JUDGMENT : GOUTAM BHADURI, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of the Cr.P.C. is directed against the impugned judgment dated 21.1.2020 passed by the learned Sessions Judge, Ambikapur, District Sarguja (CG) in Sessions Case No. 93/2019, whereby, the appellant has been convicted under Section 302 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.500/- in default of payment of fine to further undergo RI for six months and under Section 323 of the IPC and sentenced to undergo RI for six months and to pay a fine of Rs.500/- in default of payment of fine, to further undergo RI for one month. 2. Case of the prosecution, in brief, is that an information was received by the SHO, Police Station Sitapur to the effect that Hawal Manjhi had been killed. The concerned SHO went to the Village Katkalo for ratification of the said information, where, he met complainant Tulo Bai (PW-1), wife of the appellant, who was also injured in the incident. According to the prosecution, on the date of the incident i.e. on 3.8.2019, deceased Hawal Manjhi, who was the father-in-law of the complainant and the appellant/accused Raghu Manjhi (her husband) and she along with her children were present in the house and her mother-in-law had gone to graze the cattle. In the evening hours, the complainant leaving the kids at home, went to fetch water and at that time, her husband (appellant) and father-in-law (deceased) were at home. When she came back, she saw that an altercation was going on between the appellant and his father on the ground that his son (appellant) used to do no work and the deceased as usual was scolding him. On this, the appellant got agitated for being always scolded and picked up a Tangia (axe) and assaulted his father. At that time, Tulo Bai (PW-1) intervened and caught hold of the axe, on which, she was also assaulted by the appellant in result of that she also sustained injury on her head. Subsequently, the appellant assaulted Hawal Manjhi (deceased) on his face and head repeatedly and left the axe at the spot and fled away with his 6 years old daughter. Thereafter, the complainant disclosed about the incident to Sainath (PW-2), who, in turn, informed Sahas Ram (PW-4) and the Ambulance was called. Subsequently, the appellant assaulted Hawal Manjhi (deceased) on his face and head repeatedly and left the axe at the spot and fled away with his 6 years old daughter. Thereafter, the complainant disclosed about the incident to Sainath (PW-2), who, in turn, informed Sahas Ram (PW-4) and the Ambulance was called. On the statement of the complainant, Dehatinalisi vide Ex.P/13 was lodged and subsequent to it, Dehati Merg Intimation vide Ex.P/14 was lodged. The dead body was sent for postmortem examination, which was conducted by Dr. S.N. Paikra (PW-5), who opined that the death was homicidal in nature. Thereafter, the appellant/accused was apprehended and on his memorandum statement, the weapon used in the offence as also his blood stained T-Shirt were recovered from the spot, which were sent for FSL examination After the enquiry, the statements of the witnesses were recorded. 3. After completion of the investigation, the charge sheet was filed. In order to bring home the charge, the prosecution examined as many as 8 witnesses and exhibited 20 documents. During the course of trial, the appellant had abjured his guilt and claimed to be tried. As per the FSL Report-Ex-P/19, human blood was found on the seized articles. 4. The learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above, against which, this Appeal has been preferred by the appellant. 5. Learned counsel for the appellant would submit that the eye-witness/Tulo Bai (PW-1), who is the wife of the appellant, has turned hostile. She has deposed that her thumb impression was obtained on a blank paper. He further submits that in absence of any other evidence, the statements of Sainath (PW-2) and Sahas Ram (PW-4) would be hearsay evidence and the same cannot be accepted. He further submits that the memorandum and seizure witness/Sharwan Kumar (PW-6) has not supported the case of the prosecution. He submits that under these circumstances, only on the statement of the IO, the conviction of the appellant cannot be sustained and thus, the impugned judgment may be set-aside and the appellant may be acquitted from the said charges. 6. He further submits that the memorandum and seizure witness/Sharwan Kumar (PW-6) has not supported the case of the prosecution. He submits that under these circumstances, only on the statement of the IO, the conviction of the appellant cannot be sustained and thus, the impugned judgment may be set-aside and the appellant may be acquitted from the said charges. 6. Per contra, learned counsel for the State would submit that on the basis of information given by Tulo Bai (PW-1), daughter-in-law of the deceased, the Dehatinalisi was lodged immediately after the incident vide Ex.P/13, which was followed by Dehati Merg intimation vide Ex.P/14, wherein, the verbatim statement has been made by Tulo Bai (PW-1) and this fact has not been negated by the statement of Investigating Officer-Anoop Kumar Ekka (PW-8). He further submits that when the incident happened, Tulo Bai (PW-1) was present in the house and when she tried to intervene, she was also assaulted by the appellant, on account of which, she received injuries, which is proved vide MLC Report-Ex.P/8. He further submits that as per the FSL Report-ExP/19, human blood was found on the T-shirt of the accused as also on Tangi and no plausible explanation has been given by the accused for the same. Hence, the conviction and sentence is well merited, which does not call for any interference. 7. We have heard learned counsel for the parties and also perused the record. 8. As per the evidence of Tulo Bai (PW-1), who is the daughter-in-law of the deceased and one of the inmates of the house, on the date of the incident i.e. 3.8.2019, there occurred an altercation between the appellant and the deceased-father and the deceased was scolding the appellant on the ground that he used to sit idle and because of the repetitive scolding time and again, he became agitated and entered into a quarrel with him. She further states that when she came back after bringing the water, she saw that amidst such quarrel, the accused/appellant had picked up an axe kept in the house to assault his father and when she tried to intervene, in such scuffle, she also sustained injury, which is proved by the statement of Dr. S.N. Paikra (PW-5) and her MLC Report vide Ex.P/8. S.N. Paikra (PW-5) and her MLC Report vide Ex.P/8. Hence, the presence of Tulo Bai (PW-1) at the spot is corroborated by the medical evidence and further, it is quite normal that when a quarrel occurs between a father and son and during such quarrel, if one of them picks up a weapon, the natural course would that the third person present there will try to intervene and stop the assault. Therefore, the said statement of Tulo Bai (PW-1), corroborated by the MLC, which was done subsequent to the incident and its report vide Ex.P/8, fortifies her presence in the scene of occurrence. However, this witness has turned hostile and not supported the rest of the case of the prosecution. 9. A close scrutiny of the evidence of Tulo Bai (PW-1) would further show that when she returned to her house and tried to intervene between the father (deceased) and the son (appellant), she was hit by something on her head, on account of which, she fell down and thereafter, she ran away and at that point of time, the appellant and the deceased were present in the house. After the dusk, when she again came back to the house, she saw that her father- in-law was dead. Thereafter, the incident was informed to the Police and the IO Anoop Kumar Ekka (PW-8) recorded the statements and also Dehatinialisi-Ex.P/13 and Merg intimation-Ex.P/14 were lodged. This witness do not deny the fact that such statement was not recorded. In the cross-examination of this witness, she further stated that after the incident, the appellant fled away with their minor daughter aged about 6 years. 10. As per the statement of Tulo Bai (PW-1), she had disclosed about the above incident to PW-2 Sainath. The evidence of Sainath (PW-2) would show that it was informed by Tulo Bai (PW-1) that a quarrel took place between her father-in-law (deceased) and her husband (appellant) and thereafter, he went to the house of the deceased (Hawal Manjhi) and saw that the deceased had sustained injuries on his head and when he enquired from the appellant about such injuries, he confessed before him that he had assaulted his father four times repeatedly. Thereafter, he went out to call for an Ambulance and by the time the Ambulance arrived, Hawal Manjhi had already died. Thereafter, he went out to call for an Ambulance and by the time the Ambulance arrived, Hawal Manjhi had already died. He further stated that Tulo Bai (PW-2) came to his house and informed him that her father-in-law - Hawal Manjhi had been assaulted and had got injured. In the cross-examination of this witness, he has stated that the appellant had assaulted his father. Sainath (PW-2) and Sahas Ram (PW-4) are the hearsay witnesses, which comes in the statement of Tulo Bai (PW-1), and this affirms the fact that Tulo Bai (PW-1) disclosed about the incident immediately to Sainath (PW-2) and thereafter, the Ambulance was called. The said part of the statement of Tulo Bai (PW-1) further affirmed the happening of the incident and the presence of the appellant and the deceased in the house. However, subsequently, she has turned hostile. 11. It is settled proposition of law that merely because the witnesses have turned hostile in part their evidence cannot be rejected in totality. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be dependable and the Court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution [Arjun and Another vs. State of Chhattisgarh, (2017) 3 SCC 247 ]. 12. In the instant case, on examination of the evidence, it would show that Tulo Bai (PW-1), who is one of the inmates of the house, tried to intervene in the altercation, during which, she sustained injury. Thereafter, the appellant assaulted his father. Further, Dr. S.N. Paikra, who has been examined as PW-5 and conducted the postmortem of the deceased, has submitted his report vide Ex.P/6, in which, he found the following injuries on the body of the deceased: (i) Lacerated wound was present on the right side of the forehead measuring 10 x 3 x 1 cm. (ii) Lacerated wound was present on the right temporal region measuring 5 x 2 x 1 cm with blood clotting. In the opinion of the Doctor, the death was due to coma on account of excessive bleeding from the injuries caused on the head of the deceased. (ii) Lacerated wound was present on the right temporal region measuring 5 x 2 x 1 cm with blood clotting. In the opinion of the Doctor, the death was due to coma on account of excessive bleeding from the injuries caused on the head of the deceased. When a query was made by the Police to this witness with regard to the axe seized, the same was answered in affirmative by stating that by such weapon, the above injuries could have been caused. Further reading of his statement would show that a specific suggestion was made that the deceased could have received the injury by falling on a craggy place, but he denied the same. Hence, this goes to show that the injuries, which resulted in death of the deceased, could have been caused by the seized weapon. The memorandum and seizure witness/Sharwan Kumar (PW-6) has not supported the case of the prosecution. When the witness to memorandum and seizure has not supported the case of the prosecution, the statement of Tulo Bai (PW-1) cannot be shelved and ignored, which is otherwise supported by the evidence of other witnesses and her MLC report. Consequently, if there is a direct evidence in the form of eye witness, even in the absence of proof of recovery of weapon, which the Court can accept to be plausible, the accused can be convicted. 13. The only factor which may be considered in this case is that as per the statement of PW-2 Sainath, who was known to the family members of the deceased, there was no previous dispute existing between the appellant and the inmates of the house used to live in all peace. Tulo Bai (PW-1), who is the daughter-in law, has also stated that there existed no dispute in their family. The same can also be inferred from the fact that all the members of the family were living in the same house, but on a particular date i.e. on 3.8.2019, the father had scolded his son for not doing any work and the said conversation inflated into a dispute, on account of which, the appellant got agitated. Thereafter, the appellant, in a state of enragement, picked up a weapon i.e. axe, which is normally found in every household of the village, and gave a blow from the blunt side of it on the head of the deceased. Thereafter, the appellant, in a state of enragement, picked up a weapon i.e. axe, which is normally found in every household of the village, and gave a blow from the blunt side of it on the head of the deceased. The Postmortem Report – Ex.p/6 would show that the nature of injures were not of cut injuries and further, the injuries sustained by the deceased do not suggest that the appellant had taken advantage of the situation and caused such injuries to him by the blunt side of the weapon and acted in a manner, which can be termed as ‘cruelty’. The incident happened in a spur of moment upon sudden quarrel. 14. In view of the above, it can safely be inferred that there was no premeditation on the part of the appellant to cause death, but the appellant have had knowledge that the injury is likely to cause death of the deceased. In our opinion, the offence would fall under Exception-4 to Section 300 IPC and is punishable under Section 304 Part-II of the IPC and as such, he is guilty of committing offence under Section 304 Part-II of the IPC. 15. In the result, the appeal is partly allowed. Conviction and sentence imposed on the appellant under Sections 302 and 323 of the IPC are set-aside and instead thereof, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 5 years. Perusal of the impugned judgment would reveal that the appellant is in jail since 5.8.2019 and as on date, he has completed substantive jail sentence of more than 4 years 1 month. 16. Considering the totality of the circumstances, this Court is of the opinion that the ends of justice would be served if the appellant is sentenced to the period already undergone by him. Ordered accordingly. The appellant be released forthwith if not required in any other case.