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 3x3 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  and  

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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  

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about 1 ½ hours  to 2 ½ 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-

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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

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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.

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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  

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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 injured  

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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  

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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

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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  

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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 1½ to 2½ 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

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“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  

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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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