The intention to rob/loot, as evidenced by the purchase of a toy pistol, negates the initial intention, motive, preparation, etc., of the accused/appellant to kill the deceased, thereby bringing the case within the ambit of Section 304 Part I IPC rather than Section 302 IPC.

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:-

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. 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 r