JUDGMENT : S.K. Mishra, J. In this appeal the convict - appellant has assailed the judgment dtd.30.06.2005 passed by the learned Addl. Sessions Judge, Jharsuguda in S.T. Case No.360/10 of 2004 convicting him for the offence U/s.302 of the Indian penal Code (hereinafter referred as “The Code”for brevity) and sentencing him to undergo imprisonment for life and to pay a fine of Rs.2000/, in default to undergo further rigorous imprisonment for three months. 2. Sworn of unnecessary details, the prosecution case is that on 12.08.2003, on the information of Grama Rakhi that wife of the accused has died of diarrhoea in the night between 11/12.8.2003, station diary entry was made and P.W.-6, the S.I. of Police, Jharsuguda P.S. was directed by the O.I.C. to enquire into the fact. When P.W.6 visited the house of the accused to inquire into the information vide the station diary entry, he found bruises on the front side of the neck, blood oozing out from the mouth, tongue was pressed under the teeth. Hence he held inquest, sent the dead body for post mortem examination and examined the witnesses. He seized the broken bangles and a “Dibiri”from the room. During examination of the witnesses, the minor son of the accused and deceased (P.W.7) disclosed that his mother was killed by his father during the night by pressing her neck with both hands. P.W.6 did not find any sign of diarrhoea, hence he drew plain paper F.I.R. and sent the same to the police station for registration of case and took up preliminary investigation. The O.I.C. (P.W.8), on receipt of the F.I.R., registered the case, proceeded to the village, took charge of investigation from P.W.6, re-examined witnesses. Prayed the learned Magistrate for recording of statement of the minor son of the accused U/s.164 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”for brevity). On completion of investigation, he submitted charge-sheet. 3. The accused took the plea of complete denial. 4. In order to prove its case, prosecution examined 8 (eight) witnesses. P.W.7- Anam Kissan is the star witness of the prosecution. He happens to be the minor son of the convict and the deceased. P.W.-6 - Kasinath Nayak is the informant in this case. He has also done a part of investigation like holding inquest, sending of dead body for post mortem examination, etc. P.W.1 - Ratan Kissan is a witness to seizure. He happens to be the minor son of the convict and the deceased. P.W.-6 - Kasinath Nayak is the informant in this case. He has also done a part of investigation like holding inquest, sending of dead body for post mortem examination, etc. P.W.1 - Ratan Kissan is a witness to seizure. P.W.2- Dutia Ghugar is the Grama Rakhi of the village on whose intimation the station diary entry was prepared. P.W.3- Dayasagar Rohidas is also a witness to seizure. Both P.Ws.1 and 3 have turned hostile and cross-examined by the prosecution U/s.154 of the Evidence Act, 1872. P.W.4 is Dr. Tribikram Panda who has conducted post mortem examination over the dead body of the decease, P.W.5 - Dr. Silwanti Jojo is the doctor who has examined the accused. P.W.8 - Biswa Prakash Patnaik is the O.I.C., Jharsuguda police station who is the investigating officer of this case and submitted charge-sheet against the accused. 5. In a case of murder, in order to test whether the convict is guilty or not, the first duty of the court is to find out whether the death of the deceased is homicidal in nature or not. In this case it is appropriate to take note of the evidence of P.W.4 the doctor who has stated on oath that on 12.08.2003 he was attached to the District Headquarters Hospital, Jharsuguda as Medicine Specialist. On that day at about 4.15 P.M. he conducted post mortem examination on the dead body of Hemabati Kissan, the wife of accused on police requisition and found one abrasion of size 1”X “X “on the right side of the face on the lower part. Bruises of size “diameter 4 in numbers on the right side of the neck. The bruises were discrete and they were nearer to each other and one above the other. Bruises “in diameter, 3 in numbers on the left side of the neck one near the other. He did not find any ligature mark on the neck. He found subcutaneous collection of coagulated blood on both sides of the neck. There was fracture of hyoid bone on the right side. Larynx was congested with collection of frothy blood. Trachea was also congested. He found congestion of lungs and dark fluid like blood oozing out at the time of dissection. The left side of heart was empty but the right side heart was filled with dark fluid. There was fracture of hyoid bone on the right side. Larynx was congested with collection of frothy blood. Trachea was also congested. He found congestion of lungs and dark fluid like blood oozing out at the time of dissection. The left side of heart was empty but the right side heart was filled with dark fluid. The mouth was half opened and the tongue was under the teeth. He came to the conclusion that the death of the deceased was due to asphyxia of internal organs, hence opined that the death was due to asphyxia caused due to strangulation or throttling. The time of death was within 24 hours from the time of his examination. The post mortem examination report has been marked as Exhibit-3 and Exhibit-3/1 is his signature. In cross-examination he has stated that in case of throttling there may be finger prints, but in this case no finger print was visible. He has not mentioned that the injuries were anti-mortem in nature since the injuries were obvious. He further stated that in case of protest at the time of throttling or strangulation there may be some other injuries due to resistance. Examination of Exhibit-3 reveals that whatever the doctor has stated in the court, has been reflected in it. So it is clear that the death of the deceased was due to throttling resulting in asphyxia and death, hence it is definitely homicidal in nature. 6. The next question is whether the accused has caused the death of the deceased and whether he has the intention of causing her death. As stated earlier, P.W.7 is the star witness of the prosecution. P.W.7 was a minor at the time of examination. He was aged about 8 years at the time of his examination in the court. He was examined on 24th June, 2005 whereas the occurrence took place on 12.08.2003. So by the time of occurrence he was 6 years old. This witness was not tender with oath. He has stated before the court that his mother Hemabati is dead and he was by then staying at village Bhimjore in the house of his maternal uncle Mundra. The accused is his father. He has further stated that about two years back, on the “Rakshi Purnami” day, in the night, the occurrence took place in their house. He has stated before the court that his mother Hemabati is dead and he was by then staying at village Bhimjore in the house of his maternal uncle Mundra. The accused is his father. He has further stated that about two years back, on the “Rakshi Purnami” day, in the night, the occurrence took place in their house. He further stated that his father and mother quarreled with each other, then he was sleeping on a Cot. His father, quarreling with his mother, sat over her chest and pressed her neck and threatened the witness not to disclose this to anyone. When he called his mother, she did not respond. In the morning, on the next date, when police came, he narrated the incident to the police and also narrated to his maternal uncle. Though he has been cross-examined by the defence counsel, nothing substantial has been brought out from his mouth in the cross-examination to come to the conclusion that his evidence is a tutored one. No contradiction is also brought out. Moreover his statement get corroboration from the statement recorded U/s. 164 Cr.P.C. which was recorded about three days after the occurrence. 7. Keeping in view the evidence of P.W.7 and attending circumstances like the false report given by the accused about death of the deceased out of diarrhea, the fact that the dead body was found in the house where the accused, the deceased and P.W.7 were residing and the medical opinion, we find that the prosecution has amply proved its case that the deceased was done to death by the convict. 8. However, Mr. M. K. Pati, learned counsel for the appellant submits that the learned lower court has come to the conclusion that there is motive for commission of the offence and such motive has not been proved in this case. In fact, we agree with the submissions of Mr. Pati that actually the documents that are necessary to prove the earlier lodging of criminal case and the statement made therein by the deceased, has not been proved in this case. So it cannot be said that the prosecution has proved the motive on the part of convict to commit the murder of the deceased. Rather Mr. Pati further argues that it was an act done by the accused on the spur of moment because of petty quarrel between them. So it cannot be said that the prosecution has proved the motive on the part of convict to commit the murder of the deceased. Rather Mr. Pati further argues that it was an act done by the accused on the spur of moment because of petty quarrel between them. This fact is also stated by P.W.7. He stated that both his father and mother were quarrelling with each other and in the process his father sat on the chest of his mother and pressed her neck. He does not say that his mother died there. But when he called his mother, she did not respond. So the implication is that she died on the spot. Since there is lack of evidence regarding motive as projected by the prosecution and the act was committed by the accused on the spur of moment in a petty quarrel between husband and wife, we are of the opinion that the appellant did not have the requisite mens rea to commit the offence of murder. But as he is a grown-up man, he knew his actions of pressing the neck would cause such bodily injury which may lead to death of the deceased. So instead of convicting him U/s. 302 of the Code, we are of the opinion that he should be convicted U/s.304 Part-I of the Code, i.e. culpable homicide not amounting to murder. 9. Accordingly, we allow the appeal in part by converting the conviction U/s.302 of the Code to a conviction U/s. 304 Part-I of the Code and sentencing to undergo rigorous imprisonment for 10 (ten) years. Since the appellant is a poor person and is unable to engage his own lawyer, for which Mr. Pati has been engaged by the State to argue the case, we are not inclined to impose any fine on him. Period undergone as U.T.P. and convict be set off. Accordingly, the appeal is disposed of. We also state on record our appreciation of the assistance given by Mr. M. K. Pati in disposing the appeal. LCRs be returned immediately.