HIMANSHU @ CHINTUversusSTATE OF NCT OF DELHI

                          [2011) 1 S.C.R. 48                                    .
A                       HIMANSHU @ CHINTU
                                  v.                                      ~




                      STATE OF NCT OF DELHI
                  (Criminal Appeal No. 560 of 2010)
                           JANUARY 4, 2011
8
               [AFTAB ALAM ANO R.M. LODHA, JJ.]

       Penal Code, 1860: ss.302134 - Murder - Previous                    )..

  enmity of A-2 with the. victim-deceased - A-2 came on the spot
c with other accused and pointed towards the deceased - One
  of the boys accompanying A-2 fired a shot at the deceased
  - Conviction of A-1 to A-4 by courts below -Appeal by A-2
  and A-3 - Held: Evidence of eye-witness was duly
  corroborated by other witnesses - Discrepancies in the
D depositions of the prosecution witnesses were minor and not
  material to shake their trustworthiness and involvement of A-          ,F·

  2 and A-3 - Complicity of A-2 and A-3 was dwy eitablished
  by medical and other evidence - Conviction upheld.
         FIR: Delay in lodging - Plea that FIR was registered
E   belatedly and the time was used .to falsely implicate the
    accused because of previous enmity - On facts, held: Plea
    not tenable - The sequence of facts did not lead to an
    inference that there was delay in registration of FIR or it lacked
    spontaneity.
F
         Witness: Hostile witness - Testimony of - Admissible
    value - Held: 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
G   evidence available on record.                                        )\,


        The prosecution case was that on the day of incident,
    the deceased was standing with his brother (PW-11 ), PW-
    7 and PW-8. A-2 came on a motor cycle at 9.20 p.m. with
H                             48
 HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI             49


one person and threatened the deceased that he would          A
kill him. After about 5-10 minutes, A-2 came again with
his associates and pointed towards the deceased. One
of the boys accompanying A-2 took out a revolver and
fired a shot at the deceased. Thereafter all the accused
ran away from the spot. PW-11 telephoned at the police        B
station at 9.34 p.m. The head constable (PW-3) received
the telephonic message. The message was
communicated to concerned police Station. On receiving
the said communication, Sub-Inspector (PW-24) left
immediately for the place of incident along with the Head     c
Constable (PW-19). PW-11 was present at the spot. PW-
24 recorded his statement (Exhibit PW-11/A) which took
about 10 minutes. PW-24 and PW-19 rushed to the
hospital where they came to know that the deceased was
brought dead. Thereafter, the FIR was lodged at 11.50         D
p.m. The trial court held A-1 to A-4 guilty under Section
302 IP''.: r.w. Section 34 IPC. A.-4 was convicted under
Section 27 of Arms Act as well. A-5 was acquitted. The
High Court maintained the conviction. In so far as the
appeal of A-4 was concerned, his conviction under
Section 27 of Arms Act, 1959 was altered to the offence       E
under Section 25 of the Arms Act. The instant appeals
were filed by A-2 and A-3 challenging the. order of the
High Court.
    Dismissing the appeals, the Court                         F
    HELD: 1. It was incorrect to say that the FIR was
registered belatedly and the said time was used to falsely
implicate the accused because of their previous enmity.
The sequence of facts did not lead to an inference that
there was delay In the registration of FIR or it lacked       G
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
                                                              H
        50        SUPREME COURT REPORTS               [2011] 1 S.C.R.


    A   figured with A-1 :md 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. [Para 15) [57-E-G;
        58-A-C]
             Rajendra and Anr. v. State of Uttar Pradesh (2009) 13
    8   sec 480 - referred to.
                2.1. The evidence of PW-7, PW-8 and PW-11 was
           thoroughly examined and analysed by the trial court and
           also by the High Court at great length. The High Court
      c 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 High Court took into
         - consideration the discrepancies, omissions and
           contradictions pointed out by- defence and on careful
      0    consideratiQI)    af their evidence held that the presence of
        • these three witnesses at the time and place of occurrence
         --was._n.oLdoubtful 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 evidence
             a
    . E, of' 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
           cannot be said to have erred in acting on the evidence
      F of PW-11 which was duly corroborated by the other
           reliable evidence on record. [Paras 19, 20, 23] [59-G-H; 61·
           G-H; 62-A; 65-C-D]
I          Ram Babu v. State of Uttar Pradesh (2010) 5 sec 63 -
1
    G relied on.
            2.2. 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
    H
          HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI             51

            justification for departure from that rule in the instant A
......-     case. 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 fact that statement of PW- B
            11 was taken down by PW-24 at the place of occurrence
            within 20-25 minutes of the incident was clearly
~
            established. Although the defence was able to point out
            certain discrepancies and omissions in his deposition,
             but such discrepancies and omissions were only minor c
            and not very material and in any case did not shake his
            trustworthiness. It is true that the public prosecutor had
             also put leading questions to him but that did not
             obliterate his evidence from the record. His deposition
            that he informed the Police Control Room from STD
                                                                       D
,-,   ~      booth whereas statement of PW-3 that the information
      ~ about the incident was received from the mobile phone
      c_; did not affect the material part of his evidence concerning
      N the crime and the involvement of A-2 and A-3. Yet another
             discrepancy in the evidence of PW-11 that the deceased
             had not taken dinner whereas the evidence of PW-5 and E
             the post-mortem report suggested that the deceased had

 -       .· taken some eatables about 1% to 2% hours prior to his
             death was no discrepancy at all. What PW-11 had
             deposed was that the meals were under preparation by
         .- his mother when the deceased had left home. This would F
             not rule out the possibility of the deceased having taken
            something earlier. The evidence of PW-11 clearly nailed
             A-2 and A-3 for the murder of the deceased. He was a
             truthful witness and can be safely relied upon. His
  )I(        evidence was corroborated insofar as A-2 is concerned G
             by the other eye-witnesses PW-7 and PW-8. His evidence
            was also corroborated from the evidence of PW-5 and
             PW-24. The complicity;.of A-3 is also established by the
             evidence of PW-11 Which was duly corroborated by
             medical and other evidence although PW-7 and PW-8 did H
     52       SUPREME COURT REPORTS                 [2011] 1 S.C.R.


A    not specifically name him. The concurrent finding of the
     High Court and the trial court tliat the prosecution
     evidence is sufficient to bring home the guilt of A-3 as well
     beyond any reasonable doubt is upheld. (Para 21] (62-F-
     H; 63-A-H]
B         Prithi v. State of Haryana (2010) 8   sec 536 - relied on.
                          Case Law Reference:
          (2009) 13 sec 480        referred to _          Para 13      >---

c         (2010) s sec 63          relied on              Para 21
          (201 O) s sec 536         relied on             Para 22
         CRIMINAL APP ELLATE JURISDICTION :· Crirn!nal Appeal
     No. 560 of 2010.                               · · · ''1'
D        From the Judgment & Order dated 25.5.2009 of the High
                                                                       _,_ -
     Court of Delhi at New Delhi in Crl. Appeal No. 1012 of 2008.
                                    WITH
     C.A. No. 561 of 2010
E
        K.T.S. Tulsi, Priyanka Agarwal, Niraj Gupta, Dimple,
     Deepak Sharma, Jaspreet Gogia for the Appellant.
          A. Mariaputtam, Priyanka Mathur Sardana, Yusuf Khan,
     Priya Hingorani, Anil Katiyar for the Respondent.
.F
          The Judgment of the Court was delivered by
          R.M. LODHA, J. 1. 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
G    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.

H         2. On July 8, 2006, Dharam Pal (PW-3)-Head
      HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                     53
                   [R.M. LODHA, J.]
      Constable-was on duty at Police Control Room in Police               A
      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                      B
      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,          c
      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.
       Fr'om ,t~ere, PW-24 and PW-19 rushed to Hindu Rao Hospital          D
       where tlie}I came to know that Murari was brought dead. PW-
       24 collected '•tne-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 case.
       Based on Exhibit PW 11/A, the first. information report (FIR) was   E
       registered at Police Station, Sarai IRohilla 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        F
      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
'Y   postmortem report (Exhibit PW-5/A), he recorded the following         G
     external injury onrlhe 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,     H
         54        SUPREME COURT REPORTS               [2011) 1 S.C.R.


 A            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:
     8
              "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 through walls of left Ventricle and then (R)
 c.           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
 D            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
     E 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. Ori' July 9, 2006, PW-35 and PW-24 along with PW-11
  F proceeded in search of the accused persons. Himanshu @
      Chin.tu (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,
. G · 2006. Shesh Bahadur Pandey (A-3) was arrested on October               ;..::
1
      16, 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.
 H
~   HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                 55
                 [R.M. LODHA,
                        /
                              J.]
          7: PW-35 took all necessary steps towards investigation A
 · 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.
                                                                   B
          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 C
   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 D
    A-4 guilty of the offence under Section 302 read with Section
    34 IPC and senten·ced 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 E
    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 F
    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
    Div.~:'>n Bench maintained his conviction and sentence under
    Section 102/34, IPC but as regards his conviction under G
    Section 27 '- .•he 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.
                                                                     H
    56        SUPREME COURT REPORTS                [2011] 1 S.C.R.


A         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                '1
    discrepancy in t11e 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
B   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 Fenior counsel argued that in the telephonic message,
    the nan1es of the accused were not given. He vehemently
c   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. Tu!s1
    argued that all the three eye-witnesses Rohit (P'"f-·7),
    Sukhwinder@ Monty (PW-8) and PW-11 were declared hostile
0
    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
E   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
F   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.
G
         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
H   by the prosecution was not sufficient to establish the guilt of A-
     HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                   r::.7
                  [R.M. LODHA, J.]
    3 for the offence punishable under Section 302 read with              A
    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.l.R. was B
    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 C
     of this Court in the case of Rajendra and Anr. vs. State of Uttar
     Pradesh 1 • 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.                      D

         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.
                                                                        E
           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 F
      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
      imrnP.diately left for the place of incident and reached the spot
Y     within : !' minutes. On reaching the place of incident, PW-24 G
      recorded t1 ;c:: 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

     1.   (2009) 13 sec 480.                                              H .
    58        SUPREME COURT REPORTS                [2011] 1 S.C.R.


A   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
B   Station Sara.i Rohil!a at 2350 hours. The sequence of facts
    narrated above does not lead to an- inference that there was
    delay in the registration o~ 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
c   incident, the de.-ils 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

        16. PVv-7 is one of the eye-witnesses. He deposed that
D 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
E Murari and threatened Murari that he would kill him and went
  away. P1N-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
F 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
G 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
  permission of the court put leading questions to him. The
H defence also cross-examined PW-7 at quite some length. As
      HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                  59
                   [R.M. LODHA, J.]
      regards the role of A-2 in the crime, the deposition of PW-7 is A
~
      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 B
        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.                   c
            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 D
      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
      towards his brother and told to A-4, "yeh hai Murari". A-1 anc:L
      A-3 said, "Maar saale ko goli". A-4 then took out a Katta from E
      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 F
      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
 y    questions to him. The defence extensively cross-examined PW- G
      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:
                                                                        H
    60        SUPREME COURT REPORTS                 [2011) 1 S.C.R.


A          "There is no reason to disbelieve the statement of PW-
          11 Raju, who !s a truthful witness as discussed above I am           I
         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
B        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 to              ).._
         the hospital. These facts are not disputed on record. There
c        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
D
         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
E        PW-11 in the Court. It is also seen that though pwq 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             -T

         prosecution had placed on record the certified copy of the
F        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
G        Court though he had named them earlier. It is seen that in        x
         material particulars, the witness had supported the case
         of the prosecution and there was sufficient reaso~s for him
         for not identifying the accused persons now in the Court.
         FurtherJhat all the three eye witnesses had identified
H        accused Himanshu and the role played by him. Further
     HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI . 61 .
                  [R.M. LODHA, J.]
         -PW-11 Raju had identified all-the-aect:tSed persons-and'."had A
          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         s
          also there for the accused persons to have committed this
          offence inasmuch as witness have 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 c
          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- D
-~       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 E
         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 F
         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 Gou rt at great
     length. The Division Bench was alive to the situation that PW- G
     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 H
    ........   '~   ..,,....
    62                         SUPREME COURT REPORTS        [2011] 1 S.C.R.


A   presence of these three witnesses at the time and place of
    occurrence was not doubtfol 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:
B
                    "PW-7 and PW-8 have categorically deposed that before
                    ~e 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".
c                   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
D                   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 .."
E
         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 Pradesh 2, this Court speaking through
  one of us (R.M. Lodha, J.) reiterated the position consistently
F 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,              .,.,.,
                                                                                .
G
  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

H   2.         (2010) 5 sec 63.
                     -··
  HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                       63
               [R.M. LODHA, J.]
    that such conclusions could not reasonably be arrived at by           A
    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                 s
. 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             c
    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-
                                                                          0
    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           E
    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
i · of Murari. He is a truthful witness and can be safely relied upon.    ·F
    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-
     11 which is duly corroborated by medical and other evidence          G
    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.
                                                                          H
    64         SUPREME COURT REPORTS               [2011] 1 S.C.R.


A        22. In Prithi v. State of Haryana 3 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
B
          court in its discretion to permit the person who calls a
          witness to put any q1,1estions 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
c         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. Stt1te of MP. [(1991) 3 SCC 627], a
D         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 sec 233] and Syad Akbar v.
          State of Kamataka [(1980) 1 SCC 30] reiterated the legal
E         position that: (Khujji case, SCC p. 635, para 6)

          "6 . ... the evidence of a prosecution witness cannot be
          rejected in toto merely because the prosecution chose to       ---r -

          treat him as hostile and cross-examined him. The evidence
          of such witnesses cannot be treated as effaced or washed
F
          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 Kofi Lakhmanbhai Chanabhai v. State of Gujarat
G         [(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

H   a.   (2010) a sec 536.
 HIMANSHU @ CHINTU v. STATE OF NCT OF DELHI                         65
              [R.M. LODHA, J.]
       is declared hostile and cross-examined with the                    A
       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           B
       appellant that the testimony of PW 6 should be either
       accepted as it is or rejected in its entirety, thus, ca.nriot be
       accepted in view of the settled legal position as noticed
       above."

     23. The aforesaid legal position leaves no manner of                 C
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,         D
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.

D.G.                                            Appeals dismissed.