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2011 (1) Supreme 33
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Himanshu @ Chintu — Appellant
versus
State of NCT of Delhi — Respondent
Criminal Appeal No. 560 of 2010
with
Criminal Appeal No. 561 of 2010
Decided on : 4-1-2011
(2009) 13 SCC 480 – Distinguished
(b) Judicial Review – No need to interfere with concurrent findings of the Courts below supported by evidence. (Para 21)
(2010) 5 SCC 63 – Relied upon
(c) Evidence Act – Section 154 – Hostile Witness – Evidence of a hostile witness is admissible evidence – Open to the court to rely upon its dependable and acceptable part duly corroborated by some other reliable evidence available on record. (Para 23)
(2010) 8 SCC 536 – Relied upon
Facts of the case:
1. The Trial court 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 convicted for the offence punishable under Section 27 of the Arms Act, 1959 as well. No offence against A-5 was proved beyond reasonable doubt and he was acquitted.
2. A-1, A-2, A-3 and A-4 filed four separate appeals before the High Court. 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.
Finding of the Court:
There is no flaw in the judgment of the High Court affirming the conviction of A-2 and A-3.
Result : Appeal dismissed.
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 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 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 of
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