Himanshu @ Chintu vs State Of Nct Of Delhi

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

2 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

3 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) 4 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

5 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

6 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

11 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 injured

13 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

14 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

18 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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