JUDGMENT : M.I. ARUN, J. Aggrieved by the judgment dated 20.4.2018, in S.C.No.147/2017, passed by the Prl. District and Sessions Judge, Dharwad, the accused therein has preferred this appeal. 2. In the instant case the accused is alleged to have committed the murder of her husband. 3. Based on the case of prosecution, the trial Court framed the following charge against the accused. “That you accused on 14.6.2017 at 3.00 p.m. at Bammmigatti village in Kalghatagi taluk in the residential house of one Sri Andanappa Kachoori on the katta of ‘padasale’ as your husband Manjunath refused to draw the amount from the bank which was credited on account of rain harvesting and suspected your chastity, as nobody were there in the house, committed your husband’s murder by forcibly assaulting him by using crow bar on his head and chest, caused Manjunath’s death and thereby committed an offence punishable under section 302 of IPC and within the cognizance of this Court.” 4. The prosecution to prove its case examined 22 witnesses and got marked Exs.P.1 to P.28(a) and also MO.1 to MO.14. The defence did not examine any witnesses but got marked Ex.D.1 to D.3. Based on the evidence let-in, the trial Court convicted the accused for the offence punishable under section 302 of IPC and passed following sentence. “Accused is sentenced to undergo life imprisonment and pay fine of Rs.10,000/-for the offence U/s 302 IPC. In default to pay fine, she shall undergo simple imprisonment for three months. Accused is entitled to set off as contemplated under section 428 Cr.P.C. M.O.Nos.2 to 14 being worthless shall be destroyed after expiry of the appeal period and if appeal is filed only after disposal of the appeal. MO No.1 shall be confiscated to the State after expiry of appeal period. Free copy of the judgment be supplied to the accused. Issue conviction warrant accordingly.” 5. Aggrieved by the same, the accused has filed the above appeal. It is contended by the accused that, the trial Court failed to properly appreciate the evidence, has relied upon unreliable and interested witnesses, has failed to appreciate that majority of the witnesses have turned hostile and due to lack of proper appreciation of evidence has convicted the accused erroneously. On the said ground the appellant has sought for acquittal of the accused. On the said ground the appellant has sought for acquittal of the accused. It is further contended, though the accused does not admit as to commission of the offence even if this Court were come to the conclusion that the offence is proved as against accused, given the nature of the offence, she cannot be convicted for section 302 of IPC and her sentence has to be reduced to section 304 Part II of IPC. 6. Ex.P.1 is the complaint. The same is lodged before the jurisdictional police by the brother of the deceased (brother-in-law of the accused). In the said complaint it has been stated that the deceased was living with his wife and children in the house of his father-in-law. The deceased and the accused suspected each other and were quarrelling regularly. That the complainant used to advice and send them back. That on 14.6.2017 when the complainant was passing by the house of the deceased, he heard quarrelling going on in the house and he went inside the house and saw the accused assaulting the deceased with an iron crowbar, on his head, ear and back of the head. At that time when he asked why she was assaulting the deceased, she stated that there was a dispute as to withdrawal of money from the bank in respect of a land which resulted in a quarrel and with an intention of killing him, she was assaulting. That the deceased fell down crying and died. In his examination-in-chief he has stated similarly. However in the cross-examination he has stated that he heard quarrelling going on in the house of the deceased and by the time he went inside, the accused had completed the assault on the deceased and the deceased had already fallen to the ground. 7. The complainant thereafter has gone and lodged complaint before the jurisdictional police. It is stated that the alleged incident happened at around 2.30 to 3.00 p.m. on 14.6.2017. The complaint with the jurisdictional police was lodged at around 6.45 p.m. on the same day. It is contended by the accused that there has been an inordinate delay in lodging the complaint. It is stated that the alleged incident happened at around 2.30 to 3.00 p.m. on 14.6.2017. The complaint with the jurisdictional police was lodged at around 6.45 p.m. on the same day. It is contended by the accused that there has been an inordinate delay in lodging the complaint. The prosecution has countered the same by stating that the police station is located at about 18 kilometers away from the place of incident and that the place of incident is a remote place with very little facility for public transport. Given the distance between the place of the incident and the police station, and the remoteness of the place of incident, in our opinion there is no delay in lodging the complaint which can be considered as fatal to the case of prosecution. 8. PW.21 who was working as Police Inspector in Kalaghatagi police station at the time of incident has stated that, on 14.6.2017 at about 4.30 p.m. he received an information that the deceased was murdered in Bammigatti village. Immediately he went to the spot and appointed personnel to guard the dead body and came back with the complainant to the police station and the complainant submitted a written complaint. Based on that, FIR was registered. He has further stated that upon visiting the spot he has conducted panchanama as per Ex.P.8 and Ex.P.8(b) is his signature and also had the photograph taken as per Exs.P.5, P.9 and P.10. He has further stated that on 15.6.2017 at about 9.00 a.m. in the morning he has visited the spot once again and conducted the spot mahazar. The same is marked as Ex.P.2. He has also stated, under Ex.P.2 he has seized the crowbar used to commit murder of the deceased at MO.1 and other articles at MOs.2 to 6 and he also recorded the statement of certain witnesses. He has further stated, at about 12.00 in the afternoon he arrested the accused and brought her to the police station; that she was produced for medical examination and that the postmortem report of the dead body was also completed. Ex.P.11 is the postmortem report. Nothing much contrary is elicited in the evidence of PW.21. 9. PW.22 has filed the charge sheet and he has spoken about it in his evidence as well. Ex.P.11 is the postmortem report. Nothing much contrary is elicited in the evidence of PW.21. 9. PW.22 has filed the charge sheet and he has spoken about it in his evidence as well. PW.7 is the doctor who has conducted postmortem on the body of the deceased and he has opined that the death is caused due to shock as a result of head injury and he has identified the postmortem report at Ex.P.11 and also his signature on the same. He has also stated that the death can be caused by MO.1. 10. The deposition of above mentioned witnesses along with the exhibits and MOs referred above establish the fact that the death of the deceased was homicidal in nature. 11. PW.1 has clearly stated in his evidence that there was a commotion in the house of the deceased and hearing the sound he went inside and saw that the deceased being assaulted by the accused. It is true, in his cross-examination he has admitted that by the time he went inside the house, the accused had already finished assaulting the deceased and that the deceased had fallen to the ground. The advocate for the accused has contended that this is a contradiction in the complaint and the evidence in chief on one side and the cross-examination on the other. In our opinion, taking into consideration the entire facts narrated in the complaint and examination-in-chief and cross-examination, this is not a major contradiction. It clearly establishes that PW.1 heard commotion in the house of the deceased, went inside the house and by that time the deceased was assaulted by the accused. Whether he saw her assaulting or went inside immediately after the assault is immaterial. It is not a ground to disbelieve PW.1. While narrating the incident it is possible that at one stage PW.1 might have stated that when he went inside, the accused was assaulting PW.1 and on the other time he might have stated that when he went inside, the accused had assaulted PW.1 and the accused was fallen. 12. PW.6 is a pancha witness in respect of Ex.P.8. While narrating the incident it is possible that at one stage PW.1 might have stated that when he went inside, the accused was assaulting PW.1 and on the other time he might have stated that when he went inside, the accused had assaulted PW.1 and the accused was fallen. 12. PW.6 is a pancha witness in respect of Ex.P.8. He has stated that the police conducted panchanama regarding the dead body in the house of the deceased and he has signed as a pancha witness that the deceased was injured on his head and ear and that there was blood and he has identified the photographs also. 13. The evidence of PW.1, the IOs and PW.6 establish that homicidal death of the deceased was committed in the house of the deceased. Further the evidence of PW.1 also establishes the fact that the accused has committed the homicidal death of the deceased by using a crowbar and that she has assaulted the deceased on the head and ear. 14. PW.9 is the son of accused and the deceased and was aged 17 years at the time of deposition. He has spoken as to his parents quarrelling on regular basis and that after hearing the news of death of his father, he went and saw the body of his father and found that his father had sustained severe injuries on his head and blood was oozing. He also saw MO.1 crowbar which was used for assault. 15. PW.10 is the daughter of the accused and the deceased and she was aged 13 years at the time of incident. She has also spoken that her parents used to quarrelling. She is not an eye witness to the incident. 16. The evidence of PW.1 has not been impeached in any manner whatsoever by the accused. The aforementioned evidence establishes beyond reasonable doubt that homicidal death of the deceased took place in his house and the same was committed by the accused. The accused has tried to state that she was not present in the house at the time of the incident, that she had gone to the bank at the time of incident and that the accused was given to drinking alcohol and had borrowed money from several persons and that some of them might have committed murder of the deceased. But the evidence of PW.1 negates the same. But the evidence of PW.1 negates the same. Further, section 106 of the Indian Evidence Act states that when any fact is specially within the knowledge of a person, the burden of proof is on that person. This is a case wherein the homicidal death of the deceased has taken place in his own house. The deceased, his wife, the accused herein, her father and their two children alone were staying in the said house. Admittedly the children and father of accused were not present in the house at the time of the incident. Only the accused and deceased were there and the death has taken place in the house. The prosecution has been able to establish the fact that the death has happened in the house by the accused and it is for the accused to establish that she was not there when the homicidal death took place or that it was committed by any other person. She has not let-in any evidence; not has been able to demonstrate the same by way of cross-examining any of the witnesses to create a doubt in the mind of the Court as to the fact that the same was not committed by her. 17. Section 134 of the Indian Evidence Act reads as under: “134. Number of witnesses. –– No particular number of witnesses shall in any case be required for the proof of any fact.” Thus the mere presence or absence of a large number of witnesses cannot be the basis of conviction. It is the quality of evidence and not the number of witnesses which is relevant. Merely because certain witnesses have turned hostile is also not a ground for acquittal. What needs to be considered by the Court is that the evidence adduced by the prosecution is of such nature that any prudent reasonable man would believe the same and based on that one can conclude to beyond reasonable doubt that the homicidal death was committed by the accused. In the instant case the evidence of PW.1 has not been impeached by accused. 18. The Hon’ble Supreme Court in Criminal Appeal No.590 of 2015 between Jayantilal Verma vs. State of M.P. (Now Chhattisgarh) in paragraph Nos.14, 15, 16 and 20 has held as under: 14. In the instant case the evidence of PW.1 has not been impeached by accused. 18. The Hon’ble Supreme Court in Criminal Appeal No.590 of 2015 between Jayantilal Verma vs. State of M.P. (Now Chhattisgarh) in paragraph Nos.14, 15, 16 and 20 has held as under: 14. Learned counsel for the respondent State relied upon the absence of any explanation by the accused regarding the cause of death, even though the death had occurred in the privacy of the matrimonial home. The appellant herein and his family are stated to be the only residents, where the body of the deceased was found and that itself cast a burden on them within the meaning of Section 106 of the Evidence Act. 15. In order to support the aforesaid proposition, reliance was placed on the following judgments: a. Amarsingh Munnasingh Suryawanshi v. State of Maharashtra: In this case, the death had occurred in the matrimonial home but the conviction was supported by a dying declaration. b. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.: Here, the weapon of offence, a gun, was recovered from the room of the accused and the dead body was found on the terrace attached to the private room of the accused. c. Trimukh Maroti Kirkan v. State of Maharashtra: In this case, the body of the deceased was found in the matrimonial home and the cause of death was strangulation, though the defence pleaded it to be a case of a snakebite. 16. The aforesaid, would thus, show that the third case best fits the factual scenario in the present case. 17. xxxxxx xxxxxx xxxx 18. xxxxxxx xxxxxx xxxxx 19. xxxxxxx xxxxxx xxxx 20. It is no doubt true that a large number of witnesses turned hostile and the Trial Court was also not happy with the manner of prosecution conducted this case. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused. But that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused. Thus, in the instant case the prosecution has been able to prove its case beyond reasonable doubt that the accused committed homicidal death of the deceased and the accused has failed to discharge the burden as contemplated under section 106 of the Indian Evidence Act. 19. Once the prosecution has proved the guilt of the accused, the next question arises for consideration is, whether the killing amounts to murder as contemplated under section 300 of IPC or culpable homicide not amounting to murder under section 299 of IPC and consequently the accused be punished under section 302 or 304 of IPC. 20. The evidence of PW.1, PW.9 and PW.10 reveals that the accused and deceased being wife and husband were in the habit of frequently quarrelling with each other. There is no allegation of motive or preparation to commit murder of the deceased by the accused. The evidence on record establishes that the accused and the deceased have quarrelled and in the spur of moment the accused has assaulted the deceased with a crowbar which has resulted in death of the deceased. Exception 4 to section 300 of IPC states that 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. 21. The fact that the accused has assaulted the deceased with a crowbar shows that the accused intended to cause such bodily injury to the deceased which can be caused by a crowbar. When a person has assaulted on the head with a crowbar, the injury sustained is likely to cause the death of the person. Thus in the instant case, it is concluded that the accused intended to cause such bodily injury as is likely to cause death of the deceased by assaulting him with a crowbar. When a person has assaulted on the head with a crowbar, the injury sustained is likely to cause the death of the person. Thus in the instant case, it is concluded that the accused intended to cause such bodily injury as is likely to cause death of the deceased by assaulting him with a crowbar. However given the facts and circumstances of the case as stated above, it has to be concluded that the incident has taken place on a spur of moment in the heat of passion without any premeditation. Under such circumstances, in our considered view this would be a case falling under exception 4 to section 300 of IPC and has to be considered as a culpable homicide not amounting to murder. 22. The next question that arises for consideration is whether the accused is liable to be punished under Part-I or Part-II of section 304 of IPC. Section 304 of IPC reads as under: 304. Punishment for culpable homicide not amounting to murder.— Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done 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. 23. In the instant case the accused on a spur of moment has assaulted the deceased by a crowbar on his head and as already stated above, she intended to cause such bodily injury as it can be caused by hitting any person by a crowbar. 23. In the instant case the accused on a spur of moment has assaulted the deceased by a crowbar on his head and as already stated above, she intended to cause such bodily injury as it can be caused by hitting any person by a crowbar. Any prudent reasonable man can conclude that such an assault or an injury is likely to cause death and the accused has to be held as intending to cause such bodily injury to the accused as is likely to cause death and the said act cannot be considered to have been done with the knowledge that it is likely to cause death but without any intention to cause death as contemplated in Part-II of section 304 of IPC. Thus, in our opinion the accused is liable to be punished as contemplated under section 304 of IPC. The accused is a woman aged about 34 years and presently said to be suffering from chronic cervicitis as per the report of Superintendent of Central Prison, Dharwad, which is based on the report of the jail doctor. She is also having two children. Taking into consideration the entire facts and circumstances of the case including the nature of the offence, the condition of the accused, we deem it fit to convict the accused under section 304 Part-I of IPC as against section 302 of IPC as ordered by the trial Court. Accordingly, we pass the following: ORDER i) The appeal filed by the appellant/accused is allowed in part. ii) The judgment of conviction and order of sentence passed by the trial Court sentencing the accused for the offence punishable under section 302 of IPC and to undergo imprisonment for life is hereby reduced to the offence punishable under section 304 Part-I of IPC and the sentence is hereby reduced from life imprisonment to ten years. iii) The sentence to pay the fine amount imposed by the trial Court shall remain intact. iv) The period spent by the accused in custody during the course of trial and thereafter shall be termed as service of sentence as imposed in this appeal. The accused shall serve the sentence for the remaining period. v) The jurisdictional Court is directed to secure the presence of the accused enabling her to serve remaining period of sentence, in accordance with law. vi) The bail bond, if any, stands cancelled.