Hon'ble Rajeev Misra,J.
(Dictated by Hon'ble Rajeev Misra, J.)
1. This criminal appeal is directed against the judgement and order dated 21.11.2011 passed by the Additional Sessions Judge Court No. 2 (Ex-cadre), Badaun in S.T. No. 231 of 2009 (State Vs. Akhtar and another) arising out of Case Crime No. 1474/2008, under sections 498A, 304B, 302/34, 306 I.P.C, and section 4 D.P. Act, P.S. Kotwali, District Badaun, whereby and whereunder the accused-appellant has been held guilty of committing the murder of his own wife Smt. Shabboo alias Shabenoor and consequently convicted under sections 498A, 302 I.P.C, and section 4 Dowry Prohibition Act. The accused-appellant has thus been sentenced with rigorous imprisonment for life along with fine of Rs. 10,000/- for the offence under section 302 IPC. In case of default the accused-appellant is to further undergo simple imprisonment of six months. He has been further awarded 3 years rigorous imprisonment along with fine of Rs. 3000/- for an offence punishable under section 498A I.P.C. In case of default, the accused-appellant is to undergo additional detention for 3 months. Lastly the accused-appellant has been sentenced with 2 years rigorous imprisonment along with fine of Rs. 2000/- for an offence punishable under section 4 of the Dowry Prohibition Act. In case of default in the payment of fine, the accused-appellant is to further undergo simple imprisonment for two years.
2. We have heard Mr. Rajesh Kumar Singh, the learned Amicus Curiae, Mr. Noor Mohammad, the learned counsel for the appellant, Mr. Arunendra Kumar Singh, the learned A.G.A. assisted by Mr. Pradeep Kumar Sahi, Brief Holder, Mr. Anil Singh Chauhan, learned A.G.A., Mr. Prashant Kumar, learned A.G.A. and Mr. Sunil Kumar Tripathi, learned A.G.A. for the State.
3. The case in hand is in respect of an occurrence which is not only astonishing but also heinous as well as is a social crime. The accused-appellant is the husband of the deceased Smt. Shabboo alias Shabenoor and stands convicted for having committed the murder of his own wife which according to the prosecution is after more than 6 years of marriage and having produced 3 children from the ill fated wedlock.
4. It transpires from the record that according to the prosecution case the marriage of the accused-appellant Akhtar alias Bhoora was solemnized with Shaboo alias Shabenoor more than six years ago from the date of occurrence i.e. 25.7.2008 in accordance with the Muslim rites and customs. From the said wedlock, 3 daughters are said to be born. However, there is nothing on record to show the names of the children or their dates of birth. According to the prosecution story, even after the expiry of more than six years from the date of marriage of the accused appellant with Shaboo @ Shabenoor, a demand of Rs. 20,000/- is said to be raised by the husband, in the year 2008 and out of the said demand a sum of Rs. 10,000/- is alleged to be paid by the mother of the deceased on 17.7.2008. However, dissatisfied even after partial fulfillment of the aforesaid demand of dowry, the wife was tortured on account of which she was forced to leave her matrimonial home. As a consequence of the aforesaid, she came to her parental home on 25.7.2008 at 8 a.m. The mother of the deceased being a pragmatic lady solicited her daughter with the advice which would save the marriage of her daughter and consequently requested her daughter to return to her matrimonial home. Accordingly, Smt. Tasleem accompanied her daughter i.e. the deceased Shabboo alias Shabenoor to drop her at her matrimonial home on 25.7.2008 and reached there at around 10:00 am.
5. On 25.7.2008 at 4:00 p.m., the mother Smt. Tasleem received news of the death of her daughter Shaboo alias Shabenoor. She, accordingly, rushed at the matrimonial house of her daughter and found the dead body of her daughter lying on a cot kept in the court yard (SAHAN) of the house. She further discovered that there were injuries on the head, face and hands of the deceased and none of the inmates of the house were present.
6. Smt. Tasleem the mother of the deceased then straight away proceeded to Police Station Kotwali, District Bijnor to tender a report of the aforesaid occurrence. She, accordingly, submitted a written report on 25.7.2008 at the above mentioned police station of the occurrence resulting in the death of her daughter Shaboo alias Shabenoor giving a brief account of the cause of occurrence and the state of the deceased. The written report was written by one Tahir Ansari, S/o Baboo Ansari on the dictates of the first informant Smt. Tasleem. The same was also signed by the first informant.
7. On the submission of the written report (Ext. KA.1) the same was entered in the G.D vide report number 41 dated 25.7.2008. C/C 685 Ranveer Singh scribed the check F.I.R., dated 25.7.2008 (Ext. Ka-2), which was registered as Case Crime No. 214/08, under sections 498A, 304B I.P.C. And ¾ D.P. Act. As per the check F.I.R. dated 25.7.2008, four persons namely Akhtar alias Bhoora (Husband), Achchan (Father-in-law), Shabina (Mother-in-law) and Najis (Nand) of the deceased were nominated as the named accused. The F.I.R. further records the date and time of occurrence which is shown as 4 p.m. of 25.7.2008, the date and time of lodging of F.I.R. i.e. 25.7.2008 at 5:30 p.m., the distance between the place of occurrence and the Police Station, which is mentioned as 1 km., the place of occurrence has been shown, as the house of the accused situate in Mohallah Hakim Wala, District Badaun, and also the cause behind the occurrence. The F.I.R. prima facie gives a clear account of the immediate chain of events leading to the death of Smt. Shaboo @ Shabenoor (deceased) as well as the places of injury on the body of deceased as noticed by the first informant. The F.I.R. thus gives a very natural account of the circumstances, leading to the death of the deceased.
8. After the lodging of the above-mentioned F.I.R., the police of Police Station Kotwali, District Badaun came into motion. The C.O. City, Badaun Vijender Singh was appointed as the Investigating Officer. He, accordingly, commenced the investigation. He first undertook the formal exercise of entering the written report dated 25.7.2008 (Ext. KA-1) and the F.I.R. dated 25.7.2008 (Ext. Ka-2) in the case diary. He then recorded the statement of constable clerk 685 Ranveer Singh who had entered the written report dated 25.7.2008 (Ext. Ka-1) submitted by Smt. Tasleem, the first informant/mother of the deceased in the G.D. vide report no. 41 dated 25.7.2008. This constable clerk in his statement under section 161 Cr.P.C. has detailed the consequential action which followed at the aforesaid Police Station upon the submission of the above mentioned written report. He, thereafter, recorded the statement of the first informant/mother of the deceased namely Smt. Tasleem under section 161 Cr.P.C. This was followed by the inspection of the place of occurrence on the same day i.e. 25.7.2008. However, none of the named accused were found to be present in the house. At the time of inspection, the Investigating Officer found broken pieces of bangles, scissor, a knife near the dead body of the deceased. He recovered the same. He also collected plain earth and earth mixed with blood from the place of occurrence. The same were sealed separately and different memos were prepared. He further recorded the inspection note in the C.D. He also prepared the site plan of the place of occurrence on 25.7.2008 (Ext. Ka-4) as well as the carbon copy of the same (Ext. Ka-5). Thereafter, he recorded the statements of Jhamman, Mohd. Arif who are the residents of the locality in which the deceased was residing to have the version of the occurrence according to independent witnesses.
9. The Investigating Officer then took steps for getting the inquest of the deceased conducted. He accordingly, appointed the panch witnesses namely (1) Tahir Ansari, (2) Jafar Ansari, (3) Smt. Tasleem, (4) Adil and (5) Hasim. In the opinion of the panch witnesses, the death of the deceased was characterized as Homicidal. The Inquest Report clearly records the date and the time of the commencement of the inquest, which is 25.7.2008 at 7.30 p.m. and also the time taken to complete the inquest which is ten minutes. The inquest got completed at 7.40 p.m. of the same date. The Inquest Report mentions the place of inquest as the matrimonial home of the deceased. It also records the details of the Case Crime Number of the F.I.R. in which the Inquest was done as well as the details of the injuries found on the body of the deceased, and the officer under whom the inquest was done namely, the Naib Tehsildar Satish Kumar Saxena. The aforesaid inquest was conducted on the information given by Smt. Tasleem the mother of the deceased.
10. On the next day i.e. 26.7.2008, S.S.I. L.M Khan arrested one of the accused namely, Smt. Shabina (mother-in-law) of the deceased from Jama Masjid, District Badaun and produced her at P.S. Kotwali City, District Babaun. The I.O. questioned the aforesaid arrested accused and asked her to give her statement, which she refused. The I.O. then took the aforesaid arrested accused on Police remand for fourteen days.
11. Thereafter, the Investigating Officer prepared the detailed police report for getting the post-mortem of the body of the deceased conducted. He, accordingly, prepared:
Ext. Ka-7 is the Police Form No. 379 i.e. the photograph of the dead body of the deceased (Challan Nash).
Ext. Ka-8 is the memo of seal affixed on the dead body of the deceased.
Ext. Ka-9 is the Police form number 13, which was prepared for getting the Post Mortem of the body of the deceased conducted.
Ext. Ka-10 is the Police form number 33 which was prepared for getting the post mortem of the body of the deceased conducted.
Ext. Ka-11 is the letter dated 25.7.2008 addressed to the Reserve Inspector, Police Lines, Badaun to get the post mortem of the dead body of the deceased conducted.
Ext. Ka-12 is the letter dated 25.7.2008 addressed to the C.M.O. Badaun to get the post mortem of the body of the deceased conducted and submit the post mortem report on 25.7.2008. The dead body of the deceased Shaboo @ Shabenoor was then dispatched for Post Mortem.
12. Dr. Ajay Kumar Verma conducted the autopsy on the body of the deceased on 26.7.2008 and prepared the post-mortem report dated 26.7.2008 (Ext. Ka-13). According to the Doctor, the death of the deceased was caused on account of Haemorrhage as a result of ante mortem injuries. The ante-mortem injuries found on the body of the deceased have been described by the Doctor in the post-mortem report as follows:-
1. Penetrating wound 1.5 cm x 1 cm x cranial cavity deep on left side Nasal cavity and brain tissue lacerated some clotted blood present.
2. Lacerated wound 1.5. cm x muscle deep on left side face just below lateral angle of eye.
3. Abrasion 2 cm x ½ cm on left side face 3 cm below left eye.
4. Contusion 5 cm x 3 cm on left parietal area .
5. Contusion 2 cm x 0.5 cm x on lower upper lip with clotted blood.
6. Contusion 1.5 cm x 0.5 cm on left side upper lip on dissection clotting blood present.
7. Lacerated wound 6 cm x 2 cm x cavity deep on left side head just near left ear on dissection left temporal bone fractured. Meninges lacerated and brain tissues lacerated some clotted blood present in brain tissues.
8. Lacerated wound 1 cm x 0.5 cm on left ear upper part.
9. Lacerated wound 6 cm x 1 cm x cavity deep on right side head 5 cm above right ear on dissection temporal face found fractured. Brain tissue and meninges lacerated, some clotted blood present. Bleeding from right ear present.
10. Abrasion 10 cm x 4 cm on back of right elbow.
13. Upon completion of the post-mortem of the deceased, the I.O. placed the Post-mortem Report in the C.D. and copied the same. After the completion of the aforesaid two formal exercises i.e. the Inquest/post-mortem of the deceased, the I.O. took all steps to secure the arrest of the remaining nominated accused namely Akhtar, Achchan and Najis.
14. On 27.7.2008, the Investigating Officer conducted raids at various places to secure the arrest of the remaining accused, but no arrest could be affected.
15. On 28.7.2008, the Investigating Officer received the original panchayatnama/Inquest report as well as the post mortem report of the deceased. He entered the same in the C.D. and also the cause of death of the deceased Smt. Shaboo @ Shabenoor. This was followed by a visit of the Investigating Officer at the house of the first informant namely, Smt. Tasleem on 31.7.2008, whom he met. He summoned the Panch Witnesses but they were not available, as such, their statements could not be recorded in terms of section 161 Cr.P.C. He, thereafter, again raided the house of the accused to secure their arrest but in vain, as the remaining accused had run away.
16. Thereafter, on 1.8.2008, the Investigating Officer received the news of the arrest of one of the co-accused namely Km. Najis by S.S.I, P.S. Kotwali City, District Badaun, namely L.M. Khan from Lal Path Tiraha. Accordingly, an entry to that effect was made in the C.D. Another co-accused Akhtar @ Bhura (husband of the deceased) surrendered before the Police on 4.8.2008 and was accordingly, sent to jail. The C.J.M Badaun subsequently allowed the Police remand of this co-accused for 14 days.
17. On 12.8.2008, the Investigating Officer recorded the statements of Tahir Ansari a resident of the same locality in which the accused resided followed by the statements of Jafar Ansari, Adil, Hashim three of the panch witnesses, Smt. Tasleem the first informant/mother of the deceased and also a panch witness and the Naib Tahsildar Satish Kumar Saxena, the Officer before whom the inquest was conducted. He, thereafter, recorded the statement of one Ramesh an independent witness followed by the statements of Nawab Miyan and Shabbir. In continuation of the investigation, the Investigating Officer, further recorded the statements of Shami Uddin, Rais, Dildar Ahmad on 24.8.2008. Lastly on 11.9.2009, this I.O recorded the statement of Majrul, Shafat Hussain and concluded that from the material collected during the course of investigation undertaken in terms of Chapter XII Cr. P. C. the commission of the crime only by three of the nominated accused in the F.I.R. dated 25.7.2008, namely Akhtar @ Bhoora (husband), Shabeena (mother-in-law) and Najis (unmarried Nand) is proved. He, accordingly, closed the investigation of Case Crime No. 1474 of 2008 under sections 498 A, 304 B, 302/34 and 306 IPC on 1.9.2009.
18. The Investigating Officer opined that the charges under sections 498A, 304 B I.P.C. and ¾ Dowry Prohibition Act are made out. Accordingly he submitted the charge sheet dated 11.9.2009 (Ext. Ka-14) under sections 498 A 304B I.P.C. and Section 4 D.P. Act, against three of the above named accused. As such, the three charge sheeted accused were required to answer the charges under the aforesaid sections.
19. Upon the submission of the charge sheet dated 11.9.2008 cognizance was taken upon the same by the C.J.M. Badaun. Thereafter, vide order dated 5.2.2009, the case was committed to the Court of Sessions. Accordingly, S.T. No. 231 of 2009 (State vs. Akhtar alias Bhoora and another) came to be registered in the court of the Sessions Judge, Badaun.
20. The Court below vide order dated 3.3.2009 framed the charges against the aforesaid three charge sheeted accused. Three specific and direct charges were framed against the accused for offences punishable under sections 498A, 304 B I.P.C. and Section 4 D.P. Act. In the alternative two more charges, one under section 302/34 I.P.C. and the other under section 306 IPC were also framed.
21. All the accused denied the charges so framed and demanded trial. Accordingly, the burden fell upon the prosecution to first lead the evidence and bring home the charges alleged against the accused persons. Thus, the prosecution in discharge of the aforesaid burden adduced five witnesses namely, P.W. 1 Majrul, P.W. 2 Tasleem, P.W. 3 Shabbir, P.W. 4 Shameemuddin and P.W. 5 Raees Ahmad to prove its case.
22. P.W. 1 Majrul is the father of the deceased Shaboo @ Shabenoor. This witness in his statement-in-chief has clearly stated that for the last ten years he has been residing at Tirpur, Madras and doing the job of a carpenter. He has further stated that six years and few days before the occurrence, he had married his daughter Shaboo @ Shabenoor with his real nephew (bhatija wrongly mentioned as bhanja) in accordance with the Muslim Rites and Customs. It was also stated that he had given substantial dowry at the time of marriage but the in-laws of his daughter Shaboo @ Shabenoor were not happy with the dowry given by him. They further demanded Rs. 20,000/- as additional dowry from his daughter Shaboo @ Shabenoor. This fact was disclosed to him on telephone by his wife Smt. Tasleem. From the wedlock of his daughter with Akhtar @ Bhoora, three daughters were born. However, the accused appellant misbehaved with his daughter and very often not only abused her but also beat her. He further goes on to state that on his return from Madras, he and his wife together had words with the accused regarding the ill-treatment of their daughter. Accordingly, for some time things were normal and no physical or mental cruelty was committed upon the daughter Shaboo @ Shabenoor by the in-laws. However, after the expiry of a short span to time, the in-laws of the daughter of this witness again raised a demand of Rs. 20,000/- towards additional dowry. For the welfare of her daughter, Smt. Tasleem the mother of Shaboo @ Shabenoor gave a sum of Rs. 10,000/- after borrowing the same. However, in spite of the, partial fulfillment of the demand of dowry, the in-laws of the daughter of this witness continued with their demand for the payment of balance amount of Rs. 10,000/-. On account of the non-fulfillment of the entire demand of dowry, the daughter Shaboo @ Shabenoor was ousted from her matrimonial home. Smt. Tasleem wife of P.W.1 Majrul disclosed the aforesaid incident to this witness on telephone. He is then said to have advised his daughter on telephone. Accordingly, the daughter accompanied by her mother Smt. Tasleem returned to her matrimonial home on the same day i.e. 25.7.2008 at 10:00 am. Then on the same day, the accused are alleged to have first beaten the daughter of this witness namely, Shaboo @ Shabenoor and then put her to death.
23. The news regarding the death of Smt. Shaboo @ Shabenoor the daughter of P.W. 1 was received by this witness from Inayat his son on telephone. Accordingly, this witness immediately came to Badaun. As per this witness, the daughter Shaboo @ Shabenoor was done to death on account of the non-fulfillment of the demand of dowry raised by the in-laws of the deceased.
24. He has further stated that after receiving the news regarding the death of Shaboo @ Shabenoor at 4 :00 pm on 25.7.2008, Smt. Tasleem the mother of the deceased, immediately rushed to the matrimonial house of her daughter. She discovered that the dead body of Shaboo @ Shabenoor was lying on a cot kept in the courtyard (sahan) of the house and the deceased had also sustained injuries on the head, face and hands. She then submitted a written report of the occurrence as detailed above at P.S. Kotawali, Badaun in the evening. On the basis of the said written report, a criminal case being Case Crime No. 1474 of 2008 under sections 498 A, 304 B, 302/34 and section 306 I.P.C. along with section 4 of the D.P Act, came to be registered against the accused-appellant and his mother.
25. After having given the aforesaid statement, this witness further stated that he had submitted an affidavit before the District Judge, Badaun stating therein that the accused never demanded dowry nor they have murdered his daughter. Similar affidavit was also said to have been given by the mother Smt. Tasleem. The said affidavits were alleged to have been filed on the advise of the Advocate. He then goes on to state that he and his wife were summoned by the District Judge, Badaun to enquire as to whether the said affidavit were filed under duress or not. He is said to have stated before the District Judge that the affidavit has been submitted by him and further admitted that the accused had not caused the murder of his daughter nor they have demanded any dowry. Similar is the content of the affidavit filed by the wife and the same query was also raised from her by the District Judge.
26. This witness again deposed again on 13.7.2009. He gave a detailed account of the marriage of his daughter Shaboo @ Shabenoor with the accused Akhtar @ Bhoora and the relationship of the in-laws of his daughter with her. On this occasion, the relationship was described as amicable. However, at this stage, this witness departed from the earlier stand taken by him. Accordingly, he was declared hostile by the prosecution. This witness was therefore, cross-examined by the A.D.G.C. Criminal. On the suggestion made to him, he denied all the hypothesis regarding his earlier testimony. He further stated that the earlier testimony was given by him against the accused on account of the pressure of the Police. He, further stated that the statement was not given after entering into a compromise with the accused.
27. P.W. 2 Tasleem is the mother of the deceased. She deposed before the Court below on 13.7.2009. According to this witness, the marriage of her daughter Smt. Shaboo @ Shabenoor was solemnized with the accused Akhtar @ Bhoora around six years and 25 days ago in accordance with the Muslim Rites and Customs. She further stated that whatever dowry was given was sufficient and all the in-laws were happy. They never beat her daughter nor committed any cruelty upon her. Shaboo @ Shabenoor was blessed with four daughters, out of which, one has died. The surviving three daughters are being nurtured by her. She further went on to say that a sum of Rs. 10,000/- was paid by her on account of her personal wish to enable her son-in-law to do business. The same was never demanded. The accused persons never ousted her daughter from her matrimonial home. Upon being confronted with the written report, (paper No. 5 Ka-1) she, upon hearing the contents of the same, clearly admitted the factum regarding the dictation of the same to one Tahir Ansari. However, she denied the contents of the report and further stated that the recital contained in the report are incorrect. The written report was never read out to her. However, she admitted affixing her thumb impression on the same. She then stated that the written report was submitted by her on the instigation of the people of the locality. No criminality was committed by the accused against her daughter. She further admitted the factum regarding the holding of the panchayatnama/ Inquest of the deceased and her signing the Panchayatnama/Inquest Report and the holding of the post mortem of the body of the deceased.
28. She then admitted the submission of the written report at the P.S. Kotwali, Badaun against the named accused i.e. Akhtar @ Bhoora, Acchan, Shabina and Najis, stating therein that they have caused the death of her daughter. However, she then stated that the report is false and the statement given by her before the Court is correct. She had discovered only after a few months that a false report has been submitted by her on account of which the accused were sent to jail. She further stated her ignorance of law that even upon the lodging of a false F.I.R., the accused are sent to jail.
29. At this stage, this witness was declared hostile. She was accordingly cross-examined by the prosecution namely, the A.D.G.C. Criminal.
30. However, even in her cross-examination this witness did not support the prosecution case and reiterated the earlier stand taken by her.
31. This witness was further cross-examined on 21.12.2009. This time this witness took a somersault. She now supported the F.I.R. version of the occurrence. According to her, the accused have caused the murder of a daughter on account of non-fulfillment of the demand of dowry which was Rs. 20,000/-. She further admitted the submission of the written report at the Police Station and its content being true. She then went on to state that Acchan and Jaheer Ahmad terrorized her and further caused coercion upon her to withdraw the case. They further threatened the abduction of her children and also the death of her husband. She further stated that in respect of the aforesaid act of coercion and terrorizing her, she had made complaint with the police officers, the copies of which were filed by her. When no action was taken upon the same, then out of compulsion, she had to change her stand. Thus the earlier testimony given by her was on account of fear and for that reason alone she had to change her stand. Even after this witness had deposed in favour of the accused, according to her she was terrorized and money was demanded from her. She then went on to detail how she was terrorized.
32. The defence was granted an opportunity to cross-examine her but the defence refused to cross-examine her. Accordingly, her cross-examination was closed.
33. Subsequently, P.W. 2 Smt. Tasleem filed an application on 16.11.2009 seeking her recall as a witness in terms of section 311 Cr.P.C. on the ground that her earlier testimony was obtained by the accused in their favour on the strength of coercion and threat. Accordingly, P.W. 2 Smt. Tasleem was re-examined as C.W. 1 on 21.12.2009.
34. This witness was now examined in question answer form. She answered all the question put to her. The prosecution story as unfolded in the F.I.R. and as earlier supported by this witness was reiterated and reaffirmed.
35. This witness was cross-examined by the defence but her testimony remained consistent and in consonance with the earlier part of her statement. The defence could neither contradict her with the earlier part of her statement recorded as C.W.1 nor could the defence cull out any such fact in her cross-examination, on the basis of which this witness could be said to be unreliable and therefore not worthy of trust.
36. P.W. 3 Shabbir, P.W. 4 Shameemuddin and P.W. 5 Raees Ahmad are independent prosecution witnesses of fact. Their testimony does not throw any light on the case of the prosecution or the defence taken by the accused. Thus their testimony is totally irrelevant so far as the issues involved in the present case are concerned.
37. From the aforesaid discussion it is clear that P.W. 1 Majrul the father of the deceased Shaboo @ Shabenoor has not supported the prosecution case. The testimony of P.W. 3, P.W. 4 and P.W.5 does not throw any light with regard to the commission of the offence or the innocence of the accused. As such, their testimony is of no help in consideration of the issues involved in the present criminal appeal. P.W. 2 Smt. Tasleem though has taken contradictory stands before the court below as P.W. 2 but her testimony recorded on 21.12.2009 as C.W. 1 was accepted by the Court below as credible and reliable after assigning detailed reasons for the same. None of the reasons so assigned by the Court below for accepting the testimony of C.W. 1 as recorded on 21.12.2009, were challenged before us by Mr. Noor Mohammad, the learned Counsel for the appellant. However, being the Court of appeal and consequently, the last court of fact, we have ourselves scrutinized the reasonings recorded by the court below for accepting the testimony of C.W. 1 Smt. Tasleem as credible and reliable. Having examined her testimony in the light of the attending circumstances, we find that the conduct of this witness is very natural. That apart this witness has given a very natural but convincing account of the entire occurrence right from the cause behind the occurrence, the conduct of the in-laws and the status of the dead body as discovered by her in the evening of 25.7.2008. This witness was cross-examined in detail by the defence but the defence could not dislodge her, nor the defence could cull out any such fact from her on the basis of which her testimony could be doubted. We further find that this witness has remained consistent through out and her statement is devoid of any exaggeration, embellishment or contradiction. Consequently, we have no hesitation to conclude that the testimony of this witness i.e. C.W. 1 is credible and reliable hence worthy of trust. Since one of the witness of the prosecution witnesses of fact has clearly implicated the appellant in the commission of the alleged crime, the appellant cannot seek any benefit from the fact that since P.W. 1 Majrul has not supported the prosecution case and he has been declared hostile. As such, the prosecution case itself is false. The law stands crystallized to the effect that even the testimony of a witness who has been declared hostile can be looked into up to that stage till its supports the prosecution case. According to the learned A.G.A. the testimony of P.W.1 cannot be discarded outright but only to the extent as indicated above. In view of the aforesaid the argument that since P.W. 1 has not supported the prosecution case, his testimony is not liable to be considered, is wholly misconceived. Furthermore, the success or the failure of the prosecution is not dependent upon the numerical strength of the witnesses produced by it to bring home the charges so framed against the accused but on the quality of evidence. In the present case, since the testimony of one of the prosecution witness i.e. P.W.2/C.W.1 Smt. Tasleem has categorically implicated the accused, the case has now to be judged in the light of the testimony of this witness. As already stated above, in a criminal case it is not the volume of evidence but the quality of evidence which decide the fate of the case. Since one of the prosecution witnesses has supported the prosecution story, no benefit can be derived by the accused from the fact that P.W.1 has been declared hostile and the testimony of P.W. 3, P.W. 4 and P.W. 5 does not in any manner implicate the present appellant in the commission of the alleged crime, cannot automatically absolve him of the charges so framed.
38. Apart from relying upon the testimony of the aforesaid prosecution witnesses, and Court witnesses, the prosecution further relied upon documentary evidence which were duly filed. The same is tabulated herein under. It is pertinent to mention here that the documentary evidence so filed were either admitted or proved. As such the same were duly marked as exhibits in terms of Rule 27 of the General Rules, Criminal. Consequently, the formal witnesses i.e. the scribe of the F.I.R., the Investigating Officer, the Doctor who conducted the autopsy on the body of the deceased and the witness of recovery, were accordingly not produced to prove the documentary evidence so filed.
Ext. KA-1 is the written report dated 25.7.2008 submitted by P.W.2 Smt. Tasleem the first informant/mother of the deceased at P.S. Kotwali City, District-Badaun.
Ext. KA-2 is the F.I.R. dated 25.7.2008 lodged by P.W.2 Smt. Tasleem the first informant/mother of the deceased which was registered as in Case Crime No. 1474 of 2008, under sections 498A, 304B I.P.C. and section ¾ D.P. Act, P.S. Kotwali City, District Badaun.
Ext. KA-3 is the carbon Copy of the G.D relating to entry No. 41 dated 25.7.2018 whereby the written report dated 25.7.2018 was entered in the G.D.
Ext. KA-4 is the Site plan of the place of occurrence of Case Crime No. 1474/08 prepared by the Investigating Officer namely, Vijender Singh C.O. City Badaun.
Ext. KA 5 is the Carbon copy of the site plan of the place of occurrence of Case Crime No. 1474/08 prepared by the Investigating Officer namely, Vijendra Singh C.O. City Badaun.
Ext. KA-6 is the Panchayatnama/Inquest Report dated 26.7.2008 pertaining to the deceased Smt. Shaboo @ Shabenoor.
Ext. KA-7 is the Police Form No. 379 i.e. photograph of the dead body of the deceased (Challan Nash).
Ext. KA-8 is the Memo of seal fixed on the packed dead body of the deceased when the same was sent for post mortem.
Ext. Ka-9 is the Police form number 13, which was prepared for getting the Post Mortem of the body of the deceased conducted.
Ext.Ka-10 is the Police form number 33 which was prepared for getting the post mortem of the body of the deceased conducted.
Ext. Ka-11 is the letter dated 25.7.2008 addressed to the Reserve Inspector, Police Lines, Badaun to get the post mortem of the dead body of the deceased conducted.
Ext. Ka-12 is the letter dated 25.2.2008 addressed to the C.M.O. Badaun to get the post mortem of the body of the deceased conducted and submit the post mortem report.
Ext. KA-13 is the Post Mortem Report dated 26.7.2008 pertaining to the dead body of the deceased Shaboo @ Shabenoor. The same was prepared by Dr. Ajay Kumar Verma i.e. the Doctor who conducted the autopsy on the body of the deceased.
Ext. KA-14 is the Charge sheet dated 11.9.2008 submitted by the Investigating Officer namely, Vijender Singh against three of the named accused i.e. Akhtar @ Bhoora (husband), Smt. Shabeena (mother-in-law) and Najis (unmarried Nand) of the deceased under sections 498A, 304 B and ¾ D.P. Act only. .
39. After the prosecution witnesses of fact were over, all the incriminating material and adverse circumstances were placed before the two accused one by one in terms of section 313 Cr. P. C. to have their version of the occurrence. In the first statement under section 313 Cr.P.C recorded on 9.9.2009, the accused appellant Akhtar @ Bhoora denied all the questions put to him by repeatedly saying that it is false or he has nothing to say. The accused-appellant neither stated anything about the circumstances leading to the death of the deceased who is his wife namely, Shaboo @ Shabenoor, nor he explained as to how the dead body of the deceased reached the house of the accused-appellant when according to D.W.1 Mohd. Naeem the murder of Shaboo @ Shabenoor had taken place in the jungle, nor about his presence or absence in the house. In the second statement under section 313 Cr.P.C. which was recorded on 4.8.2011, the accused appellant denied most of the questions put to him by repeatedly saying that it is false. However, an improvement was made over the previous statement as is evident from his reply to question Nos. 1, 9, 10 and 11. In respect to question No. 1 the accused appellant in his reply admitted that Smt. Shabbo @ Shabenoor i.e. the deceased was his wife but he denied the factum regarding the demand of any dowry from the in-laws at any point of time. In reply to question No. 9, relating to the testimony of C.W. 1 Smt. Tasleem, C.W. 2 Ramesh, C.W. 3 Adil Hussain, he admitted their testimony but did not state anything further. In reply to question No. 10 relating to furnishing of defence evidence, he answered the same in the affirmative but did not appear as a defence witness to explain/prove his innocence in the light of attending circumstances. In reply to question No. 11 as to why the prosecution was launched, he stated that the same was launched on account of enmity on the dictates of the residents of the locality. The alleged enmity has not been explained by the accused. In the third statement recorded on 26.9.2011, the accused appellant denied the question No.1 put to him by saying that it is false. However, a departure was made from the previous stand in reply to questions Nos. 2, 3, 4, 5 6,7, and 8. In reply to question No. 2, he came out with the defence that he was not present at home but was making some purchase from the shop of Akhlaq Furniture for a retired police Sub-Inspector. In reply to question No. 3 relating to the earlier statement of the first informant, Smt. Tasleem as a result of coercion and threat, he simply denied the same. With regard to question No. 5, the accused appellant stated that when he returned home, the Police had already arrived but he had no knowledge of the occurrence. In reply to question No.6, regarding injuries on the body of the deceased, he is said to have stated that he is ignorant about the same. In reply to question No. 7, relating to the admission of the documentary evidence relied upon by the prosecution, this witness did state that he has to say something but as this accused did not appear before the court below, there was no other version before the Court below except the prosecution version. In reply to question No. 8, which is residuary in character, he submitted that a false case has been registered against him on account of enmity of the residents of the locality (mohalla). Thus, the co-accused Bhoora pleaded the plea of alibi in proof of his innocence. Consequently, the burden fell upon the accused appellant Akhtar @ Bhoora to establish the plea of alibi so raised by him, as the failure to establish the said plea would prejudice the accused himself.
40. The accused-appellant in proof of his innocence as pleaded by him in his statement under section 313 Cr.P.C. adduced two witnesses namely D.W.1 Mohd. Naeem and D.W. 2 Gohar Ali.
41. D.W. 1 Mohd. Naeem deposed before the Court below on 11.10.2011. This witness is a retired head clerk in the U.P. Police. He has first detailed about his family and then disclosed his acquaintance with the accused. He goes on to state that the accused Akhtar @ Bhoora is a carpenter by profession and has worked for him as such: he has made the doors and (Chaukhat), a wooden frame fixed in the wall in which doors are fixed, of the house of this witness which is being constructed in Kadri Colony, Mohalla Sotha, District Badaun. A further statement has been made by this witness that the expenses incurred by him in the construction of the house are noted in a diary. However, only main facts are written but sometimes, he forgets to transcribe the same.
42. The crucial part of his testimony which is the sheet anchor of the accused-appellant, is the recital in the testimony of this witness to the effect that when he and the accused Akhtar @ Bhoora had proceeded to make some purchase and were purchasing something from one Akhtar Hukumdar that a news was received at 3:00 p.m. regarding the murder of Smt. Shaboo @ Shabenoor in the jungle. The accused Akhtar @ Bhoora left for his home immediately. According to this witness on 25.7.2008 purchases were made from Akhtar and Iqbal. One of the shop keepers namely, Akhtar Hukumdar gave a cash memo of the purchases made. The same was filed and admitted in evidence by marking it as Exhibit Kha-1. He further filed the original page of the diary maintained by him relating to 25.7.2008 which is said to be in his own handwriting and was marked as Ext. Kha -2.
43. This witness was cross-examined by the prosecution. In his cross-examination, this witnesses praised the accused Akhtar @ Bhoora for his work. However, at the end he finally stated that he does not know anything about the marital life of the accused Akhtar @ Bhoora.
(II) D.W. 2 Gohar Ali is an Advocate practicing at Collectorate, District Badaun. He deposed before the Court below on 31.10.2011. According to this witness, he is working as public notary for many years. He produced the notary register of 2009. As per the entry occurring at Serial No. 166 dated 28.1.2009, Smt. Anisha Begum wife of Abdul Laik, executed a deed dated 28..1.2008 in favour of Majrunlah. Anisha Begum was identified by Tavesh Ali S/o Nause Ali. The deed of surrender (dastbardari) was executed in favour of Majrun lah- S/o Anisha Begum. He further stated that at the end of identification of the accused, attestation were done. The defence produced the original deed of surrender (dastbardari) which was marked as Ext. Kha-3.
44. This witness was also cross-examined. However, nothing adverse came out from his cross-examination. The prosecution could not cull out any such circumstance so as to disbelieve this witness. However his testimony is totally irrelevant qua the prosecution case as unfolded by the prosecution itself. Nothing has been stated by this witness regarding the time and place of occurrence and his presence or absence at the place of occurrence or not.
45. As already stated above, the accused appellant himself did not dispose before the Court below as a defence witness to establish the plea of alibi raised by him in proof of his innocence for the offences punishable under sections 498A, 304B IPC and Section ¾ D.P. Act. The charges for the offence under section 304B IPC and alternatively under section 302/34 and section 306 IPC have been leveled against the accused by virtue of the presumption arising out of section 106 of the Indian Evidence Act, whereas the charges under section 498A IPC and Section 4 of the Dowry Prohibition Act, have been framed against the accused on the basis of the allegations made in the F.I.R. which stand supported by the testimony of the witnesses who have been examined by the Investigating Officer under section 161 Cr.P.C. Since the accused appellant is the beneficiary of the plea of alibi raised by him, the burden to establish the same will be upon the accused appellant himself and the burden to prove the same cannot shift.
46. The Court below upon evaluation of the documentary evidence all of which except one was admitted in terms of section 294 Cr.P.C, the oral testimony of the prosecution witnesses of fact and the material exhibits came to the conclusion that the oral testimony of P.W. 2 Smt. Tasleem recorded on 17.9.2011 is found to be true for the following reasons:
a) The statement of P.W. 2 Smt. Tasleem the first informant recorded on 17.9.2011 supports the F.I.R. which was lodged immediately after the happening of the occurrence. It also supports the statement in chief made by P.W.1 Majrul. The affidavit given by the first informant at the time of the consideration of the bail application is the outcome of pressure/offer which fact stands corroborated from the statement of P.W. 2 Smt. Tasleem itslef.
b) The first informant/mother of the deceased namely Smt. Tasleem P.W. 2 has categorically alleged in the F.I.R. that when she reached the place of occurrence which is the matrimonial house of her daughter, she found the dead body of her daughter lying on a cot in the courtyard (sahan). She further discovered that her daughter had sustained injuries on her head face and hands. The aforesaid recital contained in the F.I.R. stands corroborated with the Panchayatnama/inquest report as well as the post mortem report of the deceased wherein also it has been stated that multiple injuries are found on the body of the deceased.
c) The defence counsel has admitted the photograph of the deceased at the time of the nikah, the photograph of Smt. Shaboo @ Shabenoor when she was alive and the photograph of the dead body of Smt. Shaboo @ Shabenoor. The photograph of the dead body of the deceased i.e. Smt. Shaboo @ Shabenoor clearly show injuries on her face.
d) The accused appellant Bhoora @ Akhtar when asked about the injuries on the body of the deceased, he has stated in his statement under section 313 Cr.P.C that the photograph is of his wife but how she sustained injuries is not known to him. The accused is the husband of the deceased and the ignorance pleaded by him clearly indicates that the accused is not disclosing the true facts before the Court even when the dead body of the wife of the accused i.e. the deceased was recovered from the house of the husband. No person can himself inflict the numerous injuries upon himself as mentioned in the post mortem report.
e) There is no evidence to show that the deceased was murdered in the jungle. As such, the statement of D.W.1 Mohammad Naeem to the effect that the deceased was murdered in the jungle is not believable. In case the deceased had been murdered in the jungle then in that eventuality the information regarding the murder of the wife would have been given by the accused himself or by the family members of the husband of the deceased i.e. the accused-appellant. But no information regarding the death of the deceased who is the wife of the accused-appellant has been given at the Police Station. When P.W. 2 Smt. Tasleem, the mother of the deceased/the first informant reached the matrimonial home of her daughter upon hearing the news of her death, no family member of the family of the husband of the deceased was present at the home and the dead body of the deceased was lying in a pool of blood. This circumstance goes to show that the act of murder of the daughter of the first informant namely, Smt. Shaboo @ Shabenoor was committed. The husband is said to be in the city. He had not gone to such a far place that his presence at the place of occurrence or the city is impossible. In the absence of any cogent evidence, it is impossible to believe that the accused-appellant had gone out of the city on the date of occurrence and he was not within the range of the place of occurrence or in the city. The accused-appellant has himself denoted his presence in Badaun city and said to be busy in carpentry work. However, after committing the crime, the accused-appellant could have conveniently joined his work.
47. The Court below, after having recorded the aforesaid reasons for accepting the testimony of P.W. 2 Smt. Tasleem the first informant/mother of the deceased proceeded to evaluate the case.
48. On behalf of the accused, various submissions were made before the Court below in proof of their innocence and also to establish that the prosecution case is highly improbable and the circumstantial evidence does not support the same. It was then urged that the Police upon completion of the Investigation of the Case Crime Number concerned, has submitted the charge-sheet only against three out of the four nominated accused in the F.I.R. Acchan, the father-in-law of the deceased has been excluded from the charge sheet which goes to show that the prosecution case is false. It was next submitted that at the time of consideration of the bail application of the accused, affidavits were filed by the parents of the deceased wherein they categorically stated that the accused persons have not killed their daughter on account of non fulfillment of the demand of dowry nor there was any demand of dowry by the accused persons. The veracity of the averments made in the affidavit were got enquired by a Circle Officer. In continuation of the aforesaid, the credibility and reliability of P.W.1 Majrul was challenged on the ground that at the time of occurrence P.W.1 was in Madras, as such, he could not have any knowledge of the occurrence. It was then submitted that P.W. 2 Smt. Tasleem the mother of the deceased has not supported the occurrence in her previous statements. It was also urged that P.W. 2 Smt. Tasleem in order to give such statements which are favorable to the accused had demanded Rs. 1,00,000/- . However, in lieu of the same, a house has been given which is evident from the deed of surrender (dastbardari) executed by Anisha Begum in favour of her son Majrunlah. The aforesaid deed has been proved by D.W. 2 Gohar Ali, Advocate, who had notarized the aforesaid deed. It was further argued that at the time of occurrence, eight years had expired from the date of marriage. There is no justification that after the expiry of such a long period, the in-laws will demand a sum of Rs. 20,000/- towards dowry. The conduct of P.W. 2 Smt. Tasleem was seriously challenged by submitting that she has continuously changed her stand. Firstly, she deposed as P.W. 1 and supported the defence. However, as money was not paid to her she took a somersault. She submitted an application under section 311 Cr.P.C., seeking her recall as a witness on the ground that the earlier testimony was given by her on account of coercion and misrepresentation on the part of the accused. In the subsequent statement which was recorded by treating her as C.W. 1. she has implicated the accused in the commission of the alleged crime. In view of the above, no reliance could be placed upon her statements. The defence has produced respectable persons in evidence regarding the proof of their innocence. It was also urged that there is contradiction in the oral evidence which has come on the record. In view of the affidavit submitted by P.W. 2 Smt. Tasleem, the first informant, the accused are liable to be acquitted. The accused Akhtar @ Bhoora was not present in the house, which is the place of occurrence at the time of occurrence. The same stands substantiated by the testimony of the accused Akhtar @ Bhoora himself as recorded under section 313 Cr.P.C, wherein he has clearly stated that at the time of occurrence, the accused Akhtar @ Bhoora (husband of the deceased) was at the shop of Akhlaq Furniture, making some purchase for a retired Police Sub-Inspector namely, Mohd. Naeem D.W.1. As such, the innocence of the accused Akhtar @ Bhoora was sought to be pleaded on the basis of plea of alibi. According to D.W. 1, Mohd. Naeem, he and the accused Akhtar @ Bhoora had gone to make some purchase. While they were purchasing something from one of the co-accused Akhtar Hukumdar at around 3:00 pm of 25.7.2008, they received news that Shaboo @ Shabenoor, wife of Akhtar @ Bhoora has been murdered in the jungle. As such, the plea of alibi was sought to be raised.
49. To buttress the aforesaid submissions urged on behalf of the accused, before the Court below, the aid of the following case law was taken:-
(I) Virappa and others Vs. State of Karnatka reported in 2011 (1)CCSC 86 (SC).
(II) State of Rajsthan Vs. Usuf reported in AIR 2009 SC 2674.
(III). Kunju @ Balachandran Vs. State of Tamilnadu reported in 2008 (60) ACC 1019.
(IV) Uday Chakravorti and others Vs. State of Bengal reported in 2010 (70) ACC 622.
(V) State of Punjab Vs. Chaitindar Pal Singh reported in AIR 2009 SC 974.
(VI) Sharda Vs. State of Rajsthan reported in AIR SC 408.
(VII) Mohd. Ankoosh and others Vs. The Public Prosecutor High Court reported in AP AIR 2010 SC 566.
50. The Court below duly considered the submissions urged on behalf of the accused and also dealt with the case law relied upon by the accused. It was of the view that irrespective of the submissions urged on behalf of the defence and the evidence led by the prosecution the only question to be considered by the Court is which of the party is stating the truth. The court below proceeded to analyze the submissions made on behalf of the prosecution and the accused judiciously and concluded that none of the case law relied upon by the defence in support of the submissions made is applicable in the facts and circumstances of the case. It further concluded that no benefit can be derived by the defence from the same. D.W. 1 Mohd. Naeem in his testimony has stated that on 25.7.2008 at around 3:00 p.m. information was received that the wife of Bhoora @ Akhtar has been murdered in the jungle. However, no such recital is contained in the statement of the accused appellant Akhtar @ Bhoora as recorded under section 313 Cr.P.C. No F.I.R. was lodged by the defence (the in-laws of the deceased) regarding the death of Shaboo @ Shabenoor in the Jungle. No evidence has been adduced by the prosecution to explain the active participation of the co-accused Shabeena (mother-in-law) of the deceased in the commission of the crime. As such, she cannot be convicted only on the basis of circumstantial evidence. Accordingly, the co-accused Shabeena was acquitted of the charges alleged against her. Placing reliance upon the judgement of this Court in the Case of Jaipal Mittal Vs. State of U.P. reported in 2007 All Cr. C 124, the Court below came to the conclusion that the theory of similarly circumstance/situate in respect of the parents of the husband can be invoked only when there is evidence to that effect. Otherwise, the case of the husband is clearly on a different footing from the other members of the family of the in-laws. Consequently, the case of the husband has to be treated differently and it is the husband who has to discharge the burden of his being innocent in the light of the attending circumstances and also explain the circumstances of the case to the extent they point out his innocence. The plea of alibi raised by the husband could not be established by him, whereas, the prosecution has discharged its initial burden by producing P.W. 2/C.W.2 Tasleem to prove its case. Accordingly, the Court below by means of the impugned judgement and order dated 21.11.2011 passed by the Additional Sessions Judge Court No. 2 (Ex-cadre), Badaun in S.T. No. 231 of 2009 (State Vs. Akhtar and another) arising out of Case Crime No. 1474/2008, under sections 498A, 304B, 302/34, 306 I.P.C, and section 4 D.P. Act, P.S. Kotwali, District Badaun, has held the appellant guilty of committing the murder of his own wife Smt. Shabboo @ Shabenoor and has consequently convicted him under sections 498A, 302 I.P.C, and section 4 Dowry Prohibition Act. The accused-appellant has thus been sentenced with rigorous imprisonment for life along with fine of Rs. 10,000/- for the offence under section 302 IPC. In case of default the accused-appellant is to undergo simple imprisonment of six months. He has been further awarded 3 years rigorous imprisonment along with fine of Rs. 3000/- for an offence punishable under section 498A I.P.C. In case of default, the accused-appellant is to undergo detention for 3 months. Lastly the accused-appellant has been sentenced with 2 years rigorous imprisonment along with fine of Rs. 2000/- for an offence punishable under section 4 of the Dowry Prohibition Act. In case of default in the payment of fine, the accused-appellant is to further undergo simple imprisonment for two years. Thus, feeling aggrieved by the aforesaid judgement, the accused Bhoora @ Akhar has now approached this Court by means of the present criminal appeal.
51. Mr. Noor Mohammad, learned counsel for the accused-appellant, has vehemently urged before us that the impugned judgement and order passed by the Court below is liable to be set aside. To buttress his submissions, he further submits that the death of the deceased Shaboo @ Shabenoor has occurred after more than six years of marriage, and therefore it is impossible to believe that the deceased was done to death on account of non fulfillment of dowry. From the wedlock of the accused Akhtar @ Bhoora with the deceased Shaboo @ Shabenoor, three children (daughters) were born. In such circumstances, it is even difficult to conceive that the accused shall commit the murder of his own wife leaving the minor daughters in a state of destitution, isolation and insecurity. From the testimony of D.W. 1 Mohd. Naeem, it is established that the accused Akhar @ Bhorra was not present at the place of occurrence but was with D.W. 1 making some purchase from Akhtar Hukumdar. At around 3:00 p.m., information was received that Smt. Shaboo @ Shabenoor has been murdered in the jungle, which clearly proves the innocence of the accused-appellant. P.W. 2 Smt. Tasleem in her testimony has clearly admitted that during the day time the family of the husband of the deceased used to reside in the grove and used to return to the house in the evening. It is thus urged that as per the testimony of P.W. 2 herself the innocence of the accused-appellant is established beyond doubt.
52. The learned counsel for the appellant has relied upon the following judgements to lend support to the submissions urged by him:
(I) Jose Alias Pappachan Vs. Sub-Inspector of Police, Koyilandy and another reported in (2016) 10 SCC 519.
(II) Shaikh Maqsood Vs. State of Maharashtra reported in (2009) 6 SCC 583 (III) Nupur Talwar;Rajesh Talwar Vs. State of U.P. and another reported in 2017 (10) ADJ 586.
(IV) Mangu Singh Vs. Dharmendra and another reported in (2015) 17 SCC 488.
(V) Reena Hazarika Vs. State of Assam reported in 2018 AIR (SC) 5361.
(VI) State of Rajasthan Vs. Ramanand reported in (2017) 5 SCC 695.
(VII) State through Central Bureau of Investigation Vs. Mahender Singh Dahiya reported in (2011) 3 SCC 109.
53. Mr. Arunendra Kumar Singh, the learned A.G.A assisted by Mr. Pradip Kumar Sahi, learned brief holder, for the State submitted that the testimony of P.W.-2, Smt. Tasleem clearly supports the cause behind the occurrence and secondly, her visit to the house of the in-laws of the deceased at 10-00 a.m. on 25.7.2008 along with her daughter to drop her at her matrimonial home. It goes to show that nothing had happened upto 10:00 a.m. on the aforesaid date. He then submits that the news regarding the death of the deceased was received by her on 25.07.2008 at 4:00 p.m. As per the F.I.R. dated 25.7.2008 she immediately rushed to the house of the accused-appellant, where she discovered that her daughter was lying dead on a cot having injuries on her head, face, hands and none of the inmates of the house were present. He, therefore, submits that the accused-appellant has conveniently engineered his absence from the place of occurrence and further alleged that the information regarding the death of Smt. Shaboo @ Shabenoor was received on 25.07.2008 at 3-00 P.M. which is a clear after thought as the timing had already been mentioned in the F.I.R. dated 25.07.2008 as well as in the statement of C.W.-1, Tasleem which was recorded on 21.12.2009. He, further contended that the statement of P.W. 2/C.W.1 Smt. Tasleem is a substantive piece of evidence and by producing her the prosecution has discharged its initial burden to point out the guilt of the accused and also the stand of the prosecution. Therefore, the burden to establish the chain of events which would prove the innocence and the plea of alibi raised by the accused-appellant shall be upon the appellant himself being the beneficiary of the said plea. As the accused-appellant has failed to establish the said plea, the appeal is liable to be dismissed. He has relied upon a Division Bench judgement of this Court in the case of Ashok Kumar and others Vs. State of U.P. Crl. Appeal No. 2156 of 2011, in support of the aforesaid contention.
54. It may be mentioned here that in the case in hand there is no eye witness account of the occurrence leading to the death of Smt. Shaboo @ Shabenoor daughter of the first informant/P.W. 2 Smt. Tasleem. As a logical consequence of the aforesaid the case in hand of necessity has to be tried as a case based upon circumstantial evidence in the backdrop of the statutory presumption arising out of section 106 of the Indian Evidence Act as the death of the deceased has occurred in her matrimonial home in unusual circumstances.
55. In the light of the submissions urged, material on the record, the evidence adduced and the circumstances leading to the death of the deceased, and the defence pleaded by the accused, the following questions arise for determination in this appeal:
I) What is the mode of proof required to record the finding of guilt against an accused in a case based on circumstantial evidence.
ii) Whether in the case in hand the prosecution has discharged the burden by pointing out the motive on the part of the accused appellant in committing the crime and consequently establish the chain of events leading to the occurrence, pointing to the guilt of the accused with reasonable definiteness or not, the link in the chain of events and the proximity of the circumstances to the time and situation.
iii) Whether the testimony of a witness who has been declared hostile has to be discarded outright or the same can be read upto the stage, it supports the prosecution story.
iv) Whether in a case arising out of circumstantial evidence as well as upon presumption provided for in section 106 of the Evidence Act, the prosecution is under an initial burden of leading evidence to indicate the cause behind the occurrence, the stand of the prosecution, the presence of the accused, at the time and place of occurrence and consequently his guilt, the discharge of initial burden to adduce material on the basis of which an inference regarding the commission of the offence by the accused can be drawn, the shifting of burden upon the inmates of the house and the accused to explain the manner of occurrence or in other words, Is the burden solely upon the accused to establish his innocence?
v) What are the circumstances when the burden shifts upon the accused/inmates of the house to explain the manner of occurrence?
vi) Whether in view of the provisions contained in sections 101 and 103 of the Indian Evidence Act, the accused stands absolved of his liability to prove his defence?
(vii) Whether the adverse circumstances emerging against the accused-appellant are liable to be read against the accused-appellant by reason of section 7 and 8 of the Indian Evidence Act?
vi) Whether the defence has been able to establish the plea of alibi raised by him and the failure to do so shall result in causing prejudice to the accused-appellant as the burden to prove the same is upon the accused-appellant himself being the beneficiary of the said plea and the burden to prove the same shall not shift?
56. In view of the nature of the criminality alleged against the accused-appellant for which he now stands convicted, it will be useful to first enumerate in brief the admitted/proved facts for better appreciation of the charges alleged by the prosecution and the defence put forward by the accused appellant in proof of his innocence.
Proved/Admitted facts
(i) Achchan the father of the accused-appellant Akhtar alias Bhoora and Smt. Tasleem the mother of the deceased Shaboo alias Shabenoor are real brother and sister.
(ii) Akhtar alias Bhoora is the nephew (Bhatija) of Smt. Tasleem, whereas Shabboo alias Shabenoor is the niece (Bhanji) of Achchan.
(iii) Akhtar alias Bhoora and Shaboo alias Shabenoor are first cousins and thus related to each other.
(iv) The marriage of Akhtar alias Bhoora was solemnized with Shaboo alias Shabenoor, as per the prosecution case, more than six years ago in accordance with the Muslim Rites and Customs.
(v) That from the wedlock of Akhtar alias Bhoora and Shaboo @ Shabenoor four daughters are said to be born. Out of them one has died and only three daughters are surviving. However, there is nothing on the record to disclose their names, or dates of birth.
(vi) The occurrence leading to the death of Shabbo @ Shabenoor has taken place on 25.7.2000 i.e. after more than six years of marriage as per the prosecution case.
(vii) The deceased Shabboo alias Shabenoor came to her parental home on 25.7.2008 at 8 A.M., as according to her, she was ousted from her matrimonial home on account of non fulfillment of dowry demanded by her in-laws.
(viii) Smt. Tasleem the mother of the deceased advised her daughter not to react but to be patient. To save the marriage of her daughter from being broken she persuaded her daughter to return to her matrimonial home. Accordingly, Smt. Shaboo alias Shabenoor in the company of her mother Smt. Tasleem returned to her matrimonial home on 25.7.2008 at 10 A.M.
(ix) The in-laws of Smt. Shaboo alias Shabenoor demanded Rs. 20,000/- towards dowry, out of which a sum of Rs. 10,000/- is said to be paid by Smt. Tasleem mother of Shabboo alias Shabenoor eight days prior to the date of occurrence i.e. on 17.7.2008.
(x) Smt. Tasleem the mother of Shaboo alias Shabenoor received the news regarding the death of her daughter on 25.7.2008 at 4 P.M.
(xi) Smt. Tasleem the mother of the deceased Shaboo alias Shabenoor has not disclosed the name of the person from whom she received information regarding the death of her daughter on 25.7.2008 at 4:00 p.m.
(xii) Smt. Tasleem the mother of the deceased Shaboo alias Shabenoor reached the matrimonial home of her daughter on 25.7.2008 in the evening. She saw that the dead body of her daughter was lying on a cot kept in the courtyard (Sahan) of the house. She further discovered that her daughter had sustained injuries on the head, face and hands and none of the in-laws were present in the house.
Xiii) Smt. Tasleem the mother of the deceased submitted the written report of the occurrence on 25.7.2008 at P.S. Kotwali City, District Bijnor (Ext. Ka-1).
XIV) The death of the deceased has occurred in unusual circumstances inside her matrimonial home.
XVI) The Police upon Completion of Investigation of the case has submitted the charge sheet dated 11.9.2008 (Ext-Ka-14) only against three of the named accused i.e. Akhtar @ Bhura (husband), Shabeena (mother-in-law) and Najis (Nand). Acchan the father-in-law of the deceased was excluded in the charge sheet.
XVII) The case of Najis (unmarried nanad) of the deceased was subsequently referred to the Juvenile Justice Board as Juvenality was claimed by her. What has happened in her case is not discernible from the record as no evidence to that effect has been filed.
XVIII) No protest petition was filed by the prosecution against the charge-sheet for excluding the name of Acchan, the father-in-law of the deceased nor any application under section 319 Cr.P.C. was subsequently filed to summon the non charge sheeted accused Acchan.
XIX) None of the inmates of the house including the named accused have appeared before the court below to explain the manner of occurrence, leading to the death of the deceased Shaboo @ Shabenoor.
XX) No evidence has been adduced by the defence disclosing the name of the person from whom information was received on 25.7.2008 at 3:00 p.m. that the deceased has been murdered in the jungle nor the name of the persons who brought the dead body of the deceased from the jungle to the home of the accused-appellant, has been disclosed.
XXI) Even though the death of the deceased has occurred in the house of the accused appellant but no information regarding the same was given by the in-laws of the deceased at Police Station Kotwali, District Badaun in terms of section 39 and 174 Cr.P.C.
XXII) The original nikahnama has not been produced by any of the parties to establish the exact date of marriage of the accused with the deceased.
57. Apart from the above-mentioned admitted/proved facts, there are also some unexplained circumstances which need to be noted before proceeding to answer the questions arising for consideration in this appeal.
I) Upon hearing the news regarding the death of her daughter, Shaboo @ Shabenoor at 4:00 p.m. on 25.7.2008, the mother of the deceased namely Smt. Tasleem immediately rushed at the matrimonial house of her daughter. She then discovered that the dead body of her daughter was lying on a cot which was kept on the courtyard (sahan) of the house. She also discovered that there were injuries on the head, face and hand of her daughter. She also noticed that none of the inmates of the house were present inside the house. The absconding of the accused creates a doubt on his bona fide.
II) D.W.1 Mohd. Naeem in his testimony has stated that on 25.7.2008 he and the accused Akhtar @ Bhoora was making some purchase from Akhtar Hukumdar. At this time, they received news regarding the murder of Shaboo @ Shabenoor in the jungle at 3:00 p.m. However, there is no such recital in the statement of the accused Akhtar @ Bhoora recorded under section 313 Cr.P.C.
III) D.W. 1 Mohd Naeeem in his testimony has not disclosed the name of the person who gave the information at 3:00 p.m. regarding the murder of the Smt. Shaboo @ Shabenoor in the jungle nor has this witness disclosed the mode by which such information was received.
IV) D.W.1 Mohd. Naeem in his testimony has categorically stated that news regarding the murder of Smt. Shaboo @ Shabenoor in the jungle was received on 25.7.2008 at 3:00 p.m. Smt. Tasleem the mother of the deceased in her testimony has stated that she received the news regarding the death of the daughter also on 25.7.2008 at 4:00 p.m. She, accordingly, reached the matrimonial home of the her daughter which is admittedly after 4:00 p.m. and found that the dead body of her daughter was lying on a cot kept in the courtyard (sahan) of the house. She also discovered that there were injuries on the head, face and hands of the deceased. However, neither D.W. 1 Mohd. Naeem, D.W. 2 Gohar Ali nor the accused Akhtar @ Bhoora in the statement under section 313 Cr.P.C. explained how the dead body of the deceased reached the house of the accused appellant from the jungle.
(V) None of the inmates of the house, including the three minor daughters of the deceased/accused were adduced to explain the manner of occurrence or circumstances leading to the retrieving of the dead body of the deceased from the jungle to home.
(VI) The accused appellant has not deposed before the Court below as a witness to explain the mode and the name of the person from whom information was received regarding the murder of the deceased Smt. Shaboo @ Shabenoor in the jungle nor the circumstances leading to recovery of the dead body in the jungle and its retrieving from the jungle to home, or his innocence.
(VII) D.W. 1 Mohd. Naeem is said to have made purchase from Akhtar and Iqbal on 25.7.2008. However, neither of the above-mentioned persons were produced as defence witness to prove the transactions.
(VIII) On 25.7.2008, the deceased Shaboo @ Shabenoor returned to her parental home at 8:00 am, as she was ousted from the matrimonial home, on account of the non fulfillment of dowry. Smt. Tasleem the mother of the deceased advised her daughter to return to her matrimonial home. Accordingly, the mother Smt. Tasleem accompanied the daughter to drop her at her matrimonial home. She reached the matrimonial home of the deceased at 10:00 am. According to the testimony of D.W. 1, the news regarding the murder of Smt. Shaboo @ Shabenoor in the jungle was received at 3 :00 p.m. Thus the death of the deceased has taken place after 10:00 a.m. and before 3:00 a.m. However, the presence/absence of the inmates of the house from 10:00 a.m. to 3:00 p.m. and how the dead body of the deceased came at the house of the accused when the murder of the deceased had taken place in the jungle remains unexplained.
IX) There is total inconsistency in the testimony of D.W. 1 Mohd. Nadeem and the statement of the accused as recorded under Section 313 Cr.P.C. While D.W.1 in his testimony has stated that at around 3:00 p.m., he along with the accused Akhtar @ Bhoora was making purchase from Akhtar Hukumdar the accused Akhtar @ Bhoora has stated that he was making purchase along with D.W. 1 from the shop of Akhlaq Furniture. There is no evidence to explain that Akhtar Hukumdar is the owner of the Akhlaq Furniture. The cash memo (Ext. Kha-2) also does not explain the same.
(X) The accused in his statement under section 313 Cr.P.C. has stated that after receiving the news regarding the murder of the his wife in the jungle, he immediately returned to his home where the Police had already arrived. He, however, does not mention that he met C.W. 1 Smt. Tasleem. As per the testimony of C.W. 1 Smt. Tasleem, she received the news regarding the death of her daughter on 25.7.2008 at 4:00 pm. Immediately, thereafter she rushed to the matrimonial home of her daughter. However, she did not find any of the inmates of the house to be present. That apart the F.I.R. was lodged at 5:30 pm on 25.7.2008 and therefore, the arrival of the Police prior to the lodging of the F.I.R. again creates a doubt. The inquest report of the deceased contains a categorical recital that the information regarding the death of the deceased was given first by Smt. Tasleem.
58. Before proceeding to answer the questions which arise for determination in this appeal, it is first necessary to state as to what is evidence as per the provisions of the Indian Evidence Act. The aforesaid issue has been elaborately dealt with in the case of Ashok Kumar and Ors. Vs. State of U.P., Criminal Appeal No. 2156 of 2011. The following has been observed by the Court:-
"Evidence has been defined in Section 3 of the Indian Evidence Act, 1872 as follows:-
"Evidence"- "Evidence" means and includes-
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) [All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence."
The evidence relating to a fact can be understood from the definition of the word fact which is defined under the same as follows:-
"Fact"- "Fact" means and includes-
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
A fact is stated to be proved according to the Act by the following definition:-
"Proved"- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Apart from this, the Indian Evidence Act, 1872 contains a guidance as to the presumption of a fact by a Court while appreciating evidence as to when a fact may be presumed to exist and proved or when the Court shall presume the fact to have been proved. Section 4 of the Indian Evidence Act, 1872 is extracted hereinunder:-
4. "May presume".--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof".--When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."
59. We now take up the first question first, i.e. How a case based upon circumstantial evidence is to be decided. This issue has been dealt with in the celebrated case of Sharad Birdhichand Sarda Vs. State of Maharastra, 1984 (4) SCC 116. The same remains the locus classicus on the points dealt therein. The principles enumerated in the aforesaid case have been followed repeatedly including the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, 2006 (10) SCC 681 as well as the recent decision of the Apex Court in the case of State of Himanchal Pradesh Vs. Raj Kumar reported in 2018 (2) SCC 69.
60. The Apex Court in paragraphs 143 to 145, 151 and then in paragraphs 159, 160 of the judgement in the case of Sharad Birdhichand Sharda (Supra) has observed as follows regarding the parameters which must be fulfilled before recording a finding of guilt against an accused in a case based upon circumstantial evidence:
" 143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal procedure code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus:
"The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him."
144. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat, where the following observation were made:
"In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.':
145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
"159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
61. The aforesaid principles have been reiterated and reaffirmed by the Apex Court, in the recent case of State of Himanchal Pradesh Vs. Rajkumar (Supra). Paragraphs 9 and 10 of the aforesaid judgement are relevant for the issue in hand. Accordingly, the same are reproduced herein under:
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
62. This takes us to the second question involved in this appeal which is regarding the relevance of motive and whether the test laid down by the Apex Court in the case of Sharad Birdhichand Sarda (Supra) is satisfied or not. We may point out that it is by now well settled that in the case of direct evidence motive is irrelevant. However, in a case based upon circumstantial evidence, it is an important factor to be considered while deciding the guilt of an accused. In fact in a case relating to circumstantial evidence, the motive behind the occurrence on the part of the accused plays an important role in deciding the guilt of the accused. It will be helpful to quote paragraph No. 15 of the judgement of the Apex Court in the case of Sheo Shankar Singh Vs. State of Jharkhand, reported in 2011 (3) SCC 654, wherein the said issue has been dealt with.
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. State of Maharashtra [(1973) 3 SCC 219 : 1973 SCC (Cri) 214] , Hari Shanker v. State of U.P.[(1996) 9 SCC 40 : 1996 SCC (Cri) 913] and State of U.P.v. Kishanpal [(2008) 16 SCC 73 : (2010) 4 SCC (Cri) 182] "
63. Thus in view of the observations made by the Apex Court as referred to above, there can be no room of doubt that motive is an important factor which is required to be established against the accused before holding him guilty of an offence which is to be examined on the basis of circumstantial evidence.
64. In the case in hand, C.W. 1 Smt. Tasleem the mother of the deceased has clearly implicated the accused appellant in the commission of the crime leading to the death of her daughter Shaboo @ Shabenoor on account of non-fulfillment of dowry demanded by the in-laws. Irrespective of her conduct as she took shifting stands before the Court below while deposing as P.W.2 she was ultimately summoned as a court witness and examined as C.W.1. Her testimony as C.W. 1 recorded on 21.12.2009 was accepted by the Court below as truthful after recording elaborate and cogent reasons for the same. The explanation offered by this witness for shifting her stand was found by the Court below to be genuine and natural. The defence in spite of detailed cross-examination of this witness as C.W. 1 could not dislodge her testimony either by contradicting her from her previous statement or by culling out any such fact from her, on the basis of which her testimony could be said to be contradictory or doubtful. Mr. Noor Mohammad, the learned counsel for the appellant has not challenged the admissibility of the testimony of C.W. 1 Smt. Tasleem. What has been argued by the learned counsel for the appellant is that because of the shifting stand of mother of the deceased namely, Smt. Tasleem, her testimony is not worthy of reliance. We are afraid at the submission so made. Once the testimony of this witness is held to be truthful by the Court below and therefore, liable to be considered, until and unless the same is specifically challenged by pointing out the illegality in the conclusion drawn by the court below in accepting the testimony of this witness, nothing will turn on the argument raised by the learned counsel for the appellant.
65. C.W. 1 Smt. Tasleem in her testimony has clearly stated that the accused demanded a sum of Rs. 20,000/- from her daughter as additional dowry. In furtherance of the aforesaid demand, physical/mental cruelty was committed upon her daughter namely, Shaboo @ Shabenoor. To save the marriage of her daughter, the mother had paid part of the demand of dowry i.e. a sum of Rs. 10,000/- after borrowing the same. This witness has also mentioned the exact period in which the said amount was paid which is one week before the occurrence i.e. 17.7.2008. She has further stated that on account of the non-fulfillment of the balance demand of dowry, the deceased was ousted from her matrimonial home on 25.7.2008, on account of which she returned to her parental home on 25.7.2008 at 8:00 a.m. However, this witness herself took her daughter to her matrimonial home on 25.7.2008 and dropped her at the matrimonial home at 10:00 a.m. Thus on 25.7.2008, nothing had happened upto 10:00 a.m. According to this witness, she received the information regarding the death of her daughter on 25.7.2008 at 4:00 p.m. The F.I.R. in respect of the aforesaid incident was lodged at 5:30 p.m. However, D.W. 1 Mohd Naeem in his statement has stated that they received the news regarding the murder of Smt. Shaboo @ Shabenoor in the jungle at 3:00 p.m. Therefore the death of the deceased has taken place in between 10:00 a.m. - 3:00 p.m. after the deceased had reached her matrimonial home. From the aforesaid, it is apparent that there was a strong motive on the part of the accused to commit the murder of his wife Shaboo @ Shabenoor on account of the non-fulfillment of the balance amount of dowry demanded by him. When the circumstances commencing from the payment of the partial demand of dowry on 17.7.2008, the ouster of Shaboo @ Shabenoor from her matrimonial home on 25.7.2008 on account of non-fulfillment of the demand of dowry of Rs. 20,000/-, the reaching of the deceased at her parental home 25.7.2008 at 8:00 a.m. followed by the return of the deceased to her matrimonial home on 25.7.2008 at 10:00 a.m. and ultimately, her death on the same date, when considered together not only complete the chain of events but also have a link which point out to the guilt of the accused with definiteness. The circumstances in which the death has taken place are in proximity to the time and situation as is evident from the testimony of D.W. 1 Mohd. Naeem. As such, the motive on the part of the accused to commit the crime is fully established, and the test laid down by the Apex Court for recording the finding of guilt of an accused in a case based upon circumstantial evidence, is fully satisfied in the present case.
66. The third issue which calls for determination is regarding the admissibility of the testimony of a witness who has been declared hostile. The issue is no longer res-integra but stands concluded by the judgements of the Apex Court. The turning of a witness as hostile is not an unknown phenomena in criminal jurisprudence. Since the death of the deceased is homicidal as injuries have been found on her body, the statements of the witnesses need to be cautiously read even if some of them have turned hostile. The hostility of the witnesses by itself are not to be discarded in their entirety. The same can be read upto certain stage, subject to the caution as prescribed in the following judgements of the Apex Court: Govindaraju @ Govinda Vs. State 2012 (4) SCC 722, Bhajju @ Karan Singh Vs. State of M.P. 2012 (4) SCC 327 and Veer Singh and Others Vs. State of U.P. 2014 (2) SCC 455.
67. This Court while dealing with the aforesaid issue in the case of Ashok Kumar (Supra) observed as follows:
"There is yet another aspect which deserves consideration in relation to all the witnesses turning hostile. This aspect of the peculiar behaviour of witnesses, probably on inducements through various means, becomes a more disturbing fact when the very near and close relatives while deposing before the Court turn turtle. The genesis of induced hostility, which is in the shape of a compromise culture, came to be discussed by the Apex Court in the case of Ramesh Vs. State of Haryana 2017 (1) SCC 529 where while dealing with the issue of hostile witnesses has made strong observations on the recent phenomena of witnesses turning hostile with a peculiar attitude resulting in serious obstruction in the dispensation of the criminal justice system. The relevant paragraph nos. 39 to 49 of the said judgment are extracted hereinunder:-
"39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded Under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar(2002) 6 SCC 81, this Court observed as under:
31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.
41. Likewise, in Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, this Court highlighted the problem with following observations:
40. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State representing by their presenting agencies do not suffer... There comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery.
41. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the Rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation. We can only say this with regard to the criticism levelled against the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the "TADA Act") have taken note of the reluctance shown by witnesses to depose against people with muscle power, money power or political power which has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.
42. Likewise, in Sakshi v. Union of India (2004) 5 SCC 518, the menace of witnesses turning hostile was again described in the following words:
32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the Petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-section (2) of Section 327 Code of Criminal Procedure should also apply in inquiry or trial of offences Under Section 354 and 377 Indian Penal Code."
43. In State v. Sanjeev Nanda (2012) 8 SCC 450, the Court felt constrained in reiterating the growing disturbing trend:
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Mishra and Anr. 1996 (10) SCC 360 held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police AIR 2004 (3) SCC 767, this Court held that if a court 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, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v. State of Gujarat 2006 SCC 374, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the Indian Penal Code imposes punishment for giving false evidence but is seldom invoked.
44. On the analysis of various cases, following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:
(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of witness.
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: "witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case as well.
46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family.
47. Almost to similar effect are the observations of Law Commission of India in its 198th Report , as can be seen from the following discussion therein:
"The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a Section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Indian Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection."
48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as 'culture of compromise'. Commenting upon such culture in rape trials, Pratiksha Bakshi has highlighted this problem in the following manner:
"During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgment records that the victim committed suicide following the pressure to compromise, the judgment does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live.
In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for 'restoring social relations in society'."
49. In this regard, two articles by Daniela Berti delve into a sociological analysis of hostile witnesses, noting how village compromises (and possibly peer pressure) are a reason for witnesses turning hostile. In one of his articles, he writes:
"For reasons that cannot be explained here, even the people who initiate a legal case may change their minds later on and pursue non-official forms of compromise or adjustment. Ethnographic observations of the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the state judicial administration. These tensions are particularly palpable when witnesses deny before the judge what they allegedly said to the police during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what in common law terminology is called "hostile witnesses" is, in fact, general in India and has provoked many a reaction from judges and politicians, as well as countless debates in newspaper editorials. Although this problem assumes particular relevance at high-profile, well-publicized trials, where witnesses may be politically pressured or bribed, it is a recurring everyday situation with which judges and prosecutors of any small district town are routinely faced. In many such cases, the hostile behavior results from various dynamics that interfere with the trial's outcome-village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests, family pressures, various forms of economic compensation, and so forth. Sometimes the witness becomes "hostile" simply because police records of his or her earlier testimony are plainly wrong.
Judges themselves are well aware that the police do write false statements for the purpose of strengthening their cases. Though well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial. My research suggests, however, that the witness's withdrawal from his or her previous statement is a crucial moment in the trial, one that clearly encapsulates the tensions arising between those involved in a trial and the court machinery itself.
"In my fieldwork experiences, witnesses become "hostile" not only when they are directly implicated in a case filed by the police, but also when they are on the side of the Plaintiff's party. During the often rather long period that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and who becomes the main witness) can irreparably compromise the case with the other party by means of compensation, threat or blackmail."
P.W. 1 Majrul is the father of the deceased. In his testimony, he has initially supported the prosecution case, but subsequently taken a somersault. The initial part of his testimony is identical to the testimony of C.W. 1 Smt. Tasleem which testimony has already been held by the Court below to be truthful. Once the testimony of C.W. 1 has been relied upon by the Court below as being truthful, there is no legal impediment in accepting the testimony of P.W. 1 as reliable and credible, insofar as, it is in line with the testimony of C.W. 1. Therefore, in view of the aforesaid, even though P.W. 1 has been declared hostile, his testimony is worthy of reliance upto the stage, it is in consonance with the testimony of C.W. 1.
68. Question Nos. 4, 5 ,6 and 7 are interlinked and therefore, they are being dealt with together. The issues regarding the discharge of initial burden, the establishment of the stand of the prosecution, the shifting of burden, the burden upon the inmates of the house to explain the occurrence arise for consideration inasmuch as there is no direct evidence of the occurrence and the case has to be judged on the basis of the circumstantial evidence produced by the prosecution. The issues as referred to above have already been dealt with by the Apex court and the debate on the same has now come to an end.
69. The question regarding the discharge of initial burden by the prosecution in a case based upon circumstantial evidence was also the subject matter of consideration in the case of Ashok Kumar (Supra). The following has been observed by the Division Bench:
"With regard to the issue of initial burden however, irrespective of the provisions contained in section 106 of Indian Evidence Act, the initial burden is always upon the prosecution to adduce material on the basis of which an inference regarding the commission of the offence by the accused can be drawn. This discharge of initial burden is mandatory as held in the case of Joydeb Patra and Others Vs. State of West Benal 2014 (12) SCC 444:-
10. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:
"19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:
"14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute."
Once the initial burden is discharged, then the onus shifts on the accused to explain the status of his innocence or involvement.
70. The burden to prove as to whether the death of the deceased was accidental or homicidal but not on account of the accused lay on the accused himself. However, in view of the provisions of Sections 103 and 106 of the Indian Evidence Act 1872, the same does not absolve the prosecution of its initial burden to firmly establish it's own stand as held by the Apex Court in the case of Sawal Das Vs. State of Bihar 1974 (4) SCC 193 paragraph no. 10 is extracted hereinunder:-
"10. Neither an Application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which if believed will sustain a conviction, or, which makes out prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?"
71. The Division Bench also dealt with the issue relating to the discharge of burden by an accused, having special knowledge of fact and he has to come out with an explanation. In the context of the above, the Division Bench in Ashok Kumar's case (Supra) observed as follows:
"The Apex Court however in the same judgment in paragraph no. 9 has observed, relying on the case of Gurcharan Singh & Another Vs. State of Punjab AIR 1956 SC 460, that an accused having special knowledge of a fact has to come out with an explanation and discharge the burden as transcripted in paragraph no. 9 which is extracted hereinunder:-
9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(1), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt."
Explaining the same principles, the Apex Court in the case of Arvind Singh Vs. State of Bihar 2001 (6) SCC 407 acquitted the husband by explaining a liability cast on the husband, but at the same time observing that it is a social and heinous crime. The Court observed that if direct evidence is not available then circumstantial evidence with reasonable probity and without any break in the link of the chain of events has to be established. The observations made by the Apex Court in paragraph nos. 21 and 24 are extracted hereinunder:-
"21. Mr. H.L. Agrawal, learned senior Advocate, however, emphatically contended that considering the hour of the day and the factum of the wife being burnt and no other explanation coming forth, question of husband escaping the liability of murder does not and cannot arise. We are however unable to lend our concurrence to the aforesaid. While it is true that the husband being the companion in the bedroom ought to be able to explain as to the circumstances but there exist an obligation on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape therefrom.
24..........It is undoubtedly a social and heinous crime to have the wife burnt to death but without any proper and reliable evidence, the law court can not by itself also justify its conclusion in the matter of involvement of the husband: direct evidence may not be available but circumstantial evidence with reasonable probity and without a snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise........."
The Apex Court in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604 relying on the case of Trimukh Maroti Kirkan (supra) has observed that the burden is on the inmates of the house to offer an explanation about the death of the deceased. Paragraph no. 13 is extracted hereinunder:-
"13. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. The prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer. On the date of occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
72. The Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (Intra) in a matter arising out of such an incident while referring to the decision of the Apex Court in the case of State of West Bengal Vs. Noor Mohammad Umar and others 2000 (8) SCC, 382 held that it is difficult to put the extreme burden on the prosecution to lead such evidence which can only be gathered from those who have proximity with the deceased. It is in this context that the Court proceeded to discuss the presumption that can be raised on the basis of existing facts so as to allow the Court to treat the onus having been shifted on the accused.
73. In order to substantiate the conclusion of a valid presumption against the accused-husband, the Apex Court has ruled that the onus is on the husband to explain the case of death of a house wife who is normally residing in the same living place with her husband. This presumption in terms of Section 106 shifts the burden on the husband as he is in exclusive possession of the premises and there is no involvement of any outsider. The fact of the happening of an incident inside the premises is presumed to be in the special knowledge of the ocuupier, and it therefore is an onus on the occupier to divulge information about the incident or otherwise reasonably explain his absence or ignorance about the same. The view of the Apex Court discussed elaborately are to be found in paragraph nos. 13 to 18, 20, 21 and 22 in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681.
13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
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. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). 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 traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. 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.
16. A somewhat similar question was examined by this Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs v. D. Bhoormall AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under :
"30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and-as Prof. Brett felicitously puts it - 'all exactness is a fake'. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.
31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn., Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumptions of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden, to discharge which, very slight evidence may suffice.
17. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill- treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.
18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased, Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :
"31. 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 on 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.
32. In this case, when the 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.
33. 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 a 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 reaches 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 the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
20. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.
21. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
The aforesaid decision has been followed in the case of Raj Kumar Prasad Vs. State of Bihar 2007 (10) SCC 433, in the case of Narendra Vs. State of Karnataka 2009 (6) SCC 61 and in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604."
The Apex Court in the decision of Gajanan Dashrath Kharate Vs. State of Maharashtra 2016 (4) SCC 604 relying on the case of Trimukh Maroti Kirkan (supra) has observed that the burden is on the inmates of the house to offer an explanation about the death of the deceased. Paragraph no. 13 is extracted hereinunder:-
"13. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. The prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer. On the date of occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
72. In the present case, the accused-appellant has been charged under section 304 B IPC and alternatively under sections 302/34 and 306 IPC on account of the presumption arising out of section 106 of the Indian Evidence Act. Section 106 of the Indian Evidence Act is reproduced herein below:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
73. Section 103 of the Indian Evidence Act deals with the burden to prove. For ready reference section 103 of the Indian Evidence Act is reproduced herein under:
"103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration 1 [(a) ] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
74. The Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC, 211 while referring to an earlier decision observe as follows in paragraph 16:
16. Way back in Shambhu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 :1956 SCR 199 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:
This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."
75. Having referred to the law laid down by the Apex Court on the above mentioned issues, the Court has now to see whether the prosecution/defence have discharged their respective burden/onus in respect of the cause behind the occurrence, the manner of the occurrence or not.
76. The prosecution in order to bring home the charges framed against the accused-appellant has adduced oral and documentary evidence. P.W. 1 Majrul is the father, whereas, P.W. 2/ C.W.1 Tasleem is the mother of the deceased. P.W. 1 Majrul has been declared hostile. However, as already dealt witih above the testimony of P.W. 1 Majrul is not be discarded outright. His testimony is worthy of reliance insofar as it is in line with the testimony of C.W. 1 Tasleem whose testimony has been held to be truthful by the Court below. We have already held that the intial part of the testimony of P.W. 1 is identical to the testimony of C.W. 1 Tasleem. Threrefore both P.W. 1 and C.W. 1 have supported the prosecution case. Their testimony clearly proves the cause behind the occurrence and the various circumstances which emerged before the occurrence. The marriage of the deceased with the accused appellant more than six years ago, the birth of four daughters from the wedlock of the deceased with the accused, the death of one daughter, the surviving three daughters residing with their parents i.e. the accused and the deceased in the house of the deceased, the payment of dowry at the time of marriage, the demand of additional dowry of Rs. 20,000/- after more than six years of marriage, the commission of physcial and mental cruelty upon the deceased on account of non fulfillment of the additional demand of dowry, the ouster of the deceased from her matrimonial home on 25.7.2008 on account of the unsatisfied demand of additional dowry, the arrival of the deceased at her parental home on 25.7.2008 at 8:00 am, the return of the deceased to her matrimonial home on 25.7.2008 at 10:00 am, followed by the receipt of the news of the death of the deceased at 4:00 pm, the visit of C.W. 1 Smt. Tasleem, the mother of the deceased at the matrimonial home of the deceased, the discovery of the dead body of her daughter lying on a cot kept in the courtyard (sahan), the injuries on her head, hand and face indicate that the death was homicidal as no person could himself cause such injury, the absence of the inmates of the house when C.W. 1 visited the house of her daughter-in-law on 25.7.2008 after 4:00 pm and lastly, the lodging of the F.I.R. dated 25.7.2008 regarding the aforesaid occurrence by C.W. 1 are substantially such circumstances which have emerged in the course of the same transaction. Some of these circumstances are adverse to the appellant as already noted by us and the same also remain unexplained. As such, the same are liable to be considered against the accused-appellant in terms of sections 7 and 8 of the Indian Evidence Act.
77. The Court witness namely, C.W. 1 Smt. Tasleem has poroved the above. The defence in spite of a very detailed and exhaustive cross-examination of this witness could not dislodge her testimony. Thus the prosecution was able to discharge the initial burden by producing such material on the basis of which an inference regarding commission of offence by the accused could be drawn. The prosecution further established it's stand before the court below that the death of the deceased has been caused on account of non fulfillment of the additional demand of dowry.
78. As the death of the deceased has occurred in the house of the accused-appellant, the burden is upon him as well as the other inmates of the house to explain the death of the deceased as to whether it is accidental, suicidal or homicidal but not on account of the accused. It is because of the fact that the dead body of the deceased was found in the house of the accused that the presumption arising under section 106 of the Indian Evidence Act arose against the accused. The prosecution was absolved of this burden under section 103 of the Indian Evidence Act.
79. The defence has failed to discharge the aforesaid burden. Neither the accused Akhtar @ Bhoora has deposed before the Court below to discharge the burden cast upon him, nor any of the inmates of the house have been adduced to explain the same. The explanation offered by the accused in his statement under section 313 Cr.P.C. has already been held to be false, as it is contrary to the testimony of the C.W. 1, Smt Tasleem whose testimony has been held by the court below as truthful.
80. The testimony of D.W.-1, Mohd. Naseem is also not worthy of acceptance as the same does not establish the absence of the accused from the house beyond reasonable doubt. The testimony of D.W.-1 raised the plea of alibi in favour of the accused but it does not establish the same. That apart the unexplained circumstances which we have pointed out in detail in the preceding part of the judgement also point at the guilt of the accused.
81. Apex Court in the case of Sachchey Lal Tiwari Vs. State of U.P.. AIR 2004 SC, 5039 in paragraph no.7 has observed as follows:
"7... Murders are not committed with previous notice to witensses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
82. This takes us to the last question as to whether the accused-appellant has successfully discharged his burden of proving the plea of alibi raised by him. We have already discussed the varied facets relating to the burden of proof, onus of proof, shifting of burden, primary burden, establishment of stand, while dealing with question nos. 4, 5 and 6. Admittedly, the accused appellant did not appear before the court below as a defence witness to substantiate and establish the plea of alibi raised by him. The only evidence available on the record regarding the above is the statement of the accused as recorded under section 313 Cr.P.c. and that of D.W. 1 Mohd. Naeem. The accused-appellant, on the other hand, could not establish and prove the defence set up by him. In his third statement under section 313 Cr. P.C. recorded on 26.9.2011, the accused-appellant in reply to question No.5 has stated that when he returned home, the Police had already arrived but he has no knowledge about the occurrence. The said reply is false on the face of it as admittedly the F.I.R. in respect of the occurrence was lodged at 5:30 pm by Smt. Tasleem. Before the lodging of the F.I.R. Smt. Tasleem had visited the place of occurrence just after 4:00 pm when she received the news regarding the death of her daughter. Smt. Tasleem has categorically stated in her testimony that none of the inmates of the house were present. C.W. 1 has not been cross-examined in respect of the fact stated by the accused in reply to question No. 5. Secondly, D.W. 1 has stated that while he and the accused were making some purchase from one Akhtar Hukumdar, they received the news regarding the murder of the deceased in the jungle. Who gave the information and by what mode information was given has not been detailed which clearly remains an unexplained circumstance. The aforesaid fact stated by D.W. 1 are conspicuous by their absence in the statement of the accused as recorded under section 313 Cr.P.C. The accused in his statement under section 313 Cr.P.C. has stated that at the time of the occurrence, the accused was not present in the house but was making purchase from the shop of Akhlaq Furniture for one retired Police Sub-Inspector. However, the said plea could not be established as the proprietor of Akhlaq Furniture was not produced nor the receipt which was marked as Ext. Kha-1 shows that the same has been issued by the proprietor of Akhlaq Furniture. As such, the plea of alibi raised by the accused could not be established. As such, the defence raised by the accused is a false plea and can be considered as an additional circumstance pointing at the guilt of the accused.
83. In view of the discussion made herein above, it is explicitly proved that the prosecution has successfully discharged its burden which is required to be discharged in a case based on circumstantial evidence. The various links in the chain of evidence led by the prosecution has been satisfactorily proved, the circumstances which complete the chain of events clearly point to the guilt of the accused with reasonable definiteness and lastly, the circumstances are in proximity to time and situation.
84. The factum regarding the marriage of the deceased with the accused, the payment of dowry at the time of marriage, the birth of four daughters from the ill-fated wedlock, the death of one of the daughter, the surviving three daughters residing along with their parents in the house of the accused appellant, the demand of additional dowry of Rs. 20,000/-, the payment of Rs. 10,000/- towards the partial fulfillment of the additional demand of dowry one week before the date of occurrence i.e. 17.7.2008, the ouster of the deceased from her matrimonial home on 25.7.2008, on account of non-fulfillment of the demand of dowry, the return of the deceased at her matrimonial home on 25.7.2008, the commission of physical and mental cruelty upon the deceased on account of non-fulfillment of the demand of dowry, the return of the deceased at her matrimonial home on 25.7.2008 at 10:00 am along with her mother and the news regarding the death of the deceased which was received by the mother on 25.7.2008 at 4:00 pm followed by the lodging of the F.I.R. at 5:30 pm, are substantially such events which have occurred in the course of the same transaction and therefore, liable to be considered under section 7 of the Indian Evidence Act. The same have duly been proved by C.W.1 Smt. Tasleem the mother of the deceased. The defence in spite of detailed cross-examination of this witness failed to dislodge his testimony 81. The accused-appellant, on the other hand, neither discharged the burden which was required to be discharged nor could he establish the plea of alibi raised by him. The various circumstances adverse to the accused which have been noted by us, also remain unexplained. The defence in spite of a very lengthy and intricate cross-examination of C.W.1 Smt. Tasleem could not dislodge her testimony which fully proves the prosecution case. Thus the prosecution has succeeded in proving the guilt of the accused. The submissions urged by Mr. Noor Mohammad, the learned counsel for the appellant in support of the appeal could not create a doubt much less a reasonable doubt to disbelieve the prosecution case and consequently extend the benefit of doubt to the appellant. The case law relied upon by the learned counsel for the appellant also do not support the case of the appellant as the same are clearly distinguishable. As a result, the present criminal appeal fails. The same is liable to be dismissed. It is accordingly, dismissed. The appellant is in jail. He shall serve out the sentence awarded by the Court below.
Order Date :- 25.2.2019 HSM