The evidence of a witness declared hostile is not wholly effaced from the record and can be acted upon to the extent it is found to be dependable.

S.RAVINDRA BHAT, J.

1. The appellant challenges an order of the learned Additional Sessions Judge (ASJ) dated 20.05.2009 in S.C. 172/2004 vide which he was convicted for the offence punishable under Section 302 IPC, and sentenced to imprisonment for life besides payment of fine and in default sentence of six months’ simple imprisonment.

2. The prosecution alleged that on 13.07.2004, one Akram (the complainant, PW-12, who was also the deceased’s son) reported to Police Station Sriniwaspuri that his father was missing since the previous evening. This intimation was taken on record (Ex.PW B6). PW-12 stated that his father, Phundan, used to stay at Shop No. 24, Okhla Sabzi Mandi and sold vegetables. He used to consume liquor with Saleem and on the previous day, i.e. 12.07.2004, both of them left to have liquor. Phundan did not return during the night. Thus, the next morning, the complainant reported the matter to the police, which registered a case under Section 365, IPC. It was further alleged that PW13, SI Pankaj Singh, with PW-6-Suresh Chand and PW-15 Sawant searched for Saleem and Abdul Rahim at Okhla Sabzi Mandi but they could not find them. Thereafter they started searching the railway track near the “theka” (liquor vend) at Sriniwaspuri. They found a dead body about 20 paces from the Sulabh Shauchalaya. With the aid of a search light, PW-12 was able to identify the body as that of his father – Phundan. Apparently, the body disclosed a gash on the neck, the result of a knife cut. The deceased’s kurta was soaked in blood. PW-13 informed the SHO and the other police officials, who reached the spot. The crime team was summoned which inspected the spot and photographed it. The body and articles in the pocket of the deceased’s kurta were seized. The post-mortem of the body was conducted and report was taken on the record. It was alleged that on 16.07.2004, the IO arrested the present appellant and at his instance, a blood-stained knife was recovered and taken into possession. The statements of various witnesses were recorded during the course of investigation; the prosecution also alleged that their statements were recorded under Section 164 Cr.PC.

3. After conclusion of the investigation, the accused/appellant was charged with committing crime; he entered the plea of not guilty and claimed trial. During the trial, the prosecution relied on the testimony of 15 witnesses, besides materials, exhibits and documentary evidence. On an overall conspectus of these facts and circumstances, the Trial Court concluded that the accused’s guilt had been proved beyond reasonable doubt and convicted him as charged. It also imposed a sentence described in the earlier part of the judgment.

4. The Trial Court held that the testimonies of PWs-1, 2, 3 and 4 seen cumulatively and in the light of the previous statements of three of them, recorded under Section 164 Cr.PC established that they had consumed liquor together. PWs-3 and 4, who supported the prosecution fully during the examination-in-chief mentioned that a scuffle took place between the deceased and the accused during the course of which the latter attacked the late Phundan with knife and slit his throat which ultimately resulted in his death. Before the Trial Court, some of the witnesses turned hostile. Yet the impugned judgment relied on the testimony to the extent it supported the prosecution in the examination-in-chief, in the light of their previous depositions to the Magistrate under Section 164 Cr.PC which had been proved by the production and deposition of PW-10. The Trial Court also held that the external circumstances in the form of recovery of blood-stained knife and the nature of injuries, proved through medical evidence corroborated the eyewitness testimony.

5. It was urged by the learned counsel for the appellant that the findings and conviction recorded by the Trial Court are unsustainable. Elaborating on this, it was argued that PW-12 had initially voiced his