Per: Virender Singh, J. 1. Appellant-Harbans lal (for short to be referred to as accused) after having been convicted under Section 302 of Ranbir Penal Code and slapped with the sentence of rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default thereof to further undergo imprisonment for six months vide impugned judgement dated 14-05-2009 passed by learned Principal Sessions Judge, Kathua has preferred Criminal Appeal No. 53 of 2009, praying for setting aside the conviction and sentence. The sentence imposed upon him has been sent to this court by the learned trial judge for confirmation as envisaged under Section 374 of Code of Criminal Procedure (Svt. 1989) vide Confirmation No. 12 of 2009. Hence, Criminal Appeal No. 53 of 2009 and Confirmation No. 12 of 2009 are before us for their disposal. 2. Prosecution case in brief: Mahindro Devi is the deceased in this case. She was the wife of the accused. Date of occurrence is 27-02-2001 and the place of occurrence is Village Chak Nathal falling within the jurisdiction of Police Post, Chadwal. First infor­mant to the police is PW Madan lal, Lambardar of the village. He is not an eye witness to the occurrence. On information supplied to him by father of the accused only that his son had murdered his wife, he along with him and one Bachan Lal went to the police post to lodge the report. 3. PW Sukhdev Singh Jamwal (Sub Inspector) incharge of the aforesaid police post swung into action, visited the spot, prepared the site plan, took into possession certain articles including sample of blood through different seizure memos, re­corded the statement of the eyewitnesses, which included PWs Deepu, Rinku and Neetu, the daughters of the deceased, who were present at the time of occurrence and disclosed that their mother was killed by their father (accused) by inflicting an injury on her head with a 'Darat', which was subsequently recovered pursuant to the disclosure statement of the accused when he was formally arrested as he had fled away from the scene of occurrence after assaulting his wife. The Investigating Officer recorded the statement of other witnesses also. After completion of the investigation, a final report was submitted in the court whereupon the accused was charged under Section 302 RFC for which he now stands convicted and sentenced as stated hereinabove. Evidence on record: 4. The Investigating Officer recorded the statement of other witnesses also. After completion of the investigation, a final report was submitted in the court whereupon the accused was charged under Section 302 RFC for which he now stands convicted and sentenced as stated hereinabove. Evidence on record: 4. Although the prosecution case primarily hinges upon the evidence of aforesaid three children of the deceased, who were allegedly present at the time of occurrence, yet we have felt the necessity of having a glance over the statement of other witnesses as well. They are as under: 5. MAD AN LAL PW-1 is the person, who lodged the report with Sub Inspector Sukhdev Singh, the incharge of Police Post, Chadwal and in his presence, certain seizure memos were prepared. He is also signatory to the inquest report. The blood stained clothes were also taken into possession in his presence. 6. DEEPU, aged 20 years (PW-2), RINKU, aged 12/13 years (PW-3) & NEETU, aged 15/16 years (PW-4) are the children of the deceased and were allegedly present along with their mother in the house at the time of occurrence. 7. Record reveals that before recording the statement of Rinku (PW-3), aged 12/13 years, the trial court had put certain questions to her to ascertain, whether she was a competent witness for unfolding the prosecution case. Satisfaction of the court was recorded in this regard. However, with regard to Neetu (PW-4), aged 15/16 years, there is no such order. Perhaps the learned Judge in his wisdom thought that Neetu was mature enough to depose being of a particular age of understanding. Deepu in any case was major being aged 20 years. 8. Evidence of Deepu (PW-2) is to the effect that she was cooking food in the kitchen at the time of alleged occurrence and when she went inside the room, she saw that her mother had died. Her sister, Rinku, told her that their father had inflicted injury on the head of her mother. 9. The other two children of the deceased unfold the prosecution story, stating that on the date of occurrence, their father had inflicted an injury on the head of their mother with a 'Darat' as a result thereof she died on the spot and the accused ran away from there. 9. The other two children of the deceased unfold the prosecution story, stating that on the date of occurrence, their father had inflicted an injury on the head of their mother with a 'Darat' as a result thereof she died on the spot and the accused ran away from there. They have further stated that there was no altercation between the husband and the wife prior to the inflicting of the injury, but the accused used to beat the deceased prior to the date of occurrence also. This is stated by Deepu (PW-2) also. In short, these three witnesses allege that their mother was attacked by the accused only. 10. DHARAM PAUL PW-5 states that the mother of the accused came to him and told him that some patient was to be taken to Kathua Hospital and whejbhe accompanied her and saw that the deceased was lying unconscious on the spot. He brought her to Kathua hospital where doctors had declared her dead. 11. In his cross-examination, he states that he did not enquire from the daughters of the deceased as to what had happened with their mother. 12. MST. BANG DEVI PW-6 is the mother of the accused. She states that his daughter-in-law (deceased) used to remain sick and had fallen down from the roof and sustained head injury. She further states that she was taken to the hospital where she was declared dead. She had categorically denied that the deceased was murdered by the accused. She was consequently declared hostile. 13. BACHAN LAL PW-7 also did not toe the prosecution case and was declared hostile with regard to the cause of death of the deceased. However, he admits that the dead body of the deceased was taken in possession vide seizure memo. He did not admit the contents of the seizure memos vide which the blood stained clay was lifted by the police. However, admits his signature on the seizure memos. 14. FOUJA RAM PW-8 is also declared hostile and states that he came to know that the wife of the accused was beaten by some persons and taken to the hospital. 15. Similarly Ashok Kumar PW-10 and Bittu PW-11, who were brothers of the accused are also declared hostile. 16. DEEPU DEVI PW-12 is the sister-in-law of the deceased. 14. FOUJA RAM PW-8 is also declared hostile and states that he came to know that the wife of the accused was beaten by some persons and taken to the hospital. 15. Similarly Ashok Kumar PW-10 and Bittu PW-11, who were brothers of the accused are also declared hostile. 16. DEEPU DEVI PW-12 is the sister-in-law of the deceased. She states that when she went to the house of the accused and saw deceased (Mahindro Devi) lying there, she enquired from the daughters of the deceased, who told her that their mother was murdered by the accused with a 'Darat'. 17. BACHAN LAL PW-13 is again a witness to the effect that when he along with others went to the house of the accused and saw the dead body lying in a room with a cut injury on the head, the daughters of the deceased were there, who disclosed to him that accused had murdered their mother with a 'Darat'. He is also a witness to the disclosure statement allegedly made by the accused pursuant to which a 'Darat' was got recovered. 18. DEV RAJ PW-14 was also declared hostile as he did not support the prosecution case. 19. SMT. GURO DEVI PW-15 states that deceased was her niece and came to know of the occurrence through the brother of the accused. She discloses the motive for the occurrence, stating that the deceased used to tell them that the accused used to beat her by levelling false charges of unchastity on her. 20. DARSHAN LAL PW-16 is again a witness to the disclosure statement and the recovery of 'Darat' from the accused. 21. Evidence of Des Raj PW-17 and Suman Kumar PW-19 is not relevant at all. 22. SAMPURAN CHAND PW-19 is the real brother of the deceased. He states that whenever he visited the house of his sister, she used to tell him that the accused was torturing her and when he was informed of the death of his sister, he went at the spot where 10/15 persons had already gathered. The police was also there. He further states that the daughters of the deceased disclosed that the accused had murdered his sister. He is also witness to the recovery of 'Darat' from the accused after he was formally arrested. HARBANS LAL v. STATE HC-421 23. The police was also there. He further states that the daughters of the deceased disclosed that the accused had murdered his sister. He is also witness to the recovery of 'Darat' from the accused after he was formally arrested. HARBANS LAL v. STATE HC-421 23. Evidence of Shamsher Singh PW-20 and Subash Chander Sharma PW-21 is again of not much relevance. 24. DR. SURINDER KUMAR VERMA PW-22 had conducted the postmortem examination on the dead body of Smt. Mahindro Devi-deceased and observed the following injury: "Chopped wound 4"-00 size on the occipital region of scalp cutting skin muscle and bone and traversing through brain." 25. In his opinion, the injury on the scalp was sufficient in ordinary course of nature to cause death with a heavy sharp weapon resulting into failure of vital centre. The weapon of offence ('Darat') was shown to him in the court and he opined that the aforesaid injury could be caused by the said weapon on the person of the deceased. 26. Evidence of Constable Manzoor Hussain PW-23 is to the effect of making entry in the daily diary register as report No. 4 with regard to the occurrence. He proved the said entry. 27. MST. SIKANDRO PW-24 is sister-in-law of the deceased. She has stated that the deceased used to tell her that she lived in the house of some relative at night because her husband kept an evil eye on her daughters. 28. SUKHDEV SINGH JAMWAL,SI, PW-25 is the Investigating Officer of this case. The investigation conducted by him, in brief, has already been depicted in the very start of the case. 29. This is all about the prosecution case. 30. It is a case of total denial by the accused as is evident from his statement recorded under Section 342 CrPC. He has not led any evidence in support of his defence. 31. Submissions of learned counsel for either side: Heard Mr. Anil Khajuria, learned counsel for the appellant and Mr. R.S. Jamwal, learned Dy. AG representing the State. Perused the trial court record also minutely. 32. Main plank of argument of Mr. He has not led any evidence in support of his defence. 31. Submissions of learned counsel for either side: Heard Mr. Anil Khajuria, learned counsel for the appellant and Mr. R.S. Jamwal, learned Dy. AG representing the State. Perused the trial court record also minutely. 32. Main plank of argument of Mr. Khajuria is that except for the evidence of child witnesses, all the other material witnesses of the prosecution have not sup­ported the case of the prosecution and, therefore, without there being any corrob-oration to the very case set up by the prosecution, it would not be safe to rely upon the statements of three child witnesses. He then submits that even otherwise there was no motive with the accused to commit the murder of his wife and for want of that, again the evidence of child witnesses loses its credibility. The learned counsel then submits that although the prosecution has made an attempt to project a motive in this case, but is on a very weak footing for the reason that one witness states that the accused was having suspicion over the character of the deceased, whereas the other witness states that the deceased had to stay in the house of her relatives during night as the accused was keeping evil eye on her daughters. It is contradicting each other. From this, it can be safely said that the motive is not proved at all and this flaw damages the prosecution case to a great extent. 33. Adverting to another aspect, Mr. Khajuria submits that even if the prose­cution case is said to be proved, believing the eye version account unfolded by the child witnesses, although not admitted, still the present case would not fall within the mischief of Section 302 RFC and would at the most fall within the ambit of Section 304 part-I of RFC. He submits that it is a case of single injury to the deceased and it appears that the accused might have inflicted the same out of anger on any issue between the husband and the wife, which could not be known to the children. On this ground, learned counsel submits that the present case would attract exception 4 of Section 300 RFC for diluting the main charge. 34. Per contra, Mr. On this ground, learned counsel submits that the present case would attract exception 4 of Section 300 RFC for diluting the main charge. 34. Per contra, Mr. Jamwal states that the prosecution has been able to prove the charge against the accused beyond any shadow of reasonable doubt as there appears to be no reason to disbelieve the statement of three daughters of the accused whose presence at the scene of occurrence was very natural. May be some discrep­ancies have come in their statements, those are just minor in nature, which do not weaken the case of the prosecution with regard to the main occurrence. He then submits that the present case falls within the mischief of Section 302 RFC only and not for any lesser offence. As such the conviction for the said charge as already recorded by the trial court deserves to be upheld. Discussion: 35. Evidence Act lays down that all persons are competent to testify unless the court considers that because of tender years, disease or any cause of same kind or because of the old age, they are prevented from understanding the questions put to them or from giving rational answers. Competency of the witness is the rule and incompetency is an exception. Therefore, the sole test is whether witness has sufficient intelligence to depose or not or has the capability to understand and appreciate the duty of speaking truth. On that touchstone, statement of a child witness can be made the basis for the conviction, if he is found to be capable to make a statement and at the same time, his statement passes through the test of reliability We are fortified in our view by the judgements of Apex Court handed down in case titled Baby Kandayanathil v. State of Kerala reported in AIR 1993 SC 2275 Suryanarayan v. State of Karnataka reported in 2001(1) Recent Criminal Reporte (Cri.) 602, Bhagwan Singh & others v. State of M.P reported in AIR 2003 SC 1088 and Ratan Singh Dalsukhbhai Nayak v. State of Gujarat reported in AIR 2004 SC 23 . 36. Let us apply the same test in appreciating the evidence of Deepu PW-2 Rinku PW-3 and Neetu PW-4. As stated above, Deepu PW-2 is major aged 20 years and her other two sisters, namely, Rinku PW-3 and Neetu PW-4 are minor. 37. 36. Let us apply the same test in appreciating the evidence of Deepu PW-2 Rinku PW-3 and Neetu PW-4. As stated above, Deepu PW-2 is major aged 20 years and her other two sisters, namely, Rinku PW-3 and Neetu PW-4 are minor. 37. The next aspect before us for our appreciation would be the reliability o their evidence. Much has been said by Mr. Khajuria that since other witnesses have been declared hostile, therefore, the statement of Pws Deepu, Rinku & Neetu shouk also not be relied upon as it lacks corroboration. We are not in agreement with the submissions advanced by Mr. Khajuria on this count. The evidence of other witnesses, who have been declared hostile, has nothing to do with the eye version account, which is hinging upon the evidence of aforesaid children of the deceased only. They are the witnesses, who reached the spot at a subsequent stage when informed about the occurrence. Many of the witnesses are from the family of th'e accused only and, therefore, they would make all attempts to save him. There being no support from the case of prosecution by them, in our considered view, would not impair the prosecution case, which is unfolded by the three children of the deceased, who are the most true witnesses and their presence being natural at the time of occurrence. The unmarried young daughters are supposed to be with their mother only, that too during night hours. This material aspect, we cannot lose sight of. Having observed so, these witnesses have to be given some margin with regard to the discrepancies, if any, occurred in their statements. 38. Another fact, which is noticed by us is that even the witnesses, who have been turned hostile with regard to attribution of main assault by the accused, may be on the basis of the information supplied to them, have admitted the factum of lying of the dead body at the spot i.e house of the accused and lifting of certain articles from there only. To that extent, their evidence cannot be brushed aside. It is well settled that even the evidence of a hostile witness, which is consistent with the case of the prosecution or defence, can be relied upon to that extent. From the evidence on record, one fact is, thus, very clear that the occurrence has taken place in the house of the accused only. It is well settled that even the evidence of a hostile witness, which is consistent with the case of the prosecution or defence, can be relied upon to that extent. From the evidence on record, one fact is, thus, very clear that the occurrence has taken place in the house of the accused only. Seeing it from that angle, the evidence of the child witnesses would certainly get more weightage. 39. Whether there is any tinge of tutoring in this case, is another aspect to be appreciated by us to arrive at the just conclusion. In this regard, we have done an exercise of re-scanning the entire evidence of the aforesaid three witnesses in its entirety. The most natural part in this case is that Deepu PW-2 has not projected herself as a witness to the occurrence. She does not say that within her sight, her father had killed her mother. She makes it clear in her cross-examination that she was cooking meal in her kitchen at the time of occurrence and when she went inside the room, she saw that her mother had died and her sister, namely, Rinku PW-3 told her that her father had inflicted injury on the head of her mother with a 'Darat'. She, however, talks of beating to her mother by the accused prior to the date of occurrence also. She is also categoric in saying that there was no altercation between the husband and the wife prior to inflicting of the injury. As stated above, she is major. She was the best witness to be tutored and instead of showing her presence in the kitchen, she could very well be shown by the side of her mother, which is the position of other two witnesses, namely, Rinku and Neetu. What had actually happened has been unfolded by PW Deepu before the court. Her other two minor sisters were sitting by the side of deceased. They in fact saw the accused causing injury with a 'Darat' on the head of their mother. Rinku PW-3 has categorically stated that after the occurrence, they had raised alarm and her uncle and aunt came on the spot. They also stated that other persons had also collected at the spot and PWs Bittu and Ashok took the deceased to the hospital. Ashok and Bittu are none else, but the real brothers of the accused. Rinku PW-3 has categorically stated that after the occurrence, they had raised alarm and her uncle and aunt came on the spot. They also stated that other persons had also collected at the spot and PWs Bittu and Ashok took the deceased to the hospital. Ashok and Bittu are none else, but the real brothers of the accused. Therefore, even if they have been declared hostile, it would not damage the evidence of the three children of the deceased. 40. We do find certain discrepancies in the statements of aforesaid three witnesses, but once we hold them being natural and reliable witnesses to the occurrence, all those discrepancies per se do not render their evidence brittle or '-untrustworthy. In our view, the said evidence passes through the test of credibility,.which is touchstone of appreciation. 41. Much has been said by Mr. Khajuria with regard to the motive part. We do find that the prosecution is on a slippery footing with regard to the motive part as one of the witnesses, namely, Smt. Guro Devi PW-15 has stated that the deceased used to tell them that the accused administered beating to her and levelled false charges of unchastity on her and the other witnesses, namely, Mst. Sikandro PW-24 has stated that the deceased told her that she lived in the house of some relative at night as her husband kept an evil eye on her daughters. But the absence of motive in the present case, would pale into significance as the direct evidence establishes the crime. It is well settled that when the case of the prosecution is based on evidence of eyewitnesses, which is trustworthy, the conviction can be based even on non-ex­istence of the sufficiency of motive as it would not play a major role. Since we are believing the evidence of the aforesaid three witnesses after scanning it minutely from all vital aspects so as to hold that the accused is the perpetrator of the crime, in our considered view, even if the motive is not clear or not proved, that aspect by itself will riot be a ground to cause dent to the prosecution version. 42. 42. Lastly it needs to be mentioned here that the 'Darat' allegedly recovered from the accused pursuant to his statement is proved to be the weapon of offence as is clear from the statement of doctor, who has categorically stated that the said weapon ('Darat') could cause the head injury on the person of the deceased. 43. After churning the entire evidence, once again in its right perspective, being the court of 1st Appeal, we are of the considered view that the prosecution has been able to prove beyond any reasonable doubt that the accused had committed the murder of his wife on 27-3-2001 in his house in the presence of aforesaid three witnesses (children of the deceased). 44. The next aspect for consideration is the nature of the charge. According to Mr. Khajuria, the present case does not fall within the mischief of Section 302 RFC as exception 4 to Section 300 RFC is attracted in this case, there being only one injury on the head and, that too without any motive. 45. We are not convinced with the submission advanced by Mr. Khajuria on this aspect. No doubt, there is a single blow inflicted on the head of the deceased resulting into death, but this injury is by a heavy weight sharp cutting weapon as is clear from the medical evidence. There was a chopped wound of 4" on the occipital region of scalp cutting skin muscle and bone. This was traversing through brain. This has caused the instant death as is clear from the statement of the witnesses. It has not come in the evidence of any of the witnesses that there was any altercation between the husband and the wife and thereafter the accused lifted the 'Darat' lying somewhere in the house and caused the injury in the heat of anger and as such, it was a sudden altercation. We cannot presume any fact in favour of the accused. In the case at hand, the wife was sitting with her children when the accused came and opened the attack, caused one injury by 'Darat' and fled away. It has affected the most vital part (brain). Therefore, taking into the totality of circumstances of the present case, the kind of the weapon ('Darat'), the part of the body (scalp) and the force used by the accused, the intention to commit murder can be gathered very comfortably. It has affected the most vital part (brain). Therefore, taking into the totality of circumstances of the present case, the kind of the weapon ('Darat'), the part of the body (scalp) and the force used by the accused, the intention to commit murder can be gathered very comfortably. Simply that one injury is caused on the head of the deceased without there being any repetition by the accused, it would not necessarily dilute the gravity of the offence from Section 302 RFC to Section 304 Part-I RFC. 46. Viewed thus, the present case would fall within the mischief of Section 302 RFC only. Conclusion: 47. In the light of the aforesaid detailed discussion, the net result is that the present appeal fails on all counts, upholding the conviction and the sentence of the appellant/accused as already recorded by the trial court. 48. Confirmation No. 12/2009 is also answered accordingly.