P.S. Narayana, J.@mdashA1 and A2 in Sessions Case No. 513 of 1995 on the file of I Additional Sessions Judge, Karimnagar are the appellants. The Sub-Divisional Police Officer, Karimnagar filed charge sheet as against A1 and A2 in Crime No. 19 of 1994 of Veenavanka Police Station under Sections 498A and 304B I.P.C. The case of the prosecution is that Vangala Raji Reddy and Vangala Thirupathi Reddy, residents of Jeelakunta Village of Odela Mandal are elder brothers of Katkuri Manjula, wife of A1, resident of Narsingapoor village. It is also the case of the prosecution that about one year prior to 8.5.1994 marriage of Manjula was celebrated with A1 and the said marriage alliance was proposed and the marriage was settled by Junnuthula Malla Reddy, the maternal uncle of P.W.1 and P.W.2 and Manjula. At the time of betrothal ceremony, Vengala Raji Reddy agreed to pay an amount of Rs. 52,000/- as dowry and an amount of Rs. 12,000/- and half tola gold were given to A1 and his father-A2 as part of dowry at the time of marriage. Raji Reddy agreed to pay the remaining dowry within one year. After the marriage, Manjula and A1 led conjugal life for some days. Thereafter the accused started harassing Manjula for the remaining dowry amount. A1 used to beat his wife Manjula, harassing and ill treating her to bring the remaining dowry amount from her parents. Raji Reddy came to know about the ill-treatment of his sister by A1 and A2 and took her to their house. Three days prior to 8.5.1994, A1 and A2 went to the house of Raji Reddy and asked him to send back Manjula to their house and at that time, a quarrel took place between them regarding the remaining dowry amount. Raji Reddy told A1 and A2 that he would pay the remaining dowry amount within a fortnight and sent his sister Manjula along with them to their house. Again A1 and A2 started harassing Manjula. Due to constant harassment, Manjula became disgusted with her life and on 8.5.1994 at 4.00 P.M., she consumed an organophosphate pesticide poison. Immediately she was shifted to a private hospital but the doctor did not agree to treat her. As per his advice, Manjula was shifted to M.G.M. Hospital, Warangal, but while undergoing treatment, she died on 9.5.1994 at 5.30 a.m. Judicial Magistrate of First Class, Huzurabad had registered the same as P.R.C. No. 102 of 1994 and the case was committed to the Court of Session, which was made over to the I Additional Sessions Judge, Karimnagar, who had recorded the evidence of P.W.1 to P.W.15 and marked Exs.P.1 to P.17 and Ex.D1 and ultimately arrived at the conclusion that the offences under Sections 498A and 304B I.P.C. had been proved beyond all reasonable doubt and convicted and sentenced them to undergo Rigorous Imprisonment for seven years u/s 304B IPC and Rigorous Imprisonment of two years for the offence u/s 498A IPC with a direction that the sentences shall run concurrently. Aggrieved by the same, the present criminal appeal is filed.
2. Sri Ramesh Reddy, the learned counsel representing the appellants would submit that almost all the witnesses were declared hostile and such evidence may have to be viewed with care and caution and in the light of the nature of evidence, which had been let in by the prosecution, it cannot be said that the prosecution proved the case beyond all reasonable doubt as against appellants-accused. The learned counsel also had pointed out the peculiar procedure adopted in this case of declaring the witnesses hostile after certain witnesses were cross-examined and certain favourable answers were elicited during the course of cross-examination. The learned counsel also would submit that on the strength of such evidence, it cannot be said that such grave charges can be said to have been proved as against appellants-accused.
3. Per contra, the learned Additional Public Prosecutor would submit that it is the concern of the prosecution and the prosecution is at liberty to declare a witness hostile at any point of time and no-doubt, the Court may have to exercise the discretion at that stage and may have to record certain reasons while declaring the witness hostile. Except this, it cannot be laid down as a hard and fast rule that after completion of the cross-examination, the prosecution cannot seek the permission to declare the witness hostile. The learned Additional Public Prosecutor placed reliance on certain decisions in support of his submissions. It was further contended that when the witnesses are declared hostile, the falsehood may have to be separated from the truth and the truth can be relied upon and in this case, the witnesses in a half hearted manner had supported the version of the prosecution and also were not willing to support the version of the prosecution in toto. In such a case, on a careful scrutiny the Court may rely upon such portion of the evidence which can be believed and this approach adopted by the learned Judge cannot be said to be not in accordance with law and hence, the said findings are to be confirmed.
4. Heard the counsel on record and also perused the findings recorded by the learned Judge and the evidence available on record.
5. Though several witnesses were declared hostile, the learned Judge relying upon the presumption available, in view of the death having occurred just after marriage, came to the conclusion that the death of Manjula (hereinafter referred to as ''deceased'' for the purpose of convenience) was only due to harassment and it being a death within seven years of her marriage in connection with the demand of dowry, as against A1 and A2 offences under Sections 498A and 304B IPC had been proved. P.W.1, no-doubt, deposed that they agreed to pay dowry of Rs. 52,000/- to A1 and at the time of marriage, they gave Rs. 12,000/- and half tola gold and they promised to pay the remaining dowry within one year after the marriage as their financial position was not good, they were not able to pay the entire dowry of Rs. 52,000/- on the date of marriage itself and after marriage, the deceased was sent to the house of the accused for leading conjugal life and till next Sankiranthi festival, the deceased lived with A1 happily and prior to Sankranthi festival, she did not complain anything against the accused. On the eve of Sankranthi festival, she came and informed them that A1 and A2 were harassing her for bringing the remaining dowry amount. This witness also deposed in detail that five days prior to the next Ugadi festival, he went to the house of the accused to bring the deceased to their house and A1 and A2 sent the deceased with him to their house and the deceased while staying with them complained that A1 and A2 were continuing to harass her to bring the remaining dowry amount, and no-doubt, this witness also deposed that he sent his younger brother Thirupathi Reddy when she was carrying four months pregnancy to get her examined by a lady doctor at Jammikunta, and no-doubt, this witness also deposed certain circumstances under which, she stayed in their house. This witness deposed in detail that due to harassment only the deceased consumed pesticide poison and he gave report to police under Ex.P1, which bears his thumb impression. This witness was cross-examined by the defence counsel and this witness also deposed that it is true to suggest three acres of dry land was given to deceased-Manjula in partition of their ancestral properties and after their marriage she was with an idea of selling away the three acres of land which was given to her in partition and to purchase land situated at Narsingapur village. This witness also deposed that it is true to suggest that P.W.1 and his younger brother and his mother did not cooperate with the deceased to sell her land. This witness further deposed that it is true to suggest that P.W.1, P.W.2 and their mother were at Narsingapur village on the date of commission of suicide by the deceased and they all along with A1 and A2, took Manjula to M.G.M. hospital, Warangal. No-doubt, he denied the suggestion that they did not agree to pay dowry of Rs. 52,000/-. The question put to him was:
"It is put to you that the deceased Manjula never told you that the accused were harassing her to bring the balance of dowry amount of Rs. 40,000/- what do you say?"
Answer:- Manjula did not directly tell me that she was harassed by the accused but my mother informed me that she was told by Manlula like that."
6. This witness deposed that he is illiterate and he gave report to police. After cross-examination by the defence counsel, the Public Prosecutor in charge requested for permission to cross-examine the witness treating him as hostile. The learned counsel opposed to granting of permission. The learned Judge recorded "After going through the statements made by the witness in cross-examination by the defence counsel, it is found that he has made some statements which are mutually inconsistent and which are surprising to the prosecution and he has shown hostility towards the prosecution side. Hence permission is granted." Subsequent thereto, the prosecution had cross-examined this witness suggesting all what he had deposed is not correct, which again had been denied and further this witness was cross-examined by the defence counsel. This is the evidence of P.W.1.
7. P.W.2 is the other brother of P.W.1 and the deceased, who, no-doubt, deposed on the same lines and in the cross-examination this witness also deposed that they objected and had not cooperated the deceased for the proposal of sale of land given to her and this witness also deposed that he came to know about the harassment through his mother. Since several of the answers given by this witness also are in favour of the appellants-accused 1 and 2, after cross-examination by the defence counsel, the Public Prosecutor in charge sought permission to cross-examine the witness treating him as hostile, but the learned Judge recorded no reasons, however, granted permission and the prosecution had cross-examined this witness in detail.
8. P.W.3 deposed that P.W.1 and P.W.2 are the sons of his elder sister and the deceased was his niece and he deposed about the relationship and the settlement of dowry and other details and this witness also was declared hostile. P.W.4 is the mother of the deceased, who also deposed about the settlement of dowry amount and the other details and this witness was also declared hostile. In cross examination, she specifically deposed that it is not true to say that they have effected compromise with the accused and having taken back the dowry amount paid to A1 and some additional amount and hence she was deposing falsely in order to help the accused. This witness in chief examination deposed that till her death the deceased never informed her at any time that her conjugal life was not happy. This witness further deposed that while staying in the house of accused, the deceased consumed pesticide due to stomach pain and died. This is the positive evidence of P.W.4, the mother of the deceased.
9. P.Ws.5 and P.W.6 also were declared hostile. P.W.7 is the R.M.P. Doctor, who deposed that he was told that deceased consumed pesticide poison and he examined her and as her condition was serious he did not give her any first aid and advised A2 to take her to M.G.M. hospital. P.W.8, panch witness also was declared hostile and this witness was cross-examined. P.W.9, the other panch witness was also declared as hostile and this witness was also cross-examined. P.W.10 no-doubt deposed that M.R.O., Hanmakonda and S.I. of Police, Veenavanka conducted inquest over the dead body of Manjula from 1 P.M. to 3 P.M. and on seeing the dead body, he felt that she died due to consumption of pesticide poison. Ex.P.8 is the panchanama. P.W.11, who worked as M.R.O. at the relevant point of time, on requisition, had conducted inquest over the dead body and the panchas opined after inquest that deceased committed suicide as she unable to bear harassment by her husband and father-in-law to comply with the demand for dowry. P.W.12 is the professor of Kakatiya Medical College, who deposed about the post-mortem report, Ex.P.9 and also report of F.S.L., Ex.P.10 and issued final opinion that the cause of death was due to organo-phasphate, an insecticide poison and his final opinion is Ex.P.11. P.W.13 is the A.S.I., who had recorded statements of P.W.1 to P.3 and the relevant portions were put to this witness. This witness also deposed about Ex.P.1 and registering a case in Crime No. 19/94 and issuing F.I.R. P.W.14 is the Circle Inspector of Police, who had taken up the investigation, proceeded to the scene of offence, conducted scene of offence panchanama, Ex.P.13 and also had drawn the sketch of scene of offence, Ex.P.14 and recorded statements of P.W.4 to P.W.7 and also sent A1 and A2 to judicial custody. He also spoken to the other details relating to the investigation and the further investigation taken up by his successor. P.W.15 deposed that he had verified the investigation and filed alteration memo, Ex. P.17 and S.D.P.O. Karimnagar filed charge sheet in this case. This is the evidence available on record.
10. It is pertinent to note that P.W.4, the mother of the deceased had specifically deposed that the deceased never complained about any harassment and she also deposed that the deceased consumed the pesticide due to stomachache. It is also pertinent to note that P.W.1 and P.W.2, the brothers of the deceased had specifically deposed that on information given by their mother, they came to know about the harassment in relation to the deceased. This is the evidence available on record. P.W.1 and P.W.2, after completion of chief-examination had been cross-examined and at that stage, no doubt, certain reasons were recorded while the learned judge was permitting to declare the witnesses hostile so far as P.W.1 is concerned, but no such reasons had been recorded while declaring P.W.2 as hostile. No doubt, several other witnesses also had been declared hostile as referred to supra.
11. Chapter X of the Indian Evidence Act, 1872 deals with examination of witnesses. Section 137 of the said Act reads examination-in-chief, cross-examination and re-examination. Section 138 dealing with order of examinations, reads as hereunder:
"138. Order of examinations:- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination:- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
12. Sections 145 and 146 of the said Act read as hereunder:
"145. Cross-examination as to previous statements in writing:- a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
146. Questions lawful in cross-examination:- When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
13. Section 154 of the Indian Evidence Act, 1872 deals with question by party to his own witness and this provision reads as hereunder.
"154. Question by party to his own witness:- The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party."
14. This provision assumes some importance in the present contest. Section 155 of the said Act dealing with impeaching credit of witness reads as hereunder:
"155. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:--
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."
15. In
"Now we come to the merits of the case. Ordinarily this Court in exercise of its Jurisdiction under Art. 136 of the Constitution accepts the findings of fact arrived at by the High Court. But after having gone through the judgments of the learned Additional Sessions Judge and the High Court, we are satisfied that this is an exceptional case to depart from the said practice. The learned Additional Sessions Judge rejected the evidence of the prosecution witnesses on the ground that their version was a subsequent development designed to help the accused. The learned Judges of the High Court accepted their evidence for two different reasons. Raju, J., held that a court can permit a party calling a witness to put questions under S. 154 of the Evidence Act only in the examination-in-chief of the witness; for this conclusion, he has given the following two reasons: (1) the wording of Ss. 137 and 154 of the Evidence Act indicates it, and (2) if he is permitted to put questions in the nature of cross-examination at the stage of re-examination by the party, the adverse party will have no chance of cross-examining the witness with reference to the answers given to the said questions. Neither of the two reasons, in our view, is tenable. Section 137 of the Evidence Act gives only the three stages, in the examination of a witness, namely; examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S. 154 of the Evidence Act: that is governed by the provisions of S. 154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever, witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-re-examination) permit the person calling him as witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of S. 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination-in-chief, but in the cross-examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution, permitted him to cross-examine the said witnesses. It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross-examine the witnesses and was denied of it by the court. The procedure followed by the learned Judge does not conflict with the express provisions of S. 154 of the Evidence Act. Mehta. J., accepted the evidence of the witnesses on the ground that the earlier statements made by them, before the police did not contradict their evidence in the court, as the non-mention of the mental state of the accused in the earlier statements was only an omission. This reason given by the learned Judge is also not sound. This Court in
"....(3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement ....... : (ii) a negative aspect of a positive recital in a statement ......; and (iii) when the statement before the police and that before the Court cannot stand together......''''Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and therefore, he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. The judgment of the High Court, therefore, in relying upon some of the important prosecution witnesses was vitiated by the said errors of law. We would, therefore, proceed to consider the entire evidence for ourselves."
16. In
"To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Sec. 142 to put leading questions, or the leave u/s 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi), AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammeled, and is apart from any question of "hostility''''. It is to be liberally exercised whenever the court from the witnesse''s, demeanour temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", ''''declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts."
17. The Apex Court also at para 51 of the Judgment observed as hereunder:
"From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."
18. In
"Before proceeding further we might like to state the law on the subject at this stage. Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. The section runs thus:
"The Court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party."
19. The section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however well settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this Court substained the order of the Court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In
"Section 154 does not in terms, or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-cheif. If his design is obvious, we do not see why the Court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party."
"Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane and, therefore, he committed the murder."
20. A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this Court because the witnesses had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane. Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.
21. It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion u/s 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has changed sides an transferred his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weight the circumstances properly and should not exercise its discretion in a casual or routine manner.
22. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether. In
"The prosecution could have even avoided requesting for permission to cross-examine the witness u/s 154 of the Evidence Act. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
23. Reliance also was placed on DARIYA V SUBA 1959 Crl.L.J. 236; KOLI NANA BHANA V STATE OF GUJARAT 1986 Crl.L.J. 571; MADHO RAM SHAKYA V STATE OF U.P. 1984(1) Cri 629; KRISHNA SONOWAL V STATE OF ASSAM 1987 (1) Cri 336; MADAN LAL V THE STATE 1981 Crl.L.J. 514; STATE OF KARNATAKA V N. SOMASEKHAR 1993 (2) ALT (Crl) 214; PUBLIC PROSECUTOR V T. JANARDHANA RAO 1998(2) ALT (Crl) 479; &
24. Be that as it may, in the present case, almost all the witnesses were declared hostile, but despite the same, the learned Judge recorded findings holding the accused guilty of the offences charged with, placing strong reliance on the presumption. This approach adopted by the learned Judge definitely is not in conformity with the settled principles of burden of proof in Criminal Jurispurdence. Hence, this Court has no hesitation in holding that the findings recorded by the learned Judge suffer from the legal infirmity and are liable to be set aside. In the light of the evidence available on record especially the admissions made by P.W.1 and P.W.2 that on information given by P.W.4 alone they came to know about the harassment and the evidence of P.W.4, the mother of deceased, absolutely there is no acceptable evidence before the Court and hence, the prosecution miserably failed in establishing the guilt of the accused u/s 498A IPC or u/s 304B IPC and accordingly, the appellants-accused are entitled for an acquittal.
25. The appeal is allowed. The bail bonds shall stand cancelled.
