In cases of sudden and unpremeditated killings without any motive or intention to cause fatal injury, the offense may be reduced from murder to culpable homicide not amounting to murder.

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. 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 cal