It is not in disputeand cannot be disputed that she died due to asphyxia by strangulation asfound by PW 1, autopsy doctor.A contusion of 9 cm x 3 cm size was foundacross the front of the neck underlying skin, muscle, trachea, oesophaguscongested and hyoid bone was fractured, extravasation of blood in the neckregion due to injury of neck vessels.It was also found that the tongue hadprotruded out and was bitten by teeth of both jaws.Blood was coming outfrom mouth and and nose.Both eyes were closed and congested and face wasalso congested.The membranes were congested, brain base of skull, pleura,larynx, trachea, bronchi, both the lungs and pharynx were found congested.Yet another circumstanceput forward and which is highly artificial and unbelievable and beyondcredulity is that he started in the morning on 27-9-198 from DW 1's houseand directly reached the court, covering a distance of 70 kms by 10 a.m.and he remained in the court up to 11 a.m. without going to the house whichis situated hardly 1 1/4 kms from the court.It is highly unbelievable andunacceptable.It is also an admitted position that he had news of hiswife's death in the court at 11 a.m. He did not disclose the name of theinformer.The bail bonds of the first respondent standcancelled.He should surrender forthwith to serve out the sentence.In casehe does not surrender himself, the Superintendent of Police, Banda Districtis directed to take him into custody forthwith and report the compliance tothe Registry of this Court.The bail bonds of the second respondent standdischargedWe have heard learned counsel on both sidesIn Sessions Trial No. 78 of 1985 in the Court of the Special Judge (E.C.Act), Banda, the Sessions Judge convicted Ramesh Prasad Misra, the firstrespondent under Section 302 Indian Penal Code ('IPC', for short) andsentenced him to death.He was also convicted under Section 201 IPC andsentenced to undergo rigorous imprisonment (RI) for four years and to pay afine of Rs 1000 and in default to undergo simple imprisonment for sixmonths.He was also convicted under Section 498-A and sentenced to undergotwo years' RI and to pay a fine of Rs 1000 and in default to undergofurther simple imprisonment for six months.All the sentences were directedto run concurrently, Smt Butto Devi, the second respondent, mother of thefirst respondent, was acquitted of the offence under Section 302 but wasconvicted under Section 201 IPC and sentenced to undergo RI for four yearsand a fine of Rs 1000 and in default to undergo six months' simpleimprisonment.She also was convicted under Section 498-A and sentenced toundergo RI for two years and to pay a fine of Rs 1000 and in default toundergo simple imprisonment for a further period of six months.Both thesentences were directed to run concurrently.A Division Bench of theAllahabad High Court consisting of B.N. Katju and D.S. Bajpai, J.J.,however, by judgment dated 21-7-1988 in Criminal Appeal No. 2108 of 1987acquitted both the respondents of all the charges and also rejected thereference for confirmation of death sentence.Thus this appeal by specialleaveThis is one of the most horrendous bedroom murders of a young marriedgirl, Urmila Devi, of 19 years on the intervening night of26-9-1985/27-9-1985 in Karwi town in Banda District of Uttar Pradesh.Shewas married to Ramesh Prasad Misra, aged around 28 years, a practisingadvocate at Karwi, on 25-4-1985 and hardly after five months she met withcruel death.She was carrying 4 to 6 weeks' pregnancy.These circumstances clearly indicate force and pressure put upon her andconclusively establish that the death occurred due to asphyxia bystrangulation.Thereafter, the dead body was burnt and the entire body wasburnt except the feet.It would thus be clear that the burns were post-mortem.The offence is, therefore, one of murder.It would beconclusive that the death had taken place around midnight of26-9-1985/27-9-1985 in the bedroom of the first respondentThe question, therefore, is whether the first respondent has committedthe murder of his wife ? Undoubtedly, the entire prosecution case rests oncircumstantial evidence.It is settled law that it is the duty of theprosecution to establish all the circumstances conclusively to hold thatthe respondent alone had committed the offence.Witnesses may be prone tospeak, and in this case, material witnesses have spoken falsehood but thecircumstantial evidence will not.It is, therefore, the duty of the courtto carefully scan through the evidence on the anvil of human conduct,probabilities and attending circumstances extending all doubts in favour ofthe accused.In a case of this type, hardly any direct evidence would beforthcoming for the prosecutionThe case of the prosecution is sought to be based on the evidence of PW2 and PW 6 - a practising advocate who are, admittedly, the neighbours.Intheir statement under Section 161 of Criminal Procedure Code, ('CrPC', forshort) they have stated that they heard the quarrel between the firstrespondent and his wife, Urmila Devi and the latter was heard crying.However, both the witnesses turned hostile to the prosecutionThe question is whether the first respondent was present at the time ofdeath or was away in the village of DW 1, his brother-in-law.It is rathermost unfortunate that these witnesses, one of whom was an advocate, havinggiven the statements about the facts within their special knowledge, underSection 161 recorded during investigation, have resiled from correctness ofthe versions in the statements.They have not given any reason as to whythe investigating officer could record statements contrary to what they haddisclosed.It is equally settled law that the evidence of a hostile witnesswould not be totally rejected if spoken in favour of the prosecution or theaccused, but it can be subjected to close scrutiny and that portion of theevidence which is consistent with the case of the prosecution or defencemay be accepted.One clinching circumstances, viz., that PW 2 and PW 6 hadheard some quarrels in the house of the respondents and the deceased wascrying out, is not on record as substantive evidence.PW 2 and PW 6 had noregard for truth; they fabricated the evidence in their cross-examinationto help the accused which did not find place in their Section 161statements that they had seen one man of white complexion and aged between30 to 35 years, going to the house of the deceased on the fateful night andleaving the house at 8.00 a.m. on the next dayHe slept in the houseand left the house on the next day, i.e. 27-9-1985, at 8 a.m. This wasspoken of not only in his statement made under Section 313 CrPC by thefirst respondent but also, as stated above in the evidence of PW 2 and PW 6in their cross-examination.PW 2, Biswas Kumar, a neighbour of therespondents and PW 6, Harshvir Singh were examined to prove the prosecutioncase that on the intervening night of 26-9-1985/27-9-1985 they heardquarrels emanating from the house of the accused and the deceased was heardcrying; but they turned hostile at the trial and were duly declared hostileand were cross-examined.PW 6, is none other than a practising advocate anda colleague of the 1st respondent.Equally, PW 5, Alok Dwivedi is anotherpractising advocate who was also examined to prove that the firstrespondent himself and one Avadh Vishwa Karma, Advocate, together had gonefrom the Court with the written report, Ex. KA-3 signed by the firstrespondent to the police station and had given it at the Police Station,Karwi at about 2.00 p.m. DW 2, Bhavendra Kumar Singh, an advocate of 20years' standing and the senior of the first respondent was examined toprove the alibi.It is most distressing to note that practising advocate,PW 6 and DW 2, with a view to exculpate the first respondent from theclutches of law, have, without any compunction, spoken falsehood and haveno regard for truth betraying their duty of being responsible law officerswho are expected to uphold truth and nothing but the truth.DW 2 has spokenfalsely that after the first respondent got the news of the death of hiswife he was often fainting and swooning which was not even spoken by thefirst respondent in his Section 313 statement.He should have rushed home to find outthe cause for the death and search out whether the crime was for gain etc.and immediately swing into action and make the police investigate into thecrime.On the other hand, although he had the news at 11 a.m. he went tothe police station at 2.10 p.m. after finding no escape from furtherdelaying the reporting to the police of the crime.This conduct isinconsistent and incompatible with normal human behaviour of an innocentman but seems to be one of a clever demeanour.The evidence of DW 2regarding occasional faints and swooning and ultimate unconsciousness is abunch of tissues of lies unsavoury to be acceptedThe question is whether this theory of alibi and of a strangercommitting crime is true, likely and probable ? The deceased was hardly 19years' old, a young teenager who was studying in intermediate standard atthe time of marriage.PW 2, Chandra Shekhar had five daughters and UrmilaDevi was the third one and being a man of small means, he anxiously marriedher to the first respondent, spending Rs 35, 000 with fond hope that shewould have a bright married life which ultimately turned out to be helllosing her precious life.After the marriage, she was staying with herhusband and had spent hardly five months and was having 4 to 6 weeks'pregnancy.There is no suggestion even of her being of loose character.Ifthe stranger had really come and stayed in the house and committed murderby strangulation, would he have burnt the dead body so as to createevidence to alert the neighbours to come and catch him ? It would beabhorrent to the common sense to believe it.Yet another circumstance todisbelieve this theory is that having committed the murder at midnight,would he have waited till 8.00 a.m. and left the house after daybreak so asto secure evidence of his presence and of having committed the murder ?Under this clinching impossible human conduct, the theory of a stranger'scoming to the house, staying with the deceased during the intervening nightof 26-9-1985/27-9-1985 and of committing her murder is a false one.Theevidence of PW 2 and PW 6 in this behalf is a figment of imagination,emanating from fertile confabulation of 1st respondent, PW 6 and obviouslyof DW 2 and his other colleagues who are all practising advocatesYet another theory set up by the first respondent to prove his alibi isthat pursuant to a letter dated 18-9-1985 written by his brother-in-law, DW1, resident of Jharimajugaon, a railway employee stating that his sisterwas unwell and that on its receipt on 24-9-1985, he went to see his sisterdirectly from the court on 25-9-1985 without coming to his house andkeeping his briefs and coat in the house.He is stated to have kept hiscoat in a shop.It appears to be a highly artificial theory set up by thefirst respondent.On his own admission of DW 1, his wife, viz., the sisterof the first respondent had usual fever which did not warrant him to gostraight from the court to his sister's house without coming to his houseand informing his wife of his going, without keeping his coat and also hisrecord in the house.DW 1 admitted that one vaidya was treating her forfever and that fever continued even after the first respondent left thehouse.DW 1 was attending to his duties going to a distant place.Noprescription of medicine was given.The distance between Karwi and hissister's village is 70 kms.Even assuming that he had gone on 25thSeptember, he would have returned on 26th evening.He merely mentions that while he was in court at 11 a.m. he received themessage that his wife had died and he went to the house and after seeingher dead body he went to the police station and lodged the report.There isno explanation as to where he was moving or what he was doing from 11 a.m.to 2.10 p.m. and why he had lodged the report at 2.10 p.m. when he hadreceived the message of the death of his wife at 11 a.m. He did not evenmention that his wife was having burn injuries.It is now seen that thedeceased was first strangulated and done to death and was then burnt.Obviously, therefore, he had not committedhimself to any specific cause of the death.If the theory of stranger'scoming and causing the death of his wife is excluded and his theory that hehad gone to his sister's house and he did not come back to his house tillhe received the information that his wife was dead which information hereceived at 11 a.m. on 27-9-1985, stands excluded, and for the aboveobvious reasons, it does get excluded, then the necessary conclusion isthat he must have been present in the house.None could have access to hisbedroom at midnight.So he committed the murder and he wanted to createevidence of screening the offence of murder by burning her to create anevidence of suicide committed by the deceased.These false theories set upby the first respondent are yet another circumstance to complete the chainto inculpate the first respondent in the commission of the offence ofmurder and scratching the evidence of murder.There is strong evidence ofPW 2, father and PW 4, sister of the deceased, of demand for dowry whichfurnishes motive to commit murderTheevidence of PW 2 and PW 4, father and sister of the deceased who spokeabout the motive, was excluded on applying Section 32 of the Evidence Act.Thus, evenassuming that Section 32 is inapplicable to the facts of this case as heldby the learned Judges of the High Court, the narration of the facts ofdemand for dowry of sofa, motor cycle etc. and non-supply thereof is apiece of evidence to prove motive for committing the offence of murder.Such evidence would be relevant and admissible under Section 8 of theEvidence Act. The deceased informed these witnesses of the ill-treatmentmeted out to her due to her inability to secure the articles demanded byRamesh Prasad Misra.On the other hand, the learnedJudges of the High Court betrayed their duty of final court of fact, tosubject the evidence to close and critical scrutiny.They either have noknowledge of the elementary principles of criminal law or adopted casualapproach towards a serious crime like the present one.In either case,miscarriage of justice is the inevitable result at their hands in criminalcasesAccordingly, we set aside the acquittal of the first respondent inrespect of all the three charges and restore the conviction of the firstrespondent for an offence of murder under Section 302 IPC.However, thesentence of death, recorded by the Sessions Judge is converted into RI forlife.

Cited provisions: Section 498A in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 201 in The Indian Penal Code; Section 161 in The Indian Penal Code; Section 313 in The Indian Penal Code