2. The judgment impugned is, chanenged on the ground that _ without any iota of evidence the Court below has convicted and ‘ sentenced the appellant as above and thereby committed illegality. 3. Brief case ’of prosecution is that on the fateful day ,of 4.12.2001, at about 6.00 p.m., deceased— Snkhram was standing near the house of Ramprakash (PW‘7). The appellant came and assaulted over the head of Sukhram by axe and caused fatal injun‘es to him. Ramprakash (PW-7) has seen the incident. He shouted for help and thereafter, they took the injured to Hospital, Where, Doctor declared Sukhmm as dead. Dehati Merg was xecoxded vide Ex. P/3. Tolan )PW-l) lodged Merg intimah‘on vide Ex. P/ 12. First Information Report was lodged vide Ex. P[11. \n Investigating OEcer left for the scene of occurrence and after summoning the Witnesses vide Ex. P/ 4, inquest over the dead body of the deceased was prepared vide Ex. P/5. Dead body was sent for autopsy to District Hospital, Ambikapur‘ vide Ex. P/ 1-A. Autopsy was conducted by Dr. A.K.Jain (PW-2) vide Ex. P] 1 and found following injuries : i. Incised wound over right parietal region 8 cm X 2.5 cm uptn brain deep n Incised wound over right side of forehead just above right eye ‘ 4 cm x 2 cm bone deep, m Fracture of parietal bone and hematoma inside brain was found. Brain matter came out ham the brain. Depressed fracmre of dontal bone. l He opined that the cause of death was shock as a result of head injury. The accused was taken into custody. He made disclosure statement vide Ex. P/9. At the instance of the accused axe was recovered vide EX.P/ 10. Blood stained soil and plain soil was collected n‘om the spot vide Ex. P/8. Spot map was prepared vide Ex. P/ 13. Clothes of the accused were seized vide EX. P.13. Axe ‘ was examined by Doctor vide Ex. P/ 18 and he opined that the injuries found over the dead body may be caused by axe. Seized articles were sent for chemical examination vide Ex. P/ 17 and presence of blood over the axe was coniirmed by chemical examiner vide Ex. P/ 18. Statements of the Witnesses were recorded under Sech'on 161 of the Code of Criminal Procedure, 1973. a, "/ne 4. After completion of the investigation, charge sheet was nled before the Court of Judicial Magistrate First Class, Ambikapur, who in turn, committed the case to the Court of Sessions, from where the learned Fifth Additional Sessions Judge, Ambikapur received the case on uansfer for trial. 5. In order to prove the guilt of the accused/appellant, prosbgition has examined as many as 11 witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure, in which, he denied the circumstances appearing against him, pleaded innocence and false implication. 6. After ah‘ording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as above. 7. We have heaid learned counsel for the parties at length and have perused the judgment and record ofthe Court below. 8. iearned counsel for the appellant vehemently argued that the conviction is based on the evidence of solitary Witness Ramprakash (PW-7) and the evidence of this witness does not inspire confidence and is not sumcient for conviction of the appellant for commission of such heinous oh‘ence under Secn‘on 302 of the IPC. He further argued that the evidence of Ramprakash (PW-7) revealed that there was no enmity between ttm deceased and the appellant; therefoxe, there was no motw'e with the appellant .to commit such cn'me of murder. The 9Eence has been committed by the appellant by mistake. He submits that if the evidence of the prosecution is admitted as true then even the act of the appellant does not travel beyond 304 part1 of the IPC. 9. On the other hand, learned counsel for the State oppomd these arguments and stated that the evidence of the solitary Wimess Rampmkash (PW-7) inspires confidence of the Court and it is su$cient for convictidn of the appellant. 10. In oxder to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecuh'on. \_, 11. ln the present case, the homicidal death of deceased —- Sukhram as a result of fatal anti-mortem injury has not been substantially disputed by the appellant. 0n the other hand, it is established by the evidence of Dr. A.K. Jain (PW-2) and Autopsy report Ex. P/ 1. It revealed that the fatal injury over the skull is su$cient for causing death ofthe deceased. 12. As regards complicity of the appellant in crime in question is concerned, conviction of the appellant is based on the evidence of solitary eye—witness Ramprakash (PW—7), who has deposed in his evidence that after washing hands and legs, he along with the deceased came to his house. He took shawl form his house and they were standing in front of his house. The accused/appellant suddenly came with an axe and assaulted the deceased by the axe over his head. The deceased fell down and died. The defence has cross examined this witness, but has not been able to ehcit anything in his cross examination to show that the accused] appellant has not committed the incident and he has not @ seen the incident. The evidence of Ramprakash (PW-7) hspires “ confidence and is suEcient to rely that the appellant was the, pexson, who has caused the fatal injury to the deceased, as a‘ result ofwhich, the deceased died on the spot. 13. As regards the question of mou've is concerned, in the present case, Ramprakash (PW-7) and other witnesses have deposed that there was no enmity between the deceased and appellant and there was no reason with the appellant for causing such injury to the deceased. Ramprakash (PW—7) in paxa 2 of his evidence has deposed that the appellant was Willing to kill him, but as them was evening time, by mistake in identincan'on, the appellant assaulted the deceased and caused such fatal injury, which shows that the appellant was intending to cause fatal injury to Ramprakash (PW— 7jJout by mistake, he has caused the fatal injury to the deceased. 14. The evidence of Ramprakash (RN-7), solitaxy witness of the case clearly reveals that the appellant was having some cause to assault Ramprakash, but the appellant was not having any cause to assault or kill the deceased and under mistake, he has caused injury to the deceased. Taking into consideration the evidence of Ramprakash (PW—7), the injury found over the body of the deceased, its nature and absence of motive for causing the death of the deceased, in our considered view, the act of the appellant does not travel beyond the scope of Section 304 Part I of the IPC. l 15. Ader appreciating the evidence available on- record, the learned Additional Sessions Judge, has convicted and sentenced the appellant under Section 302 of the IPC, but has not considered the most important material aspect of the case regarding motive and nature of injury and thereby committed illegality. '“ 16. For the foregoing reasons, the appeal is pmtly allowed. The, conviction and sentence of the appellant under Section 302 of the IPC is altered into Section 304 part I of the IPC and sentenced for impxisonment for 10 years. The appellant is in custody since {V sunita I I / 7. 12.2001. Sd/.x Sd/- R.L. Jhanwar T. P. Sharma {gidge \ ‘ Judge \