2010 Supreme(SC) 626

2010 (5) Supreme 601
SUPREME COURT OF INDIA
R. M. Lodha and A. K. Patnaik, JJ.
Prithi — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 1835 of 2009
Decided on : 27-7-2010

IMPORTANT POINTS
1.In an appeal under Article 136 of the Constitution, Apex Court does not enter into detailed examination and re-appraisal of the evidence, particularly when there is concurrence of opinion between the two courts below.
2.Evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.

Headnote:Indian Penal Code,1860-Section 302 read with Section 149, Section 307 read with Sections 149, 148 and 201-Prosecution of appellant along with four others for forming an unlawful assembly and causing death of deceased and injuries to others by firing shots at them-Conviction by Trial Court-Appeals thereagainst-Dismissed by High Court-Appeal- Categorical deposition of PW9 that deceased had died due to the injuries received by him from shots fired by accused and accused had taken away the dead body of deceased in their vehicle- Evidence of PW-9 had been accepted by trial court as well as High Court as a reliable witness-Once PW-9 was accepted, his evidence proved the fact of death of deceased and also rendered the commission of crime by accused including the appellant certain- It is true that he was related witness inasmuch as he happened to be brother of deceased but that, would not render his evidence unworthy of credence- Direct evidence of PW-9 that deceased was dead and the members of the unlawful assembly including appellant armed with deadly weapons were responsible for his death-Hence submission of appellant that one A was arrested in Rajasthan and produced before the Judicial Magistrate in Jodhpur and that police failed to verify, despite the direction of the High Court, as to whether that A was the same person who was alleged to have been murdered or some other person and, therefore, factum of death of A was not established held to be of no merit at all-PW9 had been held trustworthy by trial court as well as High Court- No reason, much less justifiable one, to take a different view- On careful examination of evidence of PW-9 and other evidence available on record held that no error had been committed by High Court in affirming conviction of appellant -Appeal having no merit dismissed. (Paras 20 to 23)

       Criminal Trial-Evidence of related witness-Admissibility- Evidence of PW-9 had been accepted by trial court as well as High Court as a reliable witness-Once PW-9 was accepted, his evidence proved the fact of death of deceased and also rendered the commission of crime by accused including the appellant certain- It is true that he was related witness inasmuch as he happened to be brother of deceased but that, would not render his evidence unworthy of credence-Nothing inherently improbable had been brought out which may justify rejection of testimony of PW-9- Moreover, his presence at time and place of incident was also established from evidence of PW-6.- In the FIR, it was recorded that PW-9 was with PW-6 in the Jeep- The evidence of PW-9 was also corroborated by the recovery of a gun and empty as well as unused cartridges from the site-Hence his evidence was held admissible. (Para 15)

       Facts of the Case :

       Appellant along with four others was prosecuted herein in the instant case for forming an unlawful assembly and causing death of deceased and injuries to others by firing shots at them. Trial Court convicted accused persons for said offences. Appeals thereagainst were Dismissed by High Court.

       2.Present appeal has been filed against said order of High Court.

       Findings of High Court :

       Categorical deposition of PW9 that deceased had died due to the injuries received by him from shots fired by accused and accused had taken away the dead body of deceased in their vehicle. Evidence of PW-9 had been accepted by trial court as well as High Court as a reliable witness.Once PW-9 was accepted, his evidence proved the fact of death of deceased and also rendered the commission of crime by accused including the appellant certain. It is true that he was related witness inasmuch as he happened to be brother of deceased but that, would not render his evidence unworthy of credence. Direct evidence of PW-9 that deceased was dead and the members of the unlawful assembly including appellant armed with deadly weapons were responsible for his death.Hence submission of appellant that one A was arrested in Rajasthan and produced before the Judicial Magistrate in Jodhpur and that police failed to verify, despite the direction of the High Court, as to whether that A was the same person who was alleged to have been murdered or some other person and, therefore, factum of death of A was not established held to be of no merit at all.PW9 had been held trustworthy by trial court as well as High Court. No reason, much less justifiable one, to take a different view. On careful examination of evidence of PW-9 and other evidence available on record held that no error had been committed by High Court in affirming conviction of appellant .Appeal having no merit was dismissed.

       Result : Appeal dismissed.