Himanshu @ Chintu Vs State
of NCT of Delhi
R.M. LODHA, J.
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.
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 15minutes of the
receipt of the communication.
(PW-11) was present at the spot. PW-24recorded his statement (Exhibit PW-11/A)
which took about 10minutes. 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-19for taking the same to the Police Station for registration of the case.
Based on Exhibit PW 11/A, the first information report(FIR) was registered at
Police Station, Sarai Rohilla at 2350hours.
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.
the next day, i.e., July 9, 2006 at about 12.00noon 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
afore noted injury on the body of the deceased was found to be ante-mortem and
recent. In the opinion of PW-5, Muraridied due to hemorrhage and shock
consequent to Injury No.1 which was sufficient to cause death in the ordinary
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'sdisclosure statement was recorded on July 10, 2006 vide Exhibit 24/B.
Sunil Nayak @ Fundi (A-1) was arrested on July15, 2006. Ramesh @ Dudhiya (A-4)
was arrested on July 26,2006. Shesh Bahadur Pandey (A-3) was arrested on
October16, 2006. On the basis of his disclosure statement, the Katta (weapon of
offence) was recovered. Sunil Kumar (A-5) surrendered in the Court on November
9, 2006 and on that day itself, he was arrested.
took all necessary steps towards investigation and after collecting the
necessary materials andon 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.
accused were tried in the Court of Additional Sessions Judge, Delhi. The prosecution
examined 35witnesses and also got exhibited the various documents. The trial
judge recorded the statement of the accused under Section313 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.
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
34IPC and sentenced them to suffer imprisonment for life and a fine of Rs.
5000/- each with a default stipulation. A-4 was 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.
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 May25, 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.
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 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.
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.
counsel pointed out thatPW-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 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.
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-3for the offence
punishable under Section 302 read with Section34 beyond any reasonable doubt.
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-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 UttarPradesh. 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.
must be immediately stated that the evidence ofPW-5 and the postmortem report
leave no manner of doubt that the death of Murari was homicidal.
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 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 within20-25 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.
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-8coming 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 motorcycles. A-2 pointed towards Murari and claimed
One of these boys got
down from motorcycle and shot at Murari. Then he, PW-11 and PW-8 brought an
auto rickshaw. PW-8and 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 Murariwas 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 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
in his deposition stated that on July 8, 2006A-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.
is the younger brother of the deceased. In his deposition, he stated that on
July 8, 2006 at about 9.15 to9.20 p.m., he along with his brother Murari, PW-7
and PW-8was standing in front of Ahuja Clinic. A-2 along with one person came on
motorcycle and threatened his brother, "Murari MaiTujhe 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 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 Murarito 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.
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 13to 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 eyewitnesses 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."
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 thatPW-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 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."
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 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 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-5and 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
complicity of A-3 is also established by the evidence of PW-11which 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.
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 to 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
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."
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 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)