JUDGMENT A.I.S. Cheema, J. 1. This appeal, by original accused Umesh Suresh Vale is against his conviction and sentence, passed by Sessions Judge, Jalgaon on 06.8.2011 in Sessions Case No.113/2010. He has been convicted under Section 302 of The Indian Penal Code, 1860 (IPC for short), and sentenced to imprisonment for life with a fine of Rs.500/-, and in default to suffer further rigorous imprisonment for one year. 2. The case of prosecution in brief is as under: (a) Deceased Gautam, son of Chandramani, and accused Umesh are residents of same locality, Dr. Babasaheb Ambedkar Nagar, in Muktainagar, District Jalgaon. The incident occurred at the time of Akshay Tritiya on 16.5.2010, at about 6.30 p.m. The complainant P.W.1 Nirmala Ashok Surwade, who resides at Surat in Gujarat, had come to Ambedkar Nagar. She had come to her sisters Nanda and Latabai. Nanda is mother of deceased Gautam. Deceased Gautam was doing Mason work. Complainant was sitting in Wada behind the house of her sister Nandabai. The spot is open space in front of house of P.W.3 Lilabai Suresh Bodade. The complainant was sitting on the cot and chitchatting with her sister Latabai Ingale and P.W.3 Lilabai, the aunt of Gautam. The other sister Nandabai was cooking inside the house. Deceased Gautam was standing near these ladies. Complainant asked Gautam to get ice cream for them. In turn, deceased Gautam asked one Anand Mansaram Bodade to go and get the ice cream. At that time, accused Umesh came nearby and was calling deceased Gautam. Gautam was asking him to wait as he wanted to talk to his aunt. When Gautam was proceeding towards his aunt, accused called out "Aye Aye" and caught deceased Gautam by neck by his hand and hit his head thrice on the wall which was in front, while holding him by neck. At that time, P.W.2 Putabai Mansaram Bodade rushed out of her house and intervened. Complainant Nirmala, Lata and P.W.3 Lilabai also intervened, but the accused who was smelling of liquor, kept the neck of deceased Gautam pressed and pushed aside the four ladies. At that time, Mangalabai, the mother of accused came there and separated the accused. Deceased Gautam then collapsed and fell unconscious. He was taken to hospital. However, doctor declared him to be dead. At that time, Mangalabai, the mother of accused came there and separated the accused. Deceased Gautam then collapsed and fell unconscious. He was taken to hospital. However, doctor declared him to be dead. Complainant Nirmala then went to Muktainagar Police Station and gave report as above, and crime was registered at C.R. No.75/2010 at 7.25 p.m. (b) P.W.6 P.I. Sham Somwanshi directed P.W.7 A.P.I. Raosaheb Bhapkar to go the hospital for doing the inquest panchanama. P.W.7 A.P.I. Raosaheb Bhapkar went to the Rural Hospital, Muktainagar, District Jalgaon and did inquest panchanama (Exhibit 21). The body was forwarded for post mortem. In the evening of 16.5.2010 itself the accused was arrested and his blood samples were taken. P.W.5 Dr. Pravin Kakade carried out post mortem in the morning of 17.5.2010. Police recorded the spot panchanama (Exhibit 22). Statements of witnesses were recorded by P.I. Sham Somwanshi. The blood sample of accused was forwarded to Chemical Analyser and C.A. report was obtained. After the investigation, charge sheet came to be filed. 3. Judicial Magistrate, First Class, Muktainagar committed the case to the Court of Sessions. Charge was framed against the accused under Section 302 of IPC. The accused pleaded not guilty. His defence is of denial. According to him, he and deceased Gautam were both doing Mason work; they were always remaining together and working together; Gautam died at the place of work and out of suspicion complaint has been filed against him. 4. In the trial Court, prosecution relied on evidence of seven witnesses. P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai are the three ladies who are eye witnesses. The fourth lady Latabai, who is also said to have intervened, was not examined. P.W.4 Constable Pravin is the carrier of articles to the Chemical Analyser. P.W.5 Dr. Pravin did the post mortem while P.W.6 Sham Somwanshi is the investigating officer who was assisted by P.W.7 Raosaheb Bhapkar (A.P.I.). 5. After considering the evidence, the Sessions Court convicted the accused as mentioned, holding him guilty for murder of deceased Gautam. 6. The learned counsel for appellant/ accused has taken us through the oral and documentary evidence on record. He fairly stated that, he was not in a position to say that evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai should be discarded merely because they are relatives of the deceased. 6. The learned counsel for appellant/ accused has taken us through the oral and documentary evidence on record. He fairly stated that, he was not in a position to say that evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai should be discarded merely because they are relatives of the deceased. He, however, added that, it would have been better if some other eye witness was also examined as he says that P.W.2 Putabai has deposed that one Ashok Surwade was also present at about the time of occurrence at the spot. He also submitted that, although the evidence shows that deceased Gautam expired due to the act of accused, there was no intention to kill, and the evidence of P.W.1 Nirmala shows that there was exchange of words before incident. According to him, at the most offence under Section 304-II of IPC could be said to be there. The learned counsel pointed out that, although the inquest panchanama refers to some external injuries, the post mortem report does not show such injuries and from the findings in the post mortem, it appears that Gautam died due to he getting frightened in the course of the incident. The learned counsel submitted that, the appellant/ accused is ready to pay compensation under Section 357 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) as the Court may direct. 7. Against this, the learned A.P.P. submitted that the post mortem report shows that, Gautam died due to throttling. P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai have referred to accused holding deceased Gautam by neck and the incident taking place. The A.P.P. submitted that, when the accused was holding Gautam by neck and putting him on the ground, knowledge can be attributed to the accused that such act would cause death. 8. This being serious matter of offence under Section 302 of the Indian Penal Code, and it being first appeal to the High Court, irrespective of the submissions, it would be appropriate to appreciate the evidence in order to do complete justice. 9. The spot panchanama (Exhibit 22) was admitted by the accused. The spot panchanama shows that it is a place which is part of Dr. Babasaheb Ambedkar Nagar and is part of Muktainagar. It was open place in front of house of one Suresh Rajaram Bodade. The open place was near a heap of bricks and sand. 9. The spot panchanama (Exhibit 22) was admitted by the accused. The spot panchanama shows that it is a place which is part of Dr. Babasaheb Ambedkar Nagar and is part of Muktainagar. It was open place in front of house of one Suresh Rajaram Bodade. The open place was near a heap of bricks and sand. At about 5 ft. from such heap, there was mud wall of dilapidated house of P.W.2 Putabai Mansaram Bodade. Spot panchanama shows that, the said wall was like a heap of mud. Such spot was shown by the complainant as the place where accused Umesh had pressed the neck of deceased Gautam and against which wall deceased was pushed and put to the ground. The spot panchanama shows, nearby house of Ganpat Bodade to the west and in the same direction at some distance, there are houses of accused Umesh and deceased Gautam. 10. Keeping such spot in front, now evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai needs to be considered. To appreciate the evidence better, the Marathi versions are being kept in view. P.W.1 Nirmala has deposed that, the incident was of the day of Akhaji and in the evening at about 6.30 p.m., she along with her sister Lata and P.W.3 Lilabai, the aunt of Gautam, were sitting on a cot behind their house and were chitchatting. Deceased Gautam was also there. She asked Gautam to go and get ice cream. Gautam asked one Anand to go and get the ice cream. In this regard, P.W.1 Nirmala is corroborated by P.W.2 and P.W.3 also that the ladies were sitting near spot and chitchatting. 11. The evidence of P.W.1 Nirmala further shows that, at such time, accused Umesh came there and between deceased Gautam and accused, an exchange of words took place and then accused caught Gautam by neck and thrice banged head of Gautam against the wall of house of Putabai. P.W.1 Nirmala has deposed that, Putabai went to help deceased Gautam and tried to intervene. P.W.1 Nirmala along with Latabai and P.W.3 Lilabai also went to help. At that time, accused pushed all these ladies aside. Accused had consumed liquor and was smelling of the same. Then Mangalabai, the mother of accused Umesh came and saved Gautam and took accused Umesh home. When Gautam got released, he fell down unconscious. P.W.1 Nirmala along with Latabai and P.W.3 Lilabai also went to help. At that time, accused pushed all these ladies aside. Accused had consumed liquor and was smelling of the same. Then Mangalabai, the mother of accused Umesh came and saved Gautam and took accused Umesh home. When Gautam got released, he fell down unconscious. F.I.R. (Exhibit 18) filed by her also has similar version. 12. Such evidence of P.W.1 Nirmala regarding the incident is corroborated by P.W.2 Putabai also, who has deposed that, the accused had come to the spot and was signaling Gautam to come to him and Gautam told accused that he has been called by his aunt and that he will listen to what she is saying. P.W.2 Putabai has deposed that, at such time, deceased Gautam told accused if he wanted to quarrel with him. At that time, accused caught Gautam near house of Lilabai, holding him by neck and pulled him towards the heap of bricks and sand. Then accused pulled and made Gautam stand and took him near the wall and twice banged his head on the wall. P.W.2 Putabai also says that, the ladies intervened, but accused was not coming in their control and pushed them aside. Then, Mangalabai, the mother of accused had come to the spot and took away accused. Gautam had become unconscious. 13. Evidence of P.W.1 Nirmala and P.W.2 Putabai has been supported by evidence of P.W.3 Lilabai also. She has deposed that, accused had come near the place where these ladies and deceased Gautam were there. According to P.W.3 Lilabai, accused called out to Gautam and Gautam told him that he will talk to his aunt and come thereafter. Gautam then talked to these ladies and thereafter went near the accused and immediately the accused caught the neck of deceased Gautam by one hand and catching hold by the other, he pushed Gautam to the ground. First, P.W.2 Putabai intervened to save Gautam followed by P.W.1 Nirmala, Latabai and P.W.3 Lilabai also intervened, but accused pushed them aside. 14. Cross-examination of P.W.1 Nirmala shows that accused had pressed the neck of Gautam, holding him from the front. She has denied the suggestions that Gautam was suffering from head-ache and that he died of heart attack while on work. 14. Cross-examination of P.W.1 Nirmala shows that accused had pressed the neck of Gautam, holding him from the front. She has denied the suggestions that Gautam was suffering from head-ache and that he died of heart attack while on work. In addition to P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai, both have deposed that Gautam died due to pressing of his neck by accused. P.W.1 Nirmala was asked in cross-examination and she stated that she did not see blood coming out from the head of deceased Gautam. At the time of arguments, it has been tried to say that, if the head of the deceased was banged against the wall, there should have been injury to the head, but no such injury has been noticed in the post mortem report. The argument has no force as the spot panchanama itself shows that the head of deceased was banged against a mud wall which was in a dilapidated condition. 15. Although P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai are related to deceased Gautam, they were natural witnesses as they were staying there. The cross-examination of these witnesses in no way shatters these witnesses. In fact, the witnesses fairly stated that the mother of accused Umesh herself intervened to separate accused. The evidence of these witnesses does not appear to be suffering from any exaggeration or any material contradictions or omissions. The same matches with the F.I.R. Exhibit 18 also, which P.W.1 filed almost immediately as the hospital and police station appear to be at short distance. The evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai inspires confidence. 16. What is proved from the evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai is that the accused held the deceased by neck by one hand and while so holding and pressing the neck, by other hand, he pushed deceased to the ground and then to the mud wall and the incident occurred in this manner. 17. It is argued that there is difference in version between P.W.1 Nirmala and P.W.2 Putabai as to the number of times head of the deceased was banged against the wall. 17. It is argued that there is difference in version between P.W.1 Nirmala and P.W.2 Putabai as to the number of times head of the deceased was banged against the wall. Looking to the manner in which the incident suddenly took place and the fact that while the same was taking place, P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai and one Latabai had intervened, it is not unnatural that different witnesses may remember the incident with slight variations. Such minor differences regarding the incident rather show that the witnesses are not tutored and the evidence is natural. 18. The incident took place around 6.30 p.m. and the evidence of P.W.1 Nirmala and P.W.2 Putabai shows that, first Gautam, who had collapsed on the spot, was taken to some private clinic of Dr. Jagdish and then to the Civil Hospital. Even if omission has been proved in the evidence of P.W.1 Nirmala that she did not inform police that Gautam was first taken to clinic of Dr. Jagdish, it is not material. It can be seen that, soon after the incident, once it was found that Gautam had expired, P.W.1 Nirmala had gone to the police station and the offence came to be registered within an hour. The F.I.R. (Exhibit 18) contains all material details and the details of the incident or evidence on record cannot be said to be afterthought. 19. Evidence of P.W.7 A.P.I. Raosaheb Bhapkar shows that, he had prepared inquest panchanama (Exhibit 21). In the inquest panchanama, in Column 10, there is mention that there is no injury to the head, but on the back side there is a swelling. Regarding the neck, it is mentioned that, to the right there is slight swelling and scratch mark. On the back, another scratch mark was recorded. The inquest panchanama was done on 16.5.2010 itself at 19.30 Hrs. Post mortem, however, was conducted by P.W.5 Dr. Pravin in the morning of 17.5.2010. According to the doctor, there were no external injuries. As per the doctor, death of Gautam occurred due to Cardiac arrest due to Vagal Inhibition in addition to asphyxia due to throttling. Post mortem report naturally is important being a document recorded by expert. 20. Police sought details regarding such medical report. P.W.5 has proved document Exhibit 35, which is in the nature of clarification regarding cause of death. As per the doctor, death of Gautam occurred due to Cardiac arrest due to Vagal Inhibition in addition to asphyxia due to throttling. Post mortem report naturally is important being a document recorded by expert. 20. Police sought details regarding such medical report. P.W.5 has proved document Exhibit 35, which is in the nature of clarification regarding cause of death. The document reads as under : "CAUSE OF DEATH : Cardiac arrest due to Vagal Inhibition in addition to asphyxia due to throttling. CLARIFICATION OF ABOVE MENTIONED MEDICAL TERMS : CARDIAC ARREST : “HINDI” VAGAL INHIBITION : “HINDI” ASPHYXIA : “HINDI” THROTTLING : “HINDI” Thus, doctor explained in simple language how in the course of throttling, asphyxia can take place and it can trigger cardiac arrest. 21. Dr. Pravin was cross-examined by the accused. The doctor was referred to medical opinions of Dr. Parikh. However, the doctor has maintained that it is not always necessary that ear, nose and finger nails also get cynosed in case of throttling. He deposed, it is not always necessary in case of death due to throttling that the left chamber is empty and right chamber is full of blood. The doctor deposed that, vagal inhibition occurs also due to fright or sudden mental tension. 22. Referring to such evidence of the doctor, it has been argued by the learned counsel for the accused that the deceased Gautam, at the time of incident, may have got frightened when he was held by neck and so, death may have occurred. 23. On record, there is evidence of P.W.1 Nirmala, P.W.2 Putabai and P.W.3 Lilabai, which shows that, the accused was smelling of liquor. There is C.A. report (Exhibit 37), which shows that, the blood sample of accused contained 0.082 % v/w of ethyl-alcohol. Thus, from evidence, it can be seen that the accused had consumed alcohol and had gone to the spot. The evidence shows, there was some exchange of words between accused and the deceased Gautam and the accused suddenly caught Gautam by neck by one hand and by other hand, he pushed him to the ground and then also to the mud wall. Looking to such evidence and the medical evidence, it is proved that, deceased Gautam suffered death due to culpable homicide. 24. Looking to such evidence and the medical evidence, it is proved that, deceased Gautam suffered death due to culpable homicide. 24. When the accused had himself consumed alcohol, it was his own act and on the spot when he was holding deceased Gautam by neck and pressing the same, knowledge can be attributed to him that, by such bodily injury he is likely to cause death of Gautam. However, it does not appear that there was any premeditation or any preparation done by the accused for the incident. Evidence of P.W.3 Lilabai shows that earlier she had seen accused and deceased Gautam working together and also visiting each other. She has deposed that, before incident, there was not any quarrel between them. Thus, no specific motive was there. What can be seen from the record is that on day of incident deceased Gautam did not immediately respond to accused and when he went near, there was a sudden quarrel and accused suddenly held Gautam by neck and while holding him by neck, executed other part of the incident of pushing Gautam to the ground and to the mud wall. There is no material to show that there was premeditation or use of any instrument, although it appears, there was a heap of bricks at the spot. Keeping in view all these facts, it needs to be held that, although accused committed culpable homicide, but it does not amount to murder. 25. Reference needs to be made to the case of Gurmukh Singh Vs. State of Haryana reported in 2010 Cri.L.J. 450. In that matter, the incident had occurred on the spur of moment and appellant therein had given single 'lathi' blow on the head of deceased. It was held that there was no intention or premeditation in mind of appellant to inflict such injuries to deceased as were likely to cause death in ordinary course of nature. Benefit was given and offence under Section 302 was converted to Section 304-II of IPC. In fact, in the judgment, the Hon'ble Supreme Court has discussed various earlier judgments of the Supreme Court dealing with similar issue and referred to the facts of those various matters and where it was found by the Hon'ble Supreme Court that instead of Section 302 of IPC, Section 304 of IPC needs to be applied. In yet another matter, in the case of Bhagwati Prasad Vs. In yet another matter, in the case of Bhagwati Prasad Vs. State of M.P., reported in 2010 Cri.L.J. 528, the accused had given spear blow to the victim and in the postmortem, it was found that death was caused because of the piercing blow, due to which right lung was damaged by penetrating spear. The High Court of M.P. had converted the offence from Section 302 of IPC to Section 304-II of IPC. The Hon'ble Supreme Court upheld the decision of the High Court. If the judgments of the Hon'ble Supreme Court are considered, there is no doubt that although accused throttled deceased Gautam, leading to death, it would be a case not under section 302, but only a case under Section 304-II of the IPC. The act was done with the knowledge that it is likely to cause death, but without any intention to cause death. 26. In the matter of Hari Kishan and State of Haryana, Vs. Sukhbir Singh and others, reported in AIR 1988 SC 2127 (1), the Hon'ble Supreme Court has observed that, compensation to victims should be liberally given by the Courts under Section 357 of the Cr.P.C. The learned counsel for accused himself referred to this judgment to submit that the accused is ready to pay compensation as the Court may direct. The cross-examination of P.W.3 Lilabai shows that the accused is financially well placed. It was submitted by the learned counsel for the accused that, the deceased is survived by his mother Nanda, to whom compensation can be paid as she has lost her son. This needs to be accepted. 27. For the above reasons, the appeal is partly allowed. The conviction and sentence of the appellant under Section 302 of The Indian Penal Code, 1860 is set aside. The appellant is convicted for offence punishable under Section 304-II of The Indian Penal Code, 1860 and he is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2 Lakhs. In default of payment of fine, he shall suffer further rigorous imprisonment for one year. Fine amount be deposited with the Sessions Court. 28. Fine amount, on recovery, may be paid as compensation under Section 357 of the Code of Criminal Procedure, 1973, to Nanda, wife of Chandramani, the mother of deceased Gautam, Resident of Ambedkar Nagar, Muktainagar, District Jalgaon. 29. Fine amount be deposited with the Sessions Court. 28. Fine amount, on recovery, may be paid as compensation under Section 357 of the Code of Criminal Procedure, 1973, to Nanda, wife of Chandramani, the mother of deceased Gautam, Resident of Ambedkar Nagar, Muktainagar, District Jalgaon. 29. The appellant/ accused is entitle to set off under Section 428 of the Code of Criminal Procedure, 1973.