JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—This criminal appeal is directed against the judgment and order dated 17.3.1983 passed by III Additional District & Sessions Judge, Bareilly in S.T. No. 79 of 1982 whereby the appellant was convicted under Section 302, I.P.C. and was sentenced to imprisonment for life. Heard learned counsel for the appellant, the learned A.G.A. on behalf of the State and carefully perused the records. 2. The brief prosecution story as unfolded during trial is that the complainant Chhotey lodged a written report (Ext. Ka. 2) at Police Station Nawabganj, district Bareilly mentioning therein that his niece Smt. Fatima was married to Jan Mohammad (the appellant) about 1-1/2 years ago. After the marriage his niece often used to visit her parental home. About two months prior to the occurrence, the complainant had sent his niece to her matrimonial home and since then she was residing there leading a normal married life with her husband. There were no differences between them. On 15.10.1981 Jan Mohammad committed mar-peet with his niece for some reason and on the same issue on 16.10.1081, he again assaulted her, severely causing her death. Sher Mohammad, a neighbour of Jan Mohammad, informed him about the death of Fatima. After receiving the information the complainant rushed to the matrimonial home of Fatima and saw the marks of beating on her dead body. 3. On this complaint, initially a criminal case under Section 304 I.P.C. was registered. The investigation of the case was assigned to P.W. 4-Niranjan Singh who conducted the inquest proceedings and sealed the body for post-mortem. Dr K.S. Tewari conducted the post-mortem and he found the cause of death of Fatima to be asphyxia due to strangulation. After this report, the case was converted into Section 302 I.P.C. Lateron P.W. 7, S.I. Vidyadhar Pandey took the charge of I.O. and he after completing the investigation submitted charge-sheet against the present appellant under Section 302 I.P.C. 4. The appellant faced trial. The prosecution in order to prove its case produced 7 witnesses in all out of which 3 witnesses are of fact and rest are formal. The details are as follows : P.W. 1 Manzoor Ahmad is a neighbour of the appellant Jan Mohammad who has claimed himself to be the eye witness of the occurrence in the light of the torch. The details are as follows : P.W. 1 Manzoor Ahmad is a neighbour of the appellant Jan Mohammad who has claimed himself to be the eye witness of the occurrence in the light of the torch. P.W. 2 Zahoor Ahmad is also a neighbour of the appellant Jan Mohammad who has claimed himself to be the eye witness of the occurrence alongwith P.W. 1. P.W. 3 Chhotey is the uncle of deceased Fatima who has lodged the F.I.R. P.W. 4 Niranjan Singh is the investigating officer who has prepared the inquest memo. P.W. 5, K.S. Tiwari is the Senior Radiologist posted at District Hospital, Bareilly who has conducted the post-mortem on the dead body of the deceased Fatima. P.W. 6 Krishna Prasad is the constable who has escorted the dead body to the District Hospital, Bareilly for post-mortem. P.W. 7 Vidhyadhar Pandey is S.O., Police Station Nawabganj, Bareilly who has investigated the case and has submitted charge-sheet. 5. In order to prove its case the following documentary evidence were produced by the prosecution : After conclusion of the prosecution witnesses, the statement of the appellant under Section 313 Cr.P.C. was recorded in which he denied all the charges and claimed his false implication in this case due to election rivalry. The appellant also raised the plea of alibi by stating that he was present at the home of Ahmad Nabi situated at Nawabganj on the fateful night. In defence the appellant has produced three witnesses who are Sher Mohammad- D.W. 1, Ahmad Nabi- D.W. 2 and Ali Bux- D.W. 3. 6. The learned lower Court after a detailed appreciation of evidence available on record convicted the appellant under Section 302 I.P.C. Aggrieved by the aforesaid judgment the appellant has preferred this appeal which is before us. 7. Learned counsel for the appellant has argued that the appellant is innocent and he has been falsely implicated in this case. It is admitted case of the prosecution that the appellant and his wife, the deceased Fatima, were leading a normal married life having no differences or disputes, so, there was no reason for the appellant to commit mar-peet or to strangulate his wife. It has further been argued by learned counsel for the appellant that there is inordinate delay in lodging the F.I.R. without any plausible explanation for the same. It has further been argued by learned counsel for the appellant that there is inordinate delay in lodging the F.I.R. without any plausible explanation for the same. The occurrence has taken place in the mid-night of 16/17.10.1981 whereas the report has been lodged on 17.10.1981 at 6.10 p.m., despite the fact that the distance of the police station from the place of occurrence is only one mile. Learned counsel for the appellant has argued that only 3 witnesses have been produced by the prosecution and all of them are related and interested witnesses. The most important witness, Sher Mohammad, about whom it has been stated in the F.I.R. itself that he (Sher Mohammad) had informed the complainant about the death of Fatima, has not been produced by the prosecution. So it can be inferred that the prosecution has not come with clean hands. Learned counsel for the appellant has further argued that there are contradictions in the statements of witnesses. P.W. 1 has admitted that the latrine is present in his house so there was no occasion for P.W. 1 Manzoor Ahmad to go to the village pond to ease himself. There is no evidence on record in proof of the fact mentioned in the F.I.R. that a day before i.e. on 15.10.1981 too, the appellant had beaten Fatima. Moreover, P.W. 1, who claims himself to be an eye witness of the occurrence, has not informed any one about the occurrence despite the fact that he had advised the appellant not to beat his wife. This unnatural conduct of P.W. 1 makes the entire prosecution story unreliable. Learned counsel for the appellant has further argued that the defence case is of total denial. The appellant Jan Mohammad was not present at his home or at the place of occurrence at that time. He was present at the house of Ahmad Nabi at Nawabganj. In proof of this fact the defence has examined Ahmad Nabi as D.W. 2. Learned counsel for the appellant has argued that his plea of alibi also finds support with the admission of P.W. 2 as P.W. 2 has admitted this fact that Jan Mohammad works at some cloth shops at Nawabganj. Moreover, P.W. 3 Chhote, the informant, has admitted the fact that there was no dispute between the husband and the wife prior to the occurrence. Moreover, P.W. 3 Chhote, the informant, has admitted the fact that there was no dispute between the husband and the wife prior to the occurrence. But the learned trial Court without considering the above admissions and without keeping in view statements of defence witnesses has wrongly convicted the appellant. 8. In reply to the above arguments the learned Additional Government Advocate has contended that the delay in lodging the F.I.R. which is only of some hours, is natural, keeping in view the peculiar facts and circumstances of the present case because the F.I.R. was to be lodged against a near relative (son-in-law) of the informant. Moreover, as per the statement of defence witness D.W. 1, the informant has received the information about the death of his niece Fatima on the next day at about 11.00-12.00 O’clock in the noon. After receiving the information he, alongwith his relatives went to the place of occurrence which is about 16/17 kms. away from his place. So the time gap between the occurrence and lodging of F.I.R. has been sufficiently explained by the evidence available on record. There appears no reason to falsely implicate his own son-in-law. Learned A.G.A. has further argued that if the witnesses have admitted this fact that there was no prior dispute or quarrel between the husband and wife, it shows that the witnesses are not tutored and they are stating true facts. 9. Now the two points to be decided in this appeal are that : (1) whether the prosecution has successfully proved its case against the appellant beyond reasonable doubt? (2) whether the learned lower Court has rightly convicted the appellant under Section 302 of I.P.C. ? 10. The evidence available on record shows that P.W. 1 Manzoor Ahmad, a resident of the same village has come to witness box as an eye witness. He has stated that at about 9.30 p.m. he had gone to ease himself at the bank of village pond. When he was returning back Zahoor (P.W.2) met him who was coming to the village from the side of Nawabganj. Zahoor had a torch with him. When both of them reached on the road, they heard the shriek of a lady who was shouting “Haay daiya mai mar gai, mujhe bachao”. The shriek was coming from in side the house of accused Jan Mohammad. Zahoor had a torch with him. When both of them reached on the road, they heard the shriek of a lady who was shouting “Haay daiya mai mar gai, mujhe bachao”. The shriek was coming from in side the house of accused Jan Mohammad. On hearing shrieks both of them reached at the house of the accused. Zahoor Ahmad (P.W. 2) flashed the torch light towards the direction of shrieks and in the torch light they saw the accused Jan Mohammad, who was beating his wife mercilessly sitting on her chest on a cot. He had caught hold of the neck of his wife by his left hand and was giving blows on her face by his right hand. Both the witnesses P.W. 1 and P.W. 2 asked the accused as to why he was beating his wife. On their intervention Hasan (father of the accused), Nanku and Babu (brothers of the accused) came out and rebuked them by saying that it was none of their business. Next day the news was flared up in the village that Jan Mohammad had killed his wife and he and his family members were going to bury the dead body. Hearing this news, they (P.W. 1 and P.W. 2) asked the accused and other members of his family, not to cremate the dead body without informing the parents of Fatima. Immediately Sher Mohammad went to the house of Fatima’s parents to inform them. Receiving information Chhotey (the informant), Dildar Bux, Mushtaq and mother of Fatima came to the house of the accused. 11. P.W. 2 Zahoor Ahmad has also claimed to have seen the entire episode. He having a torch with him was accompanying P.W. 1 on that fateful night. P.W. 2 in his testimony has corroborated the entire facts stated earlier by P.W. 1 Manzoor Ahmad. He has stated that after closing his shop situated at Nawabganj, he was returning to his house. At about 9.00 p.m. when he reached near the village pond, he heard the shriek of a woman. At the same time Manzoor Ahmad also met him on the road and in the light of torch they saw Jan Mohammad beating his wife with one hand while pressing her neck with the other. 12. At about 9.00 p.m. when he reached near the village pond, he heard the shriek of a woman. At the same time Manzoor Ahmad also met him on the road and in the light of torch they saw Jan Mohammad beating his wife with one hand while pressing her neck with the other. 12. P.W. 3 Chhotey, the informant, has stated that he got the information about the death of his niece through Sher Singh at about 10.00 or 11.00 a.m. After receiving the information he alongwith his relatives went to the house of accused where they found the dead body of Fatima lying on a cot covered in a coffin. When he inquired from the family members of the accused, they told that Fatima had died because of cholera. But the villagers informed him that Jan Mohammad had beaten his wife a day before and in the preceding night also. After that he got prepared the written report, Ext. Ka. 2, by one Rajeev and went to police to lodge that report. 13. P.W. 4 Niranjan Singh is the police officer who has prepared the check report. He has recorded the statement of Chhote on the same day and has conducted the inquest proceedings. 14. P.W. 5, K.S. Tiwari is the Senior Radiologist posted at District Hospital, Bareilly who has conducted the post-mortem on the dead body of the deceased Fatima. According to Dr. K.S. Tewari the following ante-mortem injuries were found on the dead body of Fatima : 1. Contusion in an area 9 cm. X 6 cm. On the left side neck above clavicle extending from mid line laterally. Soft tissue on neck deeply congested with haematoma in the muscle of neck. On internal examination he found pleura, larynx, trachea congested and containing blood. He also found trachea rings fractured. Both the lungs were deeply congested and on resection he found dark blood. The right side heart was full of blood while left side heart was empty and on resection dark blood was found. Stomach was empty. Spleen and liver were found congested. In the opinion of the doctor the death was caused by asphyxia and was due to strangulation.” P.W. 6 Krishna Prasad is the constable who has escorted the dead body to the District Hospital, Bareilly for post-mortem. Stomach was empty. Spleen and liver were found congested. In the opinion of the doctor the death was caused by asphyxia and was due to strangulation.” P.W. 6 Krishna Prasad is the constable who has escorted the dead body to the District Hospital, Bareilly for post-mortem. P.W. 7 Vidhyadhar Pandey is S.O., Police Station Nawabganj, Bareilly who has investigated the case and has submitted charge-sheet. 15. So far as the credibility of the prosecution witnesses is concerned, all the three witnesses of facts are throughout cogent and consistent and their statements, as a whole, inspire confidence and appear trustworthy. Learned counsel for the appellant has pointed out some contradictions in their statements. But in our opinion these contradictions are minor in nature. Moreover, keeping in view the fact that all the material witnesses are illiterate villagers and all of them have been cross examined at length by learned defence counsel, it is but natural that the witness may get nervous and perturbed. Therefore, some contradictions are bound to occur in their statements. The statements of prosecution witnesses find corroboration with the documentary evidence available on record and there appear no reason to disbelieve them. 16. So far as the defence witnesses are concerned, the accused has examined Sher Mohammad as D.W. 1. He is the same Sher Mohammad whose name finds mention in the F.I.R. and who is said to have informed the complainant for the first time about the death of his niece Fatima. D.W. 1 has stated that he informed Jan Mohammad about the death of his wife Fatima. After that in the next morning he went to the house of Jan Mohammad’s sister, situated at Hafizganj to inform her. Thereafter he went to village Banjaria to inform the parents of Jan Mohammad and from there to Kisanpur to inform the parents of Smt. Fatima. D.W. 1 has stated about the enmity between Jan Mohammad and Zahoor Ahmad (P.W. 2) due to election rivalry. He has also stated about the fact that a latrine exists in the house of P.W. 1 Manzoor Ahmad for the last 10 years. During cross examination he has stated that Fatima’s mother-in-law informed him at about 12.00 a.m., in the mid night, about the death of Fatima and asked him to go to Nawabganj to call Jan Mohammad. He has also stated about the fact that a latrine exists in the house of P.W. 1 Manzoor Ahmad for the last 10 years. During cross examination he has stated that Fatima’s mother-in-law informed him at about 12.00 a.m., in the mid night, about the death of Fatima and asked him to go to Nawabganj to call Jan Mohammad. But he neither inquired anything about the cause of death of Fatima from her mother-in-law nor the mother-in-law herself told anything about the cause of death. He has further stated that since 10 days prior to the night of occurrence he had not seen Jan Mohammad, so he could not tell where he was during that period. He has further stated that he had returned to the place of occurrence at about 12.30 a.m. with Jan Mohammad. Jan Mohammad did not ask from his family members how Fatima had died. He has stated that he also did not ask anything about the cause of Fatima’s death. The aforesaid statement of D.W. 1 appears wholly unreliable. It is unnatural for a husband, returning home on receiving information about the death of his wife, not to ask the reason of her sudden death from his mother or from the other family members present there. The above statement of D.W. 1 Sher Mohammad itself explains the reason why the prosecution had to withhold him. Therefore, the argument advanced by learned counsel for the appellant that by withholding an important witness Sher Mohammad, the prosecution case becomes doubtful, does not appear to have any force in it. 17. D.W. 2 Ahmad Nabi has been produced by the appellant in proof of his plea of alibi. The appellant in his statement under Section 313 Cr.P.C. has stated that he was present at Nawabganj at the house of Ahmad Nabi (D.W. 2) on the date of occurrence. He used to work in the shop of Ahmad Nabi in the day and he usually sleeps in the night at his house. Ahmad Nabi has stated that the accused was working at his cloth shop at the time of this incident. On that very night the accused was with him. He has further stated that at about 12.00 a.m. Sher Mohammad had come to his house to inform Jan Mohammad about the death of his wife Smt. Fatima. Receiving the information Jan Mohammad started weeping. On that very night the accused was with him. He has further stated that at about 12.00 a.m. Sher Mohammad had come to his house to inform Jan Mohammad about the death of his wife Smt. Fatima. Receiving the information Jan Mohammad started weeping. On the same night they came to the house of Jan Mohammad. By the aforesaid statement of D.W. 2 himself the presence of appellant at the scene of occurrence on the fateful night is established. Therefore, the plea of alibi raised by the appellant that he was not present at spot on the night falls on the ground. Moreover, in view of the statements of eye-witnesses which, have been found reliable and trustworthy by the trial Court and also by us, the plea of alibi is found to be without any substance. 18. The Apex Court in Shaikh Sattar v. State of Maharashtra, AIR 2010 SC 3320 , has held that : “the plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the premises at the relevant time.” 19. In Subhash Chand v. State of Rajasthan, 2001(2) ALD Cri 736, the Apex Court has held as under : “literal meaning of alibi is ‘elsewhere’. In law this term is used to express that defence in a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.” 20. In the wake of the law cited above it cannot be held that the appellant was not present at his house on the night of occurrence. We find no merit in the plea of alibi and it appears to be just an excuse which has been put forward by the appellant to escape the liability in law. 21. In the wake of the law cited above it cannot be held that the appellant was not present at his house on the night of occurrence. We find no merit in the plea of alibi and it appears to be just an excuse which has been put forward by the appellant to escape the liability in law. 21. D.W. 3 Ali Bux has been produced in proof of the fact of existence of a latrine in the house of Manzoor Ahmad for the last 9 years. D.W.-3 has stated that Manzoor Ahmad and his family members were using this latrine and they did not go to the bank of village pond to attend the call of nature. The above statement of this defence witness is also of no help to the accused. Even assuming the statement to be true, the presence of Manzoor Ahmad at the place of occurrence cannot be denied only on the basis of this fact. Generally it is seen in villages that if the latrine is pre occupied, the male adult member goes to some outside place to ease himself. Therefore, the presence of witness at village pond is found proved. 22. So far as the delay in lodging the F.I.R. is concerned, the circumstances of the present case themselves sufficiently explain the reasons for it. P.W. 3 Chhote who is the complainant of the case has stated in his examination-in-chief that Sher Mohammad had gone to his house to inform about the death of Fatima at about 11.00 a.m. is statement finds corroboration with the statement of D.W. 1 Sher Mohammad who himself has stated that he got the information about the death of Fatima at 12.00 O’clock mid night through the mother-in-law of Fatima. After that he went to call Jan Mohammad and returned at about 12.30 a.m. to the house of Jan Mohammad. Early in the morning at 4.00 O’clock he came out of the village to inform the other relatives and returned with Chhote (P.W. 3) at about 12.30 p.m. in the noon. Chhote (P.W. 3) has stated in his examination-in-chief that Sher Mohammad had come to inform him at about 10.00/11.00 a.m. Thereafter he alongwith his son and nephew went to Richhola (place of Jan Mohammad) which is situated at a distance of 14-15 kms. From the village Kaisarpur. Chhote (P.W. 3) has stated in his examination-in-chief that Sher Mohammad had come to inform him at about 10.00/11.00 a.m. Thereafter he alongwith his son and nephew went to Richhola (place of Jan Mohammad) which is situated at a distance of 14-15 kms. From the village Kaisarpur. Under these circumstances and also keeping in view the fact that before lodging the F.I.R. against his son-in-law, a man would think, and it cannot be said that there was any delay in lodging the F.I.R. Thus, there appears no force in the arguments of learned counsel for the appellant so far as the complicity of appellant in the offence is concerned and after considering the peculiar facts and circumstances of this case, we endorse the finding of the trial Court that the prosecution has established beyond doubt that it was the appellant alone who had done his wife to death by strangulation on the given time, date and place. 23. Now we come to the question of the offence committed by the appellant within the purview of law. The facts of the present case clearly show that the appellant and his wife deceased Fatima were leading a normal married life. Fatima used to visit her parental home and she had never made any complaint regarding ill treatment of her husband-appellant to her parents. It is admitted case of the prosecution that there was no dispute or differences between the husband and wife. The F.I.R. itself clearly shows that some dispute had arisen between the husband and wife one day prior to the occurrence on some issue and on the same issue the appellant had beaten his wife on the fateful night. The quarrel or dispute between the husband and wife happens inside the four walls of a house, so it was impossible for the prosecution to prove as to how the incident started. There is no evidence on record as to what suddenly prompted the appellant to mercilessly beat his wife and even to strangulate her to death. There may be so many reasons for the quarrel between the husband and wife but something had happened of such a nature which had provoked the appellant to such an extent that he started beating his wife being deprived of power of self control. Taken by a sudden impulse he strangulated her. There may be so many reasons for the quarrel between the husband and wife but something had happened of such a nature which had provoked the appellant to such an extent that he started beating his wife being deprived of power of self control. Taken by a sudden impulse he strangulated her. Certainly it was not a pre-calculated murder and the incident took place all of a sudden. It was just at the spur of the moment that the appellant lost his cool and strangulated his wife. We, therefore, find the case to be covered by Explanation 1 of Section 300 I.P.C. 24. A Division Bench of this Court in the case in Uttam Kumar Devnath v. State of U.P., 2003 Crl. LJ 2725, has under almost same circumstances has converted the conviction of appellant Uttam Kumar Devnath from Section 302 I.P.C. to Section 304(1) of I.P.C. 25. In a recent case reported as Rampal Singh v. State of U.P., (2012) 8 SCC 289 , the Apex Court while distinguishing between Section 302 I.P.C. and 304 I.P.C. and also between Part I and Part II of Section 304 I.P.C. has held as under : “....Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 I.P.C. deals with cases not covered by Section 302 I.P.C. and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this Section includes only those cases in which offence is really ‘murder’, but mitigated by the presence of circumstances recognized in the exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular.....”?. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.” Now returning to the facts of the present case, keeping in view all the facts and circumstances we are of the considered view that although the appellant has strangulated his wife in a heat of passion without any pre-meditation, however, it cannot be said that he had no intention to cause such bodily injury to his wife which could result in her death. The appellant who pressed the neck of his wife with such a force that the rings of her trachea got fractured cannot be said to be ignorant of the fact that his act would cause such bodily injury to his wife that in ordinary course of nature would cause her death. 26. The appellant who pressed the neck of his wife with such a force that the rings of her trachea got fractured cannot be said to be ignorant of the fact that his act would cause such bodily injury to his wife that in ordinary course of nature would cause her death. 26. In Aradadi Ramudu v. State, (2012) 5 SCC 134 the Apex Court has observed that : “...in order to modify the sentence from Section 302 I.P.C. to Part II of Section 304 I.P.C. not only should there be an absence of the intention to cause death but also an absence of intention to cause such bodily injury that in the ordinary course of things is likely to cause death.” Under these circumstances circumstances, we are inclined to bring down the offence from murder to culpable homicide not amounting to murder punishable under Part I of Section 304 I.P.C. In our opinion ends of justice would meet if the appellant is punished with 7 years rigorous imprisonment. Resultantly, the appeal is partly allowed. The conviction of the appellant Jan Mohammad is converted from Section 302 I.P.C. to Section 304(1) I.P.C. and the sentence of life imprisonment is converted into 7 years rigorous imprisonment. The appellant shall have to undergo 7 years R.I. for the offence under Part 1 of Section 304 I.P.C. The appellant is on bail. The Chief Judicial Magistrate, Bareily shall cause him to be arrested and lodge in jail to serve out the sentence of 7 years awarded to him by this Court. The period already undergone by the appellant in jail is to be adjusted. Let a copy of this judgment alongwith the record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within 2 months from the date of receipt.