JUDGMENT : SANDEEP MEHTA, J. 1. The appellant herein has preferred the instant appeal under Section 374 Cr.P.C. being aggrieved of the judgment dated 02.08.2019 passed by the learned Additional Sessions Judge, No. 2, Bikaner (Camp Sri. Dungargarh), District Bikaner in Sessions Case No. 7/2014, whereby he has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo six months' simple imprisonment. 2. Briefly, the facts relevant and essential for disposal of the appeal are noted as under: Phoosa Ram (PW-3) submitted a written report (Ex.P/3) to the SHO, Police Station Seruna, District Bikaner on 28.02.2014 at 11.30 a.m. alleging inter-alia that his daughter Smt. Sua Devi was married to the appellant about 15 years ago. Ever since the marriage, the appellant used to indulge in harassing and humiliating Smt. Sua, for which numerous Panchayats were also convened. The family members also tried to counsel the appellant, but he did not relent from his vicious conduct. On the previous night at about 02.30 a.m. the appellant's brother Mohan Ram called the informant on his phone and told him that Santosh had excessively thrashed Smt. Sua and that she was being taken to hospital in a serious condition. On getting this information, the informant immediately rushed to the PBM Hospital, Bikaner and there, he came to know that his daughter Sua had passed away and her dead body was lying in the mortuary. He alleged that the appellant had beaten Smt. Sua to death. 3. On the basis of this report, an FIR No. 33/2014 (Ex.P/22) came to be registered at the Police Station Seruna, District Bikaner for the offence punishable under Section 302 IPC and investigation was assigned to SHO Mr. Surendra Kumar (PW-13). During the course of investigation, usual procedure, viz. preparation of the site inspection plan, inquest memo etc., was undertaken, blood stained and control soil was collected from the spot. The dead body of Smt. Sua was got subjected to postmortem at the PBM Hospital, Bikaner. Statements of the material witnesses were recorded. The accused appellant was arrested and acting in furtherance of the information provided by him to the Investigating Officer, his own blood stained clothes and a stick were recovered. The dead body of Smt. Sua was got subjected to postmortem at the PBM Hospital, Bikaner. Statements of the material witnesses were recorded. The accused appellant was arrested and acting in furtherance of the information provided by him to the Investigating Officer, his own blood stained clothes and a stick were recovered. The recovered articles were forwarded to the FSL for serological analysis for detection of blood etc. and reports Ex.P/33 and Ex.P/34 were received from the FSL. After concluding investigation, a charge-sheet came to be filed against the appellant herein for the offence punishable under Section 302 IPC. As the offence was exclusively triable by a Sessions court, the case was committed to the Court of the Sessions Judge, Bikaner, from where the same was transferred for trial to the Court of the Additional Sessions Judge, No. 2, Bikaner (Camp Sri. Dungargarh). 4. The trial court framed charge against the appellant for the offence punishable under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution examined 13 witnesses and exhibited 57 documents and 14 articles to prove its case. The accused was confronted with the prosecution allegations in his statement recorded under Section 313 Cr.P.C. to which he offered a denial and claimed to be innocent. He specifically asserted that he was not present in his house on the day of the incident and was at Nokha at the relevant point of time. He returned home on coming to know that his wife had been injured. He feigned ignorance as to how she received the injuries. 5. After hearing the arguments advanced by the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment dated 02.08.2019, which is assailed in this appeal. 6. Learned counsel for the appellant vehemently and fervently urged that there is no evidence on the record of the case to connect the appellant with the alleged crime. The appellant was not present in his home at the time of the incident. He had no motive to murder his wife. The sole eye-witness Sushri Kesar (PW-2), the minor child of the appellant and the deceased, did not support the prosecution case and was declared hostile. The appellant was not present in his home at the time of the incident. He had no motive to murder his wife. The sole eye-witness Sushri Kesar (PW-2), the minor child of the appellant and the deceased, did not support the prosecution case and was declared hostile. None of the witnesses examined by the prosecution stated about presence of the appellant in the home at the time of the incident. He urged that the recoveries of the blood stained clothes and the alleged weapon of offence shown to have been effected from the appellant are totally fabricated. Only one independent witness Madan Lal (PW-8) was associated in the recovery of these articles. The other witness Dayanand (PW-6) was a Police Constable. Madan Lal did not support the prosecution case and turned hostile. The evidence of Dayanand is not trustworthy and thus, the recoveries do not inspire confidence. His alternative submission was that even if the prosecution case, which is primarily based on the reverse burden of proof by virtue of Section 106 of the Evidence Act, is accepted to be true, then also, considering the fact that all the injuries noticed by the Medical Jurist on the body of the deceased Smt. Sua were on non vital body parts, it can clearly be inferred that the appellant had neither the intention nor the knowledge that by inflicting such injuries, he could cause death of his own wife. He urged that at best the conviction of the appellant could have been recorded for the offence punishable under Section 325 or 304 Part II IPC. On these submissions, Mr. Thind craved acceptance of the appeal seeking acquittal for the appellant. His alternative prayer was to tone down the offence from one under Section 302 IPC to that under Section 325 or 304 Part II IPC and to reduce the sentence awarded to the appellant to the period already undergone by him, which is well in excess of 7 years. 7. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions of the appellant's counsel. He urged that the plea taken by the appellant regarding not being present in the house on the date of the incident is totally cooked up. The appellant claimed that he was at Nokha, but no evidence was led in support of this flimsy plea of alibi. He urged that the plea taken by the appellant regarding not being present in the house on the date of the incident is totally cooked up. The appellant claimed that he was at Nokha, but no evidence was led in support of this flimsy plea of alibi. Learned Public Prosecutor urged that no such suggestion was given to the child witness Kesar (PW-2), who, despite turning hostile, did not state that her father was not present in the house. He contended that the defence theory of alibi was not put to the most important prosecution witness Sushri Kesar, who apparently was won over by the accused and hence, a strong inference is required to be drawn that the accused was not desirous of disputing his presence in the house at the time of the incident. Learned Public Prosecutor further submitted that the first informant Phoosa Ram, father of the deceased, made distinct allegations regarding the appellant continuously harassing, humiliating and tormenting the deceased Smt. Sua ever since the marriage. This continuous cruel conduct of the appellant with his wife coupled with the fact that he brutally assaulted the lady in the dead of the night causing her as many as 12 injuries, of which 8 were fractures, establishes beyond all manner of doubt that the intention of the appellant was undeniably to cause death of his own wife and hence, the plea that the non-infliction of injuries on the vital body parts should be considered a valid reason to tone down the offence is not tenable. Learned Public Prosecutor also submitted that after being arrested, the appellant got his own blood-stained clothes and the stick used to assault the deceased recovered. When the Ghaghra of the deceased, trousers and shirt of the accused and the stick recovered at his instance were examined at the FSL, all tested positive for presence of ‘A’ group blood, for which the appellant could not offer any explanation. Learned Public Prosecutor, thus urged that the appellant brutally assaulted his own wife by a stick causing her 12 injuries. Not only that, the appellant made no effort to take the injured lady to the hospital and as her condition was precarious, the other family members of the appellant took her to the hospital, whereas the appellant escaped from the spot after concealing his blood stained clothes and the stick. Not only that, the appellant made no effort to take the injured lady to the hospital and as her condition was precarious, the other family members of the appellant took her to the hospital, whereas the appellant escaped from the spot after concealing his blood stained clothes and the stick. Hence, as per the learned Public Prosecutor, the conduct of the appellant is also such that inference of intention to cause death of the lady ought to be drawn against him. On these submissions, learned Public Prosecutor implored the court to dismiss the appeal and to affirm the conviction of the appellant as recorded by the trial court. 8. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have carefully re-appreciated the evidence available on record. 9. It is admitted that the appellant and the deceased were married 15 years ago. Six children were born to them, of which four were living at the maternal grandfather Phoosa Ram's house who, upon being examined as PW-3 made a categoric statement that ever since the marriage, the accused Santosh Kumar would consume liquor and beat Smt. Sua, who would call the witness on phone and share her plight. He alleged that Smt. Sua was killed by Santosh Kumar. Mohan Ram, the elder brother-in-law of Smt. Sua, called and told him that Santosh Kumar had beaten Sua. The witness pleaded with Mohan Ram that if his daughter was alive, she should be taken to the hospital and then, he alongwith his son Bhagwana Ram went to the PBM Hospital where they were informed that Sua had passed away because of the injuries. On a perusal of the cross-examination conducted from the witness, it becomes clear that he stood firm on the version as deposed by him regarding Mohan Ram having called him at about 02.30 a.m. to share the information regarding beating of Sua. The witness was confronted with the Written Report (Ex.P/3) and he admitted that there was omission in the report that Sua used to share her plight with him on phone. The witness stated that he was illiterate and thus, could not explain this omission. On the aspect of maltreatment meted out to the deceased, the witness alleged that the accused used to misbehave and beat up the victim after consuming liquor. The witness stated that he was illiterate and thus, could not explain this omission. On the aspect of maltreatment meted out to the deceased, the witness alleged that the accused used to misbehave and beat up the victim after consuming liquor. He did not allege that any demands were made by the accused. Hence, there is no convincing evidence of motive, which can be attributed to the appellant for committing the crime. A specific suggestion was given to the witness that Mohan Lal and Champa Lal asked for the dead body of Sua to conduct the last rites, but he refused because the husband Santosh Kumar was missing. Apparently, thus, the accused appellant was not even present in the hospital even though his wife of 15 years had been brought there. A suggestion was given to the witness in cross-examination that Mohan informed him that Sua was seriously injured and had been taken to the PBM Hospital and thus, the defence itself has expounded the theory of Sua receiving serious injuries in the night time and Mohan calling up Sua's father to tell him of this incident. If at all the appellant was innocent as he claims, then in normal course of events, he would be expected to call his father-in-law and to tell him regarding the condition of Sua. Not a single word was put to the witness in cross-examination regarding his assertion that the appellant used to beat up the lady after consuming liquor. Thus, the fact that the appellant used to treat his wife with cruelty after consuming liquor is well established from the evidence of this witness. It is also proved that Mohan Lal, brother of the appellant herein, called Phoosa Ram in dead of the night and told him that Sua had been seriously injured and was being taken to the hospital. This communication made by Mohan Ram to the first informant Phoosa Ram is a relevant fact being a part of the same transaction and is admissible by virtue of Section 6 of the Evidence Act. 10. Champa Lal (PW-1) did not support the prosecution case and was declared hostile. 11. Kesar (PW-2), being the daughter of the appellant and the deceased Smt. Sua did not support the prosecution case and was declared hostile. 10. Champa Lal (PW-1) did not support the prosecution case and was declared hostile. 11. Kesar (PW-2), being the daughter of the appellant and the deceased Smt. Sua did not support the prosecution case and was declared hostile. However, what is relevant to note from the statement of this witness is that she was not given any suggestion by the defence that the appellant was not present in the house at the time of the incident. The fact that Sushri Kesar even denied having seen the injuries of her mother clearly shows that she was totally under the influence of the accused appellant when she stepped in the witness box. In normal course of events, it can be presumed that husband and wife would be present in the house, more particularly, when the time of the incident was the dead of the night. Thus, the failure of defence to give any suggestion to the child regarding the plea of alibi taken by the accused completely discredits this theory. 12. Mahaveer (PW-4) and Mangilal (PW-5) are the attesting witnesses of the documents, viz. site inspection plan (Ex.P/4), Surat Haal Lash (Ex.P/7), Panchnama Lash (Ex.P/6), seizure memo of clothes of deceased Sua Devi (Ex.P/8) and seizure memo of blood stained soil, control soil and broken bangle pieces (Ex.P/9). Both the witnesses stood firm regarding preparation of these documents and collection of the case articles. 13. Dayanand (PW-6) was an attesting witness in the procedure of arrest of the accused and the recovery of the clothes and the wooden stick effected at his instance vide seizure memo Ex.P/11. He too stood firm on this procedural aspect of investigation. 14. Rajendra (PW-7) is the son of the appellant and the deceased Sua and was aged about 11 years at the time of the incident. He too resiled from the previous police statement (Ex.P/13) and did not support the prosecution case. He feigned total ignorance regarding his mother's fate. However, akin to the evidence of Sushri Kesar (PW-2), no suggestion was given to this witness as well regarding the plea of alibi taken by the appellant in his defence. 15. Madan Lal (PW-8) totally resiled from the prosecution case and was declared hostile. 16. Mohan Ram (PW-9), being the brother of the appellant herein, also resiled from the prosecution case and was declared hostile. 15. Madan Lal (PW-8) totally resiled from the prosecution case and was declared hostile. 16. Mohan Ram (PW-9), being the brother of the appellant herein, also resiled from the prosecution case and was declared hostile. However, this witness stated that his brother, the appellant herein, was not present in the house at the time of the incident. 17. Dr. Sanjeev Buri (PW-10) posted as Medical Jurist in the PBM Hospital, Bikaner, was one of the members of the medical board, which conducted autopsy on the dead body of Sua and issued the postmortem report Ex.P/16, wherein the following injuries were noted: 1. Two punctured lacerated wounds on the distal part of the right forearm admeasuring 1.5 cm x 1 cm and 1.3 x 1 cm each. 2. A lacerated wound admeasuring 2.5 cm x 1.5 cm on the forward part of the right forearm. 3. A lacerated wound 2 cm x 1.5 cm on the right forearm middle part. Both the forearm bones underneath this injury were broken. 4. Swelling on the distal one-third part of the right forearm, underneath which both the bones were fractured. 5. A lacerated wound with both bones fractured on the one-third distal part of the left arm. 6. Swelling on the left elbow with fracture/dislocation of the elbow joint. 7. Abrasion admeasuring 2 cm x 1.5 cm on the right knee front side. 8. Abrasion admeasuring 1.5 cm x 1 cm on the left knee. 9. A lacerated wound admeasuring 2 cm x 1.5 cm on the lower part of the left leg the tibia bone was fractured. 10. Swelling on the right leg with fractures of the tibia and fibula bones. 11. A lacerated wound admeasuring 1.5 cm x 1.5 cm on the distal one-third part of the left leg with fracture of both bones. 12. A wound admeasuring 2 cm x 1.5 cm on the lateral part of the left leg with both bones fractured. 18. The board found that all the internal organs of the lady were healthy. The liver and spleen were pale because of loss of blood. All the injuries were opined as caused by a blunt weapon and were antemortem in nature. The medical board opined that the cumulative effect of the injuries was sufficient in the ordinary course of nature to cause death. The liver and spleen were pale because of loss of blood. All the injuries were opined as caused by a blunt weapon and were antemortem in nature. The medical board opined that the cumulative effect of the injuries was sufficient in the ordinary course of nature to cause death. A question regarding any noticeable injury on vital parts of the body was put to the Medical Jurist, which he replied in the negative. 19. Ram Singh (PW-11) was posted as the Malkhana Incharge at the Police Station Seruna at the relevant point of time. He proved the factum of deposit of the case articles in the Malkhana of the police station and the forwarding thereof to the FSL through Constable Shrawan Kumar. His evidence is wholly reliable. 20. Shrawan Kumar (PW-12) was posted as Constable at the Police Station Seruna. He gave evidence regarding transit of Malkhana articles to the FSL. His evidence is also unimpeachable. 21. Surendra Kumar (PW-13) was posted as the SHO, Police Station Seruna on the date of the incident. He gave evidence regarding various steps of investigation, including recoveries of the blood stained articles, which we have already referred to supra. On a perusal of the cross-examination conducted from this witness, we find that nothing significant was elicited by the defence, which can create a doubt on the bona fides of investigation undertaken by the witness. What is significant to note from the statement of this witness is that the defence did not put a single question regarding the plea of alibi taken by the accused in his statement under Section 313 Cr.P.C. even to the Investigating Officer. The only suggestion which was given by the defence to the SHO was that a dispute was prevailing between the parties on the issue of marriage of the two daughters of the appellant and the deceased. 22. The bald plea which was taken by the appellant in his statement under Section 313 Cr.P.C. was that of denial. He claimed to be at Nokha on the day of the incident and stated that he came to know on the next day that his wife had received the injuries. 23. 22. The bald plea which was taken by the appellant in his statement under Section 313 Cr.P.C. was that of denial. He claimed to be at Nokha on the day of the incident and stated that he came to know on the next day that his wife had received the injuries. 23. After an ove all appreciation of the evidence available on record, we are of the view that by way of natural human conduct, it can safely be presumed that the appellant and the deceased were unquestionably present in the house when the incident took place. The denial of the two child witnesses Sushri Kesar (PW-2) and Rajendra (PW-7) regarding they not having seen anything happening to their mother makes it clear that the accused has won over these material witnesses, who are his own children, by exerting influence over them. However, even though both the children were declared hostile, the defence did not muster the courage to give them a suggestion regarding the highly belated plea of alibi taken by the accused in his statement under Section 313 Cr.P.C. The accused appellant, after being arrested got recovered his blood stained clothes and a blood stained stick, which upon being analyzed at the FSL, tested positive for the presence of ‘A’ group human blood, which was also the blood group found on the Ghaghra of the deceased. It is manifest that the accused must have got blood stains on his clothes while he was assaulting his wife, deceased Sua. The stick, which the accused got recovered also gave test for presence of the same blood group. The accused did not offer any explanation for the presence of the ‘A’ group blood on these articles. Therefore, in addition to the reverse burden of proof as per Section 106 of the Evidence Act, the accused has also failed to explain the seriously incriminating recoveries of his own blood stained clothes and the stick having presence of the same blood group as that of the deceased. These circumstances conclusively establish the complicity of the accused in the assault made on Smt. Sua, in which, she was caused the injuries, which we have described above. Thus, there is no doubt in the mind of the court that the accused appellant was the assailant of Smt. Sua. 24. These circumstances conclusively establish the complicity of the accused in the assault made on Smt. Sua, in which, she was caused the injuries, which we have described above. Thus, there is no doubt in the mind of the court that the accused appellant was the assailant of Smt. Sua. 24. Having held so, now we proceed to consider the submission of the learned defence counsel regarding toning down of the offence. 25. On a perusal of the statement of the Medical Jurist Dr. Sanjeev Buri (PW-10), which we have extensively referred to supra, it becomes clear that not a single injury was caused on the vital body parts of the deceased, viz. brain, neck, chest, abdomen etc. All the 12 external injuries were found on her lower and upper limbs. 6 of the wounds were associated with fractures, the cumulative effect whereof led to shock and death of the victim. No significant motive was attributed to the accused regarding the assault. In a suggestion, which was given to the Investigating Officer, the defence portrayed a theory that a dispute was going on between the spouses owing to the efforts being made by Phoosa Ram and his family members to marry off Urmila, daughter of the appellant and the deceased. Even Phoosa Ram (PW-3) agreed in his cross-examination that they had fixed the relation of Urmila in the village Kankanuwala, but the accused did not agree, on which the proposal was called off. It is quite possible that the spouses might have quarreled on this issue because there was no other immediate motive for the appellant to have assaulted his own wife. Thus, we are in agreement with the submission of the learned counsel for the appellant, that while inflicting such injuries on the non-vital body parts of Smt. Sua, as were described by the Medical Jurist in the postmortem report, the accused did not have any intention to cause death of his wife. However, it can definitely be inferred that the accused had knowledge that by inflicting repeated blows on the limbs, lower as well as upper, of his wife, he may endanger her life, and as such, the act of the accused would be covered by Clause II of Section 304 IPC and not by Section 302 IPC. However, it can definitely be inferred that the accused had knowledge that by inflicting repeated blows on the limbs, lower as well as upper, of his wife, he may endanger her life, and as such, the act of the accused would be covered by Clause II of Section 304 IPC and not by Section 302 IPC. As a consequence, the conviction of the appellant deserves to be toned down from one under Section 302 IPC to one under Section 304 Part II IPC. Reference in this regard may be had to the Judgments rendered by Hon'ble the Supreme Court in the case of Kalu Ram vs. State of Rajasthan, AIR 2000 SC 3630 and Lavghanbhai Devjibhai Vasava vs. State of Gujarat, (2018) 4 SCC 329 . 26. Accordingly, the impugned judgment dated 02.08.2019 passed by the learned Additional Sessions Judge, No. 2, Bikaner (Camp Sri. Dungargarh), District Bikaner in Sessions Case No. 7/2014 is modified in the terms that the conviction of the appellant is altered from the offence punishable under Section 302 IPC to one under Section 304 Part II IPC. For the said offence, the appellant is sentenced to undergo rigorous imprisonment of eight years alongwith a fine of Rs. 10,000/- and in default of payment of fine, he shall further undergo simple imprisonment of six months. 27. The appeal is partly allowed in these terms. 28. The record be returned to the trial court.