JUDGMENT Raghvendra Singh Chauhan, C.J. - Having been convicted for the offences under Sections 302 and 506 IPC, having been sentenced to life imprisonment, and imposed with a fine of Rs.1,000/-, and directed to undergo simple imprisonment of one month, in default thereof, for the offence under Section 302 IPC, and further directed to suffer one year of rigorous imprisonment, and imposed with a fine of Rs.1,000/-, in default, to undergo simple imprisonment of one month thereof, for offence under Section 506 IPC, by judgment, dated 01.10.2014, passed by the I Additional Sessions Judge, Warangal, the appellant has approached this Court. 2. Shortly put, the facts of the case are that on 08.06.2013 about 10:00 a.m., Ms. Sunkaraboina Laxmi (P.W. 1) lodged a report (Ex. P. 1) at the Police Station, Mangapet, wherein she stated that "about eleven months back, her husband, Yadagiri was expired (sic) and since then, she along with her daughter, Sunkaraboina Vasavi (nine months) (hereinafter referred to as 'the deceased') were residing at the house of her parents house at Ramanakkapet. They are six daughters to their parents, of which, her third sister Chandralawada Rajeshwari, W/o. Srinivasa Rao, 40 years, Yadava, coolie, r/o. Ramanakkapet used to raise quarrel with her demanding that she should reside at the house of her in-laws at Narsimhasagar only and objected her to stay at the house of her mother, Sarojana. On 07.06.2013, night at about 9:00 p.m., her sister, Rajeshwari came to the house of her mother informing that her husband went on his duty as lorry driver and raised quarrel with her demanding to leave the house of her mother. On that, her mother convinced her sister that she has nobody, but her sister deaf ear the advises and threatened her to kill her and her daughter. On that with a scare of her sister, she along with her daughter left from the house and slept at Government school, where, her daughter has not slept and started crying, due to which, in the early hours at about 3:30 a.m., she returned to the house of her mother along with her daughter. On that with a scare of her sister, she along with her daughter left from the house and slept at Government school, where, her daughter has not slept and started crying, due to which, in the early hours at about 3:30 a.m., she returned to the house of her mother along with her daughter. Noticing her sister grew wild against her on the (sic) raised quarrel with her alleging that after warned her several times, she again came to the house and threatened to kill her and her daughter, by saying this, she lifted her daughter from the cot and thrown (sic) on the ground. Later, again picked up her daughter from the ground and thrown (sic) into the well and escaped from there. Immediately, her mother got into the well with the help of Motor pipe and while trying to pick her daughter from the well, and on hearing the hues and cries, their colony persons, namely Payyavulu Rama Krishnaiah, Payyavula Shiva Ramakrishna, Bonugu Lavakumar, Mamunuro Sambashiva Rao, Chandalawada Venkateshwar Rao and Golusu Nagasrinu came to the spot and dropped a Bucket into the well, where her mother kept the dead body of her daughter into the bucket and bring out (sic) the dead body. Later, her mother was taken out of the well with the help of Ropes. She stated that as she is staying along with her mother, she suspected that the landed property of her mother will goes (sic) to her, keeping the same in her mind, she used to raise quarrel, threatened to kill her and her daughter and thrown (sic) her daughter into the well and managed to escape. Thus, she requested to take necessary action against her sister who killed her daughter, Vasavi by throwing into the well." 3. On the basis of the said report, the police chalked out a formal FIR, namely, F.I.R. No. 74 of 2013 for the offences under Sections 302 and 506 IPC against the accused. The investigation commenced. During the course of investigation, on 13.06.2013 the accused was apprehended and was put up for trial. 4. In order to support its case, the prosecution examined thirteen witnesses, and submitted twelve documents. On the other hand, the defense neither examined any witness, nor submitted any document to buttress its case. The investigation commenced. During the course of investigation, on 13.06.2013 the accused was apprehended and was put up for trial. 4. In order to support its case, the prosecution examined thirteen witnesses, and submitted twelve documents. On the other hand, the defense neither examined any witness, nor submitted any document to buttress its case. After appreciating the evidence, by judgment dated 01.10.2014, the learned Trial Court convicted and sentenced the appellant as aforementioned. Hence, the present appeal before this Court. 5. Mr. N. Ravi Prasad, the learned counsel for the appellant, has raised the following contentions before this Court:- Firstly, even the complainant, Sunkaraboina Laxmi (P.W. 1), the mother of the deceased, has resiled in her cross-examination from her testimony given in examination-in-chief. In her crossexamination, she clearly states that the baby slipped from the hands of Thokala Sarojana (P.W. 2) as she was entering the house, and the baby fell into the well. Therefore, clearly, even according to the Sunkaraboina Laxmi (P.W. 1), the death is not a homicidal one, but is an accidental one. Secondly, Thokala Sarojana (P.W. 2), the grandmother of the deceased, Sunkaraboina Ramulu (P.W. 3), bother-in-law of the complainant, A. Adilaxmi (P.W. 4), sister of the complainant and the aunt of the deceased, all of them have resiled from their testimony in examination-in-chief while their cross-examination was recorded by the learned Trial Court. Therefore, none of these witnesses have supported the case of the prosecution. Thirdly, even the independent witnesses like M. Sambashiva Rao (P.W. 5), K. Naga Srinu (P.W. 6), P. Shivaramakrishna (P.W. 7), M. Rajashekar (P.W. 8) and B. Lava Kumar (P.W. 9) have also turned hostile. But despite the fact that all these witnesses have turned hostile, the learned Trial Court has still convicted the appellant for the aforementioned offences. Thus the learned Trial Court has committed a grave injustice in convicting the appellant, although the prosecution has failed to establish its case beyond reasonable doubt. Lastly, even if the prosecution case were to be believed, the occurrence happened in the heat of the moment. Therefore, the case does not fall within the ambit of Section 302 IPC, but squarely falls within the ambit of Section 304 Part-II IPC. Hence, the conviction needs to be reduced to Section 304 Part-II IPC and the sentence needs to be reduced to as already undergone. 6. On the other hand, Ms. Therefore, the case does not fall within the ambit of Section 302 IPC, but squarely falls within the ambit of Section 304 Part-II IPC. Hence, the conviction needs to be reduced to Section 304 Part-II IPC and the sentence needs to be reduced to as already undergone. 6. On the other hand, Ms. J. Sri Devi, the learned Additional Public Prosecutor, has submitted the following counterarguments:- Firstly, although Sunkaraboina Laxmi (P.W. 1) Thokala Sarojana (P.W. 2), and Sunkaraboina Ramulu (P.W. 3) have resiled from their testimony given in the examination-in-chief in their cross-examinations, but when they were cross-examined by the Additional Public Prosecutor, they have clearly stated that what they have deposed earlier before the Court is true. Moreover, they have informed the learned Trial Court that they have been asked by the family members not to depose against the appellant. It is for this reason that they have resiled from their examinations-inchief. Therefore, the learned Trial Court was justified in relying on their depositions given in examination-in-chief and in convicting the appellant for the aforementioned offences. Secondly, the testimony of Sunkaraboina Laxmi (P.W. 1) is further corroborated by the testimony of P. Vignan Rao (P.W. 12), and V. Kiran Kumar (P.W. 13). According to P. Vignan Rao (P.W. 12), he had received the complaint (Ex. P. 1) from Sunkaraboina Laxmi (P.W. 1) on 08.06.2013 at 10:00 a.m., and had registered the case for offence under Section 302 IPC. Moreover, according to V. Kiran Kumar (P.W. 13), he had taken over the investigation on 08.06.2013 from P.W. 12. Thirdly, the testimony of Sunkaraboina Laxmi (P.W. 1), Thokala Sarojana (P.W. 2), and Sunkaraboina Ramulu (P.W. 3) is further strengthened by the testimony of Dr. P. Ravi Kumar (P.W. 11), who has not only proven the Post-Mortem Report (Ex. P. 10), but has also stated that the child had died due to drowning. Therefore, the prosecution has succeeded in establishing that the death of the deceased was a homicidal one, and not an accidental one. Lastly, the learned counsel for the appellant is unjustified in claiming that the murder was committed at the spur of the moment. For, according to Sunkaraboina Laxmi (P.W. 1), the mother of the deceased, initially, at 8:00 p.m., there was a quarrel between the accused and Sunkaraboina Laxmi (P.W. 1). Lastly, the learned counsel for the appellant is unjustified in claiming that the murder was committed at the spur of the moment. For, according to Sunkaraboina Laxmi (P.W. 1), the mother of the deceased, initially, at 8:00 p.m., there was a quarrel between the accused and Sunkaraboina Laxmi (P.W. 1). But subsequently, at 3:30 a.m., while Sunkaraboina Laxmi (P.W. 1) was giving milk to the deceased, the accused, grew wild, snatched away the child from her arms, and not only dashed the child against the ground, but also threw her into the well. Therefore, the appellant had both the intention, and the knowledge that by hitting the nine month old infant against the ground and throwing her into the well, she would definitely cause the death of the deceased. Hence, the case does not fall within the scope of Section 304 Part-II IPC, but squarely falls within the scope of Section 302 IPC. In order to support this plea, the learned Additional Public Prosecutor has relied on the case of State of Rajasthan v. Leela Ram Alias Leela Dhar, (2019) 13 SCC 131 . Therefore, the learned Additional Public Prosecutor has supported the impugned judgment. 7. Heard the learned counsel for the parties, perused the impugned judgment, and examined the record produced before this Court. 8. The complainant, Sunkaraboina Laxmi (P.W. 1) informs the Court that "...... The accused is my elder sister. We are six sisters. The accused is my second elder sister. My marriage took place about four years back and I was staying with my husband at Narsimhulasagar and blessed with a daughter. My husband died about one year prior to the incident. The deceased is my daughter aged about nine months by the date of offence. After the death of my husband, I am staying with my mother at Ramanakkapet village. The accused is also resident of same village. Her husband is working as cleaner on a lorry and also has agriculture. The accused used to quarrel with me and asking me to leave the house of my mother. My mother used to convince the accused that, as my husband died asked her to allow me to stay with my mother, but the accused did not listen to her. The offence took place about one year back. The accused used to quarrel with me and asking me to leave the house of my mother. My mother used to convince the accused that, as my husband died asked her to allow me to stay with my mother, but the accused did not listen to her. The offence took place about one year back. On 07.06.2013, at about 8:00 p.m., the accused came to the house and picked up a quarrel and asked me to leave the house and threatened to kill my daughter, if I did not leave the house. Due to the quarrel with the accused, I left my parent's house along with my daughter and slept in Anganvadi centre, which is four houses away from the house of my mother. At about 3:30 a.m., when my daughter was weeping, I came to the house of my mother for fetching milk and laid down my daughter on a cot in front of the house. The accused was also present in the house at that time. While, I was giving milk to my daughter, the accused came and snatched the child from my arms and hit her on the ground and dragged her and thrown my daughter into the well situated in our house compound in spite of my mother's request not to harm the child. The accused fled away after throwing the child into the well. We found the child was sinking in the water of the well. My mother got into the well with the help of pipeline. When I raised cries, the neighbours gathered there. They are L.Ws.5 to 7 and thrown the bucket with a rope. My mother picked up the child and put her into the bucket and my mother was also rescued with the said rope. I found my daughter sustained injuries on her eye-brows, nose, cheeks and thighs. I immediately took her to a local doctor, L.W. 14 and he declared that the child already died. L.W. 14 died about two months back. I informed the incident to L.W. 3. Thereafter, I went to the police station Mangapet and lodged a complaint between 9:00 and 10:00 a.m. Ex. P. 1 is the complaint lodged by me." 9. Interestingly, on the date when the chief-examination was recorded, the learned counsel for the accused was absent. L.W. 14 died about two months back. I informed the incident to L.W. 3. Thereafter, I went to the police station Mangapet and lodged a complaint between 9:00 and 10:00 a.m. Ex. P. 1 is the complaint lodged by me." 9. Interestingly, on the date when the chief-examination was recorded, the learned counsel for the accused was absent. The examination-in-chief was recorded on 06.06.2014, and about one and half months' later i.e. on 23.07.2014, the cross-examination of the witness was recorded by the learned Trial Court. 10. In the cross-examination, the witness states that "I do not know the name of the scribe of the complaint. I am an illiterate. I do not know the contents of the complaint. Somebody came to me and obtained my signatures on some papers, while, I was weeping for the death of my daughter. I have no disputes with the accused. The well is situated adjacent to my house. There was darkness when the incident took place. The baby slipped from the hands of P.W. 2 while entering into the house and baby fell into the well. Then, when I raised cries, the neighbours came. My mother scaled down into the well and retrieved the dead body. Earlier I gave evidence at the instance of police. Police did not examine me after the incident." 11. At this stage, the Additional Public Prosecutor sought the permission to declare the witness as a hostile witness. The permission was granted. 12. In the cross-examination carried out by the Additional Public Prosecutor, the witness admitted that "It is true that I earlier gave evidence on my own accord without force of anybody else. It is true that I myself went to the PS and presented a complaint. What I deposed earlier before the Court was true. It is true that the accused and others requested me to depose in her favour and as such I deposed in the cross-examination in favour of the accused." 13. Similarly, Thokala Sarojana (P.W. 2) has supported the facts narrated by Sunkaraboina Laxmi (P.W. 1) in her examination-in- chief. But, like Sunkaraboina Laxmi (P.W. 1), she too resiled from her examination-in-chief in her cross-examination. Moreover, like Sunkaraboina Laxmi (P.W. 1), in her cross-examination by the learned Additional Public Prosecutor, she has also admitted that her examination-in-chief was given by her on her own accord without force of anybody else. But, like Sunkaraboina Laxmi (P.W. 1), she too resiled from her examination-in-chief in her cross-examination. Moreover, like Sunkaraboina Laxmi (P.W. 1), in her cross-examination by the learned Additional Public Prosecutor, she has also admitted that her examination-in-chief was given by her on her own accord without force of anybody else. She has equally admitted that at the request of the accused and others she has deposed in favour of the accused in her cross-examination. 14. Sunkaraboina Ramulu (P.W. 3) informs the learned Trial Court that "..... I received message from P.W. 1 that her sister, the accused killed her daughter by throwing her into the well. I immediately rushed to Ramanakkpet at 5:00 a.m., and found the girl already died. When I enquired, P.Ws. 1 and 2 informed the incident. Thereafter, I along with P.W. 1 went to Mangapet PS and P.W. 1 presented a complaint". Although this witness too has resiled from his examination-in-chief in his cross-examination, but in his cross-examination by the Additional Public Prosecutor he has admitted the fact that he has resiled from his examination-inchief only because of family pressure. 15. In catena of cases, the Hon'ble Supreme Court has noticed the fact that when an offence is committed by one family member upon another family member, the other family members do have a tendency to resile from their examination-in-chief in their crossexaminations. However, in such a situation, the Apex Court reminds us to rely on the testimony given in the examination-inchief, and not to be swayed by the fact that the witness has resiled from his/her deposition given in the examination-in-chief. Moreover, it is a settled principle of criminal jurisprudence that the testimony of a hostile witness cannot be thrown out in toto by the learned Trial Court. The part of the deposition which supports the case of the prosecution can be relied upon by the learned Trial Court to convict the accused. 16. Therefore, the learned Trial Court is certainly justified in relying upon the testimony of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2). The part of the deposition which supports the case of the prosecution can be relied upon by the learned Trial Court to convict the accused. 16. Therefore, the learned Trial Court is certainly justified in relying upon the testimony of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2). For, both these witnesses are categorical that the appellant had been fighting with the complainant, Sunkaraboina Laxmi (P.W. 1) to leave the house; she has been threatening the complainant, Sunkaraboina Laxmi (P.W. 1) that she would kill the child; the appellant had quarreled with the complainant, Sunkaraboina Laxmi (P.W. 1) even at the dead of the night that too when the complainant, Sunkaraboina Laxmi (P.W. 1) was feeding the child; the appellant had picked up the child; dashed her against the ground, and thrown the child into the well. Therefore, even if Sunkaraboina Laxmi (P.W. 1) in her cross-examination by the defense counsel claims that the child had accidentally slipped from the arms of Thokala Sarojana (P.W. 2) into the well, in her cross-examination by the Additional Public Prosecutor she has readily admitted that she was forced by the family members to depose in favour of the appellant, her own sister. Therefore, the fact that she has resiled from her examination-in-chief in her cross-examination by the defense counsel is immaterial. What is relevant is that in her examinationin-chief she has categorically described the occurrence in detail. Her testimony has been buttressed by the testimony of Thokala Sarojana (P.W. 2). 17. Furthermore, the testimonies of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2) are supported by the testimony of Dr. P. Ravi Kumar (P.W. 11), who performed the Post-Mortem Examination on the body of the child. According to him, the child had suffered an abrasion on the nose. On internal examination, he found that the lungs were swollen. After proving the contents of Post-Mortem Examination Report (Ex.P. 10), he opines that the cause of death as "drowning". The factum of drowning clearly supports the testimony of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2) that it is the appellant who had thrown the child into the well. According to Sunkaraboina Laxmi (P.W. 1), she had seen her child sinking into the water. Thokala Sarojana (P.W. 2) has rescued the child from the water in the well and placed the child into the bucket. According to Sunkaraboina Laxmi (P.W. 1), she had seen her child sinking into the water. Thokala Sarojana (P.W. 2) has rescued the child from the water in the well and placed the child into the bucket. By the time the child was taken to the local doctor, Payyavula Rama Rao (L.W. 14), the child was pronounced as "brought dead". Therefore, the prosecution had succeeded in establishing the fact that the author of the incident is the appellant; the appellant had caused the homicidal death of the deceased. 18. Since the incident had taken place within the compound of the house and that too at the dead of the night, the learned counsel for the appellant is unjustified in claiming that the prosecution has not produced any independent eyewitness. At the dead of the night, within the compound of the house, the inmates of the house are the natural witnesses. Therefore, the prosecution is well justified in relying on the testimonies of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2) in order to establish its case. 19. Even if the other witnesses, namely M. Sambashiva Rao (P.W. 5), K. Naga Srinu (P.W. 6), P. Shivaramakrishna (P.W. 7), M. Rajashekar (P.W. 8) and B. Lava Kumar (P.W. 9) have turned hostile, but it does not dilute the case of the prosecution. For, the case of the prosecution is based on the direct evidence of Sunkaraboina Laxmi (P.W. 1) and Thokala Sarojana (P.W. 2); the said evidence is sufficient to convict the appellant. 20. However, the moot issue before this Court is whether the appellant should be convicted for the offence under Section 302 IPC, or under Section 304 Part-II IPC? Although the learned counsel for the appellant has stressed on the fact that the child was dashed against the ground, and thrown into the well only at the spur of the moment that too after a quarrel had ensued between the appellant and the complainant, but the learned counsel is unjustified in claiming that the case falls within the parameters of Section 304 Part-II IPC. For, according to Sunkaraboina Laxmi (P.W. 1), the appellant had repeatedly picked up quarrels with her to leave her matrimonial house, and to go and stay at her in-laws house. Even on earlier occasion, she had threatened to kill the child. For, according to Sunkaraboina Laxmi (P.W. 1), the appellant had repeatedly picked up quarrels with her to leave her matrimonial house, and to go and stay at her in-laws house. Even on earlier occasion, she had threatened to kill the child. Moreover, on the fateful night, she had picked up a quarrel at 8:00 p.m. - a quarrel that has forced Sunkaraboina Laxmi (P.W. 1) to leave her matrimonial home and take the child to the Anganwadi centre. Even at the dead of the night, at 3:30 a.m., again the appellant had picked up a quarrel with the complainant. It is, at this moment, she picked up the child, dashed the child against the ground, and had thrown the nine month old child into the well. Throwing a small child into the well, the appellant can, certainly, be imputed with the knowledge that such an act will cause the death of the child. Her intention to kill the child is writ large as she had threatened to kill the child even on earlier occasion. Therefore, she had merely carried out her threat, and had killed the child. Thus, the case clearly falls within the ambit of Section 302 IPC. The benefit of an exception of a sudden quarrel, at the heat of the moment, cannot be given to the appellant. Further, the conviction and sentence recorded against the appellant for the offence under Section 506 IPC is also not interfered with. 21. For the reasons stated above, this Court does not find any merit in the present appeal; it is, hereby, dismissed. The judgment of the Trial Court dated 01.10.2014 is, hereby, confirmed. Consequently, the appellant shall continue to serve the sentence as imposed by the learned Trial Court. 22. Miscellaneous petitions, if any, pending shall stand dismissed.