IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T [CASE NUMBER]. [ENTITY] & Ors. Vs. State of Rajasthan Date of Judgment : September 18, 2013. HON'BLE MR.JUSTICE [ENTITY] HON'BLE MRS.JUSTICE [ENTITY] Shri [ENTITY] for accused-appellants [ENTITY] & [ENTITY]. Shri [ENTITY] for accused-appellant [ENTITY]. Shri [ENTITY], Public Prosecutor. Reportable BY THE COURT (Per [ENTITY] J.):-
1) This appeal is directed against the judgment dated 29/08/2003 passed by learned Additional District and Sessions Judge (Fast Track) No.1 Kota in [CASE NUMBER] whereby, the accused-appellants were convicted and sentenced in the following manner:-
- all the accused-appellants [ENTITY], [ENTITY] and [ENTITY] convicted for offence u/S.302 [ACT] sentencing them to life imprisonment with fine of Rs.5,000/- each and in the event of failure to pay fine, they were to further undergo simple imprisonment of one month, convicted for offence u/[SECTION] [ACT] sentencing them to rigorous imprisonment of ten years with fine of Rs.1,000/- each and in the event of failure to pay fine, they were to further undergo simple imprisonment of six months and convicted for offence u/[SECTION] of the [ACT] sentencing them to imprisonment of two years with fine of Rs.1,000/- each and in the event of failure to pay fine, they further were to further undergo simple imprisonment of six months.
- All the sentences were ordered to run concurrently.
2) Brief facts of the case are that a 'written report' (Exb.P/12) was lodged by complainant-[ENTITY] (PW12) to SHO Police Station Kotwali Kota on 24/02/2003 on the basis of which first information report was chalked out and registered vide FIR No.83/2003 (Exb.P/13) with Police Station Kotwali Kota for offence u/[SECTION] and [SECTION] [ACT]. The investigation commenced and the accused were arrested. After conclusion of investigation, the challan was filed against them. Charges were framed for offence u/[SECTION], [SECTION] and [SECTION] [ACT] and [SECTION] of the [ACT], which the accused denied and claimed to be tried. Prosecution produced twenty four witnesses and exhibited fifty two documents. Defence produced three witnesses and exhibited seven documents. Upon conclusion of the trial, trial court convicted and sentenced the accused-appellants in the manner indicated above.
3) We have heard Shri [ENTITY], learned counsel for accused-appellants [ENTITY] & [ENTITY], Shri [ENTITY], learned counsel for accused-appellant [ENTITY] and Shri [ENTITY], learned Public Prosecutor for the State.
4) Shri [ENTITY], learned counsel for accused-appellants [ENTITY] and [ENTITY] argued that none of the witnesses relied on by the trial court in recording the finding of conviction and sentence were in fact the eye-witnesses. They were all planted witnesses and they falsely claimed to have witnessed the incident. Learned counsel submitted that [ENTITY] (PW10), mother of deceased-[ENTITY] has stated that deceased left the house for hair cut for the barbour shop situated in the market. After some time, she also went to the market for purchasing vegetables from the street vendor adjacent to the temple of [ENTITY]. At that time, she witnessed that accused-appellants were fighting with her son [ENTITY] in the shop of barbour [ENTITY]. Accused caused injuries in the chest of her son [ENTITY]. She cried for help. [ENTITY] was also inside the shop. He was smeared in blood when he came out of the shop. She made a phone call to her husband on the shop, where he was employed. Her husband immediately came there. Learned counsel submitted that in cross-examination, she has stated that she made phone call from the house of [ENTITY] and at the same time, she stated that she did not inform [ENTITY] about the incident. Her husband was employed only about a month in the shop where she made phone call. She is an illiterate lady and how could she remember the phone number of her husband is surprising. Her husband [ENTITY] (PW12) has also claimed that he received the information from the phone call made to his shop by his wife. He was employed with tailoring shop of one Mr.[ENTITY], who picked up the phone and asked him to take to her (his wife). He left the shop immediately with [ENTITY], son of Mr.[ENTITY], who dropped him on his scooter. Even though, both these witnesses have narrated the incident as if they witnessed the incident, whereas the fact is that they both reached the place of occurrence much after the incident had taken place and accused had left. Learned counsel submitted that neither Mr.[ENTITY] nor his son [ENTITY], who is said to have dropped [ENTITY] (PW12), was produced. In cross-examination, [ENTITY] (PW10) has stated that the police had come to their house on the next day of incident. There was no explanation why her statement was not recorded on the next day. Learned counsel submitted that distance of the shop in which [ENTITY] (PW12) was employed from the place of occurrence has not been proved. By no stretch of imagination, it can be believed that both [ENTITY] (PW10) and [ENTITY] (PW12) reached the place of incident immediately when the accused started beating the deceased, which clearly show that they have falsely claimed to be eye-witnesses. In fact, they did not see the incident. Other witnesses are also highly interested witnesses. They are - [ENTITY] S/o [ENTITY] (PW16), real brother of [ENTITY] (PW10) and [ENTITY] (PW18), husband of [ENTITY]'s elder sister, who are though ostensibly shown as chance witnesses but in fact are planted witnesses. They had no business to be in the market at that point of time. Therefore, their presence is doubtful. It would be highly unsafe to believe their testimony. Learned counsel in this connection submitted that though incident had taken place on 24/02/2003, but statement of [ENTITY] (PW10) was recorded by the police u/[SECTION] [ACT] on third day of incident on 26/02/2003 and statements of [ENTITY] (PW12), [ENTITY] (PW16) and [ENTITY] (PW18) were recorded much thereafter on 02/03/2003. There was every chance of these witnesses making concoction in their version.
5) Shri [ENTITY], learned counsel referring to the statement of [ENTITY] (DW1), argued that he was a most natural reliable witness, who was produced by the defence. His house is just adjacent to the place of occurrence. He stated that when he heard noise, he came out and saw six-seven persons beating one person with sword. By the time he came out, accused had already left. He saw a person lying in a pool of blood. He knew him. He was [ENTITY] son of [ENTITY]. He somehow searched his house and called [ENTITY] from outside. One woman came out. He informed her about the incident. Learned counsel argued that this woman was [ENTITY] (PW10), who thereafter informed [ENTITY] (PW12) about the incident. There was therefore no question of both of them having witnessed the incident. Learned counsel argued that the incident alleged is to have taken place around 5.00 p.m. It was the bounden duty of the prosecution to produce the independent witnesses. All the four witnesses relied by the learned trial court are highly interested witnesses, being closely related to deceased. [ENTITY] himself was a criminal. Allegation against him was that he murdered brother of accused-[ENTITY], as admitted by the witnesses. Even if that be so, there was absolutely no motive so far as accused-appellants [ENTITY] and [ENTITY] are concerned. Since accused was a man of criminal nature, the possibility of some other criminal murdering him cannot be ruled out. The fact therefore is that since the police could not nab the real culprit, they embroiled the accused-appellants, in this false case.
6) Shri [ENTITY], learned counsel argued that the FIR was ante timed with a view to give colour of truthfulness. Incident had taken place about 5.30 p.m. When the telephonic information was received in Police Station Kotwali Rampura, Kota at 6.10 a.m., an entry rojnamcha was made vide Exb.P/48A and a police party was deputed to reach the place of incident. The FIR is shown to have registered at 6.20 p.m. SHO Shri [ENTITY] along with police japta reached the place of incident at 6.25 p.m. as is evident from entry No.1429 of rojnamcha (Exb.P.49A). If this is examined with entry No.1433 of rojnamcha produced as Exb.P/50A, falsity would get exposed by that entry. Therein, the SHO directed the police party to reach the place of incident to take the dead-body to hospital. If the FIR was already lodged at 6.20 p.m., why the entry thereabout made at Sr.No.1429 in the rojnamcha (Exb.P/49A), did not name the number of the FIR.
7) Shri [ENTITY], learned counsel submitted that police has shown recovery of the weapon of offence as well as clothes, which the accused were wearing at the time of incident and sent them to the forensic science laboratory. Seizure memo of clothes of [ENTITY] is Exb.P/3 in three pieces pent, vest and a cloth used by the Barbour for covering the body before hair cut. This cloth was shown to be having ten cuts. If the body was covered by this cloth, the vest, which was also on the body of deceased, should also have equal number of cuts but this has not shown having similar number of cuts. It was sealed and packed in Packet-A. Learned counsel referred to the document Exb.P/5 to refer ten cuts on the barbour's clothes, whereas FSL in its report claimed that this cloth has twenty three cuts. It was also a fact that packet was sealed but it was not specifically mentioned in seizure memo (Exb.P/4), wherein this packet was marked as 'A', whereas in respect of other packets, it was clearly marked. It is therefore not certain that clothes with regard to which the FSL report (Exb.P/51) has been received were the same clothes and not replaced. Similarly, in the FSL report, clothes recovered from the body of the deceased was referred to be containing of packet marked as 'A' in Exb.P/51 but in Exb.P/4 there was no mention. Total twelve packets were sent to the FSL from packets A to L. The investigation officer has proved only three packets i.e. G, H and I and not the other nine packets. There was therefore absolutely no evidence by this witness or any other witnesses to prove the contents of those nine packets. [ENTITY] (PW21) and [ENTITY] (PW22), both Assistant Sub Inspector of Police, are the witnesses of recovery. The trial court failed to appreciate that all those witnesses are the highly interested witnesses and have prejudged mind set in getting the accused, whoever they may be, arrested and punished. Besides, learned counsel argued that recovered articles i.e. the clothes and weapons, were not produced in court. Accused were therefore deprived of the valuable right of persuading the court to disagree with the prosecution whether such weapons could be used in the offence or otherwise confront the witnesses especially the medical officers with them. The investigation officer has admitted that the recovery of weapons was made from the open place and therefore they were accessible to all. Thus recovery was not made from a place in exclusive control and possession of the accused. It was not legally correct to convict the accused on the basis of such evidence. In the present case, the entire evidence is shaky and hardly inspires any confidence. It would be highly unsafe to sustain the conviction of the accused on such weak evidence. It is therefore prayed that the appeal be allowed.
8) Shri [ENTITY], learned counsel for the accused-appellant [ENTITY] argued that neither [ENTITY] (PW10) nor her husband [ENTITY] (PW12) were the eye-witnesses. [ENTITY] (PW10) on her own showing went to the market to buy vegetables, whereas the place where she went to purchase the vegetables does not have any vegetable vendor. Witnesses have admitted that the vegetable market in fact was close to the temple of [ENTITY]. [ENTITY] (PW10) has also admitted that the temple of [ENTITY] is situated in different direction on a different route and the vegetable market was adjacent to it. Learned counsel submitted that [ENTITY] (PW10) has stated that it takes about ten minutes to reach the temple of [ENTITY] from her house but no evidence has been adduced by the prosecution about exact distance. In fact, vegetable market is situated adjacent to temple [ENTITY] and not [ENTITY]. Learned counsel referred to the site plan (Exb.P/11) and submitted that no shop of the vegetables has been shown close to [ENTITY] ka Chabutara, as stated by [ENTITY] (PW10). [ENTITY] (PW10) came to the place of incident much after the incident had taken place, therefore, there was no occasion for her to inform her husband [ENTITY] (PW12) about the incident. [ENTITY] (PW10) herself has admitted that she called her husband by making phone call. Then, her husband came to the place of incident after her. [ENTITY] (PW10) has also mentioned in her statement that she called her husband [ENTITY] by making phone call from the residence of [ENTITY]. Neither [ENTITY] has been produced in the court nor her house has been indicated in the site plan. [ENTITY] (PW12) in cross-examination has admitted that vegetable market is adjacent to the temple of [ENTITY]. [ENTITY] (PW14) has also stated that there is no street vendor or vegetable cart close to the temple of [ENTITY]. Similar statement has been made by [ENTITY][ENTITY] (PW17) and [ENTITY] (PW18). Important witnesses like Mr.[ENTITY], proprietor of tailoring shop and his son [ENTITY], who dropped [ENTITY] (PW12) at the place of occurrence, have not been produced in court. Neither [ENTITY] (PW10) nor [ENTITY] (PW12) was the eye-witness. [ENTITY] (PW4), [ENTITY] (PW5), [ENTITY] (PW14) and [ENTITY] (PW17), who are independent witnesses, have not supported the prosecution case and have been declared hostile. It is argued that as per the complainant, the first information report was scribed by [ENTITY] but [ENTITY] has not been produced in evidence. Learned counsel for the appellant in support of his arguments has placed reliance upon the judgments of Supreme Court in [PRECEDENT], [PRECEDENT] with [PRECEDENT]. It is therefore prayed that the appeal be allowed.
9) Per contra, Shri [ENTITY], learned Public Prosecutor opposed the appeal and argued that the allegation of ante timing of the FIR by the complainant is totally baseless. The investigation officer has in his statement admitted that information about the incident was received at the police station at 6.10 p.m. Non-mentioning of number of FIR in rojnamcha entry (Exb.P.50A) is immaterial. FIR was immediately lodged and statements of most of the witnesses were recorded one day after the incident. This cannot be said to be an enormous delay. This was a case of brutal murder in which ordinary person would be afraid of becoming a witness due to fear of accused. Though [ENTITY] (PW4) has been declared hostile but his statement is quite crucial for deciding the present case. In examination-in-chief, he has not supported the prosecution case and did not name any accused but in cross-examination, he admitted correctness of his statement u/[SECTION] [ACT] Exb.P/7 about the incident against the accused-appellants. Learned Public Prosecutor therefore argued that testimony of even hostile witnesses can be looked into to the extent it is consistent with the prosecution case. Learned Public Prosecutor in this connection has relied on the judgments of Supreme Court in [ENTITY] Vs. State of Haryana : (2010) 8 SCC 536, [ENTITY] and others Vs. State of Uttaranchal : (2009) 13 SCC & [ENTITY] Vs. State of Rajasthan : (2007) 15 SCC 294. Learned Public Prosecutor has further placed reliance on the judgments of Supreme Court in [ENTITY] Vs. State of Haryana : (2009) 11 SCC 382 and [PRECEDENT]. Reliance was also placed on the earlier judgment of Supreme Court in [PRECEDENT].
10) We have given our anxious consideration to the rival submissions and perused the material available on record.
11) The argument about the alleged ante timing of the FIR is noted to be rejected for the stated reasons. The investigation officer has admitted that information about the incident was received at 6.10 p.m. and then the police party was deputed to go to the place of incident. Though the FIR was lodged at 6.20 p.m. but it does not appear to be impossible event in making the entry in the rojnamcha whereby the police personnel were required to carry the dead-body of the deceased to the hospital. Even if the number of FIR has not been mentioned therein, this by itself cannot be a reason to hold that FIR was ante timed. Non-mentioning of the FIR number in the said document could be for various reasons. This Court therefore cannot proceed on the presumption that there was delay in lodging the FIR. Witnesses, [ENTITY] (PW10) and [ENTITY] (PW12) are the most genuine witnesses. The evidence of [ENTITY] S/o [ENTITY] (PW16) and [ENTITY] (PW18), who are claiming to be eye-witness, cannot be discarded because they are related to [ENTITY] (PW10) and [ENTITY] (PW12). The quality of their deposition would decide upto what extent their statements can be relied. Their relation with the deceased is not their disqualification for being witnesses in the case of a murder. [ENTITY] S/o [ENTITY] (PW16) and [ENTITY] (PW18) though may be the chance witnesses but are the planted witnesses. If the statement of the mother of the deceased was recorded on third day, it cannot be said to be an enormous delay. If the mother was not available at home on the day following the alleged incident and was said to be on the shop, her statement could be recorded on third day as to what has been done. Contention therefore that neither [ENTITY] (PW10) has given any explanation nor the police for such delay, is liable to be rejected. For the same reason, omission on the part of the investigation officer to also prove deposit of the nine packets with the FSL, who has specifically stated about packing of nine packets and sending them to FSL, would be insignificant omission. Further contention that since there was disparity in the cut marks of the barbour cloth and the vest, would also be not very significant. It depends on as to from which angle the injury was caused. While the vest covers the part of the body whereas the barbours cloth covers all the parts of the body except face. Evidence in the present case has inescapably proved the role of the accused-appellants and none-else in the murder of deceased-[ENTITY]. [ENTITY] (PW10), mother of the deceased stated that she has gone to the market for buying the vegetables from the vegetable cart stationed near the temple of [ENTITY]. This cannot be confused with like vegetable market situated close to temple of [ENTITY]. In the market, several such vegetable carts are moving shops, which can be stationed anywhere. [ENTITY] (PW10) saw the incident from some distance.
12) It is argued that the accused at that time were attacking her son [ENTITY] with knives. She has stated that accused stabbed knife injury on the chest of her son. She immediately called her husband by making a phone call and informed him that accused-appellants are beating their son. He also came rushing with [ENTITY]. [ENTITY] (PW12), father of deceased has also corroborated this. He has also proved the presence of her wife [ENTITY] (PW10), [ENTITY] S/o [ENTITY] (PW16), real brother of [ENTITY] (PW10) and [ENTITY] (PW18), husband of [ENTITY]'s elder sister. [ENTITY] (PW10) has also stated that when [ENTITY] came out of the shop, he was smeared in blood. When he tried to flee, all the accused-appellants chased him and killed him near the electric poll. Minor contradictions between the statements of husband [ENTITY] (PW12) and wife [ENTITY] (PW10) are liable to be overlooked. Whether or not, [ENTITY] (PW10) informed names of the accused on phone and how long it took him to reach the place of occurrence, would not be a reason to reject the eye-witnesses account for this reason. [ENTITY] (PW12) has clearly stated that when he reached the shop of barbour of [ENTITY], he saw his son was lying in a pool of blood. He was stabbed and injured at different places on different parts of the body. He saw [ENTITY] coming out of the shop trying to flee from there. Accused [ENTITY] having knife, [ENTITY] having double edged iron dagger (knife) and [ENTITY] having katar (knife) were inflicting injuries on the person of [ENTITY] by use of these weapons. According to him, both died on the spot. [ENTITY] (PW16) is also an eye-witness. He has stated that at 5-6 pm on 24/2/2003, when he was passing by Saiyyed Chowk and moving towards his shop in Ladpura, he saw his sister [ENTITY] crying for help in the chowk in front of shop of [ENTITY]. She was saying that somebody should save her son. When he enquired, she pointed towards the shop of [ENTITY] and stated that accused [ENTITY], [ENTITY] and [ENTITY] were killing her son with knife, dagger etc. In about one minute, he saw [ENTITY] coming out of the shop. His clothes were smeared in blood. He ran towards the Saiyyed Chowk. Accused chased him and caught hold of him after some distance. He fell on the ground. Then all the accused stabbed the knives and dagger in his body and he died. [ENTITY] (PW18) has also stated that when he reached the tailoring shop and alighted from rickshaw, he saw [ENTITY] crying in front of shop of [ENTITY] for help and requesting people to save her son [ENTITY]. He saw that [ENTITY], [ENTITY] and [ENTITY] were beating [ENTITY] in the shop of [ENTITY] with knives, dagger etc. He also saw [ENTITY] (PW12), father of deceased [ENTITY] there on scooter. Accused murdered [ENTITY] close to an electric pole.
13) [ENTITY] (PW4) is a very important witness, whose statement would crucial to decide the fate of this case. Even though he has been declared hostile but in examination-in-chief, he has admitted the manner in which the incident took place though not named the accused. In cross-examination however, he has stated that he gave statement to the police u/[SECTION] [ACT] stating that at 5.45 p.m. accused [ENTITY], [ENTITY] and [ENTITY] having knives, dagger and a pistol came there. [ENTITY] fired from pistol. All three entered the shop. Suddenly, [ENTITY] stabbed knife in the chest of [ENTITY]. Thereafter, [ENTITY] and [ENTITY] gave repeated knives blows in his chest. He started bleeding and fell from the chair. [ENTITY] (PW4) in his cross examination has stated that there was pressure from both the parties. He had danger to his life and therefore did not make the correct statement in examination-in-chief. [ENTITY] (PW5), helper of [ENTITY] (PW4) in her examination-in-chief has though not named accused but has categorically mentioned that when he was doing heir cut of a person, accused suddenly came and while holding from shoulder, pushed him down and he fell down on the ground and left the shop. Even though this witness has not named the accused but nevertheless proved that the incident had taken place in the shop in question.
14) Dr.[ENTITY] (PW19) has proved the post-mortem report (Exb.P/14) of deceased [ENTITY]Ali according to which, the deceased received following injuries:-
1. Abrasion 2x1cm behind (L) ear
2.Two abrasions size 2x2cm & 1x1cm (L) Mandibular area
3. Incised wound 3xcmxsubcut tissue deep (L) side of neck
4.Incised wound 2x0.75cmxmuscle deep obliquely placed on (L) upper lip
5.Incised wound 3xcmxsubcut deep on melar @ side of neck transversely placed towards nose present
6.Incised wound 1xcmxsubcut deep on mandible area
7.Stab wound 3x1xmuscle deep post middle 1/3 Thigh
8.Incised wound 2x1cmxvertically & obliquely placed on post of (L) Arm
9.Incised wound 3x1xmuscle deep on lower (L) Forearm
10.Incised wound 3xxmuscle deep on palm+(L) wrist vertically placed
11.Incised wound 4x2cmxmuscle deep on (L) arm, 12cm above (L) elbow
12.Abrasion 1xcm front of side chest
13.Incised wound 1xxsubcut deep
14.Incised wound 2xcmxmuscle deep obliquely (L) side chin
15.Incised wound 5x2cmxmuscle deep obliquely placed 3cm below ear in neck side
16.Incised wound 8x1cmxmuscle deep transversely placed in neck below chin & 6cm above sternal side
17.Incised wound 9x5cmxmuscle deep front of shoulder in anti auxiliary line
18.Incised wound 7xcmxsub cut deep on mid of chest 7cm above epiquastrium
19.Stab wound 2x1cmxmuscle deep on cheek transversely 3cm inner sub cut of ear
20.Stab wound 5x2cmxbone deep on mid of stunt 7cm below sternal nose+14cm above
21.Stab wound 3x1cm deep cavity vertically placed on (L) side chest and 6cm below and inner side (L) nipple
22.Stab wound 5x2cmxdeep obliquely placed on chest 12cm above nipple + 3cm below
23.Stab wound 5x2cmxdeep cavity obliquely placed in supra clavicle area
24.Stab wound 5x1cmxdeep cavity transversely placed on chest and 6cm above nipple
25.Stab wound 5x2cmxcavity deep transversely placed middle 1/3rd chest at mid auxiliary line The cause of death was opined to be shock due to extreme hemorrhage and injuries to lungs with cumulative effect of other anti mortem injuries. All injuries are anti mortem in nature, which are mentioned in this PMR. The doctor has clarified that injury no.1 was as a result of injury no.2 and cut as a result of injury no.20. Injuries No.22, 23, 24 and 25 were stab wounds, which pierced into the lungs.
15) Dr.[ENTITY] (PW19) also conducted the post-mortem of [ENTITY] on that day vide Exb.P/16, according to which, [ENTITY] received the following injuries:-
1.stab wound 2x1cmxcavity deep on front and upper chest 3 cm above nipple oblique
2.stab wound 2x1cmxcavity deep transversely placed 10cm above (L) nipple
3.stab wound 2x1cmxdeep cavity transversely placed 2 cm above (L) nipple
4.stab wound 2x1cmxcavity deep transversely placed
5.stab wound 2x1cmxdeep cavity transversely placed 1 cm above (L) nipple
6.incised wound 3x1cmxbone oblique on frontal area of scalp
7.Incised wound in front of (L) chest between (L) nipple and sternum 3cm medial to (L) nipple
8.incised wound 1xcmxsub cut at (L) ant auxiliary line 5cm below and below to (L) nipple
9.incised wound 2x1cmxmuscle deep
10.Abrasioni 1x cm on thumb
11.Incised wound 1xcmxsub cut deep transversely, inner border (L) forearm 4cm above (L) wrist
12.Incised wound 3 x 1 cm x muscle deep on (L) forearm 3cm above wound (11) (L) forearm
13.Incised wound 8x1cmxmuscle deep oblique, 13cm above wound (11) (L) forearm
14.Incised wound 7x2cmx muscle deep oblique, 4 cm below (L) elbow in (L) forearm
15.Incised wound 3x1cmxsub cut deep and another incised wound 3x1cmx sub cut deep (L) knee medial aspect He received 5 stab wounds, 9 incised wounds and 1 abrasion on most of the vital part of the body. Cause of his death was opined to be due to shock due to hemorrhage and injuries to lungs with cumulative effect of injuries which are mentioned in this PMR. All injuries are anti mortem in nature.
16) [ENTITY] (PW21) and [ENTITY] (PW22) have proved the recovery of weapons. Merely because they are police personnel, their testimony cannot be ignored. Contention that since investigation officer has not proved that the contents of the packets except three packets i.e. Packets G, H and I, evidence of other packets cannot be read against accused, is noted to be rejected. In this connection, we may refer to the statement of [ENTITY] (PW23) a lady Constable, who has proved that 12 packets were sealed and were handed over to her for being deposited in the FSL Jaipur. She deposited them in the FSL in sealed condition on 28/02/2003 against receipt Exb.P/40. She has remained unshaken in her cross-examination. [ENTITY] (PW20), Malkhana Incharge, has admitted having received 12 packets in sealed condition. FSL reports Exb.P/51 & Exb.P/52 have proved that all the articles sent to the laboratory in sealed condition for examination of blood stains, which were found to be of human origin. There were clothes of the deceased as well as those of the accused-appellants. In Packet E (item No.5) - blood smeared soil blood, in Packet 'F' (item No.6) - control soil and in Packet 'L' at item No.20 the clothes were containing blood stains of A group and for rest of them, blood group could not be determined. FSL report Exb.P/52 also proved that the original cuts on the garments bears cut characters similar to those of the produced weapons.
17) The Supreme Court in [ENTITY] observed that evidence of hostile witness could not be totally rejected if spoken in favour of the prosecution or the accused, but the same can be subjected to close scrutiny and the portion of the evidence, which is consistent with the case of the prosecution or defence, may be accepted. The Supreme Court in [ENTITY] supra held that even if a witness refused to have given statement to the police under [SECTION] [ACT] and when this witness is confronted with the previous statement under [SECTION] [ACT] and he does not offer any explanation, that portion becomes admissible in evidence as per the proviso attached to [SECTION] [ACT]
18) The Supreme Court in [ENTITY] supra, held that even if a witness is declared hostile and is allowed to be cross-examined by the Public Prosecutor with the permission of court, his evidence remains admissible and there is no legal bar to record a conviction upon his testimony, if corroborated by other reliable evidence. In [ENTITY] supra, it was held by the Supreme Court that evidence of hostile witnesses can be relied upon to corroborate date, time and place of occurrence. In [ENTITY] supra, it was held by the Supreme Court that only because a witness, for one reason or the other, has to some extent, resiled from his earlier statement, that by itself may not be sufficient to discard the prosecution case in its entirety. Keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile.
19) The Supreme Court in [PRECEDENT] decided on 14/12/2012 held in para 13 of the judgment, as under:-
13. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on the appellant is based. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the accused-appellant. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in to as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in to and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of [PRECEDENT] whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of [PRECEDENT] as also [PRECEDENT] as also [PRECEDENT] have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of [PRECEDENT]; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of [PRECEDENT] that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of [PRECEDENT]. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused.
20) The court has to appreciate the evidence in totality of circumstances. If a witness of truth could not muster courage enough to speak loudly but did speak the truth that it were the accused-appellants, who committed murder of two young boys of 18 years, he cannot be disbelieved. [ENTITY] (PW4) in cross-examination stated that he did not speak truth in examination-in-chief and that what is stated to the police in the statement under [SECTION] [ACT] was correct, which fully corroborate the testimony of other four eye-witnesses. Testimony of this witness can be therefore relied to sustain the conviction.
21) Evidence thus clearly proved the guilt of the accused-appellants beyond all reasonable doubt. The minor variations and discrepancies in the statements of the prosecution witnesses cannot be blown out of proportion.
22) We do not find any error in the judgment 29/08/2003 passed by learned Additional District and Sessions Judge (Fast Track) No.1 Kota in [CASE NUMBER] in convicting and sentencing the accused-appellants for offences u/[SECTION] and [SECTION] [ACT] and [SECTION] of the [ACT]. The conviction and sentence of the accused-appellants for these offences is affirmed.
23) The appeal is accordingly dismissed.
([ENTITY]), J. ([ENTITY]), J. anil
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed [ENTITY] Sr.P.A. Cum JW