PRITHIversusSTATE OF HARYANA

                       [2010] 9 S.C.R. 33


                              PRITHI                                     A
                                 v.
                     STATE OF HARYANA
             (Criminal Appeal No. 1835 of 2009)

                         JULY 27, 2010
                                                                         B
          [R.M. LODHA AND A. K. PATNAIK, JJ.]

     Penal Code, 1860 - ss.3021149, 3071149, 148 and 201
- Prosecution under - Of five accused - Two eye-witnesses
to the incident - One of the eye-witnesses related to the                C
deceased while the other was injured witness - Non-recovery
of dead body -Conviction by Courts below - On appeal by
appel/ant-ar;cused, held: Conviction justified - It is not
essential to establish 'corpus delic.ti' - The prosecution
evidence has established the commission of crime - Both the              D
eye-witnesses are reliable witnesses.

         Criminal Law - 'Corpus delicti' - Establishment of- Held:
It i.<> r:ot essential to establish corpus delicti - The fact of death
of deceased can be established like any other fact The                   E
evidence of corpus delicti and the guilt of the person charged
are often so interconnected that the same evidence applies
to factum of crime as well as individuality of the accused
thereof- Evidence.

     Evidence Act, 1872 - s. 154 - Questioning by party of               F
his own witness - Held: If the party questions his own witness,
it does not make the evidence of the witness inadmissible.

     Words and Phrases: Corpus delicti - Meaning of.
                                                                         G
    Appellant-accused No.3, alongwith 4 other accused
persons was prosecuted for killing one person and
causing injuries to three persons including PWs 6 and 9
with fire arms. As per the prosecution, PW6 got injured
                                 33                                      H
    34      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A in the incident. The accused party took away the dead
  body of the deceased alongwith them. The police, after
  recording the statement of PW.6, recorded FIR. The trial
  court convicted all the accused persons u/ss. 302/149,
  307/149, 148 and 201 IPC. Their appeal against the
B conviction was dismissed by the High Court. The Special
  Leave Petition filed by accused Nos.1, 2 and 4 was
  dismissed by Supreme Court.

         In the instant appeal, appellant-accused No. 3
c contended that the factum of the death of the deceased
    is disputed as his dead body was not recovered nor any
    post-mortem was conducted; that a person of the same
    name as that of the deceased was arrested and produced
    before a Magistrate in some other city; that the deposition
o   of PW-6 ought to have been accepted either as it is or
    should have been rejected in toto; that PW-9 was planted
    as eye-witness and being brother of the deceased was a
    highly interested witness.

         Dismissing the appeal, the Court
E
      HELD: 1. In an appeal under Article 136 of the
  Constitution, this Court does not enter into detailed
  examination and re-appraisal of the evidence, particularly
  when there is concurrence of opinion between the two
F courts below. On a careful examination of the evidence
  of PW-9 and the other evidence available on record, the
  Court is satisfied that no error has been committed by the
  High Court in affirming the conviction of the appellant for
  the offences punishable u/ss. 302/149, 307/149, 148 and
G 201 IPC. [Para 22] [49-E-F]

       2.1. The question regarding the death of the
  deceased relates to the proof of 'corpus delicti'. The term,
  'corpus delicti' generally means, when applied to any
H particular offence, the actual commission by some one of
            PRITHI v. STATE OF HARYANA                     35

the particular offence charged. In a murder case, 'corpus A
delicti' consists of proof of the death of a person alleged
to have been murdered and that such death has been
caused by commission of crime by some one. It is sound
principle in criminal jurisprudence that one does not
begin to inquire whether the prisoner is guilty of a crime B
until one has established that a crime has been
committed. [Para 6] (42-0-F]

    Rex v. Patrick McNicho/11911(2) l.R.557; The King v.
Horry, 1952 NZLR 111, referred to.
                                                                 c
     Words and Phrases, Vol.9A, 2nd reprint, 1976,West
Publishing Co.; Sir Matthew Hale in 'The History of the Pleas
of the Crown', Vol. II 290 (1800 Edition); Halsbury's Laws of
England, 2nd Edition 449, referred to.
                                                                 D
     2.2. It is not essential to establish corpus delicti. The
fact of the death of the deceased must be established like
any other fact. Sometimes, there may not be any
distinction between proof of the fact of the crime and the
proof of the actor of it. The evidence of the corpus delicti     E
and the guilt of the person charged of an offence, many
a time is so inter-connected that one cannot be separated
from the other. The same evidence often applies to both
the fact of the crime and the individuality of the person
who committed it. [Paras 11 and 12] [43-E-H; 44-A-D]             F

     Sevaka Perumal and Anr. vs. State of Tamil Nadu (1991)
3 SCC 471; Pritam Singh vs. The State (1950) SCR 453;
Naresh Mohan/a/ Jaiswal vs. State of Maharashtra ( 1996) 11
SCC 547; Anwaru/ Haq vs. State of U.P. (2005) 10 SCC 581,        G
relied on.

    3.1. PW-9 has been accepted by the trial court as well
as the High Court as a reliable witness-His evidence
proves the fact of death of the deceased and also renders
                                                                 H
    36       SUPREME COURT REPORTS             [2010] 9 S.C.R.


A the commission of crime by the accused (including the
  appellant) certain. It is true that he is related witness
  inasmuch as he happens to be the brother of the
  deceased but that would not render his evidence
  unworthy of credence. Nothing inherently improbable
B has been brought out which may justify rejection of the
  testimony of PW-9. His conduct of having stayed behind
  the bushes for about 4/5 hours and not informing the
  police or villagers of the incident until the police arrived
  on scene may look at the first blush little out of the
c ordinary but on a deeper scrutiny, does not appear to be
  unusual or exceptional. Moreover, his presence at the
  time and place of incident is also established from the
  evidence of PW-6. In the FIR, it is recorded that PW-9 was
  with PW-6 in the Jeep. The evidence of PW-9 further gets
o corroborated by the recovery of a gun and empty as well
  as unused cartridges from the site. [Para 15) [46-G-H; 47-
    A-D]

      3.2. The direct evidence of PW-9 leaves no manner
E of doubt that the deceased is dead and the members of
  the unlawful assembly (including the appellant) armed
  with deadly weapons are responsible for his death. In this
  view of the matter, There is no merit in the plea that a
  person having the same name as that of the deceased
F was arrested in Rajasthan and produced before the
  Judicial Magistrate and that the police failed to verify,
  despite the direction of the High Court, as to whether that
  person was the same person who is alleged to have been
  murdered or some other person and, therefore, factum
G of death of the deceased is not established. [Para 20) [49-
    A-C]

           Anant Chintaman Lagu v. The State of Bombay (1960)
    2 SCR 460, relied on.

H          4.1. The fact that an incident occurred in which PW-
           PRITHI v. STATE OF HARYANA                   37

6 sustained injuries and the deceased died, is amply A
established by the evidence of PW-6. PW-6 sustaining
injuries is also established from the evidence of the
doctor (PW-1) who medically examined him immediately
after the incident. Merely because PW-6 did not name the
assailants, his evidence cannot be thrown over-board in B
its entirety. [Para 16] [47-F-H]

     4.2. It is not correct to say that the testimony of PW-
6 should be either accepted as it is or rejected in its
entirety. Section 154 of the Evidence Act, 1872 enables c
the court in its discretion to permit the person who calls
a witness to put any questions to him which might be put
in cross-examination by the adverse party. When a
witness is declared hostile and cross-examined with the
permission of the court, his evidence remains admissible D
and there is no legal bar to have a conviction upon his
testimony, if corroborated by other reliable evidence.
[Paras 17, 18 and 19] [48-G, A, E-F]

    Khujji @ Surendra Tiwari v. State of Madhya Pradesh E
(1991) 3 SCC 627; Bhagwan Singh v. State of Haryana
(1976) 1 SCC 389; Sri Rabindra Kumar Dey v. State of
Orissa 1976 (4) SCC 233; Syad Akbar v. State of Kamataka
1980 (1) SCC 30; Kofi Lakhmanbhai Chanabhai v. State of
Gujarat (1999) 8 SCC 624, relied on.
                                                             F
                   Case Law Reference:
    (1991) 3 sec 471       Relied on.          Para 5
    (1950) SCR 453         Relied on.          Para 5
                                                             G
    (1996) 11 sec 547      Relied on.          Para 5
    (2005) 1o sec 581      Relied on.          Para 5
    (1991) 3 sec s21       Relied on.          Para 17
                                                             H
    38      SUPREME COURT REPORTS                 [2010] 9 S.C.R


A        (1976) 1 sec 389         Relied on.            Para 17

         1976 (4) sec 233         Relied on.            Para 17

         1980 (1) sec 30          Relied on.            Para 17

         (1999) 8 sec 624         Relied on.            Para 17
S
         (1960) 2 SCR 460         Relied on.            Para 18

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1835 of 2009.
c       From the Judgment & Order dated 12.09.2008 of the High
    Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
    161-DS/98.

          Neeraj Kumar Jain, Rishi Malhotra, Sanjay Singh, Pratham,
D   for the Appellant.

         Kamal Mohan Gupta, Gaurav Teotia, Reeta Choudhary for
    the Respondent.

         The judgment of the Court was delivered by
E
         R.M. LODHA, J. 1. This criminal appeal by special leave
    arises in the following way. On October 3, 1990 at about 9.30
    a.m., a certain Shoop Singh, resident of Sadopal, owner of the
    vehicle (Jeep) bearing registration no. DNC-9324 asked his
F   driver-Hari Singh (PW-6) to bring Ami Lal from his Dhani
    situate in the village Shodia Sishnoian. PW-6 reached there
    and waited for about an hour. Ami Lal and his brother Chhotu
    Ram (PW-9) then accompanied PW-6 in the Jeep. One Sant
    Lal, who was present at Ami Lal's Dhani also sat in the Jeep
G   as he also wanted to go to Sadopal. Ami Lal sat in the front
    seat near PW-6. PW-9 and Sant Lal occupied the rear seat.
    On their return, while PW-6 was driving the jeep towards village
    Shana, he saw one white gypsy belonging to Jee Ram (A-4)
    ambushed near the cremation ground. PW-6 stopped his
H   vehicle. Immediately thereafter A-4, Prithi (A-5)-appellant
  PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]                   39


herein, Ram Singh @ Guria (A-1), Ram Singh@ Ram Ohan                  A
(A-2) and Mahabir Singh (A-3) armed with guns and rifles came
out of the bushes. A-4 fired a shot which hit the tyre of the jeep.
A-1, A-2, A-3, A-4 and A-5 then rushed towards the Jeep. AA
fired shot at Ami Lal while A-1 fired shot that hit Sant Lal. All
the occupants of the jeep, viz., PW-6, PW-9, Ami Lal and Sant         B
Lal jumped out of the jeep. A-5 fired a shot at PW-6 but that hit
the jeep. PW-6, PW-9 and Sant Lal ran away in different
directions. Ami Lal was overpowered by the attacking party by
firing shots at him. A-5 fired another shot at PW-6 which hit him
on the back of his left shoulder. The attacking party took away       c
Ami Lal (alreaqy dead by that time) in their vehicle (gypsy). PW-
6 after running for some time reached village Chhinder where
one Prithi Singh, son of Ram Pratap Bishnoi took him to Civil
Hospital and got :iim admitted and then on the intimation sent
by the doctor, police reached the Civil Hospital, recorded
                                                                      0
statement of PW-6 and FIR was got registered at police station,
Adampur for the murder of Ami Lal and other offences. The
police after completion of investigation submitted challan
against A-1, A-2, A-3 and A-4. The name of the appellant was
put in column no. 2. However, the Additional Sessions Judge           E
vide his order dated August 27, 1993 summoned A-5 and
framed charges against all the five accused persons under
Section 302 read with Section 149, Section 307 read with
Sections 149, 148 and 201 of the lndian·Penal Code (for short
'IPC'). The prosecution examined as many as 14 witnesses.
The trial court (Additional Sessions Judge, Hisar) vide his           F
judgment dated March 20, 1993 convicted the accused persons
(A-1, A-2, A-3; A-4 and A-5) for the offences punishable under
Section 302 read with Section 149, Section 307 read with
Sections 149, 148 and 201 IPC and sentenced them to undergo
life imprisonment and different period of rigorous imprisonment.      G

    2. A-1 to A-5 preferred criminal appeal before the High
Court of Punjab and Haryana challenging their conviction and
the sentence. The High Court vide its judgment dated
September 12, 2008 dismissed the appeal and maintained                H
    40      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   their conviction and sentence.

         3. A-1, A-2 and A-4 filed special leave petition [SLP{Crl.)
    No. 236 of 2009] against the impugned judgment which came
    to be dismissed by this Court on January 23, 2009. Insofar as
    A-3 is concerned, he filed a separate special leave petition in
8
    which leave was granted. His appeal was dealt with by us
    separately as he was juvenile on the date of the incident and
    disposed of on June 25, 2010.

       4. Mr. Neeraj Kumar Jain, learned senior counsel for the
C appellant at the outset disputed the factum of death of Ami Lal.
  He submitted that admittedly the dead body of Ami Lal was not
  recovered nor any post-mortem was conducted. He referred to
  the application for bail filed by some of the accused persons
  during the course of trial and submitted that one Ami Lal was
D arrested in Rajasthan and produced before the Judicial
  Magistrate in Jodhpur and while considering that application,
  the High Court granted time to the police to verify whether Ami
  Lal was alive or dead but the investigating agency failed to
  verify whether Ami Lal, who was produced before the Judicial
E Magistrate, Jodhpur, was the same person who is alleged to
  have been murdered or some other person. Dealing with the
  prosecution evidence, learned senior counsel submitted that the
  deposition of PW-6 ought to be accepted either as it is or
  should be rejected in toto. He submitted that since PW-6 was
F cross-examined by the accused, there was no question of their
  winning over PW-6. Learned senior counsel, thus, submitted
  that deposition of PW-6 should have been rejected in its
  entirety. As regards the evidence of PW-9, Mr. Neeraj Kumar
  Jain, learned senior counsel, vehemently contended that he was
G not present at the time and place of incident and he has been
  planted as eye-witness by the prosecution. He would submit
  that the narration of the occurrence by PW-9 appears to be
  improbable; he is highly interested witness being brother of the
  deceased and his evidence ought not to have been accepted
H by the trial court as well as High Court. Learned senior counsel
  PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]               41


submitted that the appellant has been falsely implicated due to   A
enmity between Bhoop Singh and the deceased on one hand
and A-4 (relative of the appellant) on the other hand. In any
case, learned senior counsel submitted that from the
prosecution evidence the presence of the appellant at the scene
of occurrence remains highly doubtful.                            B

       5. On the other hand, Mr. Kamal Mohan Gupta, learned
counsel for the State of Haryana stoutly defended the judgment
of the High Court. He submitted that PW-9 has given graphic
description of the incident; his presence is established by the C
prosecution evidence, particularly deposition of PW-6 and his
evidence also gets corroborated from the fact that from the
place of incident one single barrel of .12 bore gun and also
large number of cartridges were recovered. Learned counsel
would submit that merely because PW-9 remained at the spot
till the police came and did not call for help nor informed the D
villagers does not show that he was not present. He submitted
that different persons react differently in different situations.
Learned counsel relied upon a decision of this Court in
Marwadi Kishor Parmanand and another v. State of Gujarat.
Insofar as evidence of PW-6 is concerned, learned counsel for E
the State submitted that he supported the prosecution case to
the extent that he lodged the FIR; he was injured in the incident;
he saw white gypsy at the place of incident and some persons
lying in ambush fired shots as a result of which he sustained
injuries and Ami Lal died. He did not name the assailants and F
to that extent he did not support prosecution case but that did
not mean that his evidence was liable to be rejected in toto.
Responding to the contention of the learned senior counsel for
the appellant that there was nothing in the prosecution evidence
to establish the murder of Ami Lal, learned counsel for the State G
submitted that merely because the dead body of Ami Lal was
not recovered, it cannot be said that Ami Lal was not murdered.
He referred to the deposition of PW-9 who stated categorically
that -Ami Lal had died due to the injuries received by him from
the shots fired by the accused and the accused had taken away H
    42       SUPREME COURT REPORTS                     [201 O] 9 S. C.R.


A   the dead body of Ami Lal in their vehicle. In this regard, learned
    counsel relied upon a decision of this Court in Sevaka Perumal
    and Anr. v. State of Tamil Nadu. Mr. Kamal Mohan Gupta
    strenuously urged that the trial court as well as the High Court
    have recorded concurrent findings regarding the presence of
B   the appellant along with other accused at the place of incident
    and his participation and accepted the prosecution case as
    credible and there is no justification at all by this Court to reweigh
    and reassess the evidence and reach a fresh opinion as to the
    innocence or guilt of the accused. Learned counsel relied upon
c   the decisions of this Court in Pritam Singh v. The State, Naresh
    Mohan/al Jaiswa/ v. State of Maharashtra, Anwarul Haq v. State
    of UP.

         6. Since the question of factum of death of Ami Lal has
    been raised, we have to see what is the proof of death of Ami
D   Lal. In other words, the question relates to the proof of 'corpus
    delicti'. The expression 'corpus delicti' has been subject of
    judicial comments from time to time. The term, 'corpus delicti'
    generally means; when applied to any particular offence, the
    actual commission by some one of the particular offence
E   charged (Words and Phrases, Vol. 9A, 2nd reprint, 1976, West
    Publishing Co.) In a murder case, 'corpus delicti' consists of
    proof of the death of a person alleged to have been murdered
    and that such death has been caused by commission of crime
    by some one. It is sound principle in criminal jurisprudence that
F   one does not begin to inquire whether the prisoner is guilty of
    a crime until one has established that a crime has been
    committed.

         7. Sir Matthew Hale (Lord Chief Justice of the Court of
G   King's Bench) in 'The History of the Pleas of the Crown', Vol. II
    at page 290 (1800 Edition) stated his opinion, 'I would never
    convict any person of murder or manslaughter, unless the facts
    were proved to be done, or at least the body found dead'.

        8. The aforesaid statement of Sir Matthew Hale has not
H   been accepted in England, Ireland, New Zealand and other
  PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]                 43


common law co1.mtries as it is. In England the legal position is A
stated in 9 Halsbury's Laws of England, 2nd Edition 449 thus:
where no body or part of a body has been found which is proved
to be that of the person alleged to have been killed, an accused
person should not be convicted of either murder or
manslaughter, unless there is evidence either of the killing or B
of the death of the person alleged to be killed.

     9. A six-Judge Bench of Irish Court of Crown in the case
of Rex v. Patrick McNichol/ speaking through Sir James
Campbell, C.J., with regard to the statement of Sir Matthew
Hale, said that it is not an inflexible legal maxim, but is a wise C
and necessary caution to be addressed by the presiding Judge
to the jury. The Bench held that in a charge of murder, by proof
of the corpus delicti is meant proof of the factum of murder, and
that the accused committed the murder or took part in its
commission. Such proof may be established by the confession D
of the accused without proof of the finding of the dead body.

     10. In The King v. Horry, the New Zealand Court of Appeal
explained the legal position that at the trial of a person charged
with murder, the fact of death is provable by circumstantial         E
evidence, notwithstanding that neither the body nor any trace
of the body has been found.

    11. Insofar as this Court is concerned, it has been laid
down in Sevaka Peruma/2 that it is not essential to establish
corpus delicti; the fact of the death of the deceased must be . F
established like any other fact. This Court said;

     "...... In a trial for murder it is not an absolute necessity or
     an essential ingredient to establish corpus delicti. The fact
     of death of the deceased must be established like any G
     other fact. Corpus delicti in some cases may not be
     possible to be traced or recovered. Take for instance that
     a murder was committed and the dead body was thrown
     into flowing tidal river or stream or burnt out. It is unlikely
     that the dead body may be recov~red. If recovery of the H
    44      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A        dead body, therefore, is an absolute necessity to convict
         an accused, in many a case the accused would manage
         to see that the dead body is destroyed etc. and would
         afford a complete immunity to the guilty from being
         punished and would escape even when the offence of
B        murder is proved. What, therefore, is required to base a
         conviction for an offence of murder is that there should be
         reliable and acceptable evidence that the offence of
         murder, like any other factum of death was committed and
         it must be proved by direct or circumstantial evidence,
c        although the dead body may not be traced."

         12. Sometimes, there may not be any distinction between
    proof of the fact of the crime and the proof of the actor of it.
    The evidence of the corpus delicti and the guilt of the person
    charged of an offence, many a time is so inter-connected that
D   one cannot be separated from the other. The same evidence
    often applies to both the fact of the crime and the individuality
    of the person who committed it. The question now is, whether
    the prosecution evidence establishes that Ami Lal was
    murdered and the commission of crime is made out against
E   the appellant.

           13. The key witness is PW-9. He has been presented by
    the prosecution as an eye-witness. He has given full account
    of the incident. This witness has been held credible by the trial
F   court as well as High Court. The criticism to the deposition of
    this witness highlighted by the defence has been considered
    by the trial court elaborately and after finding no merit in such
    criticism, the trial court after thorough analysis summed up with
    meticulous care the evidence of PW-9 thus :

G        "26 ..... As discussed above statement made by Chotu Ram
         has withstood the test of lengthy cross-examination. There
         is nothing to dis-believe him ......... .

         27. The fact that Chhotu Ram remained at the spot till 3.30
H        p.m. When the police came to the spot does not prove that
  PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]                   45


    he was not present at the spot. ...... So the conduct of          A
    Chhotu Ram of concealing himself in the crop and not
    leaving the place till the arrival of the police does not prove
    that he was not present at the spot and does not make his
    statement unbelievable. The mere fact that he did not call
    any one for help and did not visit his Dhani after the            B
    accused had left the place does not make his statement
    unbelievable.

    28. Thus from the evidence discussed above it has duly
    been proved that the statement of Chhotu Ram it trust-            C
    worthy and from his statement it has duly been proved that
    the occurrence took place in the manner and at the place
    as stated by the prosecution."

    14. Insofar as High Court is concerned, the Division Bench
extensively considered the deposition of PW-9 in the following        D
manner:

    "We have carefully examined the evidence of Chhotu Ram
    PW9, one of the eye witnesses to the occurrence. He has
    given a vivid account of the entire sequence of events and        E
    has fully supported the prosecution case. The defence has
    not been able to make any dent in his deposition during
    cross-examination. He has clearly stated that on 3rd
    October, 1990, he along with Ami Lal, Sant Lal and Hari
    Singh were going from village Bhodia Bishnoian to village
                                                                      F
    Badopal in a jeep bearing registration no. DNC-9324.
    When they were crossing the cremation ground near
    village Bhana, a white gypsy was seen standing near the
    cremation ground. Hari Singh stopped the jeep. Five
    accused i.e. Jee Ram, Ram Singh son of Sahi Ram, Ram
    Singh son of Ram Karan, Pirthi and Mahabir, emerged               G
    from the bushes. Jee Ram was armed with a rifle whereas
    other accused were armed with guns. All the accused
    started firing on the jeep. A shot hit Ami Lal, who was
    sitting on the front seat. The occupants of the jeep started
    running in different direction to save their lives. Hari Singh    H
    46       SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A        and Sant Lal also received gun shot injuries. However, they
         were able to run away from the spot. He further stated that
         he concealed himself in the nearby crops and witnessed
         the entire occurrence from there. Even when all occupants
         of the Jeep, except Ami Lal, had run away, the accused
B        came near the jeep and fired at Ami Lal from a close
         range. Thereafter, they lifted the dead-body of Ami Lal, put
         the same in the gypsy and sped away from the spot. The
         police came to the spot at about 3.00 P.M. On the basis
         of his information, a site-plan of the place of recovery was
c        prepared and 47 empties were recovered, out of which 45
         were empty cartridges of .12 bore, one missed cartridge
         of .12 bore and one empty cartridge of .315 bore. Tht::
         Investigating Officer also took into possession the pellets
         and the jeep etc. This witness further stated that there was
         enmity between Ami Lal and the accused as Ami Lal had
D
         murdered Bhagi Ram, who was brother of Jee Ram
         accused. The accused, therefore, wanted to avenge the
         murder of Bhagi Ram.

               Chhotu Ram was cross-examined by the defence but
E        he withstood the same and the defence was not able to
         extract anything substantial from him during the cross-
         examination. Chhotu Ram's version tallies with the initial
         version given in the FIR and there is no reason to
         disbelieve the same. The factum of recovery of so many
F        empty cartridges from the scene of occurrence, the injuries
         suffered by Hari Singh and Sant Lal, lend sufficient
         credence to the testimony of this witness. His version that
         he was hiding in the fields is quite believable as in such a
         case of firing by number of people, he would have no
G        option but to hide ~imself for fear of his life."

          15. It is, thus, seen that PW-9 has been accepted by the
    trial court as well as the High Court as a reliable witness. Once
    PW-9 is accepted, his evidence proves the fact of death of Ami
    Lal and also renders the commission of crime by the accused
H
  PRITHl v. STATE OF HARYANA [R.M. LODHA, J.]                  47


(including the appellant) certain. It is true that he is related A
witness inasmuch as he happens to be the brother of the
deceased but that, in our view, would not render his evidence
unworthy of credence. Nothing inherently improbable has been
brought out which may justify rejection of the testimony of PW-
9. His conduct of having stayed behind the bushes for about 4/ B
5 hours and not informing the police or villagers of the incident
until the police arrived on scene at about 3.00 p.m. may look
at the first blush little out of the ordinary but on a deeper
scrutiny, does not appear to be unusual or exceptional. He was
scared as he saw indiscriminate firing by the accused who             c
were armed with guns and rifles; his brother was dead and
removed by the assc.ilants and the other two persons who were
with him got firearm injuries. It may be that any other person in
his place might have reacted differently but the conduct of PW-
9 in any case does not seem to be improbable. Moreover, his
                                                                  0
presence at the time and place of incident is also established
from the evidence of PW-6. In the FIR, it is recorded that PW-
9 was with PW-6 in the Jeep. The evidence of PW-9 further
gets corroborated by the recovery of a gun and empty as well
as unused cartridges from the site.
                                                                      E
      16. As regards the evidence of PW-6, it was vehemently
contended by the learned senior counsel for the appellant that
his evidence should be either accepted as it is or rejected in
its entirety. PW-6 has deposed that he lodged the FIR; he was
injured in the incident; he saw white gypsy at the place of the       F
incident and that some persons came out of ambush and fired
shots as a result of which he sustained injuries and Ami Lal
died. It is true that he did not name the assailants. The fact that
an incident occurred in which he sustained injuries and Ami Lal
died is amply established by his evidence as well. That PW-6          G
sustained injuries is also established from the evidence of Dr.
Ajay Kumar (PW-1) who medically examined him immediately
after the incident. Merely because he did not name the
assailants, his evidence cannot be thrown over-board in its
entirety.                                                             H
    48      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A        17. Section 154 of the Evidence Act, 1872 enables the
    court in its discretion to permit the person who calls a witness
    to put any questions 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
B   party calling him, his evidence 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. State of Madhya Pradesh, a 3-
C   Judge Bench of this Court relying upon earlier decisions of this
    Court in Bhagwan Singh v. State of Haryana, Sri Rabindra
    Kumar Dey v. State of Orissa and Syad Akbar v. State of
    Karnataka reiterated the legal position that the evidence of a
    prosecution witness cannot be rejected in toto merely because
    the prosecution chose to treat him as hostile and cross-
0
    examined him. The evidence of such witnesses cannot be
    treated as effaced or washed off the record altogether but the
    same can be accepted to the extent their version is found to
    be dependable on careful scrutiny thereof.

E         18. In Kofi Lakhmanbhai Chanabhai v. State of Gujarat,
    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 Singh9 this Court held that
    when a witness is declared hostile and cross-examined with
F   the 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.

       19. The submission of the learned senior counsel for the
  appellant that the testimony of PW-6 should be either accepted
G as it is or rejected in its entirety, thus, cannot be accepted in
  view of settled legal position as noticed above.

        20. We have already noticed evidence of PW-9. He has
    been held trustworthy by the trial court as well as the High Court.
H   There is no reason, much less justifiable one, for us to take a
   PRITHI v. STATE OF HARYANA [R.M. LODHA, J.]                 49


different view. He is real brother of Ami Lal. The direct evidence A
of PW-9 leaves no manner of doubt that Ami Lal is dead and
the members of the unlawful assembly (including the appellant)
armed with deadly weapons are responsible for his death. In
this view of the matter, the submission of the learned senior
counsel that one Ami Lal was arrested in Rajasthan and B
produced before the Judicial Magistrate in Jodhpur and that
police failed to verify, despite the direction of the High Court,
as to whether that Ami Lal was the same person who is alleged
to have been murdered or some other person and, therefore,
factum of death of Ami Lal is not established has no merit at c
all and is noted to be rejected.

   21. In the case of Anant Chintaman Lagu v. The State of
Bombay, M. Hidayatullah, J. (as His Lordship then was) stated:

     "Ordinarily, it is not the wactice of this Court to re-examine   D
     the findings of fact reached by the High Court particularly
     in a case where there is concurrence of opinion between
     the two Courts below ..... "

     22. In an appeal under Article 136 of the Constitution, this     E
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. We, however, carefully
examined the evidence of PW-9 and the other evidence
available on record and we are satisfied that no error has been
committed by the High Court in affirming the conviction of the        F
appellant for the offences punishable under Section 302 read
with Section 149, Section 307 read with Sections 149, 148 and
201 IPC.

     23. The appeal has no merit and is dismissed accordingly.

K.K.T.                                        Appeal dismissed.