Judgment :- S.T. RAMALINGAM, J. ( 1 ) THE appeal is by the accused, who has been convicted by the Sessions Judge, East Thanjavur at Nagapattinam in S. C. No. 65 of 1984 for an offence under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life. ( 2 ) THE gravemen of the charge against the appellant is that on 24-1-1984 at 5. 30 P. M. in the Avayarnbalpuram Colony in Myiladuthurai 1 K. M. cast of the police station, he caused the death of one Kaliaperurnal by manual strangulation. ( 3 ) THE prosecution case is briefly as follows: The Appellant, the deceased and P. Ws 1 to 8 reside in Avayarnbalpurarn Colony, consisting of a row of house, south of the river Cauvery. About a month prior to the occurrence, the deceased and his wife P. W. 1 took up residence in the house of Mani, the father-in-law of the appellant. P. W. 8, wife of the said Mani was living separate from her husband at that time and sometime prior to the occurrence, she returned to the Village and insisted that the deceased and P. W. 1 should vacate the house. The deceased and P. W. 1 could not find alternate accommodation and agreed to vacate as soon as possible. P. W. 8 was in the habit of coming to the house and shouting in filthy language that they should vacate the house. On 24-1- 1984 at about 5. 30 P. M. P. W. 8 demanded that the deceased and P. W. 1 should vacate the house and abused them both in vulgar language. The deceased gave one blow top. W. 8 and both were engaged in a scuffle for sometime. Therefore P. W. 8 sent word to her son-in-law, the appellant, who was also her younger brother and the appellant on reaching the scene, questioned the deceased as to why he beat P. W. 8. There was exchange of words and the appellant beat the deceased on the nape of the neck and pushed him into the river Cauvery. P. W. 1, the wife of the deceased brought the deceased out of the river and on reaching the shore, the deceased removed his lungi and shirt and standing in his underwear, he asked the appellant to beat him, if the appellant was. So capable of beating the deceased. P. W. 1, the wife of the deceased brought the deceased out of the river and on reaching the shore, the deceased removed his lungi and shirt and standing in his underwear, he asked the appellant to beat him, if the appellant was. So capable of beating the deceased. P. W. 7 tried to pacify them and tried to take the necessary away. At that time, the appellant, put both his hands round the neck of the deceased and throttled him. Though P. W. 7 pleaded and raised alarm to leave the held, the appellant continued to throttle the deceased till the head of the deceased dropped down. P. W. 7. put the deceased on the ground and found that he was dead. The occurrence was witnessed by P. Ws. 2 to 6 also who were the residents of the same colony. P. W. 10 a private Doctor was brought and has stated that the deceased was already dead, P. W. 1 went to the Police Station at Mayiladuthurai and gave a statement, EX. P. 1 to P. W. 13, the Sub-Inspector of Police, who registered it as Cr. No. 4 of 1984 for an offence under Section 302 of the Indian Penal Code. He sent an express intimation to higher authorities and on receipt of the same, P. W. 15, the Inspector of Police came to the scene on 25-1-1984 and took up investigation. He prepared an observation mahazar, held inquest, examined all the witness, seized M. O. 1 underwear of the deceased and sent the body to P. W. 12 for post mortem. ( 4 ) P. W. 12 conducted post-mortem on the dead body of the deceased on 25-1-1984 at 1. 30 P. M. and found on the deceased, the following injuries described by him in his post-mortem certificate Ex. P. 11. No external injury. No fracture of any bones, No dislocation. Ribs normal. Skull normal. Int. examination; Heart: Normal size and shape congested. No tear or injury. Lungs: Normal size and shape congested. No injury, Kidney; Both appears normal. No injury. No injury to the vital organs. No skull fracture. Membrane attached. Brain congested, normal, Test is normal. No heetoma. Stomach: With food material and also foul smelling. Laryngeal cartilages are broken. Thyriod, cricoid and 1st two tracheal cartilages are broken. Haematoma around the trachear cartilege present. Lungs: Normal size and shape congested. No injury, Kidney; Both appears normal. No injury. No injury to the vital organs. No skull fracture. Membrane attached. Brain congested, normal, Test is normal. No heetoma. Stomach: With food material and also foul smelling. Laryngeal cartilages are broken. Thyriod, cricoid and 1st two tracheal cartilages are broken. Haematoma around the trachear cartilege present. Clotted bloods and serum are boxing out from the trachea. According to P. W. 12, death was due to asphyxia due to mannual strangulation and throttling and could have taken place within 24 hours prior to his post-mortem. Death should have been instantaneous. The injuries were of such a nature that they were necessarily fatal. ( 5 ) P. W. 15 examined the other witnesses and after completing investigation, laid charge sheet. ( 6 ) DURING trial, on behalf of the prosecution, P. Ws. 1 to 15 were marked, and Exts. P. 1 to P. 14 were marked. M. O. 1 was produced. P. W. 8 turned hostile. The appellant, when questioned, denied complicity with the crime and had no evidence to offer, oral or documentary. On the learned Sessions Judge accepting the prosecution case to be true and convicting him and sentencing the appellant as stated earlier, this appeal has been preferred. ( 7 ) THE only contention of Thiru K. V. Sridharan, learned Counsel for the appellant was that the act of the appellant would not fall under Section 302 of the Indian Penal Code, but would only be an offence under Section 315 of the Indian Penal Code. According to learned Counsel, the appellant could not be attributed tie intention to cause death or the intention to cause the injuries which had resulted in the death and that the injuries could only be considered as likely to cause death and would not, therefore, attract Section 302 of the Indian Penal Code. He relied upon certain decisions in support of his contention which we shall refer to presently. The learned Public Prosecutor also was heard. ( 8 ) THE question that arises for consideration is whether the offence committed by the appellant would fall under Section 302 of the Indian Penal Code. He relied upon certain decisions in support of his contention which we shall refer to presently. The learned Public Prosecutor also was heard. ( 8 ) THE question that arises for consideration is whether the offence committed by the appellant would fall under Section 302 of the Indian Penal Code. ( 9 ) SECTION 300 of the Indian Penal Code consists of four clauses, the first clause relating intention to cause death and the third clause relating to intention to cause bodily injury, sufficient in the ordinary course of nature to cause death. Intention is a mental state and has only to be inferred from the facts and circumstances of each case. If from the evidence in this case, it transpires that the appellant had the intention to cause death or that he had the intention to cause those injuries which were found on the deceased described as necessarily fatal and which had resulted in each, then, clauses 1 and 3 of Section 300 of the Indian Penal Code would be attracted and the offence would be Section 302 of the Indian Penal Code. ( 10 ) NO doubt, there has not been any long standing enmity between the appellant and the, deceased or any strong motive to do away with the life of the deceased. But presence of absence of motive would only be one of the circumstance to find out the intention of the assailant P. W. s 1 to 7 are eye witnesses to the occurrence. All the eye witnesses uniformly say that P. W. 7 tried to push the deceased away and at that time, the appellant pushed P. W. 7 and then caught hold of the neck of the deceased. This would indicate that the appellant intentionally caught hold of the neck of the deceased. Similarly, all the witnesses would uniformly say that the appellant throttled the deceased, till the head of the deceased dropped down. P. W. 7 pushed the appellant away, asking him to leave the grip on the neck of the deceased and despite the same, the appellant did not leave the grip and continued to throttle the deceased till the deceased fell on P. W. 7 who gently put him down on the ground. According to P. W. 1 the throttling went on for 15 minutes and according to P. W. 2 it went on for ten minutes. According to P. W. 1 the throttling went on for 15 minutes and according to P. W. 2 it went on for ten minutes. The manner in which the throttling had been done is also spoken to by the witnesses. The appellant put his right hand round the neck of the deceased and used his left hand to hold the neck of the deceased and throttle it. Witnesses also say that the neck was throttled by crab like hold and that the deceased could not free himself from the grip of the appellant. As a consequence, we find that the laryngeal cartilege had been broken, as well as thyroid cricoid and the 1st trecheal cartileges are broken. Clotted blood and serum were oozing out from the trachea. The appellant had not loosened his grip till death had ensued. P. W. 12, the Medical Officer has stated that the injuries are necessarily fatal. It is therefore, clear that the appellant had the intention to cause the death of the deceased and continued his act of throttling till the deceased died. He had also the intention to cause death and also had the intention to cause the injuries which have been described as necessarily fatal. The act of the appellant would fall both under Clause Firstly and Thirdly of Section 300 of the Indian Penal Code. ( 11 ) THE learned counsel relied upon a decision of a learned Judge of this Court in Munusamy In re1 wherein a conviction for the offence tinder Section 302 of the Indian Penal Code for causing, death due to throttling was modified to one under Section 325 of the Indian Penal Code. The above decision would be of no assistance to the learned counsel for the appellant, since the learned Judge clearly found that in view of the fact that the deceased in that case, had survived for nearly 25 hours after the throttling and had been in a position to talk and even taken some food and in view of the opinion of Experts on medical jurisdiprudence extracted in the judgment, that generally 3 to 5 minutes would be the interval between the throttling and the death though occasionally, it would be prolonged for two or three times death on that case could not have been as a result of asphyxia caused by throttling. The learned Judge found that there was a considerable doubt regarding the cause of death as being due to throttling. On that finding, it was held that the offence would fall only under Section 325 of the Indian Penal Code. ( 12 ) THE learned counsel also relied upon the decision of the Supreme Court in State of Karnataka v. Shivalingaish wherein it was held that squeezing the testicles resulting in the death of the victim would fall under Section 325 of the Indian Penal Code. This is a case of throttling which had lasted for ten or 15 minutes, which was perseveringly, continued till the deceased died. ( 13 ) IT was then contended by learned counsel for the appellant that Exception 4 to Section 300 of the Indian Penal Code would be applicable, since the act had been committed in the course of a sudden quarrel in the heat of passion and without a premeditation. No doubt, the quarrel was not anticipated and. there was no pre-meditation. Clause 4 contains a very significant rider that the offender should not have taken undue advantage or acted in a cruel or unusual manner. In the instant case, the evidence is to the effect, that the appellant caught hold of the neck of the deceased, pushing P. W. 7 away and though P. W. 7 tried his best to extricate the deceased from the hold of the appellant the appellant taking undue advantage of the grip that he was able to obtain of the neck of the deceased and acting in a cruel manner had continued to tighten the grip till the head of the deceased drooped down. Clause 4 therefore, cannot apply to the facts. The facts of this case clearly make out an offence under section 302 of the Indian Penal Code and the appellant has been rightly convicted and sentenced by the learned Sessions Judge, which we confirm. In the result, the appeal is dismissed.