Bindu vs State
2009 Latest Caselaw 967 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                CRL.A. 139/2008

%                           Judgment Reserved on: 23rd January, 2009
                           Judgment Pronounced on: 25th March, 2009

       BINDU                                     ..... Appellant
                      Through:   Ms. Ritu Gauba, Advocate.


                                 versus


       THE STATE (NCT) OF DELHI    ..... Respondent
                Through: Mr. Pawan Sharma, APP


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE ARUNA SURESH

       1. Whether reporters of local papers may be allowed
          to see the judgment?

       2. To be referred to the Reporter or not?       Yes

       3. Whether judgment should be reported in Digest?              Yes

                             JUDGMENT

: ARUNA SURESH, J.

1. A ghastly murder took place on the intervening night of 25-

26.07.2005 in a jhuggi near Ganda Nala, Kishan Ganj,

Delhi. Appellant Bindu used to reside with deceased

Chanda in her jhuggi. Appellant was an alcoholic. He had

borrowed a sum of Rs.6,000/- from Chanda. But on

demand to repay the loan by Chanda, he used to quarrel

with her. On the fateful night, the appellant picked up a

quarrel with Chanda in the jhuggi, gave her physical

beating and killed her and threw her dead body on the

railway track.

2. The investigating agency swung into action on receipt of

information on 26.7.2005 on wireless at Police Post Kishan

Ganj at about 2.05 P.M. from HC Subhash that in Block

No.65 Chowk, Railway Line, Ganda Nala, Kishan Ganj a

lady had been run over by the train. This information was

recorded in DD No.12 (Ex.PW-5/A) by Lady Ct. Kavita PW-5.

On receipt of this information through additional SHO Shri

O.P. Sharma, Insp. Jagjit Singh, SHO went to the Railway

track near jhuggis, Ganda Nala, Kishan Ganj where he met

other police officials. However, nobody could be found on

the track till 4.00 P.M. Insp. Jagjit Singh also could not get

any information if any person was removed to the hospital.

He met a boy, namely, Sunil Kumar, aged about 10 years,

the son of the deceased Chanda. Sunil Kumar PW-7 during

interrogation disclosed that the appellant Bindu was

residing with his mother and him in their jhuggi and that

he (Bindu) had given beatings to his mother Chanda, killed

her and threw her body in the nala near the Railway track.

On this information Insp. Jagjit Singh and other police

officials conducted search and they found blood on the

stones near the plank 5th BG track near Km. Pole 3/22,

Kishan Ganj towards North of Andha Mughal side. Despite

best efforts, the dead body could not be found in the nala.

The police party searched for the dead body in the gutter.

At about 6.00 P.M. the dead body was spotted in the open

flowing gutter, about 8-9 ft. deep in between Railway line

and DCM ground wall near electric pole No.3/19-A at a

distance of 40 paces from Kishan Ganj, railway station. The

headless dead body of Chanda was removed from the

gutter by PW-2 Khusranjan.

3. On 27.7.2005 head-neck of the deceased Chanda was

recovered from Ganda Nala. The dead body was identified

by PW-7 Sunil Kumar as that of his mother Chanda.

4. Appellant Bindu was arrested on 29.7.2005 and at his

instance churra (dagger) Ex.P-3 was recovered.

5. Vide impugned judgment dated 28.11.2007, the learned

trial court was pleased to convict the appellant for the

offence punishable under Section 302 Indian Penal Code

(hereinafter referred to as „IPC‟) as well as under Section

201 IPC. Vide order on sentence dated 5.12.2007, the

appellant was sentenced to undergo imprisonment for life

and to pay fine of Rs.5,000/- and in default of payment of

fine to further suffer simple imprisonment for two months

for an offence punishable under Section 302. Appellant

was further sentenced to undergo R.I. for a period of three

years and to pay a fine of Rs.2,000/- and in default to

undergo S.I. for a period of one month for offence

punishable under Section 201 IPC. Both the sentences

were ordered to run concurrently and benefit of Section

428 Cr.P.C. was also given to the appellant.

6. During the trial, prosecution examined as many as 20

witnesses. Relevant are the testimonies of PW-7 Sunil

Kumar, son of the deceased, PW-2 Khusranjan (Rikshaw

puller), PW-3 Smt. Runzhun (neighbor), PW-10 Radha

(another neighbor) and PW-8 Dr. Ashok Jaiswal. Relevant

are also the statements of Inspector Jagjit Singh, SHO (PW-

20) and SI Sunil Kumar, Investigating Officer (PW-19). The

other witnesses are police officials who were a part of the

investigation at one stage or the other.

7. PW-7 Sunil Kumar, son of the deceased, Chanda who was

aged about 10 years at the time of incident is an eye

witness to the incident. He has deposed in the court that

his father had expired and he was residing with his mother

in the jhuggi near Ganda Nala, Kishan Ganj and that

appellant Bindu used to come to his mother. That on the

fateful night appellant Bindu came in the jhuggi and asked

him (Sunil) to bring dahi. That on his refusal appellant

gave him beatings as well as to his mother and appellant

also pelted stones upon him and gave severe beatings to

his mother and killed her in the night. He also deposed

that appellant allured him to accompany him to his house

and that he would give him Rs.200/-. Appellant also

threatened him of life; and that appellant had thrown the

dead body of his mother in the Ganda Nala and that

accused Bindu had borrowed Rs.6,000/- from his mother.

8. When cross-examined by learned APP for the State, PW-7

Sunil Kumar admitted having stated to the police that at

that time accused had come drunk to the jhuggi, that at

that time his mother had cooked rice and that accused had

asked his mother to prepare fish for him, that he started

quarreling with his mother and gave beatings to her as

well as to him and due to fear he went from there and hid

himself behind other jhuggies. He stated that after some

time he saw that accused had picked up his mother and

took her to the railway track and that after sometime

appellant returned back and raised alarm 'Randi Kat Gai'.

He admitted that he had stated to the police that accused

had threatened the persons who had gathered there on

hearing his alarm, of false implication if police was

informed and also that appellant had thrown head-neck of

the dead body and police would not be able to find the

head-neck and that thereafter accused picked up the

headless body of his mother and threw the same in the

gutter. He also admitted that the headless body of his

mother was recovered from the gutter by the police on the

next day and the head of his mother was recovered on the

next following day from the nala.

9. In his cross-examination Sunil Kumar deposed that he had

seen Bindu picking up his mother and taking her to the

railway track and thereafter he had hidden himself in the

DCM plot covered with boundary wall. He also deposed in

the cross examination that Radha had come to his jhuggi

at about 8-9 P.M. shouting that 'Chanda Cut Gai Cut Gai'

and that number of persons had assembled and had gone

to see Chanda and that when Radha came to his jhuggi,

Bindu and he (Sunil) were sitting in the jhuggi and that he

had also gone to see his mother Chanda at the railway

track.

10. PW-3 Smt. Runzhun is a resident of jhuggi cluster near

Ganda Nala, Kishan Ganj and was a neighbor of deceased

Chanda. She in her testimony deposed that Bindu was

living with Chanda in her jhuggi and that PW-7 was also

residing with his mother and that Bindu was addicted to

liquor and that he used to give beatings to her. She

further deposed that on the day of incident Chanda had

cooked rice and Bindu gave beatings to Chanda and to her

son Sunil Kumar and that she along with other residents

had intervened and saved Chanda and Sunil from the

appellant. She further testified that at 12.30 night

appellant Bindu again raised an alarm that Chanda had

been beheaded and called the jhuggi people to come out

and that appellant had requested the residents of the

jhuggi to assist him to remove the dead body of Chanda

but they all declined and that accused threatened them

not to inform the police. She has also deposed that

thereafter appellant went to the railway track, lifted the

dead body of Chanda and threw the same in the gutter.

She is also a witness to the recovery of head-neck of

deceased Chanda from the nala which was identified by

her. She did not support the prosecution to the fact that

appellant had borrowed a sum of Rs.6,000/- from deceased

Chanda and that Bindu was overpowered by the public in

the morning when the police came and he tried to flee and

that he was beaten up by the public and was handed over

to the police. There is no effective cross examination of the

witness regarding the incident except that she stated that

she did not know if Radha had come at about 8.00 P.M.

shouting that 'Chanda Cut Gai'.

11. PW-10 Radha another neighbor, while corroborating the

statement of PW-3, further deposed that at about 12.30

night she heard shouts of the appellant Bindu 'Sali Randi

Cut Gai' about Chanda and that he had thrown head of

Chanda and no one could trace it and also asked them to

assist him to dispose of the headless body of Chanda. She

further testified that she asked the appellant not to tamper

with the dead body and that thereafter Bindu lifted the

headless body of Chanda and threw the same in the

gutter.

12. In her cross examination she denied the suggestion that at

about 8.00 P.M. she had rushed to the jhuggi of Chanda

and shouted that Chanda was cut and that accused and

her husband who were taking dinner together in the jhuggi

of Chanda also came out and went to see dead body of

Chanda at the railway track.

13. PW-2 Khusranjan had joined the investigation on 26th July,

2005. He with the help of police and others had taken out

headless body of deceased Chanda from the gutter near

the wall of DCM. In his presence the dead body of the

deceased was identified by PW-7 Sunil Kumar, son of the

deceased, aged about 10-11 years. He also witnessed the

recovery of head-neck from the nala on the next following

day at about 10.00 A.M. This witness has not been cross

examined.

14. PW-8 Dr. Ashok Jaiswal had conducted the postmortem on

the dead body of the deceased Chanda. In his postmortem

report Ex.PW-8/A he has opined :-

"1. Decapitation of head (injury No.1 and 2) is postmortem in nature caused by sharp edge weapon.

2. Injuries No.1-a, 1-b, 1-c, 1-d and 1-3 are ante-mortem in nature.

3. Injury No.1-a, 1-b are caused by blunt force/object.

4. Injury No.1-c, 1-d and 1-e are suggestive of application of pressure over neck structure - manual strangulation (throttling).

5. Death in my opinion is due to asphyxia consequent to throttling (manual strangulation).

6. Manual strangulation is sufficient to cause death in ordinary course of nature.

7. Time since death is about two and a half days.

8. Head-neck and neck-torse appears to be of the same individual however blood sample, teeth(2) and skin piece from either body parts preserved sealed and handed over to police for matching/grouping /needful."

15. In his cross examination he stated that injuries to the neck

i.e. decapitation of head (injuries No.1 and 2) and marks of

strangulation are not possible due to train accident.

16. Equipped with the aforesaid evidence and also the FSL

report Ex.PW-20/H-2 while discarding the defence plea of

the appellant that deceased had come in front of the

running train and therefore was cut by the train and died

due to decapitation of head, the learned trial court

observed:-

"..... From the evidence as discussed above, it is proved beyond reasonable doubt that it was the accused who after taking the deceased who was already subjected to manual strangulation from the jhuggi to the railway track, had decapitated the Head-neck portion of the deceased from the rest of the portion of the body with the help of Churra at the railway track and then had thrown the body parts in the ganda nala.

10. From the facts proved on record by the prosecution, it is also proved that accused after knowing that offence has been committed had thrown the parts of the body of the deceased into the Ganda Nala with the intention of causing the evidence of the offence of the murder to disappear."

17. Ms. Ritu Gauba, learned counsel for the appellant has

submitted that the deceased and other residents of the

jhuggi cluster near railway lines had trespassed on the

railway property and were illegal occupants in connivance

with the SHO (Railway), Sarai Rohilla. The jhuggi of

deceased Chanda was only two steps away from the

railway line and she was accustomed to the sound of

whistle of train off and on and her ears attuned to the

sound all day and night and therefore she had committed

offence under Sections 137/141/147 of the Railway Act,

1989.

18. These arguments have no relevance to the facts and

circumstances of the case. In this appeal the court is not

to decide whether deceased Chanda had trespassed into

the railway line, the court has only to ascertain if deceased

Chanda was murdered by the appellant. These arguments

are nothing but an endeavour of the counsel to side track

the main issue and distract the mind of the court to

unnecessary issues having no relevance to the case.

19. Learned counsel of the appellant further argued that PW-

20 Insp. Jagjit Singh being a competent Investigating

Officer has not left any stone unturned to ensure

conviction of the appellant. Therefore, the act of the

Investigating Officer, Jagjit Singh has caused great

prejudice to the appellant. She has referred to „Megha

Singh vs. State of Haryana, 1995 Crl. L.J. 3988'.

20. These submissions are devoid of any merits. Investigating

Officer Insp. Jagjit Singh went to the spot only on receipt of

DD No.12 dated 26.7.2005 Ex.PW-5/A wherein it was

disclosed that a person had been run over by a train near

Ganda Nala. Investigating Officer is required to investigate

the case thoroughly and has to ensure that every link in

the chain was complete. There is nothing in this case to

suggest that Investigating Officer investigated the case in

a manner prejudicial to the interest of the appellant.

Simply, because the Investigating Officer happens to be

the complainant does not vitiate the trial of the case and is

not fatal to the prosecution under the facts and

circumstances of this case.

21. Megha Singh‟s case is of no help to the appellants. In this

case no independent witnesses were brought by the

prosecution to prove its case and only two Constables, one

of them being the complainant, were examined to prove

the case of the prosecution. The facts of this case are

entirely different.

22. It is further submitted by the learned counsel for the

appellant that the Investigating Officer has converted the

case of railway accident into murder by fixing liability on

the appellant who unfortunately was acquainted with the

deceased who would probably have raised voice and claim

compensation for the train fatality, and in that eventuality,

the services of the Investigating Officer would have come

under cloud of suspicion and he would have faced

departmental inquiry for not removing the trespassers

away from the railway property.

23. It is unfortunate that the learned counsel for the appellant

instead of hitting the nail on its head has tried to side line

the entire issue with all endeavor to way lay the court but,

she is unsuccessful in her endeavor. The appellant was

only acquainted to the deceased and, was not a blood

relation. PW-4 Ashok and PW-7 Sunil Kumar, the eye

witnesses to the incident happen to be the sons of the

deceased and claim, if any, would have been raised by

them.

24. Frivolous arguments as raised by learned counsel for the

appellant are depreciable and have to be desisted and she

cannot be allowed to beat around the bush with a view to

brush aside the prosecution case, which stood proved

during the trial of the case.

25. It is submitted that there is a delay of 7 hours in

registration of the case. It cannot be disputed that the

incident had taken place on the night of 25-26.7.2005 and

DD No.12 Ex.PW-5/A was recorded at the Police Station at

about 2.00 P.M. and the FIR Ex.PW-1/A was got registered

by the Investigating Officer at about 9.00 P.M.

26. This delay in registration of the FIR has been convincingly

proved by the prosecution. Witness to the incident PW-7

Sunil Kumar, and other persons of the locality who had

gathered at the spot on hearing shouts of appellant „Sali

Kat Gai‟ including PW-10 Radha and PW-3 Runzhun both

neighbours have deposed in consonance that appellant

had threatened the persons who had gathered at the spot

not to inform the police and on hearing his shouts, the

crowd disbursed. This explains why none of the neigbours

informed the police at the earliest. The appellant had also

asked the persons of the locality to assist him in removing

the dead body of Chanda to which they all refused.

27. The Investigating Officer Jagjit Singh went to the spot on

receipt of DD No.12 Ex.PW-5/A. He did not find any dead

body on the railway line. He searched the area and till

around 4.00 P.M. he could not even get any information

from the hospital about the incident. The Investigating

Officer met PW-7 Sunil Kumar, and it was from

interrogation of this child that he came to know that the

dead body had been thrown in the nala. The IO continued

to make efforts to trace out the dead body from the Ganda

Nala but it was around 6.00 P.M. that he could spot a

headless body in the gutter falling into the nala. He took

the assistance of PW-2 Khusranjan, a rickshaw puller to

take out the dead body of Chanda from the gutter. He

continued with his search to trace out the head-neck of the

deceased. When he failed in his efforts with the assistance

of the public, he sent the rukka Ex.PW-20/A to the Police

Station for registration of the case at about 9.00 P.M. The

delay, therefore, in registration of the FIR was bonafide

and was due to the unavoidable reasons as stated above.

28. Learned counsel for the appellant has attributed this delay

in registration of the FIR, alleging that Investigating Officer

took time to convert a railway accident into a homicide.

She has argued that it was due to striking of deceased

Chanda against a running train, that her head was

decapitated and the head-bone was fractured having fallen

at a distance.

29. Needless to say, the head-neck could not have been

decapitated by striking against a running train. Dr. Ashok

Jaiswal PW-8 in his cross-examination was categorical

when he stated that the decapitation of head and marks of

strangulation were not possible in a train accident. The

doctor has opined the cause of death as asphyxia

consequent to throttling (manual strangulation) which was

sufficient to cause death in ordinary course of nature.

30. Under no circumstance, therefore, the death of Chanda

can be termed as accidental death. She was murdered by

strangulation and her head-neck was decapitated by a

sharp edged weapon as per the report Ex.PW-8/A prepared

by PW-8 Dr. Ashok Jaiswal.

31. Learned counsel for the appellant has emphasized that

grave doubt about alleged incident and involvement of the

appellant in the alleged incident is created in view of the

testimony of the witnesses who all were hostile and did not

fully support the case of the prosecution. These variations

are :-

(a) PW-7 Sunil Kumar in his cross-examination admitted

'It is correct that Radha had come to my Jhuggi at

about 8.00 P.M. shouting that Chanda Cut Gai Cut

Gai. Thereafter so many persons had assembled and

had gone to see Chanda. When Radha had come at

my Jhuggi accused was sitting in the Jhuggi and I was

present in the Jhuggi at that time. I had also gone to

see my mother Chanda'.

(b) PW-3 Runzhun in her cross-examination has stated „I

do not know if Radha had come at about 8 P.M.

shouting that Chanda Cut Gai Cut Gai'.

(c) PW-10 Radha in her cross-examination had stated „It

is wrong to suggest that at about 8.00 P.M. I rushed

at the Jhuggi of Chanda and shouted that Chanda had

cut and thereafter accused and my husband those

were taken dinner together in the jhuggi of Chanda

also came out and went to see dead body of Chanda

at Railway track'.

(d) PW-2 Khusranjan has deposed „It could not be learnt

that as to who has killed Chanda'.

32. She has referred to the statement of accused recorded

under Section 313 Cr.P.C. to emphasize that the appellant

in answer to question 28 has specifically replied that it was

a train accident, and he was falsely implicated in this case

and therefore 'who has done it' is not proved by the

prosecution.

33. Learned counsel for the appellant has further argued that a

grave doubt has been created regarding the time and

place of the arrest of the appellant in view of the following

statements appearing in the examination or cross-

examination of the prosecution witnesses. Firstly, she has

referred to the answer of the appellant to question No.10

recorded under Section 313 Cr.P.C. wherein he stated 'I

was falsely arrested'. She has highlighted the cross

examination of PW-3 Runzhun wherein she stated that

accused was arrested on the next day. Similar is the

statement of PW-2 Khusranjan who also deposed that

appellant was arrested on the next day i.e. on 27 th July,

2005, though he denied having made any statement to the

police. PW-19 SI Sunil Kumar has stated that accused was

arrested on 29th July, 2005. The Investigating Officer has

deposed that accused was apprehended by public persons

on the next day of the FIR i.e. on 27th July, 2005 whereas

arrest memo indicates the arrest of the appellant on 29th

July, 2005. It is urged that seal throughout remained in the

possession of the complainant as well as the IO.

34. The infirmities and variations as pointed out above by the

counsel for the appellant which have crept in examination

and cross examination of the witnesses are natural and

trifle in nature and they are bound to creep in due to lapse

of time. The prosecution witnesses are all illiterate

persons residing in jhuggi cluster and they have all given

time of the incident and also the date of the arrest of the

appellant as per their own conception. These small

contradictions are not fatal to the prosecution case in any

manner.

35. PW-2 Khusranjan fully supported the prosecution case

except that he did not state that appellant was apprehend

by the public persons and was beaten up by them. Under

these circumstances, this witness cannot be termed as

hostile even if learned prosecutor chose to cross examine

him.

36. PW-3 Runzhun has supported the case in all material

particulars in her examination-in-chief as well as in her

cross-examination. Simply because she has been cross-

examined by learned APP for the State would not discard

her testimony from consideration.

37. PW-10 Radha has also fully supported the prosecution case

on all material particulars. She was cross examined by

learned APP for the State only regarding the recovery of

head-less body of Chanda from the gutter and also that

accused had fallen twice when he was disposing of the

dead body of the deceased into the gutter. She fully

supported the prosecution case when cross examined by

the learned APP. As highlighted above, the appellant has

not been able to highlight any material discrepancy

appearing in the cross examination of these witnesses.

38. PW-7 Sunil Kumar was about 10 years of age at the time of

incident. As per his testimony he stated that Appellant

Bindu who used to reside with his mother and used to take

meal from her had come in drunken condition and got

aggressive since Chanda had cooked rice though he

wanted fish. A quarrel ensued between the two. He was

asked by the appellant to bring curd (dahi). On his refusal

appellant gave him beatings and also threatened him of

life. He also deposed that appellant had thrown the dead

body of his mother in the nala. True that, this witness did

not fully support the prosecution case, may be because he

was a child at the time when he saw the incident and his

deposition was recorded in the court after about more than

a year. PW-7 Sunil Kumar has given an evident detailed

description of the incident which cannot be over looked.

39. PW-7 Sunil Kumar was ailing on the day of incident and

when he refused to bring curd for the appellant, he was

given beatings by the appellant and not only this the stone

was also thrown on him. The child due to fear went out of

the house and hid himself behind the DCM wall near the

jhuggi. He survived the wrath of the appellant and Chanda

became the victim.

40. As per the provisions of Section 118 of the Evidence Act all

persons are competent to testify, unless the court consider

that by reason of tender years they are incapable of

understanding the questions put to them and of giving

rational answers but then it is for the Judge to satisfy

himself as regards fulfillment of the requirement of the

said provision. A child of tender age can be allowed to

testify if he has intellectual capacity to understand

questions and give rational answers thereto. The evidence

of a child witness cannot be rejected per se, but the court

as a rule of prudence is required to consider such evidence

with close scrutiny and if it is convinced about the quality

thereto and the reliability of the child witness can record

conviction based on his testimony. If after careful scrutiny

of a child witness‟s statement the court comes to the

conclusion that there is impress of truth in it there is no

reason as to why the court should not accept the evidence

of child witnesses.

41. In this case the opinion of the Judge had been recorded

after testing the intellectual capacity of Sunil Kumar PW-7

a child of tender age to understand the question and give

rational answers thereto. This satisfies the test laid down

under Section 118 of the Evidence Act. Sunil PW-7 did

understand the questions put to him by the court and gave

rational answers. He has not been found to be suffering

from intellectual incapacity to understand the questions

and give rational answers thereto.

42. On close scrutiny of the testimony of this witness and the

other evidence placed on record, I find no obstacle in the

way of accepting the evidence of Sunil. Many a times when

a ghastly crime is committed in the presence of the child,

the same is registered in his mind very effectively.

43. Since testimony of Sunil finds sufficient and adequate

corroboration from the other evidence placed on record

including the prosecution witnesses it can be safely relied

upon.

44. Prosecution case is required to be covered by leading

cogent, believable and credible evidence. Where two

views are possible, one indicating the guilt of the accused

and the other to his innocence, the defence raised by the

accused should be accepted and the court must raise a

presumption that the accused is innocent. However, the

court must not reject the evidence of the prosecution on

premise that the witnesses for the prosecution are false,

not trustworthy, unreliable and made on flimsy grounds

and made only on the basis of surmises and conjectures.

The court has to judge the prosecution case in its entirety

having regard to the totality of the circumstances. Thus,

the approach of the court must be an integrated one and

not truncated or isolated. The court has to use the

yardstick of probability and appreciate the intrinsic value

of the evidence on record and analyse and assess the

same objectively.

45. In the present case, the totality of the evidence and the

circumstances placed on record undoubtedly finger

towards the appellant as the author of the crime. The

circumstances proved are:-

(i) PW-7 Sunil Kumar had seen the appellant giving

beating to his mother and threatening her of her

life.

(ii) PW-3 Runzhun and PW-10 Radha had seen the

appellant lifting the dead body of Chanda and

throwing it into the gutter. It is pertinent that it

was the appellant who after killing Chanda after

throwing her dead body on the railway track had

shouted 'Chanda had suffered cut on her body'

and had called the residents of the jhuggi cluster

to come out. The appellant not only committed the

offence but also made an effort to create an

allusive atmosphere indicating that Chanda had

died of train accident. All the circumstances,

clearly induct the appellant in the commission of

murder of Chanda.

(iii) PW-8 Dr. Ashok Jaiswal has opined the cause of

death in his report Ex.PW-8/A as asphyxia

consequent to throttling. Manual strangulation was

sufficient to cause death in ordinary course of

nature. Vide his report Ex.PW-8/B he has opined

that cutting on neck from rest of the body (injury

No.1 and 2) can be possible by the dagger Ex.P-3.

(iv) During the investigation of the case, the IO had

lifted bloodstained piece of stones. He also

collected the clothes of the deceased from the

hospital and recovered weapon of offence Ex.P-3

on behest of the appellant. On the weapon of

offence human blood was found having blood of

„B‟ group. This blood group matched with the

blood group of the deceased found on her clothes.

(v) It is not the case of the appellant that any of the

witnesses were inimical to him.

46. The last but not the least submission of the learned

counsel for the appellant is that the witnesses for the

prosecution have not fully supported the case as they have

turned hostile and were cross examined by the learned

APP for the State. Under these circumstances, according

to her much reliance cannot be placed on their testimonies

and the trial court went wrong while convicting the

appellant on the basis of the testimony of the hostile

witnesses.

47. It is a well settled law that the evidence of a hostile

witness cannot be rejected in toto merely because the

prosecution chose to treat him as hostile and cross

examined him. The evidence of such witness cannot be

treated as effaced or washed out the record altogether.

The testimony of such witnesses can be considered and

accepted by the court to the extent their version is found

to be dependable on a careful scrutiny thereof. The

portion of the evidence which is consistent with the case of

the prosecution or defence as recorded by the court

cannot be held to have washed off or unavailable to the

prosecution to prove the guilt of the accused.

48. In the present scenario where the witnesses are illiterate

and jhuggi inhabitants have supported the prosecution

case on all material particulars except that either they did

not depose certain facts or slightly made variations in their

statements made before the police and to the court.

49. As already pointed above, these variations under the

circumstances of the case which were natural with the

lapse of time and the individual memory and intelligence

of the witnesses are bound to occur. These variations in

no manner can be considered fatal to the prosecution

case. In the present case though the witnesses i.e. PW-2,

PW-3, PW-7 and PW-10 have been cross examined by the

learned APP for the State, they cannot be termed as hostile

witnesses.

50. The above analysis of the evidence on record leads us to

inevitable conclusion that the appellant Bindu had firstly

murdered Chanda by manual strangulation and then

decapitated her head-neck from her body and with a view

to destroy the evidence, he threw the head-neck in the

nala and also the headless body in the gutter flowing into

the nala. The trial court, therefore, rightly convicted the

appellant of the offence under Section 302/201 IPC.

51. The appeal being without any merit is hereby dismissed.

52. Trial court record be sent back immediately with attested

copy of the order.

ARUNA SURESH, J.

PRADEEP NANDRAJOG, J.

MARCH 25, 2009 vk