JUDGMENT : VIJAY KUMAR VYAS, J. 1. Appellant–Sua has died during pendency of this appeal, as such, the appeal to his extent stands abated. 2. The appeal has arisen out of judgment dated 21.3.1985 rendered by learned Sessions Judge, Tonk in Sessions Case No.31/1984, whereby the appellant Kailash for offence u/s 302 IPC and appellant Sua for the offence u/s 302/34 IPC were convicted and each was sentenced to undergo life imprisonment and to deposit Rs.500/- as fine, in default of payment thereof, to further undergo six months' rigorous imprisonment. 3. Brief facts of the case are that Ram Sahay (PW-5) submitted a written report (Ex.P-1) to SHO, Police Station Uniara on 27.9.1984 at about 8.30 PM to the effect that on the very day, his father – Bajranga Jat (deceased) went forest to graze cattle. At about 3.00 PM, Badri (PW-2), Ram Phool (PW- 3) and Bhairu Lal (PW-4) brought his father in unconscious condition on a bullock cart. Ram Sahai (PW-5) was also with them. Badri told him that on entering the cattle in agricultural field of Sua, at about 2.00 PM, Sua and Kailash gave his father – Bajaranga a severe beating with sticks. Kailash also strangulated neck of the deceased with his two hands. At the very moment, they reached there. Accused left his father, assuming him to be dead, saying that he was damaging our crop by cattle, we have finished him today. Bajranga was brought to Uniara on camel cart but he died on the way. On this information, formal FIR No.91/1984 (Ex.P-2) was registered. Site was inspected by police. Postmortem was conducted. Accused were arrested. On information, lathis (sticks) were recovered by police. After due investigation, charge-sheet for the offence u/s 302 and 302/34 IPC was filed against Kailash and Sua before learned Chief Judicial Magistrate, Tonk. On commitment, learned trial court framed charges for offence u/s 302 IPC against accused Kailash and u/s 302/34 IPC against accused Sua. Both the accused denied the charges and sought trial. Prosecution examined 10 witnesses and exhibited 22 documents. Accused were examined u/s 313 Cr.P.C. They denied the evidence adduced by prosecution. Accused Sua stated that he was not at the place of occurrence at the time of incident and he is innocent, whereas accused Kailash stated that he was just 17 years old at that time. Prosecution examined 10 witnesses and exhibited 22 documents. Accused were examined u/s 313 Cr.P.C. They denied the evidence adduced by prosecution. Accused Sua stated that he was not at the place of occurrence at the time of incident and he is innocent, whereas accused Kailash stated that he was just 17 years old at that time. When he was ousting cattle of Bajranga, the latter threw stones, which hurt him. He has submitted transfer certificate (Ex.D-5) issued by Government School, Kakod, District Tonk. No witness was examined on behalf of defence. But, five documents were exhibited. After hearing arguments, learned trial court passed the judgment impugned and convicted and sentenced the appellants, as stated herein above. 4. Learned counsel for the appellant submitted that all the eye witnesses Badri (PW-2), Ram Phool (PW-3) and Bhairu Lal (PW-4) are close relatives of the deceased. Their evidence is doubtful and is not in consonance with medical evidence. The conviction based on testimony of such witnesses, cannot be upheld. Prosecution has failed to prove the motive or any previous enmity. All the injuries mentioned in Ex.P-7 postmortem report, found on the dead body of Bajranga, were simple in nature. As per opinion of Dr. Subhash Chand Jain (PW-6), such injuries may occur due to fall. None of them are on any vital part of the body. 5. Learned counsel further submitted that as per prosecution, the occurrence took place at spur of the moment. Appellant Kailash was aged about 17 years and it is alleged that he only caught hold neck of the deceased. Absence of motive or prior enmity and looking to the age of the accused, it will be too much to attribute the intention to commit murder towards this accused. The young accused could not have even knowledge that his act was going to cause death. At the most, he could be punished u/s 325 IPC or 304 Part II, IPC. 6. Per contra, learned Public Prosecutor submitted that when there was no prior enmity, there was no occasion to impute false allegations by the eye witnesses against the appellants. Eye witnesses are quite distant in relations with the deceased. Their presence at the time of occurrence has in no way found doubtful and even close scrutiny of their testimony has not yielded any doubt to disbelieve the story of the prosecution. Eye witnesses are quite distant in relations with the deceased. Their presence at the time of occurrence has in no way found doubtful and even close scrutiny of their testimony has not yielded any doubt to disbelieve the story of the prosecution. Thus, learned trial court has rightly relied upon them. 7. Learned Public Prosecutor has further submitted that as per statement of Dr. Subhash Chand Jain (PW-6), the cause of death was asphyxia due to pressure on neck resulting in shock and leading to death. As per postmortem report (Ex.P-7), two bruises have been found on both the sides of neck and hyoid bone was found fractured. All these injuries found on the dead body were ante mortem. By relying on the medical evidence, learned trial court has not committed any error in holding the appellant Kailash convicted. 8. Learned Public Prosecutor also submitted that at the time of occurrence, the appellant Kailash was major. There is no proof on the record about his being 17 years age. 9. We have given thoughtful consideration to the rival submissions and gone through the whole material available on record. 10. Badri (PW-2) has admitted in his cross examination that Bajranga (deceased) was his uncle in third generation. Ram Phool (PW-3) has admitted in his cross examination that deceased Bajranga was brother of his father Gopal. Bhairu Lal (PW-4) has also admitted that Bajranga was his brother. Only due to relations, evidence rendered by these witnesses, cannot be disbelieved. It is well settled law that the evidence rendered by relative witness is to be closely scrutinized, analysed and only thereafter should be believed. 11. In the instant matter, all three eye witnesses – Badri (PW-2), Ram Phool (PW-3) and Bhairu Lal (PW-4) have narrated the story in similar manner before the trial court. Some minor and insignificant contradictions are there. Omissions of certain facts in deposition before trial court from their statements recorded by police u/s 161 Cr.P.C. have been contradicted. But the omissions are of very trivial nature. The evidence rendered by these witnesses is further corroborated by the medical evidence, such as postmortem report (Ex.P-7) and opinion of Dr. Subash Chand Jain (PW-6). 12. The incident is said to have occurred at 2.00 PM and information was lodged at about 8.30 PM on the same day. There is no delay in lodging First Information Report. The evidence rendered by these witnesses is further corroborated by the medical evidence, such as postmortem report (Ex.P-7) and opinion of Dr. Subash Chand Jain (PW-6). 12. The incident is said to have occurred at 2.00 PM and information was lodged at about 8.30 PM on the same day. There is no delay in lodging First Information Report. There is no major discrepancy in the First Information Report and the evidence rendered by the eye witnesses. 13. Dr. Subhash Chand Jain (PW-6) has proved the postmortem report (Ex.P-7). He has stated that he found following injuries on the dead body : 1. Abrasion ?" x ?" on back of right pinna. 2. Abrasion – 1" x ?" on lateral side of left elbow joint. 3. Abrasion – ½" x ?" on medial side of left elbow joint. 4. Bruise – 1" x ½" on left upper eye lid, inner side. 5. Bruise – ½" x ½" on left lower eye lid, inner side. 6. Abrasion – 1"x1" at lower right left post side, 2" above ankle joint. 7. There is extraction of blood in the subcutaneous tissue of neck, both the sides with Bruise – size 1" x ½" on right side of neck Bruise – size 1½ "x2" on left side of neck. 8. The cornua of hyoid bone is fractured. 14. Dr. Subhash Chand Jain (PW-6) has further stated that all these injuries were ante mortem. In his opinion, the cause of death was due to asphyxia due to pressure on neck resulting in shock and leading to death. He has opined in his cross examination that neck should have been pressurized with a single hand but when eye witnesses are saying that Kailash took hold of the neck of the deceased by both his hands, learned trial court has rightly not given any importance to this opinion of the doctor. 15. As per postmortem report (Ex.P-7), in larynx and tracheae blood stained froth was seen. The cornua of hyoid bone was found fractured. Right and left lungs were found congested showing haemorrhage patches. Right side of the heart was found fill of dark fluid blood whereas left side of the heart was empty. Large vessels were full of blood. 16. 15. As per postmortem report (Ex.P-7), in larynx and tracheae blood stained froth was seen. The cornua of hyoid bone was found fractured. Right and left lungs were found congested showing haemorrhage patches. Right side of the heart was found fill of dark fluid blood whereas left side of the heart was empty. Large vessels were full of blood. 16. While considering the crucial question as to whether the Medical Officer is reliable and acceptable, in Mulakh Raj & Ors v. Satish Kumar & Ors., reported in (1992) 3 SCC 43 Apex Court observed as follows : "14. In H.W.V. Cox's Medical Jurisprudence and Toxicology by Dr Bernard Knight, 5th Edn. in Chapter 1 at p.207 it was stated that strangulation is again a term which is not exact in itself, as there are several types of strangulation, mainly manual strangulation and strangulation by a ligature. Though both these are similar, there are certain differences which are reflected in the pathological findings. Strangulation is not by any means the same thing as asphyxia in fact, a better name would be 'pressure on the neck', which is used as an alternative description by some pathologists. Regarding manual strangulation and the length of time required to cause death at p.213 it is stated that the length of time for which pressure on the neck must be maintained to cause death is very variable, from Zero seconds to several minutes. In the statement regarding length of time he stated that no dogmatic statement of time of two minutes or three minutes can be made. It is of little practical value as unless a witness is present, there is never any way of determining such times. If, however, there is physical evidence of pressure on the neck from bruises and haemorrhage, but no congestion what soever, then it is certain that death was relatively rapid before these classical signs appeared, due to reflex cardiac arrest. Where death is due to cerebral anoxia from compression of carotid vessels, then there is usually cyanosis and congestion due to simultaneous blockage of the jugular venous system, though ignorance of time factors make this statement of little practical value. In Taylor's Medical Jurisprudence it was stated at p. 282 that the amount of pulmonary oedema can be used to estimate the time interval between injury and death. In Taylor's Medical Jurisprudence it was stated at p. 282 that the amount of pulmonary oedema can be used to estimate the time interval between injury and death. In practice it is seldom of value as it is common experience that the changes described can develop with great rapidity when a patient dies after choking. At p.285, asphyxia by violence, it is stated that if the breathing is interfered with for a sufficient period of time unconsciousness and death will supervene." Apex Court further observed in para No.15 : "15.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Above study of medical jurisprudence establishes that the symptoms found at postmortem are not uniform but variable depending upon the compression as employed on the neck and duration. It would be an inferential fact since direct evidence would rarely be available. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The duration of death also depends on the mode of pressure employed and the circumstances in which constriction was done. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" 17. In the instant matter, eye witnesses are available and as per their statements, the incident occurred so instantaneously that they could not get time to intervene and after giving a quick and sudden strangulation, the accused Kailash along with other co-accused fled away from the scene seeing the witnesses approaching and assuming that Bajranga is dead. The eye witnesses have also stated that Bajranga became unconscious and died only when he was brought in a camel cart for medical aid to Uniara. It means Bajranga did not die immediately. The incident took place at 2.00 PM. The victim was brought by the witnesses in village at about 3.00 PM and after that when the victim was taken away in a camel cart to the nearby town Uniara, he died on the way. From evidence adduced by prosecution, no prior enmity between the parties is reflected. Only reason of the scufle was grazing by cattle of Bajranga in the agricultural fields of accused. It appears that there was no pre-planning or prior meeting of the mind, rather the incident occurred at a spur of the moment. The intention of the culprits cannot be construed to be of committing murder of Bajranga, rather the intention appears to be only of teaching a lesson to Bajranga by giving him a severe beating. Catching hold of neck and putting pressure over it with the help of hands may result into death of a person. The intention of the culprits cannot be construed to be of committing murder of Bajranga, rather the intention appears to be only of teaching a lesson to Bajranga by giving him a severe beating. Catching hold of neck and putting pressure over it with the help of hands may result into death of a person. This fact can be gathered to be in the knowledge of accused appellant Kailash. Therefore, the offence committed by the accused appellant Kailash seems to be punishable u/s 304 Part-II and not that of section 302 IPC. 18. Though a school certificate (Ex.D-5) was exhibited but the same has not been proved as per law by examining relevant witnesses. Therefore, it could not be proved by the defence that at the time of incident, the age of the appellant Kailash was only 17 years. 19. Therefore, the appeal is partly allowed. Conviction of the accused appellant Kailash for the offence u/s 302 IPC is set aside and he is convicted for the offence u/s 304 Part-II IPC. For this, the appellant is directed to undergo four years Simple Imprisonment and fine of Rs.2,000/-. In default of payment of fine, the accused appellant will further undergo a sentence of two months' Simple Imprisonment. The period during which appellant remained in custody shall be set of against substantive sentence passed herein.