ORDER :

1. Ganesh Swarnkar aged about 27 years, husband of the deceased Savita Devi, is aggrieved of the judgment of conviction under section 302 of the INDIAN PENAL CODE rendered in Sessions Trial Case No. 132 of 2012.

2. In Sessions Trial Case No. 132 of 2012, the learned Addl. Sessions Judge-II, F.T.C, Bermo at Tenughat has convicted and sentenced the appellant to undergo imprisonment for life and a fine of Rs.10,000/-under section 302 of the INDIAN PENAL CODE for committing murder of his wife.

3. The trial Judge has convicted the appellant for the following reasons: (i) the witnesses have made allegations of demand of dowry against him; (ii) a possibility of causing death of Savita Devi by throttling cannot be ruled out; (iii) he failed to establish that he was not in the house in the night of the occurrence; and (iv) he has failed to offer explanation to meet the reverse burden under sections 106 and 114 of the Indian EVIDENCE ACT , 1872.

4. The aforesaid reasonings given by the trial Judge for convicting him have been challenged by the appellant by filing the present criminal appeal under section 374 (2) of the Code of Criminal Procedure.

5. Peterwar PS Case No. 130 of 2011 was lodged on the basis of the written complaint given by Anand Sonar to the police on 26th December 2011 expressing his suspicion that Ganesh Swarnkar, Deepak Swarnkar and wife of Deepak Swarnkar have throttled his daughter to death. After the investigation, wife of Deepak Swarnkar was let off by the police for lack of evidence and Ganesh Swarnkar and Deepak Swarnkar were sent up for trial on the charge of committing murder of Savita Devi. In the trial, the prosecution has produced 17 witnesses but all of them except the doctor who conducted autopsy over the dead body of Savita Devi and the Investigating Officers who tendered evidence as PW16 and PW17 did not support the prosecution and were declared hostile – PW13 and PW14 were tendered for cross-examination by the defence.

6. PW1 is the mother, PW2 is the uncle, PW3 is the father and PW7 and PW8 are brothers-in-law of Savita Devi. The father of Savita Devi has expressed his apprehension in his written report that the accused persons committed murder of his daughter but in the Court when he came to depose he has stated that he does not know how his daughter has died and, therefore, he was declared hostile at the instance of the prosecution. Similarly, PW1, PW2, PW3, PW7 and PW8 do not claim that on the date of the occurrence they were present in the house of the appellant. Though it appears from cross-examination of these witnesses by the prosecution that they made statements before the police under section 161 of the Code of Criminal Procedure that Ganesh Swarnkar and Deepak Swarnkar were demanding a motorcycle and Rs.50,000/-in cash, in the Court they did not own their statements and flatly denied to have made any such statement before the police.

7. No doubt this is not the law that the evidence of the hostile witness cannot be considered by the Court but then the statement of a hostile witness who has completely resiled from his previous statement made before the police cannot be used by the prosecution. This is the law settled in a catena of judgments by the Hon'ble Supreme Court that a part of the evidence of a hostile witness is usable by the prosecuti