JUDGMENT : PER : MR. K.S. JHAVERI, J. :- 1. Challenge in this appeal is to the judgment and order passed by the learned Addl. Sessions Judge, Court No. 13, Ahmedabad in Sessions Case No.333 of 2005 dated 08.11.2006 whereby, the original accused, the appellant herein, was convicted for the offence punishable u/s. 302 of Indian Penal Code (for short, “the IPC”) and has been sentenced to undergo imprisonment for life. 2. Antecedent facts of this case, which require brief mention, are these; The complainant herein, Eknath Surajdin Devre, is a retired Government employee and is residing along with his family at Shantinagar, Behind Narol Court, Narol, District Ahmedabad. The appellant, original accused, is the son of complainant and was residing along with his wife, Minaben @ Pamaben and two children in the house of the complainant when the alleged incident took place. The appellant herein was working as a labourer on contract basis and his working hours were from 0800 hrs to 2100 hrs. 2.1 It is alleged that on 27.08.2004 the complainant, his wifeTapaben, the appellantaccused and his wifeMinaben were at home. In the evening, Minaben left home for picking up her children from the school and returned home at around 1745 hrs. Thereafter, the complainant left home for purchasing some articles from a nearby shop. When he returned home, he got shocked on noticing her daughterinlaw, Minaben, lying on the road in front of their house in a badly injured condition and was also bleeding profusely. However, some time later, Minaben succumbed to the injuries. On inquiry, the complainant came to know that a quarrel had taken place between the appellant and deceased Minaben on the domestic issue of cooking food and that in the heat of moment, the appellant stabbed his wife Minaben with a knife. Having sustained the knife injuries, Minaben rushed out of the house but, fell down on the road and ultimately, succumbed to the injuries. 2.2 A complaint in connection with the above incident was lodged before Vatva Police Station. Necessary investigation was carried out and the accused came to be arrested. At the end of investigation, chargesheet was filed before the Magisterial Court but, since it was a Sessions triable offence, the case was committed to the Sessions Court, Ahmedabad. 2.2 A complaint in connection with the above incident was lodged before Vatva Police Station. Necessary investigation was carried out and the accused came to be arrested. At the end of investigation, chargesheet was filed before the Magisterial Court but, since it was a Sessions triable offence, the case was committed to the Sessions Court, Ahmedabad. On production of accused, charge was framed but, as the accused pleaded not guilty to the charge levelled against him, trial was initiated. 2.3 During the course of trial, the prosecution has examined eleven witnesses, viz. Eknath Surdin Devre as PW1 at Exhibit8, Rameshbhai Galabji Thakor as PW2 at Exhibit9, Tapaben Eknath Devre as PW3 at Exhibit15, Dineshbhai Dhirubhai Chavda as PW4 at Exhibit17, Khushaldas Ramandas as PW5 at Exhibit22, Narsinhbhai Valaji Asari as PW6 at Exhibit23, Shilpaben Kanubhai Yagnik as PW7 at Exhibit26, Bhagirathsinh Jatubha Jadeja as PW8 at Exhibit31, Kulsinh Takhatsinh Rathod as PW9 at Exhibit32, Bhimbahadur Jungbahadur Shahi as PW10 at Exhibit34 and Chandrikaprasad Jawaharsinh as PW11 at Exhibit36. 2.4 The prosecution had also collected and relied upon several documentary evidence, more particularly, the complaint at Exhibit37, the panchnama of scene of offence at Exhibit10, the panchnama regarding physical condition of accused at Exhibit21, the discovery panchnama at Exhibit18, the Postmortem Report at Exhibit28, the FSL Report at Exhibit42 and the Serological Report at Exhibit 43. 2.5 At the end of trial, the further statement of accused was recorded u/s.313 of Cr.P.C. and ultimately, the Court below passed the impugned judgment and order of conviction, which has led to the filing of the present appeal. 3. Mr. Ajaykumar Choksi learned counsel for the appellant submitted that there are no eye witness to the alleged incident and that the appellant has been falsely implicated in the alleged offence. He submitted that there are material omissions and contradictions in the oral testimony of witnesses and that the Court below has misread and misconstrued the testimony of witnesses. 3.1 Learned counsel Mr. Choksi submitted that the Court below has failed to appreciate that there are material infirmities in the recovery / discovery of muddamal weapon and other articles and therefore, the Court below ought to have given the benefit of doubt to the accused. 3.1 Learned counsel Mr. Choksi submitted that the Court below has failed to appreciate that there are material infirmities in the recovery / discovery of muddamal weapon and other articles and therefore, the Court below ought to have given the benefit of doubt to the accused. 3.2 Learned counsel further submitted that the prosecution has failed to bring on record the evidence with respect to the ‘vardi’ given to call emergency Ambulance service by the complainant and ‘vardi’ of the Police Control Room wherein, the information regarding death of deceased was given. He submitted that the said ‘vardi’, which disclosed the commission of cognizable offence ought to have been treated as FIR, based upon which the investigation in respect of cognizable offence was started by the Investigating Officer. He further submitted that under these circumstances the complaint (Exhibit37) ought to have been considered as a statement before the Police Officer u/s.161 of Code of Criminal Procedure. The aforesaid infirmity goes to the root of the matter, which is fatal to the prosecution case, making it doubtful and unreliable. He, therefore, submitted that the Court belwo has committed serious error in law and on facts in convicting the appellant for the alleged offence. 3.3 In the alternative, learned counsel Mr. Choksi submitted that the case of the appellant falls within the four corners of Exceptions to Section 300 IPC. He submitted that the medical evidence on record shows that the deceased had sustained only one injury, which was inflicted in spur of the moment. He, therefore, submitted that, at the most, the appellant could be convicted for the offence punishable u/s. 304 PartI or 304 PartII IPC and not u/s. 302 IPC. 4. Mrs. C.M. Shah learned APP supported the impugned judgment and order of conviction and submitted that the Court below has rightly convicted the appellant for the crime in question. She submitted that even if there are some omissions and contradictions in the testimony of witnesses, they could not be discarded in toto but, could be relied upon to the extent it supports the case of prosecution. She submitted that even if there are some omissions and contradictions in the testimony of witnesses, they could not be discarded in toto but, could be relied upon to the extent it supports the case of prosecution. 4.1 Learned APP has placed reliance upon a decision of the Apex Court in Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646 , wherein, while discussing the evidentiary value of hostile witness, it was held that the statement of hostile witness can be relied upon by the Court to the extent it supports the case of prosecution. 4.2 Learned APP further submitted that the medical evidence on show establish that the deceased had sustained two injuries and not one, as has been canvassed by learned counsel for the appellant. She, therefore, submitted that the conviction of the appellant u/s. 302 IPC does not deserve to be altered and is required to be confirmed. 5. We have heard learned counsel for the respective parties and have perused the documents on record. We have also gone through the impugned judgment and order of conviction passed by the Court below. 6. The prosecution has placed heavy reliance upon the testimony of the father of appellantaccused, Eknath Surajdin Devre (PW1), who is also the complainant in this case. In his complaint (Exhibit37), the complainant (PW1) has narrated the entire incident in detail, which establish the guilt of the appellantaccused. In the complaint, the complainant has categorically averred about the presence, involvement and role played by the appellant. In his examinationinchief also, the complainant (PW1) stood his stand by deposing the same facts, which he had averred in the complaint. In the crossexamination, the defence has tried to negate the involvement of the appellant by attempting to show that an unknown individual was present in the house of complainant at the relevant time instead of the appellantaccused. In other words, the defence has tried to create a picture of alibi by shifting the blame on an unknown individual, who is alleged to have been inside the house in the company of deceased, at the time when the alleged offence was committed. In other words, the defence has tried to create a picture of alibi by shifting the blame on an unknown individual, who is alleged to have been inside the house in the company of deceased, at the time when the alleged offence was committed. 6.1 However, from the testimony of the complainant (PW1), the presence of appellant inside the house, at the time when the deceased was lying on the road and was breathing her last, is established beyond doubt inasmuch as it is evident from the testimony of PW1 that the appellant appeared at the place soon after PW1 spotted the deceased lying on the road in a badly bruised condition. There is nothing on record to show that the appellant had gone for work on the said date or that he was not present in the house at the time when the alleged offence was committed. 6.2 Considering the facts of the case, it would be relevant to refer the decision in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 wherein, the Apex Court held that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime, they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. 6.3 Similar principle has been held in Raj Kumar Prasad Tamarkar v. State of Bihar and another, (2007) 10 SCC 433 , wherein, the Apex Court observed in Para38 as under; “38. It was argued that if the respondent intended to kill the deceased, he could have done so after 17.07.1996 viz. after Bidai ceremony took place. The very fact that the respondent brought a revolver is itself a pointer to the fact that he wanted to kill the deceased at one point of time or the other. He might have thought that Bidai ceremony would be held on 13.07.1996 or 14.07.1996. When it was postponed, he might have found out an occasion to kill her. Under what circumstances the occurrence took place is not known. He might have thought that Bidai ceremony would be held on 13.07.1996 or 14.07.1996. When it was postponed, he might have found out an occasion to kill her. Under what circumstances the occurrence took place is not known. The respondent, it would bear repetition to state, did not open his mouth. He was entitled to exercise the right of silence. That he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence, but the legal position that the same would be considered to be a circumstance against him is not in dispute.” 6.4 In our opinion, the case on hand is situated on a much better footing inasmuch as from the complaint (Exhibit37) and the testimony of complainantfather (PW1), the presence of the appellant inside the house is proved beyond doubt. In fact, the role played by the appellant is also established from the crossexamination of PW1 wherein, he has categorically stated that on making inquiry from his wife, Tapaben Eknath Devre (PW3), she had informed him that a quarrel had taken place between the appellant and deceased and that the incident had taken place as a result of the said quarrel. It has also come out that when PW1 had made necessary inquiry from PW3 regarding the alleged incident, she had never informed him that the appellant had not stabbed the deceased with a knife. Thus, from the testimony of the complainant (PW1), the presence and role played by the appellant is established beyond doubt. 6.5 Here, it is pertinent to note that the appellant has not tendered any satisfactory explanation as to how his wife had sustained the injuries in question and had, subsequently, expired. Admittedly, the deceased had sustained the injuries inside the house. When the evidence on record in the form of testimony of complainant (PW1) establish that the appellant was present inside the house at the relevant point of time, it is upon the appellant to offer necessary explanation regarding such condition of his wife. The fact that he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence as he is entitled to exercise the right of silence, but the legal position that the same would be considered to be a circumstance against him is not in dispute. The fact that he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence as he is entitled to exercise the right of silence, but the legal position that the same would be considered to be a circumstance against him is not in dispute. Considering the testimony of the complainant (PW1) and the law on the subject as declared by the Apex Court, we have no hesitation in concluding that the appellant was the real culprit behind the alleged offence. 7. The prosecution has examined the mother of appellant, Tapaben Eknath Devre, as PW3. In her testimony, PW3 has attempted to negate the involvement of her son, the appellant herein, by stating that the appellant was not present in the house at the relevant point of time. However, as discussed herein above, the testimony of complainant (PW1) proves beyond doubt the presence of the appellant inside the house when the alleged offence was committed. Being a mother, this witness has tried to rescue his son. However, the complainant (PW1), who happens to be the father of appellantaccused, stood the moral ground by testifying against his son, the appellantaccused. 7.1 Thus, even though PW3 has not supported the prosecution case in its entirety, it is established from her testimony that on the date of alleged incident, a quarrel had taken place between the appellant and deceased on the issue of preparing food and that on hearing the verbal dispute, this witness (PW3) came out of the house. On this aspect of the case, nothing incriminating has come out from the crossexamination and the presence of appellant inside the house just before the offence was committed is proved beyond doubt. In fact, it has come out from the crossexamination of PW3 that no soon as the deceased was found lying on the road in front of the house in a badly bruised condition, the appellant arrived at the place. When there is nothing on record to show that the appellant herein had gone for work on the date in question and therefore, was not present inside the house at the time when the alleged offence was committed, we believe the testimony of the complainant (PW1), who has categorically deposed about the presence of appellant inside the house, which is also evident from the testimony of PW3. 7.2 It is true that the testimony of PW3 does not support the prosecution case in toto. In this back ground, the principle rendered in Shyamlal Ghosh’s case (supra) is relevant wherein, it has been categorically held that statement of a hostile witness can be relied upon to the extent it supports the case of prosecution. In the present case, we find that the testimony of complainant (PW1) gets support from the testimony of the mother (PW3) insofar as the presence of appellant inside the house at the relevant point of time is concerned. Thus, we have no hesitation in concluding that the appellant herein was the author of the crime in question as he has not been able to lead any satisfactory explanation, as has been held by the Apex Court in Trimukh Maroti Kirkan’s case (supra). 8. It is true that documentary evidence on record in the form of discovery panchnama (Exhibit18) does not support the prosecution case since the panch witness has been declared hostile. However, we are of the view that when the testimony of PW1 and PW3 prove beyond reasonable doubt, the presence, involvement and role of the appellant in the alleged offence, nonsupport of panch witness to the discovery panchnama (Exhibit18) would not have much bearing to the prosecution case. The oral evidence on record in the form of testimony of PW1 and PW3 establish beyond doubt the guilt of the appellant and we find it sufficient for recording conviction of the appellant. 9. Another important evidence is the medical evidence on record in the form of testimony of Dr. Shilpa Kanubhai Yagnik (PW7), who is the Medical Officer, who had performed Autopsy on the dead body of deceased. The Doctor has categorically opined that the injuries sustained by deceased on the chest were possible with muddamal weapon knife and that they were sufficient to cause death in the ordinary course of nature. In the Postmortem Report (Exhibit28), the cause of death has been shown as shock and hemorrhage due to stab injury on the the left side of chest to left lung and heart. In column no.17 of the said Report, the Doctor has narrated the external injuries found on the dead body in detail. 10. In the Postmortem Report (Exhibit28), the cause of death has been shown as shock and hemorrhage due to stab injury on the the left side of chest to left lung and heart. In column no.17 of the said Report, the Doctor has narrated the external injuries found on the dead body in detail. 10. An alternative submission was raised on behalf of the appellant that the conviction of the appellant u/s. 302 IPC be altered to one punishable Section 304 PartI or PartII IPC in view of the medical evidence on record which show the existence of only one stab injury. In the Postmortem Report, more particularly, in column no.17 therein, the injury found on the dead body has been described in detail. We find that the injuries narrated both at Sr.no. (1) and (2) of column no.17 are one and the same and have arisen out of one knife blow. Considering the medical evidence on record, we find substance in the submission made on behalf of the appellant that the deceased was inflicted a single knife blow by the appellant. 11. Looking to the facts and circumstances of the case and the medical evidence on record, we are of the opinion that the appellant had inflicted a single knife blow without any premeditation or intention but, in the spur of the moment on account of the frequent quarrels between him and the deceased on domestic issues. Keeping in mind the facts of the case, we find that the conviction of the appellant u/s. 302 IPC deserves to be altered to one punishable u/s. 304 PartI IPC since the offence was committed in spur of the moment and without any premeditation. 12. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order passed by the Court below is modified to the extent that conviction of the appellantaccused u/s.302 IPC is altered to one punishable u/s.304 PartI IPC and is sentenced to undergo imprisonment for a period of Ten Years. The appeal stands disposed of accordingly. Records & proceedings, if lying with this Court, be transmitted to the Court below forthwith. (appeal stands disposed of)