IMPORTANT POINTS
1. The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.
2. When the entire prosecution case rests on circumstantial evidence, it is the duty of the Court to carefully scan through the evidence on the anvil of human conduct, probabilities and attending circumstances extending all doubts in favour of the accused.

Headnote:(i) APPEAL AGAINST ACQUITTAL -Indian Penal Code, 1860-Sections 302, 201, and 498-A-Conviction under-Sentence to death-Appeal-Acquittal by High Court-Challenged-Bed-room murder of a young married girl of 19 years of age-She was married to respondent 1, aged about 28 years, practising advocate-She was carrying 4 to 6 weeks pregnancy-She died due to asphyria by strangulation-Thereafter body was burnt-No eye-witness-Death had taken place around mid-night-Prosecution case based on evidence of PW2 and PW6, a practising advocate, neighbours-Both witnesses turned hostile-Plea of alibi and a stranger committing crime-Not proved-First respondent, husband of deceased did not exhibit normal human conduct of an innocent man on hearing news of her death-False theories set up by first respondent-Strong evidence of father and sister of deceased, of demand for dowry-Motive-First respondent alone has committed the offence of murder-Sentence of imprisonment for life considering long passage of time.
       Held : It is rather most unfortunate that these witnesses, one of whom was an advocate, having given the statements about the facts within their special knowledge, under Section 161 recorded during investigation, have resiled from correctness of the versions in the statements. They have not given any reason as to why the investigation officer could record statements contrary to what they had disclosed. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. One clinching circumstance, viz., that PW-2 and PW-6 had heard some quarrels in the house of the respondents and the deceased was crying out, is not on record as substantive evidence. PW-2 and PW-6 had no regard for truth; they fabricated the evidence in their cross-examination to help the accused which did not find place in their Section 161 statements that they had seen one man of whiye complexion and aged between 30 to 35 years, going to the house of the deceased on the fateful night and leaving the house at 8.00 a.m on the next day. (Para 6)
       Further held : The deceased was hardly 19 years old, young teenager who was studying in intermediate standard at the time of marriage. PW-2, Chandra Shekhar had five daughters and Urmila Devi was third one and being a man of small means, he anxiously married her to the first respondent, spending Rs.35,000 with fond hope that she would have bright married life which ultimately turned out to be hell losing her precious life. After the marriage, she was staying with her husband and had spent hardly five months and was having 4 to 6 weeks pregnancy. There is no suggestion even of her being of loose character. If the stranger had really come and stayed in the house and committed murder by strangulation, would he have burnt the dead body so as to create evidence to alert the neighbour to come and catch him? It would be abhorrent to the common sense to believe it. Yet another circumstances to disbelieve this theory is that having committed the murder at midnight, would he have waited till 8.00 a.m. and left the house after day break so as to secure evidence of his presence and of having committed the murder? Under these clinching impossible human conduct, the theory of stranger s coming to the house, staying with the deceased during the intervening night of 26/27 September, 1985 and of committing her murder is a false one. The evidence of PW-2 and PW-6 in this behalf is a figment of imagination, emanating from fertile confabulation of 1st respondent, PW-6 and obviously of DW-2 and his other colleagues who are all practicing advocates. (Para 8)
       It is rather most unfortunate that the learned Judges of the High Court dealt with the matter very casually and did not apply their mind to the crucial circumstantial evidence in this case. They merely superficially read the evidence of hostile witnesses PW-2 and PW-6 and held that from their evidence the presence of the accused in the house was excluded. The evidence of PW-2 and PW-4 , father and sister of the deceased who spoke about the motive, was excluded on applying Section 32 of the Evidence Act. It is difficult to appreciate this line of reasoning. Section 32(1) of the Evidence Act is wide enough to include statements of deceased regarding circumstances of the transactions which resulted in his death, i.e., the motive behind the criminal act in question. But even if Section 32 does not cover such evidence, the evidence of these witnesses can certainly be treated to be relevant for deciding whether the accused was guilty of offence under Section 498A of the Indian Penal Code. (Para 10)
       (ii) EVIDENCE-Hostile witness-Evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused-It can be subjected to close scrutiny -Portion of evidence which is consistent with case of prosecution or defence may be accepted. (Para 6)

ORDER

Leave granted.

We have heard learned counsel on both sides.

2. In Sessions Trial No. 78 of 1985 in the Court of the Special Judge (E.C. Act), Banda, the Sessions Judge convicted Ramesh Prasad Misra, the first respondent under Section 302, Indian Penal Code ( IPC , for short) and sentenced him to death. He was also convicted under Section 201, IPC and sentenced to undergo rigorous imprisonment (RI) for four years and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for six months. He was also convicted under Section 498-A and sentenced to undergo two years RI and to pay a fine of Rs.1,000/- and in default to undergo further simple imprisonment for six months. All the sentences were directed to run concurrently. Smt. Butto Devi, the second respondent, mother of the first respondent, was acquitted of the offence under Section 302 but was convicted under Section 201, IPC and sentenced to undergo RI for four years and a fine of Rs.1,000 and in default to undergo six months simple imprisonment. She also was convicted under Section 498-A and sentenced to undergo RI for two years and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for a further period of six months. Both the sentences were directed to run concurrently. A Division Bench of Allahabad High Court consisting of B.N. Katju and D.S. Bajpai, JJ., however, by judgment dated July 21, 1988 in Criminal Appeal No. 2108 of 1987 acquitted both the respondents of all the charges and also rejected the reference for confirmation of death sentence. Thus this appeal by special leave.

3. This is one of the most horrendous bed-room murder of a young married girl, Urmila Devi, of 19 years on the intervening night of September 26/27, 1985 in Karwi town in Banda District of Uttar Pradesh. She was married to Ramesh Prasad Mirsa, aged around 28 years, a practising advocate at Karwi, on April 25, 1985 and hardly after five months she met with cruel death. She was carrying 4 to 6 weeks pregnancy. It is not in dispute and cannot be disputed that she died due to asphyxia by strangulation as found by PW-1, autopsy doctor. A contusion of 9 cm x 3 cm size was found across the front of the neck underlying skin, muscle, trachea, oesophague congested and hyoid bone was fractured, extervasation of blood in the neck region due to injury of neck vessels. It was also found that the tongue had protruded out and was bitten by teeth of both jaws. Blood was coming out from mouth and nose. Both eyes were closed and congested and face was also congested. The membranes were congested, brain base of skull, pleura, larynx, traches, bronchi, both the lungs and phyranx were found congested. These circumstances clearly indicate force and pressure put upon her and conclusively establish that the death occurred due to asphyxia by strangulation. Thereafter, the dead body was burnt and the entire body was burnt except the feet. It would thus be clear that the burns were post-mortem. The offence is, therefore, one of murder. According to the doctor, PW-1, the death had taken place around 2400 hours of 26th September, 1985. It would be conclusive that the death had taken place around mid-night of 26/27th September, 1985 in the bed-room of the first respondent.

4. The question, therefore, is: whether the first respondent has committed the murder of his wife? Undoubtedly, the entire prosecution case rests on circumstantial evidence. It is settled law that it is the duty of the prosecution to establish all the circumstances conclusively to hold that the respondent alone had committed the offence. Witnesses may be prone to speak, and in this case, material witnesses have spoken falsehood but the circumstantial evidence will not. It is, therefore, the duty of the court to carefully scan through the evidence on the anvil of human conduct, probabilities and attending circumstances, extending all doubts in favour of the accused. In a case of this type, hardly any direct evidence

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