Mohd. Farooq vs State of U.P.

Naheed Ara Moonis, J.—The instant appeal has been filed on behalf of the appellant Mohd. Farooq against the Judgment and order dated 28.7.2006 passed by the Additional Sessions Judge Court No. 6 Ghaziabad whereby the appellant has been convicted and sentenced u/s 302, I.P.C. for life imprisonment with a fine of Rs. 20.000. In default of payment, the appellant had to serve out additional sentence of two years. Further the appellant was convicted and sentenced u/s 498A, I.P.C. to undergo three years rigorous imprisonment with fine of Rs. 10,000. In default of payment of fine, the appellant had to undergo one year additional imprisonment. The appellant was further convicted and sentenced u/s 3/4, Dowry Prohibition Act for two years rigorous imprisonment with fine of Rs. 5,000 and in default of payment 6 months further rigorous imprisonment. All the sentences were directed to run concurrently. The genesis of the prosecution case narrated in a nutshell is that on 14.10.2004 at about 6.15 p.m. a first information report was lodged by Dalsher. maternal uncle of the deceased that the niece of the complainant was married with Farooq two years ago. Sufficient dowry was given at the time of marriage but the in-laws of the victim were not satisfied with the dowry given by her parents. The appellant (husband), his elder brother Jan Mohammad (Jeth) and Rahis Bee wife of Jan Mohammad (Jethani) had castigated the victim and were torturing and maltreating her physically and mentally both for fetching Rs. 50,000. The parents of the victim had showed their inability of giving Rs. 50,000 as dowry, the appellant and co-accused were threatening that in case of failure of giving Rs. 50,000, the victim shall be done to death. The parents of the victim could not fulfil the dowry as demanded by the appellant and the co-accused. On 14.1.2004 the niece of the complainant was done to death. On receiving the information about the death of his daughter, the father and the mother of the victim came at the house of her in-laws at Kalloogari. The father of the victim fainted to see the condition of his daughter due to grief and shock. In these circumstances, the complainant lodged the first information report with respect to the said incident vide Case Crime No. 307 of 2004 under Sections 498A/304B, I.P.C. read with Section 3/4. Dowry Prohibition Act against the appellant Farooq, Jan Mohammad. Smt. Rahis Bee.

After registration of the first information report, the police came into action and reached on the spot, prepared the inquest report and sent the dead body to mortuary on 15.10.2004 for post-mortem of the deceased. The Investigating Officer recorded the statement of the witnesses and prepared the site plan, after collecting credible and clinching evidence submitted the charge-sheet against Mohd. Farooq, the appellant. Jan Mohammad and Rahis Bee under Sections 498A/304B, I.P.C. read with Section 3/4, Dowry Prohibition Act. The trial court framed the charges u/s 498A/304B, I.P.C. read with Section 3/4, Dowry Prohibition Act and in alternative charge u/s 302 read with Section 34, I.P.C. was framed.

The accused persons abjured their guilt and claimed to be tried. In order to prove its case, the prosecution had examined Smt. Samarjahan, P.W. 1, Dalsher. P.W. 3, Saddiq, P.W. 4, Irshad P.W. 5, Smt. Jaitoon P.W. 6, Smt. Sabnam P.W. 7. Mohd. Yaseen P.W. 8 and Rafiq P.W. 11 as witnesses of fact. The formal witnesses examined by the prosecution were Moharrir Mukesh Kumar P.W. 3. Naib Tehsildar Harishchand Verma P.W. 9. Dr. S. K. Mittal P.W. 10 who had conducted the autopsy of the deceased and Ishwar Chauhan Sharma, retired Superintendent of Police as P.W. 12. In addition to this, defence witnesses examined were namely Shabir Ali D.W.I and Jahur Uddin, D.W. 2 who are neighbours of the appellant.

It was argued by Sri Dharmendra Singhal, learned counsel for the appellant that the complainant Dalsher had turned hostile. AH the witnesses have also turned hostile in the present case. Yet the court below has committed a manifest error by convicting the appellant. On the same set of facts and evidence, co-accused has already been acquitted. Learned counsel for the appellant pinpointed that in the statement u/s 313. Cr. P.C. it was specifically mentioned that the appellant had left his house at 7.00 a.m. in the morning on 14.10.2004 and the incident is alleged to have occurred on 14.10.2004, the time of which is not known, therefore, it cannot be said that the appellant had strangulated his wife. The complainant and the witnesses have turned hostile which itself casts doubt about the entire prosecution story that it was set up on wrong facts. The victim had committed suicide by strangulation on account of ailment.

Relying upon the decision of Apex Court in the case of Dasari Siva Prasad Reddy v. Public Prosecutor High Court of A. P., 2004 SCC (Cri) Supp 49; 2004 (3) ACR 2872 (SC); Sawal Das Vs. State of Bihar, and Vikramjit Singh alias Vicky v. State of Punjab, (2007) SCC (Cri) 732 : 2007 (1) ACR 904 (SC), learned counsel for the appellant contended that strong suspicions in all probabilities that the accused was guilty of heinous crime however grave may be, cannot be a substitute for proof. The same would lead to the only conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt and the appellant is entitled to be absolved from the guilt.

Per contra learned A.G.A. for the State has supported the findings arrived at by the learned trial Judge and it was submitted that the dead body of the victim was found in the house of the appellant therefore, much burden lies upon the appellant to prove the circumstances in which his wife was done to death. It is a case of dowry death within two years of their marriage. There was constant demand of dowry as mentioned in the first information report as well as in the statement of the P.W. 1, mother of the victim, whose evidence remained unshaken. The prosecution has fully proved that it is the appellant who was responsible for causing the death of his wife. The appellant was named in the first information report and was charge-sheeted. Co-accused Jan Mohammad and Rah is Bee were acquitted by the trial court on the ground that they were living separately. The prosecution case cannot be disbelieved. The offence u/s 304B, I.P.C, is fully made out against the appellant as the death had occurred within seven years of marriage.

The circumstances from which the inference of guilt was drawn was fully established beyond any shadow of doubt consistent with the hypothesis of the guilt of the accused appellant. All the circumstances were of conclusive nature and the chain of evidence only shows that within all human probability the act has been done by the accused appellant. The manner in which the victim was done to death by throttling portrayed very inhuman and gruesome state of mind of the accused appellant. The learned A.G.A. relied upon the decision of the Apex Court in State of Rajasthan v. Kashi Ram, 2007 (1) SCC (Cri) 688 : 2007 (2) ACR 1722 (SC) and Trimukh Maruti Kirkan v. State of Maharashtra, 2007 (1) SCC (Cri) 80 : 2006 (3) ACR 3150 (SC), and has contended that the place of incident is admitted. Much burden lies on the appellant u/s 106 of Evidence Act to explain how the death occurred. In Kashi Ram (supra), the Hon''ble Apex Court has set aside the judgment of the High Court by holding that the High Court has completely given a go by to the incriminating circumstances which appeared against the accused. In Kirkan''s case, the Hon''ble Apex Court affirmed the Judgment of High Court in convicting the appellant u/s 302. I.P.C. Therefore, the judgment and, order of the trial Judge being reasoned and judicious deserves to be upheld.

The case of the prosecution as divulged in the first Information report has to be looked into very carefully. The first information report was lodged by the maternal uncle of the deceased. In his examination-in-chief, the complainant (P.W. 3) had stated that the marriage of his niece was solemnised with appellant Farooq and out of their wedlock, there was a ten months old son at the time of occurrence. The complainant had denied the allegations of demand of dowry. The complainant had also denied the factum of lodging the first information report by him though he had specifically stated that on account of dowry death of Samarjahan. the appellant and other accused persons were sent to Jail. The P.W. 1 who is the mother of the victim had admitted the factum of marriage of her daughter with the appellant but had specifically stated that the in-laws were not satisfied with the dowry given at the time of marriage and were torturing and harassing the victim to fetch additional dowry to the tune of Rs. 50.000. They were always exerting pressure upon the victim to fetch the additional dowry otherwise she would be done to death. A male child was borne out of their wedlock. After some time they received information from Shabnam on telephone that her daughter was done to death by the appellant and her in-laws- The phone was received by her brother Dalsher P.W. 3 and after getting the said information, they went at the matrimonial house where they saw that the victim was lying dead.

Head Constable Mukesh Kumar [P.W. 2) was examined. He had proved the chick F.I.R. which was entered in the G.D. by him. He had proved chick F.I.R. and G.D. entry which was marked as Ext. Ka. 2. He had specifically stated that the P.W. 3 Dalsher had arrived at the police station alongwith a written report accompanied by other person at 6.15 p.m. which was entered in the G.D. The copy of the chick F.I.R. was given to the complainant.

The P.W. 4 Siddiq who is the brother-in-law of Dalsher and the father of the victim admitted that the death of Samarjahan had taken place in her matrimonial house. He had stated that he became unconscious on getting the news of death of his daughter. He was not aware when he regained consciousness. He had denied that any statement was given by him to the Investigating Officer u/s 161, Cr. P.C. The prosecution had declared this witness hostile. P.W. 5 Irshad. the brother of the deceased had stated that the marriage of the victim was solemnised with the appellant. At the time of marriage sufficient dowry was given and there was no demand of any dowry. He had never heard about any sort of harassment by the appellant to the victim. There was natural love and affection between the victim and the appellant. They used to have care for each other so as to develop a harmonious relationship. This witness was also declared hostile.

The scribe of the first information report Rafiq who is the nephew of the P.W. 1 had proved that he went at Kalloogari after the death of Samarjahan and had written the report which was dictated by the P.W. 3 Dalsher. thereafter the written report was given at the police station. On his examination, he had admitted that written report is in his handwriting but had denied that Investigating Officer had recorded his statement u/s 161. Cr. P.C. He has stated that he had heard about some compromise between the appellant side and the complainant. He denied that he is giving statement on account of compromise. He was not examined by the defence and was declared hostile.

In his cross-examination the brother of the victim P.W. 5 Irshad had admitted that his sister Samarjahan was married with the appellant Farooq. His sister died in her matrimonial house but he denied that the death had occurred on account of non-fulfilment of dowry.

P.W. 6 Jaitoon who is the sister-in-law of the deceased and the wife of P.W. 5 Irshad had admitted the marriage of Samarjahan with the appellant and had denied the factum of demand of dowry and any ill-treatment. This witness was declared hostile by the prosecution. She had stated that she had never given any statement before the police. She was not further cross-examined by the defence.

P.W. 7 Smt. Shabnam was examined who had deposed that she had not received any information on telephone with regard to death of Samarjahan because there was no telephone in her house. When she was confronted with her statement recorded u/s 161, Cr. P.C. where she had stated that she had telephone and on telephone she had conversation from Kalloogari and it was informed to Dalsher that his niece who was married with Farooq was done to death by strangulation on account of not fetching the dowry of Rs. 50.000, and when she tried to know the name of the person, the telephone was disconnected. This information was conveyed to Dalsher then she showed ignorance about telephone and stated that there was no telephone in her house. She was never informed about any ill-treatment meted to the victim by * the appellant or other accused persons on account of non-fulfilment of demand of dowry. She has further stated that her house is situated at the distance of 20 to 21 houses away from the parents of the victim. She was cross-examined but nothing adverse was elicited and she was declared hostile.

P.W. 8 Mohd. Yasin who is the relative of the P.W. 4 was knowing to the victim Samarjahan. He had stated that he had not participated in the marriage of the appellant. In his cross-examination, he had denied that any statement was recorded by the Investigating Officer. The defence had not cross-examined him as nothing adverse was elicited from his cross-examination.

P.W. 9 Harishchand Verma who was posted as Naib Tehsildar on 14.10.2004 had got prepared the inquest of the deceased. The inquest memo Challan Lash, specimen of seal. papers to C.M.O.. photo lash were prepared at the house of the appellant which were exhibited and marked as Exts. Ka. 4 to Ka. 7. Subsequent thereto the corpus was handed over to Constable Rajendra and Constable Mahendra for being sent to the mortuary under seal. He had given details that he had got information from Sub-Divisional Magistrate Ghaziabad to proceed at the place of occurrence. Thereafter he reached at the place of occurrence at 7.30 p.m. and prepared the papers of challan lash, panchayatnama etc which was completed at 8.30 p.m on 14.10.2004.

P.W. 10 Dr. S. K. Mittal who had conducted the autopsy of the victim was examined. He had stated that the autopsy of the victim Samarjahan was conducted on 15.4.2004 at 2.00 p.m. and the time of death of the victim was one and half days old. Following ante-mortem injuries were found on the person of the deceased :

(a) An abraded contusion (horizontal) of 7 cm. x 2 cm. on the left front of neck, 6 cm. below left side of cut blood found in tissues.

(b) A contusion horizontal 16 cm. x 1 cm. on the middle part of the neck right outer part almost horizontal cutting blood was found.

(c) A contusion of 14 cm. x 1.2 cm. on the lower part of the neck right outer part and right contusion apart horizontal above the below 1 cm. below injury No. 2.

Doctor opined that the victim had died because of ante-mortem throttling.

He had proved the post-mortem, which was prepared by him in the presence of said doctor Virendra Nath. Post-mortem report was exhibited as Exhibit Ka. 8

The doctor was put for lengthy cross-examination by the defence where he had explained all the circumstances that the cause of her death was throttling and not on account of suicide nothing material could be pointed out which would help the case of the appellant.

The statement of the appellant and other accused persons were recorded u/s 313, Cr. P.C. where they had admitted the marriage of the appellant with the niece of the complainant on 14.10.2004. They had denied the allegation of demand of Rs. 50,000 as dowry and any cruelty meted to the victim on account of non-fulfilment of demand of any such dowry. They had also denied that the victim was subjected to throttling as a result of which she died. It was averred that the appellant has falsely been implicated in the present case on account of suspicion. There was no demand of dowry by the appellant or his family members. The charge-sheet was submitted by the Investigating Officer merely relying upon the version of the prosecution while there is great inconsistency and contradiction in the prosecution version which creates doubt about its veracity. The witnesses are highly inimical and interested and have supported the prosecution version so as to send the appellant behind the bars.

The sister-in-law (Jethani) of the victim Smt. Rahis Bee in her statement u/s 313. Cr. P.C. stated that she was living with her husband separately and their ration card is separate from the appellant. She was maliciously roped in the present case. She had never made any demand of dowry and no benefit would have accrued to her in case the said demand of dowry would have been meted out. The victim had committed suicide by strangulating herself because of ailment. The statements recorded by the Investigating Officer u/s 161. Cr. P.C. are false and fabricated. When she got information with respect to the death of victim Samarjahan at 2 ''O'' clock ''in the noon, she went there. In his statement, the appellant had stated that on 14.10.2004, he had left his house at about 7.00 a.m. in the morning and had gone to Ghaziabad. The victim used to say to end her life on account of ailment. Owing to that reason, the victim had committed suicide by strangulating herself. There is no evidence against him with regard to the death of Samarjahan. Till her death, the appellant had never demanded any money from his in laws. The appellant had showered his love and affections to his wife and had always taken care of her welfare and wishes. The appellant was making best efforts to satisfy his wife by providing all sort of amenities. The appellant had never given any statement before the police and in case the police had recorded any statement of the appellant, the said statement is maneuvering on the part of the police so as to give deep colour to the prosecution.

Similarly the co-accused Jan Mohammad in his statement u/s 313, Cr. P.C. reiterated the explanation as put forth by his wife Rahis Bee that he has falsely been implicated in the present case. In support of their defence, D.W. 1 Sabir and D.W.2 Jahuruddin were examined where they had admitted the factum of marriage but they had denied that any demand of dowry was made. They were neighbours of the appellant and had stated that Jan Mohammad and Rahis Bee were living separately from the appellant. The trial Judge after threadbare analysis of the evidence held that the prosecution had failed to prove its case beyond all reasonable doubt against Jan Mohammad and Rahis Bee, hence they were acquitted of the charges under Sections 498A/304B, I.P.C. read with Section 3/4, Dowry Prohibition Act and alternative charge u/s 302/34, I.P.C. The appellant alone was convicted and sentenced for the aforesaid offence.

It is not in dispute that the case against the appellant rests on circumstantial evidence. It is submitted by learned counsel for the appellant that in his statement u/s 313. Code of Criminal Procedure, the appellant has specifically averred that he had left the house at about 7.00 a.m. in the morning. The victim was mentally disturbed on account of her ailment and was much irritated. She was often murmuring to end her life. She committed suicide by strangulating herself. The appellant was taking care of her by providing all sort of amenities and facilities. The victim was showered with all sort of love and affections by the appellant for protecting her interest. There was no demand of dowry. The victim was never put in an embarrassing position on account of fetching more dowry but the medical evidence does not corroborate as the same is absolutely in contrast to the claim that the victim had ended her life by strangulation. The most important witness of the present case was P.W. 10 Dr. S. K. Mittal who had conducted the postmortem of the deceased and had opined that strangulation by oneself is impossible. There were three abraded contusions on the neck of the victim which corroborates that the victim had succumbed to injuries on account of pressing her neck. The appellant had also failed to show any medical report and the nature of ailment on account of which the victim was highly irritated and annoyed which forced her to end her life by committing suicide. The factum of demand of dowry is substantiated by oral evidence as most of the witnesses have given clear statement in their examination-in-chief with regard to demand of dowry. The death had occurred in the house of the appellant and on the fateful day of incident, the appellant and the victim both were living together. This fact also stands proved by the inquest prepared on the corpus of the victim Inside the house of the appellant. The family members of the deceased were informed on telephone by Smt. Shabnam, the P.W. 7 who later on retracted from her statement that there was no telephone in her house. As already noticed only on receiving the Information about the death of her daughter, the parents of the deceased went at the house of the appellant. The appellant was not present when the parents of the deceased reached at the house of the appellant. The appellant was arrested after four days by the police. Be it that, the appellant was not involved in the commission of committing murder of his wife, the disappearance of the appellant from the place of occurrence speaks volumes about his guilty mind. The plea of alibi set up by the appellant in defence is not corroborated by the evidence on record. Since the incident had taken place in the intervening night of 14.10.2004 and the appellant had left the house at 7.00 a.m. In the morning therefore, it cannot be assumed that the appellant was not present in the night at the time of fateful occurrence in his house. In case the victim had committed suicide, there was no occasion to leave the house instead of informing the police about the commission of suicide by the victim. In these corresponding position, the plea of alibi taken by the appellant stands fully falsified. The facts and circumstances only points about the presence of the appellant in his house at the crucial moment of occurrence. No otherwise inference can be drawn in these connecting circumstances.

The authorities cited by the learned counsel for the appellant are based on different set of facts and circumstances which has no nexus with the present case. The benefit of reasonable doubt would be given to the accused in case the accused succeeded in disproving his guilt beyand the shadow of all probabilities. The appellant has given different version which is not consistent with medical evidence. There is a complete chain of evidence corroborating the presence of the appellant on the crucial day of incident. The alibi of the appellant leaving the house on the fateful day of incident itself creates strong suspicion about his involvement as the onus to prove alibi was on the accused. It was a matter within his special knowledge, it was for the accused to substantiate and make it reasonably probable that the accused was so far away at the relevant time. If all the circumstances are taken together, the possibility of involvement of the accused cannot be ruled out as the standard of proof of alibi is same as is on the prosecution to establish the case. The trial court has not found the defence of the appellant convincing and probable. The medical report indicated that there were injuries on the neck of the victim which corroborated strangulation over the neck and the accused appellant could not forward any plausible explanation as to how the victim''s death was caused. The trial Judge had acquitted the appellant u/s 304B. I.P.C. and framed the charges u/s 302, I.P.C. and the appellant was convicted and sentenced u/s 302/498A, I.P.C. read with Section 3/4, Dowry Prohibition Act.

The presumption as contemplated u/s 113B of the Evidence Act clearly envisages that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

The basic ingredients of Section 304B. I.P.C. run as under :

When the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with. any demand for dowry, such death shall be called ''dowry death'' and such husband or relative shall be deemed to have caused her death.

It is a well established principle of law that the burden to prove whether some facts are within the personal knowledge of the accused especially when the relationship between the parties are of husband and wife who are living under the same roof. The husband is expected to offer plausible explanation with regard to cause of death of his wife. Lack of such explanation on the part of the appellant itself casts shadow upon the correctness and truthfulness of his stand.

There is considerable force in the argument of the learned counsel for the State that it is obligatory on the part of the appellant to satisfy when any fact is especially within his knowledge. The burden of proving that fact is upon him. If he falls to offer an explanation or offers an unsatisfactory explanation, then he failed to discharge the burden cast upon him by Section 106 of Evidence Act.

The Hon''ble Apex Court in the case of Trimukh Maruti Kirkan v.. State of Maharashtra, (2007) 1 SCC (Cri) 80 : 2006 (3) ACR 3150 (SC), has dealt in extenso to infer guilt where a case is based on circumstantial evidence. The aforesaid case was also based upon circumstantial evidence as there was no eye-witness of the occurrence when the deceased (bride) fell prey of the demand of dowry by her husband and in-laws. The relevant portion of the judgment is quoted hereto below :

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man Is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. Stirland v. Director of Public Prosecution. 1944 AC 315. quoted with approval by Arijit Pasayat, J. in State of Punjab Vs. Karnail Singh, . The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it "reads :

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

Apex Court in the case of State of West Bengal v. Mir Mohammad Omar and others, 2000 (10) ACC 598 : 2000 (3) ACR 2200 (SC), observed as under :

"The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries and the society would be the casualty."

In this case, when prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

In the present case the parents of the victim had disclosed about the cruel and maltreatment meted to the deceased in relation to demand of dowry. The victim was subjected to cruelty and undue harassment by her husband and the other family members for fetching more dowry. The victim was done to death by throttling in a very unnatural manner. The victim was in the company of the husband and the medical evidence clearly corroborates that the death was caused to the victim on account of throttling and not on account of suicide. The testimony of the witnesses and, the statement of the husband has corroborated that acute cruelty and harassment was meted out to the victim. Quintessentially the appellant was proved guilty despite most of the prosecution witnesses had turned hostile. The evidence of hostile witness remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. The Hon''ble Apex Court in K.C. Sareen Vs. C.B.I., Chandigarh, . relying on Sat Paul Vs. Delhi Administration, , held that the testimony of hostile witness cannot be treated as washed off or excluded from consideration. The effect of the testimony of hostile witness is well considered in paras 11 and 12 which are being quoted hereto below :

"There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh Vs. The State of Haryana, , held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Shri Rabindra Kumar Dey Vs. State of Orissa, , it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.

The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness". "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the Court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the Court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The Courts are. therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul Vs. Delhi Administration, , held :

"To steer clear of the controversy over the meaning of the terms ''hostile'' witness. ''adverse'' witness, ''unfavourable'' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act. 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared ''adverse'' or hostile''. Whether it be the grant of permission u/s 142 to put leading questions, or the leave u/s 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the Court [see the observations of AIR 1922 409 (Privy Council) . The discretion conferred by Section 154 on the Court is unqualified and untrammelled, and is apart from any question of hostility''. It is to be liberally exercised whenever the Court from the witnesses''s demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his. previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as ''declared hostile'', ''declared unfavourable'', the significance of which is still not free from the historical cobweb which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the Court u/s 155. Under the English Act of 1865, a party calling the witness, can "cross-examine'' and contradict a witness in respect of his previous inconsistent statements with the leave of the Court, only when the Court considers the witness to be adverse''. As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Evidence Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the ''hostility'' or ''adverseness'' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Code. 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the Court. The Report is, however, still in favour of retention of the prohibition on a party''s impeaching his own witness by evidence of bad character.

The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for. interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor, ILR 58 Cal 1404 : AIR 1931 Cal 401 (FB), an eminent Chief Justice, Sir George Rankin cautioned, that ''when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact''. It was emphasised that these departures from English Law ''were taken either to be improvements in themselves or calculated to work better under Indian conditions''.

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From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider In each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon It. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."

From the above prolix discussion it is clear that the accused was found to have harassed the victim and subjected her to cruelty in relation to demand of dowry. It has been well proved that it was the appellant only who had caused such Injuries which were sufficient to cause death in the ordinary course of nature and had committed heinous and gruesome offence of eliminating the life of his wife in connection with the demand of dowry. The contention of the learned counsel for the appellant is that the sentence awarded by the trial court is excessive therefore, some lenient view may be taken and the conviction of the appellant may be reduced. This Court does not see any valid reasons to reduce the conviction of the appellant as the victim was done to death by throttling within seven years of her marriage. It was a clear case of murder hence the charge u/s 302. I.P.C. was rightly framed. We see no reason to disagree with the view taken by the court below. There is existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. The findings of the trial court are correct. Resultantly. this appeal fails and Is accordingly dismissed. The judgment and order passed by the trial court is affirmed.