U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 16-12-1980, passed by V Additional Sessions Judge, Agra in Session Trial No. 378 of 1980, convicting appellant Mahendra Prasad under Section 302 I. P. C. and sentencing him to undergo imprisonment for life. 2. The persecution story briefly stated was as under : Smt. Mahendri Devi (30) deceased, was sister of Shri Krishna (PW1 ). The marriage of Smt. Mahendri Devi was performed with the appellant Mahendra Prasad some 12 years before the occurrence of this case and she was residing at her matrimonial home in village Kanwara P. S. Khergarh, District Mainpuri. Out of wedlock of appellant Mahendra Prasad and deceased Mahendri Devi two children, one male and one female were born. Subsequently the appellant kept a prostitute named Santo and started residing with her at her house. Smt. Mahendri Devi deceased objected the appellant on keeping a prostitute and living with her. On it the appellant used to beat the deceased. The appellant owned about 18 bighas agricultural land. In order to provide money to the prostitute the appellant wanted to sell his agricultural plot. The deceased had got published a news in newspaper "amar Ujala" warning to all concerned, not to purchase land of appellant as he wanted to sell it for illegal purposes. Prior to the occurrence of this case Smt. Mahendri deceased had come to her Maika at the house of Shri Krishna (PW1) at Tilak Nagar, Firozabad. She was patient of tuberculosis and her treatment was going on. In this connection she used to go to the clinic of Dr. Kshetra Pal (PW3) at Firozabad for getting injection. On 30-3-1980 at about 9. 00 a. m. Shri Krishna (PW1) alongwith Munna Lal (PW9) took Smt. Mahendri deceased to the clinic of Dr. Kshetra Pal (PW3) at Firozabad, where Dr. Kshetra Pal injected medicine to her Smt. Mahendri deceased felt uneasiness after injection Shri Krishna (PW1) took her to Damma Mal Dharamshala, Agra Gate, Firozabad for rest. Mahesh Chandra (PW2), brother-in- law (sisters husband) of Mahendra Prasad appellant was Manager of said Dharamshala. On the gate of Dharamshala, Ramesh Chandra also met with Sri Krishna (PW1) and went alongwith him in Dharamshala. On reaching Dharamshala Shri Krishna (PW1), Munna Lal (PW9) and Ramesh Chandra sat with Mahesh Chandra (PW2) in the eastern verandah and were talking with him. On the gate of Dharamshala, Ramesh Chandra also met with Sri Krishna (PW1) and went alongwith him in Dharamshala. On reaching Dharamshala Shri Krishna (PW1), Munna Lal (PW9) and Ramesh Chandra sat with Mahesh Chandra (PW2) in the eastern verandah and were talking with him. Smt. Mahendri, deceased went in room No. 6 of Dharamshala and laid down there on a charpai. After five minutes at about 10. 30 a. m. appellant Mahendra Prasad came to Shri Krishna and others in the said Dharamshala and after talking with him he went in the room where Smt. Mahendri deceased was taking rest. He closed the door of kothri and started talking with the deceased. When Shri Krishna did not hear the talks of deceased and appellant he suspected something and came to room. He peeped from the gap of two door planks and saw that the appellant was pressing the neck of the deceased with a rope. Observing it he raised alarm. The appellant came out of the room and pushing Shri Krishna (PW1) aside went away. Shri Krishna and persons with him tried to chase him but he could not be apprehended. On entering into room Shri Krishna found his sister Mahendri deceased dead. Rope Ext. 1 was lying near her charpai. A police constable came on the gate of Dharamshala. Shri Krishna (PW1) alongwith others proceeded to police station. In the way his relative Kanta Prasad Pachauri met him from whom he got prepared a report Ext. Ka-1 and lodged the same at police station Firozabad Dakshini at 12. 05 p. m. Chick FIR Ext. Ka- 2 was prepared by Shri Bhudutt Verma, P. W. 5, who made an endorsement of the same at GD report Ext. Ka-3 and registered a case against the appellant under Section 302 IPC. Investigation of the case was taken up by Kshetra Singh (PW8 ). He interrogated Shri Krishna (PW1), Head Moharrir, Bhudutta Verma (PW5) and Vinod Bihari, who had come alongwith the complainant, at the police station. Thereafter he alongwith Sub Inspector Suresh Chandra Gupta, (PW7) and other constables came to Damma Mal Dharamshala. The dead body of Smt. Mahendri deceased was lying on a charpai in room No. 6. Inquest of the dead body of Mahendri, deceased was conducted by the I. O. and inquest report Ext. Ka-6 and other relevant papers, Exts. Thereafter he alongwith Sub Inspector Suresh Chandra Gupta, (PW7) and other constables came to Damma Mal Dharamshala. The dead body of Smt. Mahendri deceased was lying on a charpai in room No. 6. Inquest of the dead body of Mahendri, deceased was conducted by the I. O. and inquest report Ext. Ka-6 and other relevant papers, Exts. Ka-7 to 10 were prepared by Sub Inspector, Suresh Chandra Gupta, (P. W. 7 ). The dead body was sealed and was handed over to constables Nathoo Ram and Gajendra Singh, (P. W. 4) for taking it to mortuary. The I. O. took into possession a rope Ext. 1 a pair of chappals and recovery memo, Ext. Ka-12 was prepared by SI Suresh Chandra Gupta, (PW7 ). The I. O. interrogated Munna Lal (PW9), Mahesh Chandra (PW2) and other witnesses. He inspected the place of occurrence and prepared site plan, Ext. Ka-13. On 31-3-1980, the IO inspected the register of Dharamshala. Shri Krishna, P. W. 1 handed over a paper cutting of "amar Ujala" newspaper to the IO who took into possession and prepared a recovery memo, Ext. Ka-16. The autopsy on the dead body of Mahendri deceased was conducted on 31-3-1980 by Dr. P. K. Jain, P. W. 6, who found ligature mark on the neck of the deceased and cause of death due asphyxia as a result of strangulation. Dr. Jain prepared post mortem report Ext. Ka-5. The appellant was absconding and the I. O. obtained process under Section 82/83 Cr. P. C. and sent the same to police station Khergarh, District Mainpuri for execution. On completion of investigation a charge sheet was submitted against the appellant. 3. Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions. 4. The appellant was charged with the offence punishable under Section 302 IPC to which he pleaded not guilty and contended that he had sent Smt. Mahendri deceased, his wife, to Firozabad at the house of Shri Krishna (PW1) for treatment. He was bearing expenses of treatment. On the date of occurrence he was not present in Firozabad and had asked Shri Krishna, (PW 1) to look after Smt. Mahendri. He did not know how she died and it was possible that she would have committed suicide. 5. The prosecution examined Shri Krishna (PW1), Mahesh Chandra Sharma (PW2), Dr. He was bearing expenses of treatment. On the date of occurrence he was not present in Firozabad and had asked Shri Krishna, (PW 1) to look after Smt. Mahendri. He did not know how she died and it was possible that she would have committed suicide. 5. The prosecution examined Shri Krishna (PW1), Mahesh Chandra Sharma (PW2), Dr. Kshetra Pal, (PW3), Constable Gajendra Singh (PW4), Head Constable Bhudutta Sharma (PW5), Dr. P. K. Jain (PW6), Sub Inspector Suresh Chandra Gupta (PW7), Kshetra Singh, I. O. (PW8) and Munna Lal (PW9 ). Shri Krishna (PW1), Mahesh Chandra (PW2) and Munna Lal (PW9) are the witnesses of fact, while the evidence of remaining witnesses is formal in nature. 6. The appellant examined Shri Krishna son of Ram Chandra, DW 1 in his defence. 7. The learned Sessions Judge on considering the evidence of the parties held that the death of Smt. Mahendri, deceased was homicidal and the prosecution has successfully proved the guilt of the appellant for the murder of the deceased. With these findings he convicted the appellant under Section 302 IPC and sentenced him as mentioned above. 8. Aggrieved with his above conviction and sentence the appellant has come up in this appeal. 9. We have heard Shri Amar Saran, learned counsel for the appellant, learned AGA for the respondent and have gone through the evidence on record. 10. The identity and death of Smt. Mahendri is not disputed. However, it was contended by the appellant in his statement under Section 313 Cr. P. C. and was also argued by the learned counsel for the appellant before us that there is possibility that Smt. Mahendri committed suicide out of frustration of her illness or otherwise. 11. Dr. P. K. Jain, (P. W. 6) who conducted autopsy on the dead body of Mahendri deceased on 31-3-80 at 1. 00 p. m. found following ante mortem injuries on the person of the deceased. 12. Ligature mark 10 cm x 5 cm obliquely towards vertebral column. Interrupted extended up right angle of jaw. Central part mark was faint, margins red and congested. 13. Dr. Jain further stated that internal examination showed that larynx and rings of trachea were fractured. Hyoid bone was fractured. Stomach contained semi digested food. Small intestine was empty and large intestine contained faecal matter. Interrupted extended up right angle of jaw. Central part mark was faint, margins red and congested. 13. Dr. Jain further stated that internal examination showed that larynx and rings of trachea were fractured. Hyoid bone was fractured. Stomach contained semi digested food. Small intestine was empty and large intestine contained faecal matter. In the opinion of the Doctor the cause of death was due to asphyxia as a result of strangulation. In his cross examination Dr. Jain, (PW6) stated that injury on the neck of the deceased could be caused by pressure on the neck by rope Ext. 1. He further stated that ligature mark was just above thyroid cartiledge. Ligature mark was not all around the neck. No ligature mark was found on the back side of neck. He denied the suggestion that injury on the neck of the deceased was due to hanging. He also denied the suggestion that the death was caused due to suicidal strangulation. 14. From the evidence of Dr. Jain (P. W. 6) it is clear that ligature mark present on the neck of deceased were not due to hanging. Modi in his book "medical Jurisprudence and Toxicology" (12th edition) has mentioned that in case of handing ligature mark is oblique, non continuous, placed high up in the neck between the chin and the larynx and the base of the groove furrow being hard yellow and parchment like, while in the case of strangulation ligature mark is horizontal and transverse continuous around the neck low down in the neck below the thyroid, base of the groove or furrow being soft and reddish. In the case of hanging fracture of larynx and trachea is very rare, while in the case of strangulation fracture of larynx and trachea often found and also fracture of hyoid bone. That in case of hanging the neck is stretched and elongated in fresh bodies, while in the case of strangulation neck is not so. The doctor did not find any evidence or sign of hanging. The IO had also not found any sign of hanging in the room, where the dead body of the deceased was found. Thus from the medical evidence and other circumstances the possibility of death of deceased by hanging is completely ruled out. 15. The medical evidence shows that the death of deceased was due to strangulation. The IO had also not found any sign of hanging in the room, where the dead body of the deceased was found. Thus from the medical evidence and other circumstances the possibility of death of deceased by hanging is completely ruled out. 15. The medical evidence shows that the death of deceased was due to strangulation. It further shows that larynx rings of trachea and hyoid bone were fractured. The fracture of larynx, rings of trachea and hyoid bone are caused due to pressure applied on the outer part of the neck. There was no sign, inside the room where the dead body of the deceased was found, showing that the neck of the deceased was tied with the cot or some other thing to lay pressure on the neck. Rope Ext. 1 was found besides the charpai of the deceased. Thus, the above symptoms and circumstances coupled with the opinion of Dr. Jain, PW 6 clearly indicate that the pressure on the neck of the deceased by rope was not caused by herself but by some outer agency. However, no symptoms of suicidal strangulation was found by the doctor and he categorically ruled out the possibility of suicidal strangulation. Therefore, the prosecution successfully proved that the death of Smt. Mahendri deceased was due to homicidal strangulation. 16. In this case the date, time and place of the occurrence are not disputed. Shri Krishna, PW1 and Munna Lal, PW9 have categorically stated that the death of deceased was caused in room No. 6 of Damma Mad Dharamshala. Firozabad at about 10. 30 a. m. Kshetra Singh, P. W. 8, I. O. visited the spot at 12. 45 p. m. on 30-3-1980 and found the dead body of the deceased lying on the charpai in room No. 6 of Damma Mal Dharmshala. The medical evidence of Dr. P. K. Jain, P. W. 6 shows that the death of the deceased had occurred about one and half day prior to conducting of inquest i. e. 31-3-80 at 1. 00 p. m. He also stated that the death of deceased was possible at 10-30 a. m. on 30-3-80. Mahesh Chandra Sharma, P. W. 2, the Manager to Damma Mal Dharmshala who had not supported the prosecution case in toto has also admitted that Smt. Mahendri deceased had come to Dharamshala at 9. 00 p. m. He also stated that the death of deceased was possible at 10-30 a. m. on 30-3-80. Mahesh Chandra Sharma, P. W. 2, the Manager to Damma Mal Dharmshala who had not supported the prosecution case in toto has also admitted that Smt. Mahendri deceased had come to Dharamshala at 9. 15 a. m. on 30-3- 80 and was taking rest in room No. 6. After 10. 00 p. m. when he opened the door of the room he found her dead. No cross examination was made from the above witnesses on the date, time and place of the occurrence nor it was challenged before us. No counter date, time and place of the occurrence has been suggested. As such the prosecution has successfully proved the date, time and place of the occurrence. 17. It is not disputed that Smt. Mahendri deceased was legally wedded wife of appellant Mahendra Prasad and her marriage with the appellant had taken place prior to 12 years of the occurrence. The motive of the offence alleged by the prosecution was that prior to six years of the occurrence Mahendra Prasad had kept a prostitute named Smt. Santo and started living with her at her house. He was spending money on the said prostitute and it was objected by the deceased. The appellant also wanted to sell his agricultural plot to provide money to the said prostitute. In this connection Smt. Mahendri, deceased had published a news in Daily Amar Ujala, dated 13-8-79 that no body should purchase the property of Mahendra Kumar Sharma son of Hari Keshav resident of Kanwara, Tehsil Jasrana (Mainpuri) as he wanted to sell it for illegal purposes. The paper cutting was produced before the IO by Shri Krishna, PW1, which is Ext. 7. No doubt it is mentioned in the said paper cutting that the mental condition of the appellant was not sound and he was unable to understand his welfare and it was not mentioned in it that he wanted to sell the plot for providing money to a prostitute. But the above news was got published by the deceased and she did not want to disclose the illicit connection of her husband with a prostitute as it would have affected her status and dignity in the society. Shri Krishna, PW1 has categorically stated about the above motive. But the above news was got published by the deceased and she did not want to disclose the illicit connection of her husband with a prostitute as it would have affected her status and dignity in the society. Shri Krishna, PW1 has categorically stated about the above motive. No doubt the appellant has examined Shri Krishna son of Ram Chandra, DW 1 who stated that there was no prostitute in village Kanwara and the appellant Mahendra had no connection with any prostitute. But it does not affect the motive of the case. The news item in Daily Amar Ujala was published much prior to the occurrence of the case and it shows that there were some differences between the deceased and the appellant. Assuming that the appellant had no connection with a prostitute, the possibility that he had motive for committing murder of deceased on account of his differences or out of frustration of her illness can not be ruled out. Moreover, the prosecution has relied on the ocular testimony of witnesses and where there is direct, evidence of eye- witnesses the motive has no significant role. 18. On the manner of occurrence and complicity of the appellant in the murder of deceased the prosecution has relied on eye witness account of Shri Krishna, PW1, Mahesh Chandra Sharma, P. W. 2 and Munna Lal, P. W. 9. 19. Shri Krishna, P. W. 1, the real brother of deceased stated that he had taken the deceased to his house at Kasba Firozabad from the house of appellant. She was the patient of tuberculosis and her treatment was being done by Dr. Kshetra Pal, PW 3. On 30- 3-80 at about 9. 00 a. m. he alongwith Munna Lal, PW9 had taken deceased Mahendri Devi to the Clinic of Dr. Kshetra Pal, PW 3 where she got injection. She felt uneasiness and weakness and therefore, she was taken to Damma Mal Dharamshala for rest. Mahesh Chandra (P. W. 2) who was brother-in-law of appellant was the Manager of said Dharamshala. On reaching at the gate of Dharamshala he met with Ramesh Chandra. He alongwith Munna Lal, PW9 and Ramesh Chandra went to Mahesh Chandra (P. W. 2) and was talking with him in the varandah. Smt. Mahendri laid down in the northern kothri (room No. 6) of Dharamshala. On reaching at the gate of Dharamshala he met with Ramesh Chandra. He alongwith Munna Lal, PW9 and Ramesh Chandra went to Mahesh Chandra (P. W. 2) and was talking with him in the varandah. Smt. Mahendri laid down in the northern kothri (room No. 6) of Dharamshala. After five minutes at about 10- 30 a. m. appellant Mahendra came to him in the said Dharmshala. After talking with him the appellant Mahendra went inside the kothri, where the deceased was taking rest. He closed the door of Kothri. After some times when the witness had no noise from the kothri he came there and peeped from the hole in between the two door planks and saw that the appellant was pressing the neck of the deceased with rope by putting his leg on her chest. He raised alarm and the appellant suddenly came out of the kothri and pushing him aside, ran away. 20. Mahesh Chandra Sharma, PW2 stated that he was Manager of Damma Mal Dharamshala, Firozabad since 1963. On 30-3-80 at about 9. 15 a. m. Smt. Mahendri had come to above Dharamshala as she was not feeling well. He asked her to take rest in room No. 6, where a charpai was lying. After some time Mahendra Prasad appellant came and went to room No. 6. The appellant and deceased were talking to each other. Thereafter he did not see the appellant as to when he left Dharmshala. After going of Mahendra, appellant he opened room No. 6 and saw that Mahendri was lying unconscious. His son Ram Sevak called Dr. Kshetra Pal (P. W. 3) who examined and declared her dead. There was blue signs on the neck of Mahendri and rope Ext. 1 was lying below her charpai. Thereafter he sent a person to call Shri Krishna, PW1. He was not present at his house. Thereafter he sent a telephonic message, to the police station but no reply was received. Thereafter, a constable came at the Dharamshala who asked him to lodge the report. The witness was however, declared hostile by the prosecution and was cross-examined but in his cross-examination he admitted that when Mahendri deceased went into Kothri (room No. 6) he went towards the temple and on return after one and half hours he found the door of room of Mahendri bolted from outside. He opened the room at 11. The witness was however, declared hostile by the prosecution and was cross-examined but in his cross-examination he admitted that when Mahendri deceased went into Kothri (room No. 6) he went towards the temple and on return after one and half hours he found the door of room of Mahendri bolted from outside. He opened the room at 11. 00, 11-30 or 12-00 a. m. and saw that Mahendri was lying dead. He called the doctor to remove his suspicion. 21. Munna Lal, PW9 stated that on the date of occurrence at about 9. 30 he had gone to the house of Shri Krishna, PW1. Shri Krishna and his sister Mahendri met him there. Shri Krishna was going to doctor for getting injection to Smt. Mahendri. He asked him to accompany him. He accompanied Shri Krishna and Mahendri to the clinic of Dr. Kshetra Pal, PW. 3. Thereafter Mahendri felt some uneasiness Shri Krishna alongwith him took Smt. Mahendri to Damma Mal Dharamshala for taking rest Ramesh Chandra also met them at the gate of Dharamshala. He alongwith Shri Krishna and Ramesh sat with Mahesh Chandra, the Manager of Dharamshala. Mahendri went inside in a room. After ten minutes appellant Mahendra came there. Shri Krishna told him that Mahendri was in the room. Appellant Mahendra went in the room of Mahendri. When no voice was heard Shri Krishna, PW1 went to the rom and peeped from the doors. Appellant came out of the room and ran away. Shri Krishna raised alarm and tried to apprehend the appellant, but he ran away. The witness also went to the room and found Mahendri lying dead. Rope Ext. 1 was lying behind the charpai. 22. Learned counsel for the appellant contended that Shri Krishna, PW1 was not present on the spot and had not seen the occurrence. He pointed that Dr. Kshetra Pal, PW3 stated that on 30-3-80 between 8. 30 and 8. 45 a. m. Smt. Mahendri had come to his clinic for getting injection. One or two persons whose ages were between 20 and 22 years were with her. He further pointed out that the age of Shri Krishna was 38 years and therefore, he was not the person who had gone to the clinic of Kshetra Pal alongwith Smt. Mahendri. Munna Lal, P. W. 9 has stated his age as 24 years. The evidence of Dr. He further pointed out that the age of Shri Krishna was 38 years and therefore, he was not the person who had gone to the clinic of Kshetra Pal alongwith Smt. Mahendri. Munna Lal, P. W. 9 has stated his age as 24 years. The evidence of Dr. Kshetra Pal established that Smt. Mahendri had gone to his clinic alongwith two persons. This supports the evidence of Shri Krishna, P. W. 1 that he and Munna Lal, PW9 had gone to the clinic alongwith Smt. Mahendri. Dr. Kshetra Pal told the age of above two persons on his speculation as he had not noted this fact in any register. Thus from the above evidence of Dr. Kshetra Pal, PW3, it can not be said that Shri Krishna (P. W. 1) had not accompanied the deceased to the clinic. 23. It was further pointed out that Mahesh Chandra, P. W. 2 has stated that Smt. Mahendri came to Dharamshala all alone and when he saw that Mahendri, deceased was lying dead and got it confirmed by Dr. Kshetra Pal, P. W. 3, he called Shri Krishna (P. W. 1) but he was not present at his house. It is material to note that Mahesh Chandra, P W. 2 is brother-in-law (sisters husband) of Mahendra Prasad, appellant and he had soft corner for the appellant. When two persons had accompanied Smt. Mahendri to the clinic as admitted by Dr. Kshetra Pal (P. W. 3) and she was not feeling well and came to Dharamshala to take rest why the persons accompanying her would leave her alone at the clinic. This aspect supports the evidence of Shri Krishna (P. W. 1) that he and Munna Lal (P. W. 4) had accompanied Smt. Mahendri Devi and since after injection she was not feeling well, she was taken to Dharamshala for rest. 24. The report of the occurrence was lodged by Shri Krishna, P. W. 1 at 12. 05. There was no delay in lodging the report. Mahesh Chandra P. W. 2 stated that he opened the doors at 10. 30, 11. 00 or 12. 00 noon and thereafter called Dr. Kshetra Pal who came and confirmed the death of Mahendri deceased and thereafter he called Kishan (P. W. 1) but he was not present at his house. That he reached the police station at 12. Mahesh Chandra P. W. 2 stated that he opened the doors at 10. 30, 11. 00 or 12. 00 noon and thereafter called Dr. Kshetra Pal who came and confirmed the death of Mahendri deceased and thereafter he called Kishan (P. W. 1) but he was not present at his house. That he reached the police station at 12. 00 noon and after 25 minutes thereafter Shri Krishna (P. W. 1) came there. There is no explanation from the side of Mahesh Chandra, P. W. 2 as to why he did not lodge the report when he reached at the police station at 12. 00 noon. The evidence of constable Bhudutta Verma, P. W. 5 shows that Shri Krishna (P. W. 1) lodged the report of the occurrence at 12. 05 p. m. This aspect also shows presence of Shri Krishna, P. W. 1 in the Dharamshala. As such we find no force in the above contention. 25. The next eye witness of the occurrence is Munna Lal, P. W. 9. There is nothing in his cross examination to doubt his presence on the spot. No doubt he admitted that Shri Krishna, P. W. 1 was brother-in-law (sala) of his brother, but he also stated that appellant Mahendra was Sadhu (wifes sisters husband) of his brother, which has not been challenged. Munna Lal, P. W. 9 was thus equally related with the appellant as well as Shri Krishna, P. W. 1 and had no ground to depose falsely. 26. Mahesh Chandra Sharma, P. W. 2 who has not supported the prosecution story in toto has admitted that while Smt. Mahendri was inside the room, appellant Mahendra came in the said room of Dharamshala and when he returned to the said room he found the room bolted from outside. It is admitted to the witness that Smt. Mahendri was done to death inside room No. 6 of the Dharamshala and prior to her death the appellant had come to said room and thereafter went away bolting the door from outside. Evidence of Mahesh Chandra, PW2 and circumstances stated by him support the evidence of Shri Krishna, P. W. 1 that it was Mahendra, appellant who committed murder of the deceased. Therefore, from the above evidence, the manner of occurrence and complicity of appellant in the murder of the deceased has been fully established. 27. Evidence of Mahesh Chandra, PW2 and circumstances stated by him support the evidence of Shri Krishna, P. W. 1 that it was Mahendra, appellant who committed murder of the deceased. Therefore, from the above evidence, the manner of occurrence and complicity of appellant in the murder of the deceased has been fully established. 27. Lastly it was contended by the learned counsel for the appellant that the offence comes within the purview of Section 304 I. P. C. and not under Section 302 I. P. C. He placed reliance on Apex Court decision in Ramesh Kumar v. State of Bihar, AIR 1993 SC 2317 ; Udai Singh v. State of U. P. , 2002 (2) JIC 1005 (SC) : 2002 C. L. J. 4655 (SC); Vishnu Mohan v. State (NCT of Delhi), 2001 Cr. L. J 3531 (Delhi ). The learned counsel for the appellant further pointed out that it was possible that some altercation took place between the appellant and the deceased and in that course the neck of the deceased was pressed unintentionally and she died. We have gone through the above decisions and find that the facts of the above decisions are totally different from the facts of the present case. 28. In the instant case there is no sign of any altercation between the appellant and the deceased. There is also no circumstance or evidence to show that the neck of the deceased was pressed by hand or she died due to throtling. Contrary to it the evidence on record shows that there was ligature mark which was due to pressure on the neck of the deceased with rope, Ext. 1, which was recovered by the IO from the spot. The medical evidence indicated that ligature mark on the neck of the deceased and fracture of larynx, rings of trachea and hyoid bone was caused by pressure on the neck by rope, Ext. 1. This indicates that the appellant intentionally and knowingly pressed the neck of the deceased with the rope, which indicates that he had intention as well as knowledge to commit murder of the deceased. Therefore, we are unable to subscribe the above contention of the learned counsel for the appellant that the case falls under Section 304 IPC only. 29. In view of our above discussions and observations we find no force in the appeal. 30. The appeal fails and is hereby dismissed. Therefore, we are unable to subscribe the above contention of the learned counsel for the appellant that the case falls under Section 304 IPC only. 29. In view of our above discussions and observations we find no force in the appeal. 30. The appeal fails and is hereby dismissed. 31. Appellant Mahendra Prasad is in jail and he will serve out the sentence accordingly. 32. Let a copy of this judgment be sent to C. J. M. Agra/firozabad for compliance and report within a month. Appeal dismissed. .