JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—The legality and correctness of the judgment dated 2.4.1986, passed by Sessions Judge, Jalaun at Orai, convicting the accused appellant for offence punishable under Section 302 I.P.C. and sentencing him imprisonment for life, has been called in question in this criminal appeal. 2. We have heard learned counsel for the appellant and learned A.G.A. representing the State and perused the record. The prosecution case as unfolded during trial is that the appellant’s marriage was performed with the deceased Usha and the ‘Gauna’ was performed about a month prior to the occurrence. It has been alleged that at the time of ‘Gauna’ ceremony, the appellant had demanded a buffalo from his father-in-law Babu Lal. Since Babu Lal did not fulfill his demand, the appellant got annoyed. On 17.7.1985 when nobody except the appellant, his wife deceased Usha and his 10 year old younger brother Ram Ji, were present in the house, the appellant asked Ram Ji to go to the cattle shed and give water to the animals. Ram Ji went out of the house. When he returned he saw his brother (the appellant) running away from the house with a blood stained knife in his hand. His Bhabhi Usha was lying on the ground having serious knife injuries on her neck and hands. Ram Ji raised alarm, hearing which several villagers gathered at the spot. Usha was taken to the police station by her father in law, mother-in-law and Village Chaukidar on a Tractor. At police station her statement was recorded by I.O. in which she stated that her husband (the appellant) had asked her to bring buffalo or cash from her father, when she denied he inflicted knife injuries on her neck. The FIR was lodged by Village Chaukidar at Police Station Kotwali, Jalaun. Usha was taken to District Hospital, Orai from where doctors referred her to Kanpur for treatment. She was admitted to L.L.R. Hospital, Kanpur where she succumbed to injuries on 19.7.1985. 3. On 17.7.1985 at 6.00 p.m.Usha was medically examined by Dr. A.V. Gupta (CW-1) who found following injuries on her person : 1. Incised wound 5.0cm x 0.5cm probing not done over the left side of neck 5.00 cm above middle of left collar bone. Soft clot formed. 2. 3. On 17.7.1985 at 6.00 p.m.Usha was medically examined by Dr. A.V. Gupta (CW-1) who found following injuries on her person : 1. Incised wound 5.0cm x 0.5cm probing not done over the left side of neck 5.00 cm above middle of left collar bone. Soft clot formed. 2. Incised wound of 1.5 cm x 0.4 cm x probing not done over the left side of shoulder tip at outer end of left collar bone soft clot formed. 3. Incised wound 2 cm x 0.5 cm x probing not done over front side of neck 3 cm above inner end of right collar bone. 4. Incised wound of 1.5 cm x 0.4 cm x probing not done over the right side back of neck at hair line. 5. Incised wound of 2 cm x 0.5 cm x probing not done over the middle of back side of neck 6 cm below hair line. 6. Incised wound 4 cm x 0.5 cm x muscle deep over the palmer aspect of middle phalynx of right index finger. Bleeding present on touch. 7. Incised wound 2 cm x 0.5 cm x muscle deep over the palmer aspect of middle phalynx of right middle finger soft clot formed. After her death, the post-mortem was done on 20.7.1985 at Kanpur and the doctor conducting the post mortem found the following ante-mortem injuries on her body : 1. Stitched wound 4 cm with three stitches on left side neck 2.5 cm below left angle of mandible. 2. Stitched wound 3 cm with two stitches 1 cm above manubrium sterni. 3. Stitched wound 1 cm with one stitches on right side neck 2.5 cm away and lateral to injury No. 2. 4. Stitched wound 2 cm with two stitches on back of right side neck 3 cm below occipital. 5. Incised wound 1 cm x 0.5 cm x skin deep on front of right chest 4 cm below right shoulder joint. 6. Incised wound 0.5 cm x 0.25 x skin deep on front of right chest 2 cm below injury No. 5. 7. Stitched wound 3 cm with 3 stitches on palmer aspect of right index finger at base of middle phalynx of right hand. 8. Stitched wound 2 cm with two stitches on palmer aspect of proximal phalynx on right middle finger. On internal examination, the 4th ring of trachea was found cut. 7. Stitched wound 3 cm with 3 stitches on palmer aspect of right index finger at base of middle phalynx of right hand. 8. Stitched wound 2 cm with two stitches on palmer aspect of proximal phalynx on right middle finger. On internal examination, the 4th ring of trachea was found cut. Both the lungs were found congested. Neck vessels were found cut on both sides. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante mortem injuries. 4. Initially a case under Section 307 I.P.C. was registered on the basis of First Information Report. It was converted into Section 302 I.P.C. after the death of Usha. The statement of Usha, recorded by I.O. under Section 161 Cr.P.C. was treated as her dying declaration, which has been produced by the prosecution in support of its case. 5. Besides it, the prosecution in order to prove its case has produced eight witnesses, out of which seven witnesses (PW-1 to PW-7) are witnesses of fact. PW-8 is the I.O. of this case. The doctor, who had medically examined Usha on 17.7.1985 has been examined as CW-1. 6. PW-1 is Ram Ji, the younger brother of appellant. Though, he is a child witness, however, he is the star witness in this case because he is the only person who was present with the appellant and the deceased Usha at the time of occurrence. He is said to have first seen the appellant while he was running away from the scene of occurrence after the crime. PW-2 Guman has also been produced as an eye-witness, PW-3 Ram Kumar is the Village Chaukidar, who is the first informant too. PW-4 Babu Lal is the father of deceased Usha, PW-5 Daya Ram is a resident of same village, where the occurrence had taken place, PW-6 Kathore has also been produced as a witness who has seen the appellant when he was running from his house just after the occurrence with blood stained knife in his hand. PW-7 Ram Singh is the tractor driver, who had taken the injured Usha to the police station and whose name is also mentioned in the FIR as a witness. 7. PW-7 Ram Singh is the tractor driver, who had taken the injured Usha to the police station and whose name is also mentioned in the FIR as a witness. 7. It is relevant to mention at the very outset that none of the aforementioned witnesses except PW-4 who is the father of deceased, has supported the prosecution case and all of them have turned hostile. After conclusion of the prosecution evidence, the statement of accused under Section 313 Cr.P.C. was recorded in which he denied all the allegations by giving evasive answers and alleged his false implication in this case due to enmity. When he was asked if he wants to say anything else about the occurrence, he replied with the following words : “eS firk th ekrk th cfx;k esa feV~Vh ,d lh dj jgs FksA NksVs HkkbZ jke th us crk;k fd ?kj pyksA firk th us VªSDVj fd;k eS] firk th] ekrk th VªSDVj ysdj tkykSu rd vk;sA tkykSu ls eS pyk x;kA m"kk ml le; cksyrh ugh FkhA” 8. No evidence was adduced by the appellant in his defence. 9. The learned Court below after appreciating the evidence relied on the statement of PW-4 Babu Lal, father of deceased Usha. It also relied on the statement of deceased Usha recorded by I.O. and treating it as a valid dying declaration, the Court below convicted and sentenced the appellant as aforesaid. 10. Assailing the legality of the order of conviction, learned counsel for the appellant has vehemently contended that despite the fact that none of the prosecution witnesses except PW-4, who is the father of the deceased, had supported the prosecution case and all of them turned hostile, the learned Court below convicted the appellant without any cogent evidence by relying only on the statement of deceased recorded by I.O. under Section 161 Cr.P.C. Learned counsel has contended that the aforesaid statement of deceased cannot be treated as a valid dying declaration because it does not fulfill the requisite conditions of a dying declaration specially in absence of any certificate of medical fitness of the deceased. 11. Before dealing with the issues canvassed, it is considered expedient to have a bird’s eye view on the statements of relevant prosecution witnesses. PW-1 Ram Ji is a child witness, who was aged about 10 years only at the time of his statement which has been recorded on 30.1.1986. 11. Before dealing with the issues canvassed, it is considered expedient to have a bird’s eye view on the statements of relevant prosecution witnesses. PW-1 Ram Ji is a child witness, who was aged about 10 years only at the time of his statement which has been recorded on 30.1.1986. The date of occurrence is 17.7.1985. He has stated that on the date of occurrence his elder brother Ram Kishore and Bhabhi Usha were in the house. Ram Kishore had asked him to go to cattle shed to give drinking water to the animals. His father had gone for work and his mother had gone to attend the call of nature. He went out of the house and when he returned he saw his brother Ram Kishore running away from the house. His Bhabhi Usha was lying there in an injured condition in a pool of blood, but he did not see anyone inflicting injuries on her. 12. At this stage PW-1 was declared hostile and the prosecution was permitted to cross-examine him. During cross-examination, he has stated that when he returned from cattle shed he saw only his brother Ram Kishore and none else running away from the place of occurrence. When he went inside the house there was no-one, he did not see his brother Ram Kishore after the death of his Bhabhi Usha and saw him only after 2 or 3 months. He has denied of being tutored by his parents, but has admitted the time of occurrence by stating that the occurrence might have taken place at 2.00 P.M. He has also stated that his Bhabhi was a very simple and innocent lady. When confronted with his earlier statement recorded under Section 161 Cr.P.C., he denied to have ever given any such statement to I.O. that when he returned he saw his elder brother inflicting injuries on his Bhabhi while uttering “vkt eSa rq>s ftUnk ugha NksMwWxkA”. After cross-examination by the DGC Criminal, PW-1 has been cross-examined by learned defence counsel and this time he has stated that he has been brought by a Constable, who took him first to Police Station Jalaun and from there he came to the Court with Darogaji who told him what is to be deposed in Court. He has further stated that he saw that the neck of his Bhabhi was slashed and she was unconscious. He has further stated that he saw that the neck of his Bhabhi was slashed and she was unconscious. Thus, the deposition of PW-1, clearly shows that although he has turned hostile but he has supported the place, time and manner of occurrence as alleged by the prosecution. 13. The law regarding the evidentiary value of the statement of a hostile witness is well-settled that the evidence of a hostile witness should not be discarded as a whole but that part of such statement which supports the prosecution case may be taken into consideration. 14. In a recent case of Rohtash Kumar v. State of Haryana, 2013(3) RCR (Criminal) (SC), the Apex Court has reiterated the aforesaid legal principle as under : “It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. 15. Earlier, in State of U.P. v. Ramesh Prasad Misra and another, AIR 1996 SC 2766 , the Apex Court held as under : “evidence of a hostile witness should not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon. (See also: C. Muniappan and others v. State of Tamil Nadu, AIR 2010 SC 3718; Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 ; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979 ).” Therefore, the law permits the Court to take into consideration the deposition of a hostile witness, to the extent the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny.” 16. The second important witness of this case is the Village Chaukidar, who is the first informant too. He has been produced as PW-3. The second important witness of this case is the Village Chaukidar, who is the first informant too. He has been produced as PW-3. This witness too has turned hostile, but he has also supported the prosecution story to some extent by identifying his signature on the First Information Report (Ext. Ka-1) and by stating that he had gone to lodge report at the police station. He has also stated that injured Usha was taken to the hospital by her in-laws. He has stated that Bhawani (father-in-law of Usha) and Ram Singh etc. had gone alongwith him to the police station on a Tractor. They had stayed outside the police station and he had gone inside. 17. Thus, PW-3 has supported the prosecution story so far as aforesaid facts are concerned. 18. PW-5 Daya Ram, a resident of the same village, has also turned hostile, but he has supported the prosecution case with regard to the facts that hearing the alarm he had gone to the house of appellant and had seen his wife in an injured condition, the appellant Ram Kishore was not found present in the house. Besides it, PW-5 has supported the time of occurrence by stating that it was afternoon. 19. PW-7 Ram Singh is the father of the appellant. It was but natural for him to turn hostile. He has stated that on the day of occurrence they had gone to police station on a tractor and from there they went to the hospital leaving the Village Chaukidar at the police station. Usha did not utter any word. Thus PW-7 has admitted the facts that Usha was taken on a tractor first to the police station and then to the hospital. He has also corroborated the prosecution version that Village Chaukidar remained at the police station to lodge the report. 20. The single witness who has supported the prosecution case is PW-4 Babu Lal, who is the father of deceased Usha. He has stated about the motive behind the occurrence by deposing that the accused was demanding a buffalo. As he was unable to fulfill his son-in-law’s demand, he got annoyed and killed his daughter only after one month from the ‘Gauna’ ceremony. He was not informed about the murder of his daughter. On receiving information through a businessman, he went to Jalaun where he got to know that they had taken his daughter to Kanpur. As he was unable to fulfill his son-in-law’s demand, he got annoyed and killed his daughter only after one month from the ‘Gauna’ ceremony. He was not informed about the murder of his daughter. On receiving information through a businessman, he went to Jalaun where he got to know that they had taken his daughter to Kanpur. He went to Kanpur. His daughter was alive at that time and was able to speak. 21. The prosecution alongwith several other documentary evidence has adduced in evidence the statement of Usha recorded by the I.O. (PW-8) under Section 161 Cr.P.C. treating it as her dying declaration. This statement has been duly proved in the Court by the I.O. as Ext.Ka-10. The I.O. (PW-8) has stated that he was posted as Sub Inspector at police station Jalaun on 17.7.1985 and was assigned the investigation of this case. He had recorded the statement of deceased Usha on 17.7.1985 in his own handwriting and under his signatures. 22. The statement of deceased Usha recorded by I.O. is available on record as Ext.Ka-10 which shows that Usha had stated that her husband was demanding a buffalo from his father. In the noon, when her mother-in-law had gone to attend the call of nature and her father-in-law was outside the house due to some work, only her husband and her Dewar Ram Ji were present in the house, her husband sent Ram Ji outside the house asking him to give water to the cattle. Thereafter, he inflicted knife injuries on her neck. Meanwhile her Dewar returned and he started shouting hearing which her mother-in-law, father-in-law and villagers reached at the spot. Seeing them her husband ran away. 23. Learned counsel for the appellant has assailed the validity of dying declaration on the ground that neither any certificate of fitness was taken from the doctor before recording this statement nor it has been recorded by any Magistrate. The provisions of Rule 115 of Police Regulations were also not complied before recording the statement of deceased. It has further been contended that the injuries sustained by deceased Usha clearly show that no person with such grievous injuries on neck could have been able to speak even a word. The provisions of Rule 115 of Police Regulations were also not complied before recording the statement of deceased. It has further been contended that the injuries sustained by deceased Usha clearly show that no person with such grievous injuries on neck could have been able to speak even a word. Learned counsel for the appellant has assailed the reliability of dying declaration on one more ground that CW-1 the doctor who had medically examined deceased Usha has clearly stated that deceased was in semi-conscious state when she was admitted in the hospital which suggests that she could not have been in a position to speak. 24. We find no force in the aforesaid arguments advanced by learned counsel for the appellant in view of the fact that the incident has occurred at about 2 PM, the report has been lodged promptly at 3.05 PM and at the same time the I.O. has recorded her statement. Usha was first taken to police station and then to the hospital. She was examined by the doctor (CW-1) at 6 PM i.e. after about three hours from lodging of the report. Meanwhile, naturally her condition would have been deteriorated due to loss of blood. Therefore if the doctor has stated that she was not in a position to speak due to semi consciousness, this does not mean that she would not have been in a position to speak 3 hours earlier too. PW-8 the I.O., who is an independent witness has categorically stated that Usha did speak and was in a position to speak when her statement was recorded by him. Under these circumstances, it cannot be said that Usha was not in a position to speak. 25. So far as requirement of complying with the provisions of Rule 115 of UP Police Regulations is concerned, in view of the fact it is clear that the I.O. at that time was simply recording the statement of Usha under Section 161 Cr.P.C. He was not recording it as a dying declaration, as the I.O. has stated that he was not apprehending that Usha would so soon succumb to her injuries. Under such circumstances, the I.O. was not required to comply with Rule 115 of UP Police Regulations. 26. Even for the sake of arguments, if we ignore Ext. Under such circumstances, the I.O. was not required to comply with Rule 115 of UP Police Regulations. 26. Even for the sake of arguments, if we ignore Ext. Ka-10 (dying declaration), it clearly appears from the facts and circumstances of the case that it was the appellant only and none other, who could have killed Usha. The circumstances clearly show that the occurrence has taken place inside the four walls of the house of appellant. At the time of occurrence only three persons were present in the house, the appellant himself, his wife Usha and his younger brother PW-1 Ram Ji. Although PW-1 has turned hostile, but he has supported the prosecution case by stating that his brother asked him to go to the cattle shed and to give drinking water to the cattle. He has also stated that when he returned he saw his brother running away from the house. Under these circumstances when the appellant was alone with his wife, the onus under Section 106 of Evidence Act was on his shoulders to clarify his position as to who other could have assaulted his wife so mercilessly causing such grievous injuries on her neck ? But the appellant has not stated anything about it. Hence adverse inference may be drawn against the appellant. 27. Section 106 of Indian Evidence Act makes it obligatory on the person having knowledge of such facts, which no other person may have to give some clarification about it, but the appellant chose to keep mum when he was asked about the occurrence during his examination under Section 313 Cr.P.C.. There is no doubt that an accused has a right to maintain silence he is not under obligation to reply to the questions put to him and the prosecution has to stand on its own legs but at the same time the Courts are also free to draw adverse inference against the accused if he instead of clarifying his position, prefers to keep silence. 28. The accused appellant in his statement under Section 313 Cr.P.C. has not spoken anything as to who might have killed his wife and for what purpose. 28. The accused appellant in his statement under Section 313 Cr.P.C. has not spoken anything as to who might have killed his wife and for what purpose. The Apex Court in the case of Phula Singh v. State Of Himachal Pradesh, (2014) 4 SCC 9 , has held that “the accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.” 29. In the case of Rohtash Kumar (supra), the Apex Court has also held that in case of circumstantial evidence if the accused do not speak anything about the occurrence in his statement under Section 313 Cr.P.C. and keeps mum, his silence provides and completes the missing link in the chain of circumstances. As all the eye-witness have turned hostile in this case, this case rests on circumstantial evidence. An overall assessment of the chain of circumstances in this case point out only towards the guilt of appellant and towards no other hypothesis. If any other known or unknown person had killed the wife of appellant what was the reason that he did not lodge any FIR and fled away? 30. Subsequent conduct of the appellant also speaks in volumes about his guilt otherwise what could have been the reason of his running away from the spot, leaving his wife alone in such a serious condition which fact is clearly evident from the statement of PW-1 his younger brother Ram Ji who even though turned hostile but has stated to have seen the appellant running away from the spot just after the occurrence. 31. 31. The Apex Court in the case of Rohtash Kumar (supra) has reiterated the law regarding circumstantial evidence as under : “The Court while convicting a person on the basis of the circumstantial evidence, must apply the following principles : The prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established-The same must be a conclusive in nature, and must exclude all possible hypothesis, except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused.” 32. Considering the facts and circumstances, we are of the firm view that it was the appellant and nobody else who has committed the murder of appellant’s wife Usha. The learned trial Court has rightly convicted the appellant under Section 302 I.P.C.. There is no reason to interfere in the impugned judgment in this appeal. The appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The judgment dated 2.4.1986 is affirmed. Let the accused-appellant Ram Kishore, S/o Shri Bhawani, R/o Amkera, Police Station Jalaun, District Jalaun be taken into custody to serve out the sentence of life imprisonment. The Chief Judicial Magistrate concerned will take suitable step to ensure custody of the accused-appellant to get him admitted in the jail to serve out the sentence. Registry is directed to send copy of this judgment to C.J.M., Jalaun at Orai forthwith. ——————