JUDGMENT : The instant appeal is against the judgment of conviction and order of sentence dated 26.11.2008 and 28.11.2008 passed by the learned 2nd Additional District and Sessions Judge, Dumka in Sessions Case No.07 of 2008 {126 of 2008} arising out of Taljhari P.S. Case No.184 of 2007 corresponding to G.R. Case No.1122 of 2007 whereby and where-under the appellant has been convicted for commission of offence under Section 304 Part II of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for a period of seven years. 2. The prosecution story in brief as per the allegations made in the FIR is that one Bada Kosaliya Devi, who has made a complaint before the Jarmundi Police Station Taljhari, District-Dumka alleging therein that on 29.08.2007 at about 04:00 p.m. her grandson Rajendra Singh and villager Badri @ Laddu Singh aged about 15 years on the point of spitting upon each other, Laddu Singh has assaulted her grandson Rajendra Singh who was weeping and came to his house and narrated the story to her, thereafter, the informant along with her daughter Chandrama Devi went to the field where cattle were grazing and asked Laddu Singh about the quarrel, about this, at about 04:30 p.m. mother of Laddu Singh came there and caught hold her hair-locks of Chandrama Devi and both Laddu Singh and Chhota Kosaliya Devi assaulted her. Laddu Singh and accused Chhota Kosaliya Devi caught hold hair-locks of Chandrama Devi and as a result she fell down and Chhota Kosaliya Devi pressed her neck with the intention to kill her. After hearing hulla, villagers assembled there, then Laddu Singh and Chhota Kosaliya Devi fled away from there, and thereafter, the said incident was reported to the police. Upon this, the FIR has been instituted against the Chhota Kosaliya Devi and Badri Singh @ Laddu Singh for the commission of offence under Section 302/34 of Indian Penal Code and accordingly charge-sheet was submitted under the aforesaid section of the Indian Penal Code, cognizance was taken under the aforesaid section against the accused persons and thereafter, case was committed to the Court of Session for its trial. The accused persons having not pleaded guilty have put on trial and in consequence thereof, the prosecution has examined altogether 10 witnesses, on the basis of testimony, the exhibits and the statement recorded under Section 313 of the Code of Criminal Procedure has found the commission of offence under Section 304 Part II of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for a period of 7 years. 3. It is to clarify herein that the FIR has been instituted against Chhota Kosaliya Devi and Laddu Singh but Laddu Singh having been declared to be juvenile, his case was transferred to the file of Juvenile Justice Board, Dumka and therefore the case of the appellant has been proceeded separately to that of the Laddu Singh. 4. The appellant while assailing the order of conviction has taken the following grounds:- (i) there is contradiction in the testimony in the depositions of the witnesses; (ii) the Doctor has given its opinion that the death was due to the strangulation but there is no sign of any bruise marked in the upper part of the throat and thereafter the cause of death is not sufficiently been proved and on the basis of which no ingredient of Section 304 Part II is made out; (iii) the ingredient of Section 304 Part II is also made out for the reason that the ingredient contained therein is with intention to commit murder but after going through the testimony of the witnesses, there is no intention to commit murder of the deceased and therefore the ingredient of Section 304 Part II is not attracted but this aspect of the matter has not been appreciated by the trial Court; (iv) alternative plea has been taken that the appellant has already remained in custody for about 1 year and 5 months and being a rustic lady living in the remote area of the village, the sentence awarded may be reduced to the period undergone by modifying the judgment to impose fine as per the sentence contained under the provision of Section 304 Part II of the Indian Penal Code. (v) Per contra Mrs. Vandana Bharti along with Mr. (v) Per contra Mrs. Vandana Bharti along with Mr. Ravi Prakash, learned APP have jointly submitted that it is a case of Section 302 of the Indian Penal Code because on the basis of quarrel, the appellant along with his son have committed murder of the deceased by throattling which has been proved by the testimony of the Doctor. Having been corroborated by the other witnesses and therefore there is sufficient evidence against the appellant attracting ingredient of Section 302 to the trial Court having taken lenient view has convicted her under Section 304 Part II of the Indian Penal Code, therefore, the same may not be interfered with; 5. The deposition of the doctor specifically speaks that there is bruise in the upper part of the throat because of strangulation and therefore the injury has been caused due to throatling/strangulation which resulted into fracture in the trachea ultimately died due to asphyxia due to strangulation and therefore the appellant has been bodily injured with all knowledge that the step may be fatal and therefore it cannot be said that there is lack of ingredient of Section 304 Part II of the Indian Penal Code. So far as the contention of the appellant that sentence may be reduced by treating the period undergone, the Court may pass appropriate order in this regard. 6. Having heard the learned counsel for the parties and after appreciating the material available on lower Court records before entering into the legality and proprietary of the finding given by the trial Court it is relevant to go through the testimony of the witnesses. 7. Dr. Kumar Bagish has been examined as P.W.-1 who has stated that the death is due to asphyxia as a result of throatling, further stated that bruise has been found in the left side of the neck 1cm X 0.5 cm reddish and brown in colour on middle of the neck. Cause of the death has been opined as asphyxia which is ante mortem injury, further, it has been stated therein that it may happen due to fall on a hedge or by nailing by cattle. 8. Cause of the death has been opined as asphyxia which is ante mortem injury, further, it has been stated therein that it may happen due to fall on a hedge or by nailing by cattle. 8. Magal Singh has been examined as P.W.-2 who happens to be the father of the deceased who has supported the prosecution story by stating that Chhota Kosaliya Devi and Laddu Singh have murdered by throatling, the same version has been stated by him in the cross-examination. 9. P.W.-3-Pudina Kumari has been declared to be hostile. P.W.-4 is Nakul Singh. 10. P.W.-5-Rajendra Singh and P.W.-6-Bada Kosaliya Devi have fully supported the prosecution story by stating therein that there is quarrel in between Laddu Singh and Rajendra Singh and when the maternal uncle of Ragendra Singh along with the mother went to ask about the reason before the mother of Laddu Singh namely Chhota Kosaliya Devi, she has committed murder by throatling, the same version has been reiterated in the cross-examination without making any deviation thereupon. 11. P.W.-7-Birendra Singh is the herese witness. 12. P.W.-8-Sundari Devi has become hostile. 13. P.W.-9-Jagdish Prasad, who is the investigating officer who after completion of the investigation has submitted the charge-sheet and found the prosecution story having no contradiction. 14. P.W.-10 is also a witness who has examined the inquest report. 15. It is thus evident that the prosecution story as per the FIR has been supported by the witnesses namely P.W.-2-Mangal Singh, P.W.-6-Bada Kosaliya Devi and P.W.7-Birendra Singh and the fact about the commission of injury upon the neck of the deceased has been confirmed by the doctor giving therein the opinion that the death was due to asphyxia which has been caused due to throatling. Doctor has also given its opinion that in the left side of the neck the bruise was there which was reddish and brown in colour which suggest that there was a sign of injury in the throat of the deceased and hence, the prosecution story is having no discrepancy. 16. It is in this background the ground taken by the appellant needs to be scrutinized but before doing that the ingredient of the culpable homicide as provided under Section 299 of the Indian Penal Code, the murder as provided under Section 300 and ingredient of Section 304 Part II needs to be examined. 16. It is in this background the ground taken by the appellant needs to be scrutinized but before doing that the ingredient of the culpable homicide as provided under Section 299 of the Indian Penal Code, the murder as provided under Section 300 and ingredient of Section 304 Part II needs to be examined. Section 299 of the Indian Penal Code speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 of the Indian Penal Code defines the offence of culpable homicide which consists in the doing of an act:- (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. “Intent” and “knowledge” as the ingredients of Section 299 postulates the existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of the third condition contemplates knowledge of the likelihood of the death of the person, reference in this regard needs to be made to the judgment rendered by Hon'ble Apex Court in the case of Jayraj Vs. State of Tamil Nadu, reported in AIR (1976) SC 1519. It is thus relevant that before any charge under Section 304 Part II can be framed, material on record must at least prima-facie-show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of the charge under Section 304 Part II must be at least prima-facie-indicate that accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death, reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Kesub Mahindra Vs. State of M.P., reported in (1996) 6 SCC 129 . 17. State of M.P., reported in (1996) 6 SCC 129 . 17. Section 300 of the Indian Penal Code speaks about murder under which it has been submitted that : “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 18. It is also relevant to be seen the exceptions contained under Section 300 which contain five exceptions:- “Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident: The above exception is subject to the following provisos: First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 19. Section 304 Part II stipulates that whoever commits culpable homicide, as is amounting to murder if the act by which the death is caused upon 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. 20. It is evident from the provision of Section 304 Part II that there must be an intention to cause death or to cause such bodily injury as is likely to cause death would be punished with the punishment for commission of offence under Section 304 Part II of the Indian Penal Code. 21.This Court after going across the relevant provision and making comparison with the testimony of the witnesses is of the view that the appellant is found to have committed culpable homicide since it was within her knowledge that the act which has been done by her is likely to cause death. 21.This Court after going across the relevant provision and making comparison with the testimony of the witnesses is of the view that the appellant is found to have committed culpable homicide since it was within her knowledge that the act which has been done by her is likely to cause death. It is evident from the testimony of the P.W.-2-Mangal Singh, P.W.-6-Bada Kosaliya Devi and P.W.7-Birendra Singh wherein it has been stated that the appellant along with Laddu Singh by putting some force on the deceased due to which she has fallen down and both of them have pressed her neck due to which the injury has been caused leading to fracture in the trachea ultimately resulted into her death. Here the opinion of the doctor which has been found on post mortem of the body needs to be referred that he has found reddish and brown colour on the neck with bruise and the cause of death has been given as asphyxia due to throatling, therefore the testimony of P.W.-2-Mangal Singh, P.W.-6-Bada Kosaliya Devi and P.W.7-Birendra Singh has duly been corroborated by the testimony of the doctors and hence, if it would be compared with the definition of culpable homicide as contained under Section 229 read with Section 300, it cannot be disputed that the ingredient of Section 304 Part II is not lacking. This Court has also examined exceptions but no case of the appellant is coming on the basis of the testimony of the witnesses and therefore it cannot be said that the culpable homicide is not murder. 22. In view thereof, the trial Court having gone through the deposition of the witnesses and taking into consideration the cause of death, opinion of the doctor and the testimony of the P.W.-2-Mangal Singh, P.W.-6-Bada Kosaliya Devi and P.W.7-Birendra Singh has found that the prosecution story has been able to prove the case beyond all reasonable doubt and therefore convicted the appellant under Section 304 Part II and not under Section 302 because the ingredient of Section 302 was lacking which is due to the reason that since it is a case of culpable homicide amounting to murder and therefore this Court is decline to interfere with the findings given by the trial Court. 23. 23. So far as the consideration by this Court regarding the submission of the learned Senior counsel appearing for the appellant that the appellant has also remained in custody for a period of 1 year 4 months and 24 days and she being a lady living in the remotest area of State and being rustic people and there is no criminal antecedents and hence, has prayed for taking lenient view by reducing the sentence already undergone. 24. Learned APP in all fairness has submitted by referring to the provision of Section 304 Part II which provides that the punishment provided under Section 304 Part II is, or with punishment, or with fine, or with both and therefore he has submitted by taking into consideration the fact that the appellant being a lady, an appropriate order may be passed in this regard by imposing fine with a direction to be disbursed in favour of the dependent of the victim. 25.This Court after taking into consideration this aspect of the matter and considering the fact that the appellant being a lady was aged about 31 years on 01.09.2008, that is the date when her statement under Section 313 of Code of Criminal Procedure was recorded and now at the age of 42 years deem it fit and proper to reduce the sentence to the period already undergone with further direction upon the appellant to deposit Rs.1,00,000/-(Rupees One Lakh Only) by way of fine/compensation before the trial Court within a period of two month which shall be disbursed in favour of the dependent of the appellant forthwith. 26. It is made clear that if the aforesaid amount would not be deposited, the trial Court shall be at liberty to proceed in accordance with law. 27. In view thereof, the instant appeal is hereby disposed of with the terms indicated here-in-above.