ORDER : Mr. G.R. Moolchandani, J. By this appeal appellant-accused has assailed the findings of judgment dated 24.10.2007, passed by Additional Sessions Judge, Sujangarh, District Churu, in Sessions Case No. 9/2007 convicting the accused under Section 302 of IPC and sentencing for life imprisonment and a fine of Rs. 1,000/- and further to undergo three months rigorous imprisonment in default of payment of fine. In brief, the story of the prosecution reveals that complainant Bhinva Ram submitted Ex.P.1 a report in writing before the Saandhwa, Police Station that the complainant was a resident of village Oontalar, his son Girdhari was residing in a Dhani near field-well and his grand son Rugharam was living with him and used to go school but on 18.01.2007, Rugharam did not go to school because of ear-ache, on that day Asha Ram S/o Jamuna Ram took Rugharam at about 8.30 morning and both Asha Ram and Rugharam were seen together in the house of Asha Ram at about 12 to 12:30 on 18.01.2007, this was witnessed by the complainant as well as by several persons including Bheraram, Aashu Ram and Harjiram and at about 4-4.30 PM, he witnessed Asha Ram standing in his house alone and a woman was also there but Rugharam was not there. He thought that Rugharam might be there inside the house, on that day his son Girdhari had been to Sujangarh to attend Peshi, in the evening, suddenly, he was called there by police and found there dead body of his grand son Raghu Ram, he lost his senses and further a suspicion was cast on Asha Ram and FIR No.6/2007 was registered with police station Saandhwa under Sections 302, 120-B of IPC, after investigation charge-sheet was filed against accused Asha Ram. 2. Trial was conducted under Sections 302 and 377/511 of IPC, the prosecution produced eighteen witnesses and got exhibited thirty five documents in the evidence, further the accused was examined under Section 313 of Cr.P.C. but except denial and alleging false implication, no explanation under Section 106 of Evidence was tendered as to how deceased died in his premises and the learned trial Court passed the impugned judgment convicting and sentencing him as detailed above. 3. 3. Heard the arguments of the learned counsel for the appellant as well as the Public Prosecutor and examined the record thoroughly, learned Counsel for the appellant-accused has contended that the learned trial Court has erroneously passed the impugned order by convicting the accused, there was no such evidence to connect the appellant-accused with the alleged crime, so it is not just. There was also no motive, whatsoever and the postmortem report too discloses that the cause of death was strangulation, victim might have committed suicide for reasons best known to him, in absence of the appellant-accused. 4. PWs 7 and 8 pertaining to extra-judicial confession have also not corroborated the story of the prosecution and both have turned hostile. The appellant-accused has wrongly been involved and impugned judgment has been passed on the basis of surmises and conjectures only without any material evidence. Hence, the appeal of the appellant be accepted and the impugned judgment be set aside. Learned Public Prosecutor has conversely argued that there is no infirmity in the impugned judgment, the dead body of the victim boy was found in the premises of the appellant-accused, who was seduced and confined there and was further assassinated and accused has not explained as to why the victim came there and was found dead in his premises. There is material and corroborative evidence produced by the prosecution against the appellant-accused, the appellant-accused has also made confessional statements, before some witnesses, who have confirmed the same, prosecution has succeeded in producing reliable evidence against the appellant-accused and the learned Trial Court has not committed any error, while passing the said judgment, so appeal may be dismissed. 5. Several witnesses of the prosecution has made categorical utterances regarding the aspect of "last seen together" and such contentions have also mentioned in the First Information Report, which have been fortified by statements of PW-1 Bhinvaram grand-father of the deceased child Girdharilal PW-2, Asharam PW-3 as well as PW-4 Bhagwanaram, PW-5 Bheraram and PW-6 Harjiram as they have adduced their testimony confirming the aspect of "last seen together" by saying that accused-appellant Asha Ram was seen taking deceased Rugharam along with to his house and all the witnesses have said to have seen this. 6. PW-7 and 8 i.e. Arjunram and Chuki Devi have contradicted their affidavits Ex. 6. PW-7 and 8 i.e. Arjunram and Chuki Devi have contradicted their affidavits Ex. 7 and 9 disclosing the aspect of extra-judicial confession that Asha Ram had apprised them that he had tried to commit sodomy, which was opposed by Rugharam and deceased threatened to disclose this to others, so Asha Ram chocked his throat under anxiety, presuming and apprehending him to be dead, hanged him, resultantly he died, though both these witnesses have further been turned hostile and have refuted such recitals made in their affidavits. "Parcha Bayans" to this effect have also been controverted but PW-11 Kishnaram has confirmed and reiterated his statements with respect to "extrajudicial confession" and this witness has said that he had gone to the shop of Hukmaram on 18.01.2007 to buy some goods, there Asha Ram informed one Arjunram that a wrong was committed per his hands since Rugharam died by his hands and asked me to call his brother Ramuram, in his cross-examination, he has also said that Rugharam and Asha Ram were close-friends and Raghuram used to visit Asha Ram's home. The kind of narration, which has been deposed by this witness is reliable and infuses confidence of being true, because Kishanaram belongs to "Nayak Community" and does not appear to be anybody's relative and is an independent witness. Moreover, his testimony has remained unimpeached, in totality, the aspect of "extra-judicial confession" which has been raised and made by the prosecution stands established by the positive evidence of the prosecution. 7. All important witnesses of the prosecution have given a reliable evidence that deceased Rugharam was found dead in the premises of accused-appellant Asha Ram, kith and kin of the deceased as well as some of the witnesses of proximity have clearly said that both deceased and accused were close-friend and deceased used to visit the house of the accused person and on that fateful day accused came to the house of the deceased and took him together to his house, where he was later found dead. 8. The prosecution has come with a clear cut story that on 18.01.2007, many had heard clamour, noise and sounds of cry from the house of the accused and afterwards they could learn that Rugharam was dead in the premises of the accused-appellant and witness Bhikharam PW-12 and PW-10 Aidanaram has narrated their own experience likewise. 9. 8. The prosecution has come with a clear cut story that on 18.01.2007, many had heard clamour, noise and sounds of cry from the house of the accused and afterwards they could learn that Rugharam was dead in the premises of the accused-appellant and witness Bhikharam PW-12 and PW-10 Aidanaram has narrated their own experience likewise. 9. PW-4 Bhagwanaram has said that Asha Ram had taken Rugharam together by clutching his hand, inside his house at about 12 to half past 12 and had shut the door from inside and Bhagwana Ram remained till 4 to 4.30 pm there and sat in front of his house, but did not find Rugharam sitting with Asharam, who was killed inside the house by Asha Ram, in his cross-examination, he has also said that from 12 noon to 4 to 5 p.m. the door of Asha Ram's house was shut. He has also said that Asha Ram and Rugharam were companions of each other and used to stay together. Likewise PW-5 Bheraram a neighbour has also said that Asha Ram had taken away Rugharam by Clutching his hand, inside his house and closed the door, he has further said that he returned at about 4 to 4.30 p.m. then, did find Asha Ram sitting ahead of his house alone, then, he left for his field and later learnt that Asha Ram killed Rugharam. 10. It is paramount that the father of the deceased Girdharilal had first lodged, a morgue Ex. 28 on 18.01.2007, which was registered under Section 174 of Cr.P.C. as Morgue No. 1 of 2007. Ex.30, Ex.2, Ex.2-A, Ex3, Ex.4, Ex.5 were drawn under the proceedings of morgue, subsequently Ex.1 a typed FIR was tendered by Bhinvaram grand-father of deceased boy on 24.01.2007, which was registered as FIR No. 6 of 2007 under Section 302, 120-b of IPC. 11. PW-17 Ramu Ram Mina I.O. has said that after investigation charge-sheet was filed against the accused Asha Ram under Section 302 and 377/511 of IPC. From perusal of charge-sheet No. 4 dated 14.02.2007, it depicts that the charge-sheet has been filed against the accused Asha Ram @ Ashu Ram S/o Jamunaram Meghwal under Section 302 and 377/511 of IPC. 12. PW-17 Ramu Ram Mina I.O. has said that after investigation charge-sheet was filed against the accused Asha Ram under Section 302 and 377/511 of IPC. From perusal of charge-sheet No. 4 dated 14.02.2007, it depicts that the charge-sheet has been filed against the accused Asha Ram @ Ashu Ram S/o Jamunaram Meghwal under Section 302 and 377/511 of IPC. 12. Section 377/511 denotes an abortive homo attempt, if we examine the evidence of the prosecution, in this pretext, then author of the FIR Ex.P1 Bhinvaram, who is a grand-father of deceased has said that, accused Asha Ram tried to sodomonize, Rugharam and on his opposition killed him by strangulation, such kind of evidence has also been tendered by PW-10 Aidanaram brother of PW-1 Bhinvaram and he has said that: ^^fnukad iPphl rkjh[k dks eSa Fkkus 'kke dks ikap cts x;k Fkk iqfyl ds lkeus vk'kkjke us dgk fd eSaus :?kkjke dks ekjk gS :?kkjke dks vk'kkjke us [kksVk dke euk djus ij ekjkA** 13. PW-16 Dr.Maniram is a Doctor conducting postmortem of the deceased boy by Ex.25 has said that cause of death was by hanging and has further said that according to the opinion of the Medical Board, the cause of death was asphyxia due to choking by hanging. PW-16 Dr.Maniram is a Doctor conducting postmortem of the deceased boy by Ex.25 has said that cause of death was by hanging and has further said that according to the opinion of the Medical Board, the cause of death was asphyxia due to choking by hanging. He has also said that: ^^mik/kh{kd] lqtkux< }kjk eq>s ,d rgjhj izkIr gqbZ tks izn'kZ ih&27 gS ftlds }kjk esjs ls ;s jk; ekaxh xbZ Fkh fd vfHk;qDr }kjk e`rd dk xyk ?kksV dj csgks'k dj nsus ds ckn [kwaVh ij yVdkus ls D;k ekSr dk dkj.k ,Lihfl;k M~;wV gSafxax gks ldrk gS\ ftl ij eSaus viuh jk; nh Fkh fd gks ldrk gS bl rgjhj ij , ls ch gka gks ldrk gS esjk [kqn dyeh gS rFk bl ij lh ls Mh esjs gLrk{kj gSaA** and perusal of Ex.27 discloses that Deputy Superintendent of Police had sought opinion of the doctor putting a question as mentioned in Ex.27 and in reply the answer was given by the Doctor as:- ^^1- vfHk;qDr }kjk e`rd dk xyk ?kksVdj csgks'k dj nsus ds ckn [kwaVh ij yVdkus ls D;k ekSr dk dkj.k Asphyxia due to hanging gks ldrk gS\** and while giving testimony this medical expert has also said that the "reply of the query" was given in "positive", which is there in my hand writing so, "the probability of hanging after causing unconsciousness to the victim may not be ruled out." 14. In view of this, it emanates from the entire evidence that there was no "premeditation" or any such "motive" to eliminate the boy and this was not there under contemplation, mere an abortive attempt was made to have homo sensual pleasure but on resistance and threat to disclose, victim was choked, which resulted his "unconsciousness" and under perplexed mind, he was further hanged under puzzle ness, opinion of medical expert also suggests a positive view to this effect as well. 15. PW-1 Bhinvaram, PW-3 Asha Ram, PW-4 Bhagwanaram, PW-5 Bhairaram, PW-6 Harjiram have established their case on the aspect of last seen together and PW-11 has corroborated the evidence relating to extra-judicial confession made by the accused and PW-17 Ramuram Mina has certified all the exhibits relating to investigation and has ratified and confirmed Exhibits. 1, 2, 3, 4, 5, 9, 39, 32, 33, 13, 12, 15, 24, 10, 11, 6, 25, 26, 34 and 35. 1, 2, 3, 4, 5, 9, 39, 32, 33, 13, 12, 15, 24, 10, 11, 6, 25, 26, 34 and 35. PW-18 Pawan Kumar Mina is a subsequent I.O. recording supplementary evidence after submissions of affidavits, contents of which have further been declined by the deposers. 16. PW-7 and 8, has fortified the story of the prosecution. So, we find that so far as, the conviction has concerned the trial court has not committed any error in convicting the appellant-accused, but it has explicitly been emerged from the evidence of the prosecution that both accused Asha Ram and deceased Rugha Ram were close- friends, they were neighbours and belong to Meghwal Community, deceased Rugha was of 15 years of age vide Ex. 25, the post-mortem and accused Asha Ram was of 19 years of age vide Ex. 31, arrest memo as well as memo of charge. 17. PW-1 Bhinva Ram grand-father of the deceased boy has said that his house is just close to the house of accused Asha Ram and has said that Asha Ram came and took Rugha Ram along with and has ratified Ex.1 the FIR, which has got a recital that three months back Rugha Ram his grand-son had gone away with Asha Ram as well. 18. PW-2 Girdhari Lal father of the deceased boy has asserted that accused Asha Ram was their neighbour and was a regular visitor to their home and Rugha Ram was accustomed to remain with Asharam. PW-4 Bhagwana Ram has also said that both Asha Ram and Rugha Ram used to live together, likewise PW-6 Harji Ram has also accepted this aspect in his cross-examination. PW-9 Narayan Ram has also asserted that Rugha Ram and Asha Ram were close-friends. PW- 11 Kishan Ram has also accepted in his cross-examination that Rugha Ram and Asha Ram were bosom friends and deceased used to visit the house of accused Asharam. 19. PW- 16 Doctor Mani Ram has also viewed "probability of being hanged under unconsciousness after throat chock". 20. PW- 11 Kishan Ram has also accepted in his cross-examination that Rugha Ram and Asha Ram were bosom friends and deceased used to visit the house of accused Asharam. 19. PW- 16 Doctor Mani Ram has also viewed "probability of being hanged under unconsciousness after throat chock". 20. The provisions of Section 304 IPC postulates; "Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 21. It is a well-settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused, is a very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused and in this case, evaluation of the evidence does reveals that "intention" or any "premeditation" to cause murder was not there, both accused and the deceased were bosom friends and used to accompany altogether for hours together and were close-companions. There is no "motive" elucidated as to why bosom friends, who were companions to each other and were regularly meeting and visiting each other and one between them will premeditate or nurture motive to eliminate other and such evidence is drastically lacking. Only evidence which has emerged denotes that an abortive attempt was made to have homo sexual pleasure, which was resisted reactively abrupt chocking, resultantly, unconsciousness was caused and under puzzled senses, apprehending demise, subject was hanged resulting death by strangulating. 22. The Hon'ble Supreme Court in Litta Singh & Anr. Only evidence which has emerged denotes that an abortive attempt was made to have homo sexual pleasure, which was resisted reactively abrupt chocking, resultantly, unconsciousness was caused and under puzzled senses, apprehending demise, subject was hanged resulting death by strangulating. 22. The Hon'ble Supreme Court in Litta Singh & Anr. v. State of Rajasthan (2016)2 SCC (Cri) 682 has held that Sections 302/34 or 304 Pt.II/34 - Knowledge that bodily injury caused is likely to cause death - Culpable homicide not amounting to murder proved - Held, considering that occurrence took place suddenly and without premeditation, nature of injuries caused to deceased and weapons i.e. lathi and gandasi (sickle) used, assault of deceased was carried out with knowledge that injury may cause death and modified the sentence from 302 to 304 Part-II I.P.C., and this Court in State of Rajasthan v. Hakma Ram & Ors. reported in 2010(1) Cr.L.R. (Raj.) 67 while allowing the appeal of the State has held an accused guilty under Section 304 Part II for the reasons that no common object to cause death was there. So, we feel that the nature of the offence as committed does not cover under Section 302 IPC, and confines to the provisions of the Section 302 part-II IPC. In the facts and circumstances of this case, we are of the considered opinion that the appellant be punished under Section 304 Part-II I.P.C. reason being the appellant had no "intention" or "premeditation" to cause death but it may safely be inferred that the appellant knowing well that such bodily injury may likely to cause death, hence, the appellant has committed culpable homicidal death not amounting to murder, so is liable to be punished under Section 304 Part-II I.P.C. thus, we convert the sentence for a period of 10 years rigorous imprisonment and a fine of Rs.5,000/- in default to pay, further to undergo one month's simple imprisonment. We modify the impugned judgment passed by the trial court as hereinbefore. The appellant-accused is already under custody, so is liable to serve rest of the sentence, accordingly. The appeal is disposed of in aforesaid terms.