JUDGMENT Asim Kumar Ray, J. 1. This appeal is directed against the judgment and order dated 21.3.2003 and 24.3.2003 respectively passed in Sessions Trial No. 45(5) of 2002 corresponding to Sessions Case No. 91(8) of 2001 by learned Additional District and Sessions Judge, Fast Track Court III, Alipore thereby convicting the appellant for the offence punishable under Sections 498A IPC and sentencing him to suffer rigorous imprisonment for four years and to pay a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for two months and also convicting him for the offence punishable under Section 302 IPC and sentencing him to suffer R.I. for life and to pay a fine of Rs. 6,000/- in default to suffer R.I. for four months. There was a direction that both the sentences would run concurrently. 2. The prosecution case is as follows: Dolly Naskar, the victim was given in marriage with appellant Ranjit Naskar on 2nd Ashar according to Hindu Rites and Customs and since after marriage she was subjected to both physical and mental torture by her husband and his near relatives asking her to bring Rs. 10,000/- from her father. She was also beaten on other trifling household matters. She reported those incident to her parents. Her father requested his son-in-law, the appellant and his other family members not to assault his daughter and assured them that he will pay the amount in due course. His son-in-law appellant Ranjit Naskar with his relative came to his (de facto complainant) house on 26.2.1998 in the early morning around 4 a.m. and informed him that on 25.2.1998 at 10 p.m. Dolly with her sister-in-law and others had gone to Suryapore Shiva Temple. She engaged herself in cutting fruits etc. at the temple. Thereafter she became untraceable therefrom. His son-in-law law left his house giving such information. Subsequently he came to know that the dead body of Dolly was found near the temple and his son-in-law and others took the dead body to their house. On that date i.e. 26.2.1998 at 7.55 hours he lodged a written complaint at Baruipur P.S. alleging that his daughter Dolly had been murdered by her husband the appellant in connivance with his other family members. 3. On the basis of the FIR Baruipur P.S. Case No. 30 dated 26.2.1998 under Sections 498A/302 IPC was registered. Investigation commenced. On that date i.e. 26.2.1998 at 7.55 hours he lodged a written complaint at Baruipur P.S. alleging that his daughter Dolly had been murdered by her husband the appellant in connivance with his other family members. 3. On the basis of the FIR Baruipur P.S. Case No. 30 dated 26.2.1998 under Sections 498A/302 IPC was registered. Investigation commenced. On completion of investigation, charge sheet was filed against the appellant. Cognizance was taken. The case was committed to the learned Court of Sessions, 24-Parganas (South). It was subsequently transferred to the learned Additional District and Sessions Judge, Fast Track Court III, Alipore for trial and disposal. 4. On receipt of the case the learned Additional District and Sessions Judge, Fast Track Court-III, Alipore framed charge against the appellant under Sections 498A/302 IPC by reading over the substance of the accusation to him to which he pleaded not guilty and claimed to be tried. 5. In course of trial in all 8 witnesses were examined from the side of the prosecution. FIR, inquest report and post mortem report were exhibited. One witness was examined from the side of the appellant. On appreciation of the evidence on record, learned Court below passed the judgment and order impugned. So this appeal. 6. Mr. Sekhar Basu, learned senior counsel appearing for the appellant has contended that vital witnesses like scribe and other two women who accompanied the victim on the fateful night have not been examined by the prosecution. The FIR maker, father of the victim had cordial relation with the appellant as he used to invite the appellant, his son-in-law on festive occasion. His evidence is silent regarding the information of his daughter missing which he alleges to have received from his son-in-law/appellant. P.W. 3 has stated about the cordial relations between the victim and her husband appellant and she was not declared hostile by the prosecution. The evidence of prosecution witness No. 4 cannot be believed as the defence witness has stated that she did not see prosecution witness No. 4 at the site of Shiva temple on the fateful night. 7. Mr. Basu has further contended that FIR is not a substantive piece of evidence so information claimed to have been received by the FIR maker around 4’O clock from his son-in-law cannot be taken for consideration. Moreover, no question was put to the appellant during his examination under Section 313 Cr. 7. Mr. Basu has further contended that FIR is not a substantive piece of evidence so information claimed to have been received by the FIR maker around 4’O clock from his son-in-law cannot be taken for consideration. Moreover, no question was put to the appellant during his examination under Section 313 Cr. P.C. covering the alleged fact that he passed the information to his father-in-law around 4’O clock regarding the missing of his wife, the victim. The suggestion with denial cannot be treated as evidence. 8. The following decisions have been cited from the side of the appellant: 1. Javed Masood and another vs. State of Rajasthan, (2010) 3 SCC 538 2. Dudh Nath Pandey vs. State of Uttar Pradesh, AIR 1981 SC 911 3. State of U.P. vs. Babu Ram and other, AIR 2000 SC 1735 4. Gannath Pattnaik vs. State of Orissa, (2002) 2 SCC 619 9. Mr. Manjit Singh, learned Public Prosecutor appearing on behalf of the State has contended that prosecution witnesses 1, 2 and 4 have stated about the torture meted out to the victim by her husband and his other family members at her matrimonial home. The evidence of prosecution witness No. 4 is very vital. She saw the appellant, husband of the victim at the Shiva temple to talk with the victim on the fateful night. The victim left the Shiva temple with the appellant and her dead body was recovered from a nearby bamboo grove from the house of the appellant. The victim was last seen with her husband. P.W. No. 4 cannot be disbelieved. In course of cross - examination it has come out that the husband of prosecution witness no.4 was alive so her presence at Shiva temple to offer puja is the pure reflection of performance of a married wife. She has also given the timing of the Shiva puja. The appellant gave the information to his father-in-law regarding missing of the victim from the Shiva temple around 4 a.m. on 26.2.1998 and if he was not present then how he came to know about the missing of his wife. The judgment and order impugned may not be interfered with. 10. P.W. 1 is the de facto complainant. He is the father of the victim. The judgment and order impugned may not be interfered with. 10. P.W. 1 is the de facto complainant. He is the father of the victim. He has stated about the physical and mental torture meted out to his daughter by the appellant on failure to bring money and other articles from him. The victim at the time of her visit narrated the same to him. He has stated further that he requested the appellant not to torture his daughter and assured him to give as far as possible. He has stated that on 25.2.98 in the night of Shiva ratri his daughter went to perform puja in the Shiva temple wherefrom she became untraceable. He was subjected to cross-examination and in course of his cross-examination he has stated that it is true that my son-in-law came to my house to report about the missing of my daughter. He has also stated in his cross-examination that not a fact that during puja in the Shiva mandir she left the Shiva mandir without any intimation to her husband. 11. P.W. 2 is Ramesh Naskar. He is the maternal uncle of the victim. He has stated in his evidence that on 25.2.98 Dolly went to perform puja in the Shiva temple and therefrom she became untraceable. In his cross-examination he has stated “my mother and my jethima also attended the puja on that date. 12. P.W. 3 is the wife of the elder brother of the appellant. She has stated that in the night of Shiva ratri she was informed that Dolly was missing. In the next morning she found the dead body of Dolly in the house of Ranjit Naskar. 13. P.W. 4 is Karuna Naskar. She is the maternal grandmother of the victim. She has stated in her evidence that Dolly Naskar is my grand daughter. She is dead now. In the month of Ashwin about 4 years back her marriage took place and she died on 25th Falgun at Shivaratri night. The Shiva puja was held in Shiva temple of Suryapore village. Dolly reached the temple sometimes after my reaching there. I held talk with the Dolly. Her husband also went there. The accused is identified as husband of Dolly. He asked the Dolly to come. Dolly had a talk with her husband a bit away from me. I could not hear their discussion. Dolly then came to me. Dolly reached the temple sometimes after my reaching there. I held talk with the Dolly. Her husband also went there. The accused is identified as husband of Dolly. He asked the Dolly to come. Dolly had a talk with her husband a bit away from me. I could not hear their discussion. Dolly then came to me. On my asking Dolly told me that her father-in-law has become unwell. The husband of Dolly told me that her father-in- law has become unwell. The husband of Dolly left the place. After sometimes the husband of Dolly again came to the temple and asked Dolly to accompany him. Dolly accompanied her husband and left the place. Dolly did not come back again to the temple. In the morning I went to the house of the husband of Dolly. It is near the house of Ranjit Naskar, the husband of Dolly. There was a bamboo grove. I find a gathering at the bamboo grove. I went there and found Dolly was lying dead. 14. She was subjected to cross-examination and in course of cross-examination she has stated that about 300 persons gathered there at the place of puja. First puja was held at 10 p.m., second puja at 12 night, third puja at 3 a.m. and 4th one in the early morning. Four times pujas were held in the night. I told the police that Ranjit, the husband of Dolly came twice to the puja place. 15. P.W.5 and P.W.6 are formal witnesses who signed the inquest report and conducted the inquest over the dead body of the victim respectively. P.W.7 is the Investigating Officer. He has stated in his evidence that on 26.2.98 he was posted at Baruipur P.S. as Sub-inspector of Police. On that date Sub-inspector Dinabandu Kurel, Duty Officer received complaint from Nabin Mondal. On the basis of that complaint he drew up the formal FIR and registered Baruipur P.S. Case No. 36 dated 26.2.98. He took up the investigation as per direction of the Officer-in-Charge. He visited the place of occurrence and held inquest over the dead body of Dolly Naskar and recorded statements of witnesses. He sent the dead body to the Autopsy Surgeon for the purpose of post mortem. He collected the post mortem report. He was cross-examined and only three sentences were put to him in course of his cross-examination. 16. He visited the place of occurrence and held inquest over the dead body of Dolly Naskar and recorded statements of witnesses. He sent the dead body to the Autopsy Surgeon for the purpose of post mortem. He collected the post mortem report. He was cross-examined and only three sentences were put to him in course of his cross-examination. 16. P.W. 8 is the Autopsy Surgeon. He has stated that on 26.2.98 he held post mortem examination on the dead body of Dolly Naskar, 19 years in connection with Baruipur P.S. UD Case No. 19 of 1998 dated 26.2.98. The dead body was brought and identified by Constable No. 30 Goutam Panda. 17. On examination he found the following injuries: “1. One abrasion 1”x 2/3” over right side of anterior aspect of neck 1/4” Right to midline and 1” above the medial aspect of right elavicle of dissection evidence of extra-vasation of blood in the subcutaneous tissues underneath over 1 ½ x 1” area. 2. One abrasion 1½”x1/2” over right side of anterior aspect of neck ½” right to midline and 2 ½” above the medial land of right clavicle of dissection evidence of extra-vasation of blood in the underneath 2”x1 ½” area. 3. One abrasion 3”x ½” over right side of upper part of the back ¼” right to midline and 1 ½” below the level of the spane of c-7 vertebra. 4. One abrasion 2/3” x1/2” over left side of the upper part of the back, 1 ½” left to midline and 2” below the level of the spane of C-7 vertiba. 5. One haematoma 4”x2 ½” in the soft tissue of scalp over left fronto-perietal region. 6. Extra-vasation of blood over 1”x 2/3” area over posterior wall of Oesophegus at the level of C-4 vertebra.” 18. He gave his opinion that death occurred due to the effect of manual strangulation which is ante mortem and homicidal in nature. He was subjected to cross-examination at length. 19. D.W.1 Purnima Naskar is the brother’s wife of appellant Ranjit Naskar. She has stated in her evidence that Karuna Naskar is the maternal grand mother of Dolly. Karuna’s husband Ranjit is alive. Dolly Naskar and other para women went together to offer puja at the Shiva temple at Suryapore Hut on the day of Shiba Chatturdosshi. She stayed there at the Shiva temple at night like other women. She has stated in her evidence that Karuna Naskar is the maternal grand mother of Dolly. Karuna’s husband Ranjit is alive. Dolly Naskar and other para women went together to offer puja at the Shiva temple at Suryapore Hut on the day of Shiba Chatturdosshi. She stayed there at the Shiva temple at night like other women. Dolly left the temple saying that she would return shortly. Dolly did not come back. In the next morning when she returned from Shiva temple she heard that Dolly was found dead in the bamboo grove of Musalman Para near the temple. She did not find Karuna Naskar in the temple in that night. 20. The learned Court below has convicted the appellant for both the offences. It has been observed that the evidence regarding torture meted out to the victim by her husband and other family members appears to have inspired confidence as it was remained uncontroverted. The learned Court below has further observed that the evidence of P.Ws 1, 2 and 4 regarding the torture upon the victim by the appellant for money and other articles stand corroborated with each other and as such it has been held that the offence punishable under Section 498A IPC has been substantiated by evidence and the same has been proved beyond all reasonable doubt. 21. The evidence regarding torture which is on record has its origin in the information received by the witnesses from the victim. The victim is dead. She is not available to get the evidence of prosecution witnesses corroborated regarding torture. The statement of the deceased cannot be taken as substantive piece of evidence with the aid of Section 32 of the Indian Evidence Act for the offence punishable under Section 498A IPC. It is to be termed as only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations of a person since dead, relating to the cause of his or her death or the circumstances leading to such death. If the statement which otherwise covered by the hearsay rule does not fall within the exception of Section 32 of the Indian Evidence Act, the same cannot be relied upon for finding the guilt of the accused as observed by the Hon’ble Apex Court in the case of Gananath Pattnaik vs. State of Orissa, reported in (2002) 2 SCC 619 . The finding of the learned Court below regarding the charge under Section 498A appears to be based on hearsay evidence but not on substantive evidence. Therefore, the conviction of the appellant for the offence punishable under Section 498A cannot stand. 22. The charge under Section 302 IPC is to be assessed now to see whether the same is based on sound evidence or otherwise. It is an admitted fact that Dolly Naskar, victim and Ranjit Naskar, the appellant got married in the month of Ashar. Dolly had been to Shiva temple at Suryapore Hut to perform Shiba puja on 25.2.98. She became untraceable from the Shiva temple. Her dead body was recovered in a bamboo grove near to the house of her matrimonial home. The dead body was subjected to post mortem examination. On post mortem examination the doctor found several injuries on the person of the victim and opined that the death of the victim was due to the effect of manual strangulation which was ante mortem and homicidal in nature. 23. The de facto complainant in his evidence has stated that it is true that his son-in-law came to their house to report about the missing of his daughter from Shiva temple in the night of Shiva ratri on 25.2.1998. In course of cross-examination a suggestion was put from the side of the defence that victim left the Shiba temple without any intimation to her husband. The first information report has been marked as Ext. 1. On perusal of the first information report, it appears that on 26.2.98 at dawn around 4 a.m. appellant Ranjit Naskar and one of his relations had been to the house of the de facto complainant, the father of the victim to inform him that his daughter was missing since the night of 25.2.98. P.W. 2 Ramesh Naskar is the maternal uncle of victim as well as the neighbour of the appellant and P.W.4 is his mother as well as maternal grand mother of the victim. P.W. 2 Ramesh Naskar in his evidence has stated that on 25.2.98 the victim went to Shiva temple for offering puja. His mother i.e. P.W.4 and Jathima also attended the puja on that date. P.W.4 Karuna Naskar has categorically stated that Shiva puja was held in Shiva temple of Suryapore village. Victim reached the temple. Sometimes after she reached there she had a talk with the victim. His mother i.e. P.W.4 and Jathima also attended the puja on that date. P.W.4 Karuna Naskar has categorically stated that Shiva puja was held in Shiva temple of Suryapore village. Victim reached the temple. Sometimes after she reached there she had a talk with the victim. The husband of the victim also went there. The victim was called by her husband and had a talk with him a bit away from her. The husband left the place but after sometime returned to the temple and asked Dolly to accompany him. Dolly accompanied him and left the place. She did not return again to the temple. On the following morning she found the dead body of Dolly. There was an assembly of 300 persons at the place of puja. Puja was held four times at night. She has categorically stated that she told the police that Ranjit, the husband of Dolly came twice to the puja place. The Investigating Officer, P.W. 7 was subjected to cross-examination but he was not confronted with the evidence of Karuna. 24. It has been vehemently contended by the learned counsel of the defence that D.W.1 Purnima Naskar has stated in her evidence that she did not find Karuna Naskar, P.W.4 in the temple in that night and that is why the presence of Karuna Naskar and her evidence that she saw the victim to leave the temple in the company of her husband cannot be taken for consideration. The evidence on record shows that there was huge gathering at the place of puja. The puja was held at night. It was not unnatural that Purnima might not see Karuna at the temple. There is evidence on record that the husband of Karuna was alive. Shiva puja is performed by the women folk specially for the welfare of the husband. Therefore, the visit to Shiva temple by Karuna at the night of Shiva ratri cannot be viewed with suspicion specially when her son P.W.2 has stated that his mother P.W.4 went to the Shiva temple at Suryapur Hut to offer puja at the night of Shiva ratri on 25.2.98. 25. The evidence of Karuna is substantive. The victim was in the company of her husband in the night of Shiva ratri when she left the temple. Her dead body was found early in the early morning around 5 a.m. on the next day i.e. on 26.2.98. 25. The evidence of Karuna is substantive. The victim was in the company of her husband in the night of Shiva ratri when she left the temple. Her dead body was found early in the early morning around 5 a.m. on the next day i.e. on 26.2.98. The appellant had been to the house of her father-in-law to inform the de facto complainant that his wife was missing. Why the appellant was in hurry to inform his father-in-law about the missing of his daughter i.e. wife of the appellant. It is expected from a man of ordinary prudence that he will search for his missing wife and run here and there to trace her in case she disappeared from the temple but instead of doing that the appellant had been to his father-in-law’s place to give information about the missing of the victim. This conduct of the appellant speaks volumes of his guilty mind. The appellant in course of his examination under Section 313 has simply denied the questions saying that “all are false. The conduct of the appellant should be treated as an additional link to the evidence on record. 26. The appellant has faced trial knowing very well the charge he was facing and the evidence against him. Therefore, not putting a question why he informed the FIR maker about the missing of his wife around 4’O clock cannot be said to have prejudiced him and the rest part of the evidence cannot be taken for consideration. The evidence on record is to be read as a whole. The substantive evidence as well as the questions put to the witnesses in the manner of suggestion cannot be bifurcated to impeach the credit of the evidence on record. The defence witness certainly requires equal treatment like that of the prosecution to weigh the evidence of the defence. The prosecution evidence must be taken by the side of the defence evidence to see as to whether the defence evidence can be treated as sacrosanct treating the evidence of the prosecution as questionable. In our humble view that is not the spirit of law regarding assessment of evidence. The evidence of witness which does not hurt the case in hand may not be declared hostile. In our humble view that is not the spirit of law regarding assessment of evidence. The evidence of witness which does not hurt the case in hand may not be declared hostile. If a witness is not declared hostile, the evidence of that witness and the evidence of rest witnesses are to be dissected critically to see what is the substantive evidence. If the records speaks about the substantive evidence pointing out to the guilt of the accused then the same must not be discarded specially because any witness, who has not supported the prosecution case, has not been declared hostile. 27. Going by the aforesaid discussion we are of the opinion that decisions reported in Javed Masood and another vs. State of Rajasthan, (2010) 3 SCC 538 , Dudh Nath Pandey vs. State of Uttar Pradesh, AIR 1981 SC 911 and State of U.P. vs. Babu Ram AIR 2000 SC 1735 are not helpful for the decisions of this case. 28. Considering the overall evidence on record we find no hesitation to express that the evidence on record is cogent, specific and unambiguous pointing to the guilt of the appellant/husband saying that he is the perpetrator of the crime i.e. murder of his wife aged about 19 years taking the cover of darkness of night on the night of Shiva ratri puja. 29. The judgment and order of conviction dated 21.3.2003 and 24.3.2003 respectively passed in Sessions Trial No. 45(5)2002 corresponding to Sessions Case No. 91(8)2001 by learned Additional District and Sessions Judge, Fast Track Court-III, Alipore thereby convicting the appellant for the offence punishable under Sections 498A IPC and sentencing him to suffer rigorous imprisonment for four years and to pay a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for two months is set aside but convicting him for the offence punishable under Section 302 IPC and sentencing him to suffer R.I. for life and to pay a fine of Rs. 6,000/- in default to suffer R.I. for four months is hereby affirmed. 30. The appeal stands partly allowed to the extent stated above. Urgent Photostat certified copy of this order if applied for be given to the parties on usual undertaking. I agree.