caused the two stab injuries, which caused the death of Vishal. Learned Public Prosecutor further submitted that deceased Vishal had just closed his shop and was just entering his house, and the accused/appellant attacked him with an intention of committing loot upon Vishal, and it is clearly discernible from the deposition made by the eye witnesses that they saw the same. Learned Public Prosecutor also submitted that the CCTV footage clearly had shown the presence of the accused/appellant in the area, and it depicts that the accused/appellant was making a reiki of the area and was also following deceased Vishal. 7. We have carefully seen the record of the case alongwith the impugned order and have duly analyzed the rival assertions. 8. Exhibit-P.1, which is the initial report filed by Mahaveer Kumar Jain, the uncle of deceased Vishal, clearly reflects that the assailant was an unknown person. The said report also reflects that the neighbours Luv Kumar, Kush Kumar, Lokesh and others came to the scene, after hearing the commotion. Exhibit-P.1 also reflects that there was a toy pistol and cover of a knife, which was left by the assailant, while running away from the spot. 9. Pw-1 Mahaveer Kumar deposed in his statement that an unknown person attacked his nephew Vishal by a sharp-edged weapon, when he closed his shop and was about to enter his home. He further deposed that on hearing the commotion, Luv Kumar, Kush Kumar, Lokesh Nagda and Sunder reached the spot. He further reiterated that the assailant left a toy pistol and knife cover at the spot. He also deposed that the assailant was seen by his brother Sunder Ji, Vikas and Luv Kumar, and that, the blood and soil samples and clothes were taken from the spot in front of him. He further reiterated that the assailant left a toy pistol and knife cover at the spot. He also deposed that the assailant was seen by his brother Sunder Ji, Vikas and Luv Kumar, and that, the blood and soil samples and clothes were taken from the spot in front of him. He further deposed that from the place of the incident, the police chowki was only 200-250 metres away, and therefore, they reached there within a short time of two-three minutes. 10. Pw-2 is Rishabh Kumar, who was witness to the recovery memo. 11. Pw-3 Vikas, who is cousin brother of deceased Vishal, in his statement, has deposed that upon hearing the commotion, he and his father Sunderlal came running to the place of incident and saw that a person was attacking Vishal with the knife, and on seeing Vikas's father Sunder Lal, the assailant ran away. This witness has further deposed that the assailant had a clear intention of looting Vishal and he had clearly seen the assailant's face. He also deposed that on the place of incident, Sandeep, Lokesh, Luv Kumar etc. also arrived. The identification parade was conducted and PW-3 Vikas recognized the accused person. However, in his cross examination, PW-3 Vikas stated that he did not recognize the accused and he did not know who Dharmesh was, and he also did not know about any previous animosity between Dharmesh and deceased Vishal. This witness also did not express any knowledge about any valuable being taken away by the accused. However, PW-3 admitted that he was closely related to deceased Vishal. 12. Pw-4 Bharat Kumar, in his statement, has supported the prosecution story, including the panchayatnama. He was motbir to the recovery of the knife. This witness also supported the recovery of the knife and the blood stained clothes from the room of the accused/appellant. 13. Pw-5 Lokesh Kumar, in his statement, has supported the prosecution story. This witness has stated that the shop of Manish Nagda is five shops ahead of his shop, where Vishal stopped. He also stated that Manish Nagda and Sandeep etc., were standing there. This witness also stated that he heard the commotion and rushed to the spot and saw that a person was running away with a knife in his hand, and he saw the person, who was the same as was present in the court. He also stated that Manish Nagda and Sandeep etc., were standing there. This witness also stated that he heard the commotion and rushed to the spot and saw that a person was running away with a knife in his hand, and he saw the person, who was the same as was present in the court. This witness further stated that he alongwith Luv Kumar and Kush Kumar ran behind the accused, who was between the age group of 20-25 years, but they could not catch him. In cross-examination, PW-5 Lokesh Kumar stated that he did not see the actual incident of stabbing, but he ran behind the accused alongwith Luv Kumar and Kush Kumar. 14. Pw-6 Sandeep in his statement deposed that on 26.01.2011 at about 08:00 p.m., he was talking to one Manish Kumar, when Vishal walked out of his shop after closing it with a bag, and then moved towards his home. On hearing commotion, when this witness went towards Vishal's home, a person with knife in his hand was running away from there, and was being pursued by Luv, Kush and Lokesh. This witness also deposed that he also tried to pursue the accused on his Scooty, but the accused ran away. PW-6 also recognized the accused in the court. In his cross examination, PW-6 Sandeep stated that no identification parade was conducted in front of him, and that, he did not recognize the accused prior to the incident. 15. Pw-7 Manish Kumar in his statement deposed that while he was standing outside the shop, Vishal came and went towards his home, and this witness came to know that somebody had attacked Vishal. 16. Pw-8 Niranjan Panchal in his statement deposed that his shop is in front of the shop of Manish and he saw Vishal talking with Manish. This witness also stated that he had a CCTV camera installed in his shop and he showed the coverage to the police, who made a footage and sealed the CCTV footage in front of him. He further stated that he had seen in the footage that one person had gone 8 to 10 times in front of the same place, as per the footage, and he had seen that the person was a suspicious man. This witness also stated that he knew the man because he had done ghisai work of the floor of his new house. This witness also stated that he knew the man because he had done ghisai work of the floor of his new house. However, in his cross-examination, this witness has admitted that CCTV footage did not carry the exact incident. 17. Pw-9 is Anil Gandhi, who prepared the CD of the CCTV footage. 18. Pw-10 Ajay Kumar Jain in his statement has supported Exhibit-64, where the site plan was verified. 19. Pw-11 Luv Kumar in his statement deposed that he saw the assailant attacking Vishal by knife and also running away thereafter. This witness has also deposed that the assailant was 20-22 years old, wearing white shirt and sky blue pant. This witness has also identified the accused in the identification parade. In his cross-examination, he however, stated that he was the first person to reach the place of incident, but for first two days, he did not tell the police about him recognizing the accused. 20. Pw-12 Sunder Lal, uncle of the deceased, in his statement, deposed that he saw the accused assaulting Vishal with a knife and running away. However in cross-examination, he admitted that he did not tell the police that he can recognize the accused person. 21. Pw-13 Ajeet Singh is a witness to the recovery of knife from the accused and also the shirt and pant of the accused. 22. Pw-13 recorded second time is Basanti Lal had, in his statement, verified the CD of the CCTV Camera Exhibit-P.24. 23. Pw-14 Dr. Suresh Yadav, who, at the relevant time, was posted as M.O., CHC, Rishabhdev, in his statement, deposed about two injuries on the body of Vishal; one 3x2 incised wound in chest on the right side and another 3x2 incised wound on the right thigh. 24. Pw-15 Hari Singh was the then Constable, who, in his statement, supported the fact of recovery and arrest. 25. Pw-16 Devendra Kumar Rawal, a shopkeeper, deposed in his statement that the recovered toy pistol was purchased by accused-Dharmendra @ Dharmesh from his shop. 26. Pw-17 Devilal was the landlord of accused-Dharmesh. 27. Pw-18 Naresh Kumar was the then Constable, who carried the nine articles for FSL. 28. Pw-19 Ashok Kumar was the photographer, who did the photography at the place of incident. 29. Pw-20 Amit Jain developed CD of the CCTV footage. 30. 26. Pw-17 Devilal was the landlord of accused-Dharmesh. 27. Pw-18 Naresh Kumar was the then Constable, who carried the nine articles for FSL. 28. Pw-19 Ashok Kumar was the photographer, who did the photography at the place of incident. 29. Pw-20 Amit Jain developed CD of the CCTV footage. 30. Pw-21 Balwant Singh was the then Head Constable, who entered the recovered articles in malkhana register and kept them secured and processed the same. 31. Pw-22 Mansingh was the Medical Jurist, who confirmed the death of Vishal during treatment on the same day. 32. Pw-23 Dr. Kamlesh Bamniya, who at the relevant time, was posted as Medical Officer, Government Hospital, Rishabhdev, reiterated both the injuries on the body of Vishal. 33. Pw-24 Bhagwati Lal was the Constable, who supported the investigation, in his deposition. 34. Pw-25 Dr.Akhilesh Sharma conducted the postmortem and confirmed the three injuries on the body of Vishal, which were incised. The third injury indicated by him was on the arm, which was 06 x 0.5 cm in size. 35. Pw-26 was Rajesh Jain, who, at the relevant time, was the Judicial Magistrate, Sarada, and conducted the identification parade, in which three of the witnesses, Sunderlal, Vikas Kumar and Luv Kumar identified the accused. 36. Pw-27 Amar Singh, at the relevant time, was posted as SHO, Rishabhdev, who conducted the investigation. 37. The FSL Report is positive as it confirms presence of human blood on shirt, soil, stone pieces, knife and pant etc. of the accused. 38. While traversing through the record and the aforementioned evidence, we find that the eye witnesses, identification report, circumstantial evidence, CCTV footage, FSL Report, postmortem report, the injury report and all other aspects, clearly indicate that the accused/appellant was behind committing the alleged crime. 39. The only issue, which is not matching with the prosecution story and the outcome of the impugned judgment and order, is that the accused/appellant, who is a poor labourer, was at best attempting to loot deceased Vishal, after knowing upon reiking that deceased Vishal would carry some valuables from his shop to his residence. The blank, which the prosecution is not being able to fill, is the intention behind purchasing a toy pistol, as it clearly indicates the state of mind of the accused/appellant, who would be having the intention of robbing/looting deceased Vishal by using a toy pistol. 40. The blank, which the prosecution is not being able to fill, is the intention behind purchasing a toy pistol, as it clearly indicates the state of mind of the accused/appellant, who would be having the intention of robbing/looting deceased Vishal by using a toy pistol. 40. We find that though the conviction of the accused/appellant for the offence under Section 398 IPC, which is well supported by the evidence, is justifiably correct, but it creates a contradiction on the same facts, to the extent of convicting the accused/appellant for the offence under Section 302 IPC. Section 398 IPC reads as under: "398. Attempt to commit robbery or dacoity when armed with deadly weapon. If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years." 41. Thus, it is clear from the evidence gathered as well as the impugned judgment and order that the accused/appellant was making an attempt to commit a robbery or dacoity while being armed with a toy pistol as well as with a knife. In a sudden scuffle over the so called valuables being carried by deceased Vishal from his shop to his residence, the accused/appellant, in the heat of the moment, stabbed Vishal. The original intention of the accused/appellant was to rob Vishal of the valuables, but during robbing, he ended up suddenly with stabbing Vishal, where, of course he had full knowledge that it could kill him. 42. Thus, in the given facts and circumstances, conviction of the present accused/appellant under Section 398 IPC, which is perfectly lawful, carries the accused/appellant outside the ambit of Section 302 IPC, to the ambit Section 304 Part I IPC. Loot was not carried as a sudden incident, but was a planned and predetermined move, and carrying of the toy pistol and the knife reflected that the purpose was to cause fear so as to take away the valuables from Vishal. 43. Hon'Ble the Supreme Court in the case of K. Ravi Kumar Vs. Loot was not carried as a sudden incident, but was a planned and predetermined move, and carrying of the toy pistol and the knife reflected that the purpose was to cause fear so as to take away the valuables from Vishal. 43. Hon'Ble the Supreme Court in the case of K. Ravi Kumar Vs. State of Karnataka, (2014) CrLR 1260 (SC) observed in para 14 as under : "Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased - Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was on outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was on outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the postmortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness." Keeping in view the principles laid by the Apex court in K. Ravi Kumar (supra), we are fully convinced that though the accused/appellant had planned the loot, but the sudden act of stabbing was committed at the spur of the moment, as he did not intend to cause death of the deceased. The scuffle and anguish of the failed loot was possibly the reason that the accused/appellant did cause the stabbing. 44. However, it is clear that while carrying a dangerous weapon like knife, if a person is being stabbed in chest, the consequences would be death, and the act so done hereby constitutes the offence punishable under Section 304 Part I of IPC. We find that the accused/appellant, a poor labourer, wanted to rob/loot deceased Vishal, as he was working in and around the neighbourhood in various houses and was having the knowledge of Vishal's prosperity. The purchase of toy pistol indicates that the accused/appellant wanted to create a fear for extorting, looting and causing dacoity/robbery upon Vishal, which was a planned and intended attack, which fully justifies his conviction under Section 398 IPC, but simultaneously, it negates that the initial intention, motive, preparation etc., of the accused/appellant was to kill Vishal. There was no predetermined motive or enmity to kill and the incident of killing occurred due to sudden failure of loot and fear of being caught, which ensued between the accused/appellant and deceased Vishal. There was no predetermined motive or enmity to kill and the incident of killing occurred due to sudden failure of loot and fear of being caught, which ensued between the accused/appellant and deceased Vishal. 45. In the result, the conviction of the accused/appellant for the offence under Section 302 IPC is converted to Section 304 Part I IPC and the sentence of imprisonment is reduced from life imprisonment to 10 years' rigorous imprisonment for the offence. The impugned judgment and order shall stand modified accordingly. However, the sentence of fine and other sentences for the offence under Section 398 IPC and Section 4/25 of the Arms are maintained and shall run concurrently, as already directed. 26. The appeal filed by the appellant is partly allowed in the above terms. All pending applications stand disposed of accordingly. Record of the trial court be returned forthwith.