REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 560 OF 2010
Himanshu @ Chintu ...Appellant
Versus
State of NCT of Delhi ...Respondent
WITH
CRIMINAL APPEAL NO. 561 OF 2010
JUDGEMENT
R.M. LODHA, J.
These two appeals, by special leave, are directed
against the judgment of the High Court of Delhi whereby the
Division Bench of that Court affirmed the judgment of the
Additional Sessions Judge, Delhi. The Additional Sessions
Judge convicted the appellants for the offence punishable
under Section 302 read with Section 34 IPC and sentenced
them to suffer imprisonment for life.
2. On July 8, 2006, Dharam Pal (PW-3)–Head
Constable–was on duty at Police Control Room in Police
Headquarters from 8.00 p.m. to 8.00 a.m. At about 9.34 p.m., a
telephonic message was received in the control room from
telephone No. 9210325051 that a person had been shot at A-
450, Shastri Nagar. The said telephonic message was reduced
to writing in the PCR Form (Exhibit PW-3/A) and communicated
to the Police Station, Sarai Rohilla. Subhash Chand (PW-24),
Sub-Inspector, on receiving the said communication (DD No.
31/A), left immediately for the place of incident with Head
Constable Vijay Pal (PW-19). PW-24 and PW-19 reached the
spot in front of Ahuja Clinic, `A’ Block, Shastri Nagar within 15
minutes of the receipt of the communication.
3. Raju (PW-11) was present at the spot. PW-24
recorded his statement (Exhibit PW-11/A) which took about 10
minutes. From there, PW-24 and PW-19 rushed to Hindu Rao
Hospital where they came to know that Murari was brought
dead. PW-24 collected the MLC (Exhibit PW-30/A); made
endorsement on Exhibit PW 11/A and handed it over to PW-19
for taking the same to the Police Station for registration of the
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case. Based on Exhibit PW 11/A, the first information report
(FIR) was registered at Police Station, Sarai Rohilla at 2350
hours.
4. Inspector V.S. Rana (PW-35), on the registration of
FIR, commenced investigation. He reached the spot, got the
photographs taken; seized the blood and bloodstained soil
and also prepared the site plan.
5. On the next day, i.e., July 9, 2006 at about 12.00
noon the postmortem on the dead body of Murari was
conducted by Dr. C.B. Dabas (PW-5) at Hindu Rao Hospital,
Delhi. In the postmortem report (Exhibit PW-5/A), he recorded
the following external injury on the person of the deceased:
“One Fire arm entry wound, round in shape,
measuring 2.2x 2.2 cm & surrounded by a collar
of Abrasion in area of 3×3 cm, located over left
side, lateral aspect of Chest, 19 cm outer to
midline and 12.0 cm outer to – below left NIPPLE
and 120 cm above (L) heel. The wound is
surrounded by Singeing, blackening and
tattooing.”
The track of Injury No. 1 has been noticed in the postmortem
report as under :
“Injury No. 1 has entered the chest cavity after
piercing through (L) chest wall, and then
perforated through (L) pleura, Lower Lobe of (L)
lung and pericardium, and then through and3
through walls of left Ventricle and then (R)
Ventricle, then crossed the midline and perforated
through and through middle lobe of (R) lung and
(R) pleura and entered the chest wall from inside
and exited through 5th inter costal space,
fracturing the 6th rib of chest cage and then
travelled under the skin and ended in
subcutaneous tissues of “post axillary fold where
one “copper coated lead tipped bullet is found –
lodged. It is removed and preserved. The
direction of fire being from Left to Right and
upwards.”
The aforenoted injury on the body of the deceased was found
to be ante-mortem and recent. In the opinion of PW-5, Murari
died due to haemorrhage and shock consequent to Injury No.
1 which was sufficient to cause death in the ordinary course of
nature.
6. On July 9, 2006, PW-35 and PW-24 along with PW-
11 proceeded in search of the accused persons. Himanshu @
Chintu (A-2) was apprehended on that day itself. A-2’s
disclosure statement was recorded on July 10, 2006 vide
Exhibit 24/B. Sunil Nayak @ Fundi (A-1) was arrested on July
15, 2006. Ramesh @ Dudhiya (A-4) was arrested on July 26,
2006. Shesh Bahadur Pandey (A-3) was arrested on October
16, 2006. On the basis of his disclosure statement, the Katta
(weapon of offence) was recovered. Sunil Kumar (A-5)
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surrendered in the Court on November 9, 2006 and on that day
itself, he was arrested.
7. PW-35 took all necessary steps towards
investigation and after collecting the necessary materials and
on completion of the investigation the charge sheet was filed.
On October 16, 2006, the Metropolitan Magistrate, Delhi
committed the accused to the Court of Sessions for trial.
8. The accused were tried in the Court of Additional
Sessions Judge, Delhi. The prosecution examined 35
witnesses and also got exhibited the various documents. The
trial judge recorded the statement of the accused under Section
313 Cr.P.C. The accused denied their role in the crime and
examined two witnesses, namely, S.C. Kalra (DW-1) and Atul
Katiyar (DW-2) in their defence.
9. The Additional Sessions Judge, Delhi after hearing
the parties and on the basis of the evidence on record vide her
Judgment dated September 30, 2008 held A-1, A-2, A-3 and A-
4 guilty of the offence under Section 302 read with Section 34
IPC and sentenced them to suffer imprisonment for life and a
fine of Rs. 5000/- each with a default stipulation. A-4 was
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convicted for the offence punishable under Section 27 of the
Arms Act, 1959 as well. He was sentenced to rigorous
imprisonment for three years and a fine of Rs. 2000/- with a
default stipulation on that count. No offence against A-5 was
proved beyond reasonable doubt and he was acquitted.
10. A-1, A-2, A-3 and A-4 filed four separate appeals
before the High Court of Delhi. These four appeals were heard
together by the Division Bench and vide judgment dated May
25, 2009, the appeals preferred by A-1, A-2 and A-3 were
dismissed. Insofar as appeal of A-4 was concerned, the
Division Bench maintained his conviction and sentence under
Section 302/34, IPC but as regards his conviction under
Section 27 of the Arms Act, 1959, it was altered to the offence
under Section 25 of the Arms Act, 1959. He was sentenced to
suffer rigorous imprisonment for three years and a fine in the
sum of Rs. 2000/- with a default stipulation for that offence.
11. The present appeals are by A-2 and A-3.
Mr. K.T.S. Tulsi, learned senior counsel for A-2 pointed out the
discrepancy in the prosecution case about the telephonic
message received in the Police Control Room. He referred to
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the evidence of PW-11 wherein he stated that he gave
communication to the police from STD booth and the evidence
of PW-3 who deposed that the telephonic message was
received in the control room from Telephone No. 9210325051.
Learned senior counsel argued that in the telephonic message,
the names of the accused were not given. He vehemently
contended that although the telephonic message was received
at about 9.34 p.m., the FIR was registered after about two
hours and this time was used by the prosecution to falsely
implicate the accused because of their previous enmity.
Mr. K.T.S. Tulsi argued that all the three eye-witnesses Rohit
(PW-7), Sukhwinder @ Monty (PW-8) and PW-11 were
declared hostile and, therefore, their evidence could not have
formed the basis for the conviction of A-2. Even otherwise he
submitted that evidence of PW-7, PW-8 and PW-11 was full of
contradictions and material omissions and that their evidence
was wholly unreliable. Learned senior counsel pointed out that
PW-11 in his deposition stated that the deceased had gone
without eating food but the postmortem report and the
evidence of PW-5 indicated that deceased had taken meals
7
about 1 = hours to 2 = hours before his death. Mr. K.T.S.
Tulsi also submitted that PW-7, PW-8 and PW-11 were
interested witnesses inasmuch as PW-7 and PW-8 were friends
of the deceased and PW-11 was his younger brother and it is
not safe to rely on their testimony. He, thus, submitted that the
High Court erred in affirming the conviction of the accused
under Section 302 read with Section 34 IPC.
12. Learned counsel for A-3 adopted the arguments of
Mr. K.T.S. Tulsi and additionally submitted that PW-7 and PW-
8 have not specifically identified A-3 and the evidence of PW-
11 was not trustworthy. He submitted that the evidence let in
by the prosecution was not sufficient to establish the guilt of A-3
for the offence punishable under Section 302 read with Section
34 beyond any reasonable doubt.
13. Mr. A. Mariaputtam, learned senior counsel for the
respondent supported the judgment of the High Court. He
refuted the submission of Mr. K.T.S. Tulsi that the F.I.R. was
lodged belatedly i.e. two hours after the occurrence of the
incident and that the said time was used to falsely implicate the
accused. He contended that evidence of PW-7, PW-8 and PW-
8
11 – although they were cross examined by the public
prosecutor – could be relied upon to the extent that supported
the prosecution case. In this regard, he relied upon decision of
this Court in the case of Rajendra and Anr. vs. State of Uttar
Pradesh1. Learned senior counsel would contend that
appreciation of the evidence by the High Court and the trial
court was proper and the concurrent view of the two courts
does not call for any interference by this Court.
14. It must be immediately stated that the evidence of
PW-5 and the postmortem report leave no manner of doubt that
the death of Murari was homicidal.
15. We see no merit in the submission of Mr. K.T.S.
Tulsi, learned senior counsel for A-2 that the FIR was
registered belatedly and this time was used to falsely implicate
the accused because of their previous enmity. It transpires
clearly from the evidence of PW-3 that the telephonic message
was received in the control room at 9.34 p.m. on July 8, 2006.
The said communication was noted down in exhibit PW-3/A and
communicated to the Police Station, Sarai Rohilla. On
receiving the communication DD No. 31/A, PW-24 and PW-19
1
(2009) 13 SCC 480
9
immediately left for the place of incident and reached the spot
within 15 minutes. On reaching the place of incident, PW-24
recorded the statement of PW-11 which took about 10 minutes.
After recording the statement of PW-11, PW-24 and PW-19
left for Hindu Rao Hospital where the victim had been taken
and there PW-24 came to know that victim was brought dead.
PW-24 then collected the MLC from the hospital, made
endorsement on the statement (Exhibit PW-11/A) and sent PW-
19 to the Police Station for registration of the FIR. The FIR was
then registered on the basis of Exhibit PW-11/A at the Police
Station Sarai Rohilla at 2350 hours. The sequence of facts
narrated above does not lead to an inference that there was
delay in the registration of FIR or it lacked spontaneity. As a
matter of fact, in Exhibit PW-11/A, which was recorded within
20-25 minutes of the receipt of the communication of the
incident, the details of the incident were narrated and the
specific names of A-2 and A-3 figured with A-1 and A-4. It
cannot, therefore, be said that the time of two hours was used
to falsely implicate the accused due to their previous enmity.
10
16. PW-7 is one of the eye-witnesses. He deposed
that on July 8, 2006 at about 9 – 9.30 p.m., he was returning
back from Bharat Nagar Mandir and he saw Murari and PW-8
coming from the opposite direction. He stopped his bike and all
the three started chatting. At that time, A-2 came on his bullet
motorcycle with one person; entered into an argument with
Murari and threatened Murari that he would kill him and went
away. PW-7 then asked Murari as to what had happened and
when Murari was about to tell him; PW-11 (younger brother of
the deceased) came there and told Murari that their mother was
calling him. A-2 then came back with 5-7 boys on 4-5 motor
cycles. A-2 pointed towards Murari and claimed “yeh tha”. One
of these boys got down from motorcycle and shot at Murari.
Then he, PW-11 and PW-8 brought an auto rickshaw. PW-8
and he took Murari in that auto rickshaw and asked PW-11 to
inform his parents regarding the incident. They took Murari to
Parmarth Hospital where he was given first aid and then Murari
was taken in a PCR van to Hindu Rao Hospital. The police
reached Hindu Rao Hospital. Since complete facts were not
deposed by him, the public prosecutor after obtaining the
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permission of the court put leading questions to him. The
defence also cross-examined PW-7 at quite some length. As
regards the role of A-2 in the crime, the deposition of PW-7 is
categorical and specific.
17. PW-8 in his deposition stated that on July 8, 2006
A-2 came on the motor-cycle at 9.20 p.m. with one person and
threatened Murari. After about 5-10 minutes, A-2 came again
with his associates and pointed towards Murari. One of the
boys accompanying A-2 took out revolver and fired shot at
Murari but he declined to identify the boy who fired the shot and
the other boys who accompanied A-2. He was declared hostile
by the prosecution and was cross-examined. He was also cross
examined at quite some length by the defence.
18. PW-11 is the younger brother of the deceased. In
his deposition, he stated that on July 8, 2006 at about 9.15 to
9.20 p.m., he along with his brother Murari, PW-7 and PW-8
was standing in front of Ahuja Clinic. A-2 along with one person
came on motorcycle and threatened his brother, “Murari Mai
Tujhe Zinda Nahi Chhodunga” and left. A-2 came again after 5-
10 minutes with A-1, A-3, A-4 and A-5. A-2 then pointed
12
towards his brother and told to A-4, “yeh hai Murari”. A-1 and A-
3 said, “Maar saale ko goli”. A-4 then took out a Katta from the
right pocket of his trouser and put that on the left side of the
chest of his brother and fired. The accused then ran away from
the spot. He further deposed that PW-7 and PW-8 took Murari
to the hospital in a three wheeler; he informed the police that
his brother had been shot at and he also received a phone call
from PW-7 or PW-8 telling him that they had taken his brother
to Parmarth Hospital first and then to Hindu Rao Hospital. Since
complete facts were not deposed by PW-11, the court
permitted the public prosecutor to put leading questions to him.
The defence extensively cross-examined PW-11.
19. The evidence of PW-7, PW-8 and PW-11 was
thoroughly examined and analysed by the trial court. As
regards their deposition, the trial court observed thus:
“There is no reason to disbelieve the statement
of PW-11 Raju, who is a truthful witness as
discussed above I am of the opinion that even
presence of PW-7 and PW-8 at the spot cannot
be denied. They have testified about the incident
in detail. They have only not deposed with
respect to the identity of the accused persons
namely Shesh Bahadur Pandey, Sunil @ Fundi
and Ramesh @ Dudhiya, but have otherwise
given the detailed factum of their having been
present at the spot and having taken the injured13
to the hospital. These facts are not disputed on
record. There is an explanation on record as to
why witness Rohit (PW-7) did not identify the
accused persons in the court. Though the witness
had given their names (of accused) in the
statement before the police u/Sec. 161 Cr.P.C.,
but had turned hostile in respect of their identity in
the court as it has been shown on record that
witness had been threatened not to dispose (sic)
in this case against the accused persons. The
said writ petitions filed by PW-7 Rohit and his
father in the Hon’ble High Court of Delhi are Ex.
PW-7/A and Ex. PW-7/B. Accused Himanshu has
been identified by all the three witnesses i.e. PW-
7, PW-8 and PW-11 in the Court. It is also seen
that though PW-7 was partly hostile in respect to
the identify (sic) of the accused persons, he had
given his statement in detail with respect to the
incident as it took place. It is seen that the
prosecution had placed on record the certified
copy of the writ petition filed by Rohit and his
father before the Hon’ble High Court of Delhi,
wherein he had alleged the threats of the
members of the family of the accused persons to
Rohit and his family, which seems a plausible
reason for the witness to have not identified the
accused persons in the Court though he had
named them earlier. It is seen that in material
particulars, the witness had supported the case of
the prosecution and there was sufficient reasons
for him for not identifying the accused persons
now in the Court. Further that all the three eye
witnesses had identified accused Himanshu and
the role played by him. Further PW-11 Raju had
identified all the accused persons and had
mentioned in detail the role played by each of
them and there was no reason to disbelieve this
witness merely because he was related to the
deceased. Further the weapon of offence had
been recovered from nala at the instance of
accused Ramesh @ Dudhiya. The motive was
also there for the accused persons to have
committed this offence inasmuch as witness have
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stated that Murari had said that Chintoo used to
tease his girl friend on which an altercation had
taken place between them in the evening. It is
seen that all these witnesses have corroborated
this fact of Himanshu coming there first to say
that he would not spare Murari now.”
The trial court concluded its opinion as follows :
“I am, thus, of the opinion that despite lengthy
cross-examination of the witness and various
points put forth during arguments, Ld. Counsel for
the accused has not been able to extract any
material point or contradictions or bring home any
point, which could be considered as fatal to the
case of the prosecution. Accordingly, I hold that
on 08.07.2006 at about 09.30 p.m. in front of
Ahuja Clinic, Khurana Tent Wali Gali, A-Block,
Shastri Nagar, Delhi that accused Ramesh @
Dudhiya, Himanshu, Sunil @ Fundi, and Shesh
Bahadur Pandey have committed murder of
Murari by firing gunshot in furtherance to their
common intention and thus, committed an offence
punishable u/Sec. 302/34 IPC.”
20. The testimony of PW-7, PW-8 and PW-11 has also
been examined by the Division Bench of the High Court at
great length. The Division Bench was alive to the situation that
PW-8 was declared hostile and PW-7 and PW-11 were
subjected to leading questions by the public prosecutor. The
Division Bench took into consideration the discrepancies,
omissions and contradictions pointed out by the counsel for the
15
accused and on careful consideration of their evidence held
that the presence of these three witnesses at the time and
place of occurrence was not doubtful and the evidence of PW-
11 was corroborated by PW-7 and PW-8 with regard to the
manner in which the crime was committed. The Division Bench
opined as follows :
“PW-7 and PW-8 have categorically deposed that
before he was shot at, Himanshu had come to the
spot on a motorcycle with another boy and had
threatened Murari with death and that after 5-10
minutes, Himanshu returned with 5-7 boys on
motorcycles and said “yeh hai murari”. Even PW-
11 has so deposed. There can be only two
circumstances under which PW-11 could have
testified to said fact. The first was that either PW-
7 or PW-8 or both told him said facts or he saw
the same himself. We find no suggestions have
been given to PW-7 and PW-8 that they were the
ones who told said facts to PW-11. No suggestion
has been given to PW-11 that said facts were told
to him by either PW-7 and PW-8. Thus, prima
facie, said facts deposed to by PW-11 have to be
accepted as his narratives which he saw with his
eyes.”
21. We are in agreement with the consideration of the
prosecution evidence by the High Court. In the case of Ram
Babu v. State of Uttar Pradesh2, this Court speaking through
one of us (R.M. Lodha, J.) reiterated the position consistently
2
(2010) 5 SCC 63
16
stated by this Court that ordinarily this Court does not enter into
an elaborate examination of the evidence in a case where the
High Court has concurred with the findings of fact recorded by
the trial court. As a matter of fact, there is no justification for
departure from that rule in the present case. However, we
have carefully considered the prosecution evidence and,
particularly, the testimony of PW-7, PW-8 and PW-11 who were
presented as eye-witnesses. In our view, the conclusions
recorded by the trial court and confirmed by the High Court
concerning A-2 and A-3 cannot be said to suffer from any
factual or legal error or that such conclusions could not
reasonably be arrived at by those courts. The presence of PW-
11 at the scene of occurrence is not at all doubtful. The fact
that his statement, PW-11/A was taken down by PW-24 at the
place of occurrence within 20-25 minutes of the incident is
clearly established. Although the defence has been able to
point out certain discrepancies and omissions in his deposition,
but, in our opinion, such discrepancies and omissions are only
minor and not very material and in any case do not shake his
trustworthiness. It is true that the public prosecutor also put
17
leading questions to him but that does not obliterate his
evidence from the record. His deposition that he informed the
Police Control Room from STD booth whereas PW-3 stated
that the information about the incident was received from the
mobile phone No. 9210325051 hardly affects the material part
of his evidence concerning the crime and the involvement of A-
2 and A-3. Yet another discrepancy in the evidence of PW-11
pointed out by the learned senior counsel for A-2 that the
deceased had not taken dinner whereas the evidence of PW-5
and the post-mortem report suggested that the deceased had
taken some eatables about 1= to 2= hours prior to his death is
no discrepancy at all. What PW-11 has deposed is that the
meals were under preparation by his mother when the
deceased had left home. This does not rule out the possibility of
the deceased having taken something earlier. In our view, the
evidence of PW-11 clearly nails A-2 and A-3 for the murder of
Murari. He is a truthful witness and can be safely relied upon.
His evidence is corroborated insofar as A-2 is concerned by the
other eye-witnesses PW-7 and PW-8. His evidence also gets
corroborated from the evidence of PW-5 and PW-24. The
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complicity of A-3 is also established by the evidence of PW-11
which is duly corroborated by medical and other evidence
although PW-7 and PW-8 have not specifically named him. We
agree with the concurrent finding of the High Court and the trial
court that the prosecution evidence is sufficient to bring home
the guilt of A-3 as well beyond any reasonable doubt.
22. In Prithi v. State of Haryana3 decided recently, one
of us (R.M. Lodha, J.) noticed the legal position with regard to a
hostile witness in the light of Section 154 of the Evidence Act,
1872 and few decisions of this Court as under :-
“25. Section 154 of the Evidence Act, 1872
enables the court in its discretion to permit the
person who calls a witness to put any questions
to him which might be put in cross-examination by
the adverse party. Some High Courts had earlier
taken the view that when a witness is cross-
examined by the party calling him, his evidence
cannot be believed in part and disbelieved in part,
but must be excluded altogether. However this
view has not found acceptance in later decisions.
As a matter of fact, the decisions of this Court are
to the contrary. In Khujji @ Surendra Tiwari v.
State of M.P. [(1991) 3 SCC 627], a three-Judge
Bench of this Court relying upon earlier decisions
of this Court in Bhagwan Singh v. State of
Haryana [(1976) 1 SCC 389], Sri Rabindra Kumar
Dey v. State of Orissa [(1976 4 SCC 233] and
Syad Akbar v. State of Karnataka [(1980) 1 SCC
30] reiterated the legal position that: (Khujji case,
SCC p. 635, para 6)
3
(2010) 8 SCC 536
19
“6. … the 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 but the same can be accepted to
the extent their version is found to be
dependable on careful scrutiny thereof.”
26. In Koli Lakhmanbhai Chanabhai v. State of
Gujarat [(1999) 8 SCC 624], this Court again
reiterated that testimony of a hostile witness is
useful to the extent to which it supports the
prosecution case. It is worth noticing that in
Bhagwan Singh this Court held that when a
witness is declared hostile and cross-examined
with the permission of the court, his evidence
remains admissible and there is no legal bar to
have a conviction upon his testimony, if
corroborated by other reliable evidence.
27. The submission of the learned Senior
Counsel for the appellant that the testimony of
PW 6 should be either accepted as it is or
rejected in its entirety, thus, cannot be accepted
in view of the settled legal position as noticed
above.”
23. The aforesaid legal position leaves no manner of
doubt that the evidence of a hostile witness remains the
admissible evidence and it is open to the court to rely upon the
dependable part of that evidence which is found to be
acceptable and duly corroborated by some other reliable
evidence available on record. The High Court and the trial
20
court, thus, cannot be said to have erred in acting on the
evidence of PW-11 which was duly corroborated by the other
reliable evidence on record. We find no flaw in the judgment of
the High Court affirming the conviction of A-2 and A-3 under
Section 302 read with Section 34 IPC.
24. Both the appeals are, accordingly, dismissed.
……………………… J.
(Aftab Alam)
……. ……………….. J.
(R.M. Lodha)
NEW DELHI,
JANUARY 4, 2011
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