JUDGMENT 1. (Oral) - Ratan Singh (P.W.17) who at the relevant time was posted as SHO, Police Station Pachewar has deposed in the court that on 8.5.2005 at about 6:00 PM he received a telephonic information that in village Kirawal a quarrel had taken place between Suresh Nai and Nagu Brahmin due to which Suresh had died. He entered the information in the Roznamcha (Ex.P.8) bearing Daily Diary Report No.243. Upon receiving information he constituted a police party and proceeded to Village Kirawal. At the spot, Satyanarain Sain (P.W.1) presented the written report (Ex.P.1). The written report (Ex.P.1) when translated in English, reads as under:- "To, The SHO Sahib, P.S. Pachewar. Sub.: For taking legal action. Sir, In the above noted subject it is submitted that today on 8.5.2005 at about 4-5 PM my nephew Suresh was sitting outside the house on Chabutari and was playing cricket. At that time Nagu S/o. Jagdish Brahmin was also sitting outside Roop Ji's house in varandah. The ball went towards his house. On this, Nagu abused Suresh. In turn, Suresh also abused. Meanwhile, Nagu came running and caught hold of neck of my nephew Suresh. I, Chhitar Kakaji and mother of Suresh came running and made an attempt to save. But Nagu had not released his grip from the neck of Suresh and had turned the same with force. Suresh immediately fell on the spot. Nagu had pressed the throat of Suresh by force due to which he died. We made an attempt to apprehend Nagu. But he ran away. I am presenting this report. Legal action be taken. The body is lying in the varandah of the house. Sd/-." 2. On the basis of above written report (Ex.P.1), formal FIR (Ex.P.9) was registered at Police Station Pachewar for offence under Section 302 IPC. The appellant was sent for trial. 3. Dr. Arjun Das (P.W.8) had conducted autopsy on the dead body of Suresh. As per post-mortem report (Ex.P.5), the Doctor stated that no external injuries were seen on the neck, no external injury was present all over the body. Face and pupil were cynosed. As per opinion of the Doctor, cause of death was due to asphyxia as a result of ante-mortem strangulation. 4. Satyanarain first informant who has witnessed the occurrence has appeared as PW.1. Face and pupil were cynosed. As per opinion of the Doctor, cause of death was due to asphyxia as a result of ante-mortem strangulation. 4. Satyanarain first informant who has witnessed the occurrence has appeared as PW.1. In court this witness stated that about five months ago around 4-5 PM he was coming in the village after fetching water. At that time Suresh and Nagu were quarrelling over a ball. He separated them. Then he went to drink water. At that time, mother of Suresh, her son Bhagwan Sahai and grand-father of Suresh came. When he came back he learnt that Nagu had caused death of Suresh by throttling. He had seen Nagu having caught hold of Suresh's neck. This witness was declared hostile by the prosecution. 5. Bhagwan Sahai, brother of deceased Suresh was examined as P.W.7. At the time of deposition, he was aged 15 years. Few questions were asked by the trial court to assess competence of the witness to depose as the court had construed this witness as a child witness. Bhagwan Sahai stated that he and his brother were playing with ball in their varandah. At that time, his mother, his grand-father and Satyanarain were also present. Mother was cleaning wheat inside the house. A rubber ball went in the house of accused. Suresh had gone to fetch the ball. But accused started beating his brother. He gave him lot of beating with kick and fist blows. Clothes of his brother were torned and due to this, his hand and cheeks were swollen. Then his grand-father and mother came. This witness has not deposed specifically that the accused has pressed neck of the deceased. 6. Shanti (P.W.9) another independent witness, had not supported the prosecution case and was declared hostile. 7. Smt. Lada (P.W.10) also stated in court that while playing, ball had gone to the house of the accused. He had throttled neck of his son, Suresh.Mukesh (P.W.11) stated that hearing voice of crying he had gone to the house of Suresh. Nagu was sitting on the chest of Suresh and was pressing his neck. He called father of Suresh. Suresh was taken in a Jeep to the hospital. 8. Dashrath (P.W.12) stated that hearing noise of crying he had gone to the place of occurrence. Nagu was sitting on the chest of Suresh and was pressing his neck. He called father of Suresh. Suresh was taken in a Jeep to the hospital. 8. Dashrath (P.W.12) stated that hearing noise of crying he had gone to the place of occurrence. He went to the spot and saw that Narendra @ Nagu was pressing neck of Suresh and he pressed his chest with his foot. 9. Smt. Daizy Mishra (P.W.13) stated that her husband is a LIC Agent. On 8.5.2005 she was posted as A.N.M. in village Kirawal. On that day, she went along with her husband at the spot. Suresh had become unconscious. 10. To similar effect is the statement of Devendra Mishra (P.W.14). 11. Chhitar (P.W.15), grand-father of deceased Suresh, stated that when Suresh was playing ball, accused abused him. Suresh also, in turn, abused. He told Suresh to run away from the spot. Nagu sat on his chest and throttled his neck. 12. We have heard Shri Ashvin Garg, the learned counsel for the appellant, and Shri Aladeen Khan, the learned Public Prosecutor. 13. Having perused evidence we are of the view that the version given in the written report (Ex.P.1) contains spontaneous truthful version and later witnesses have resorted to blemish and exaggeration. They have introduced new facts. Be, as it may, even if there is variation and contradiction between the statements of the witnesses, but the testimony of all witnesses to the effect that ball had gone to the house of accused, he gave abuses to deceased Suresh and Suresh, in turn, also abused the accused, is a fact which remain unblemished. Thus, it is apparent that it is not a case of previous enmity and grudge. On the day of occurrence deceased was 16 years old whereas appellant was aged 25 years. The occurrence had ensued on a trivial issue when Suresh was playing with his brother Bhagwan Sahai (P.W.7). A rubber ball had gone to the house of accused. Both the parties exchanged abuses and accused-appellant caught hold of neck of the deceased Suresh and pressed the same hard. Post-mortem report (Ex.P.5) and testimony of Dr. Arjun Das (P.W.8) reveal that there was no external mark on the neck or on the entire body of the deceased. Thus, without any premeditation at the spur of moment due to exchange of abuses, occurrence had taken place. 14. Post-mortem report (Ex.P.5) and testimony of Dr. Arjun Das (P.W.8) reveal that there was no external mark on the neck or on the entire body of the deceased. Thus, without any premeditation at the spur of moment due to exchange of abuses, occurrence had taken place. 14. Learned counsel for the appellant has relied on the case of Shakti Dan v. State of Rajasthan, 2007 Cr.L.J. 3426 where Hon'ble Apex Court considering that on an trivial issue accused had throttled his mother, the court had held that offence will fall under Section 304 Part I IPC and had sentenced the appellant in that case to ten years R.I. Counsel for the appellant has further relied on the case of Kalu Ram v. State of Rajasthan, 1998 (1) RCD 318 (Raj) wherein a Division Bench of this court considering that the accused had twisted the neck of the deceased, came to the conclusion that offence will fall under Section 304 Pt.II IPC. Another Division Bench of this court in Paras Mani v. State of Rajasthan, 1998 Cr.L.J. 1818 held that where on the spur of moment accused had caught hold of neck of the deceased and sat on the chest, offence will fall under Section 304 Pt.II IPC. In the case of Paras Mani (supra), the Division Bench has held as under:- "8.....It is, therefore, proved beyond reasonable doubt that the appellant Paras Mani caused death of Mangilal by throttling. It is amply proved from the statement of the eye-witnesses and medical evidence that deceased Mangilal met homicidal death by throttling. It is also proved beyond reasonable doubt that throttling was caused by appellant Paras Mani by both the hands. 9. Now the important question arises for consideration whether the act committed by the appellant Paras Mani constitutes an offence under Section 302 I.P.C. The appellant came with her companions for begging money from the shopkeepers in the fair. There was no previous enmity between the appellant and the deceased. The quarrel began on very trivial matter of payment of rupee one. The appellant and his companions started beating and in the spur of the moment the appellant caught deceased by his neck and when he fell down, sat on his chest and pressed the throat. There is no material on record to infer any motive on the part of the appellant to cause death of Mangilal. The appellant and his companions started beating and in the spur of the moment the appellant caught deceased by his neck and when he fell down, sat on his chest and pressed the throat. There is no material on record to infer any motive on the part of the appellant to cause death of Mangilal. It appears that appellant got enraged and he caught hold of the deceased and pressed his neck. It is obvious that his intention was not to cause fatal injury. However, the appellant can be attributed with the knowledge that by pressing throat of the deceased he was likely to cause such injury which may result in death of the deceased. Hence the act of the accused falls within the purview of the offence under Section 304, Part II (culpable homicide not amount to murder) and not under Section 302, I.P.C. as held by learned trial court." 15. Another Division Bench of this court in Ahmad Ali Khan & Anr. v. State of Rajasthan, 1985 WLN UC 555 where death was caused due to asphyxia as a result of strangulation, the Court had converted offence of Section 302 IPC to Section 323 IPC holding that co-accused had not shared common intention with co-accused. Reliance has also been placed on Jagir Singh & Ors. v. State of Punjab, Criminal Appeal No.535-DB of 2000. decided on July 07, 2009 wherein a Division Bench of Punjab and Haryana High Court, considering that deceased had died due to asphyxia, held that offence will fall under Section 304 Pt.II IPC. 16. Having taken note of the judgments relied on by the learned counsel for the appellant we are of the view that we cannot become oblivious of the fact that there was no previous enmity between the deceased and accused, the accused had no motive to cause death of deceased, it is only because due to playing of a game, ball of the deceased had gone inside the house of the accused and thereafter both had exchanged abuses, the appellant had pressed neck of the deceased having lost his control in the spur of the moment. The post-mortem report highlight the fact that there was no external injury present on the person of deceased. Thus, we are of the view that necessary intention on the part of the appellant to commit murder cannot be inferred. The post-mortem report highlight the fact that there was no external injury present on the person of deceased. Thus, we are of the view that necessary intention on the part of the appellant to commit murder cannot be inferred. The incident had occurred without any premeditation and was a sudden affair. 17. Consequently, taking totality of the circumstances, we convert conviction of the appellant from offence under Section 302 IPC to offence under Section 304 Part I IPC and modify the sentence of Life Imprisonment to sentence of ten years rigorous imprisonment. We also impose a fine of Rs. 10,000/-, in default thereof, the appellant shall further undergo one year rigorous imprisonment. The fine shall be paid to the legal heirs of the deceased.With the above modification in conviction and sentence, the appeal stands disposed of.Appeal partly allowed. *******