GOPAL @ TITU Vs. STATE

JUDGEMENT

(1.) The appellants Gopal @ Titu and Rakesh Kumar @ Dhanna impugn their conviction under Section 302/201/379/120-B read with Section 34 of the Indian Penal Code (IPC, for short) vide judgment dated 6 th January, 2011 in Session Case No. 135/09, arising out of FIR No. 348/06, P.S. Alipur. They have further impugned the order of sentence dated 19 th January, 2011 by which they have been sentenced, under Section 302, for life imprisonment and fine of Rs 25,000 on each, in default of which they shall undergo SI for ten months, under Section 120B for life imprisonment and fine of Rs 25,000 on each, in default of which they shall undergo SI for ten months, under Section 379 for three years rigorous imprisonment and fine of Rs 25,000 on each, in default of which they shall undergo SI for one month and, under Section 201, for three years rigorous imprisonment and fine of Rs 5,000 on each, in default of which they shall undergo SI for two months.

(2.) At the outset we delineate that in the present case crucial witnesses have either partly or wholly turned hostile. There are some contradictions or omissions which also need to be considered upon. Due to these considerations, "see through" examination, of the witnesses? statements and evidence garnered, is required in the present case. We have referred to contemporaneous documentary records in form of DD entries/FIR, call data records etc. We have postulated the statement of witnesses with the contemporaneous record to reach an ineluctable conclusion. At this stage, we record that evidence of hostile witnesses, to the extent it is truthful and reliable, remains admissible and it is open to the Court, depending upon the facts of each case, to rely upon dependable and acceptable part of the statement made by a hostile witness, as is reiterated in Rameshbhai Mohanbhai Koli v. State of Gujarat, 2011 11 SCC 111:

(3.) Accepting that there are hostile and opposing statements, we shall outline what should be admitted as veritable from the witnesses? statement and then ascribe whether the conviction of the two appellants can be sustained. Before dwelling in to the crucial aspects, we record in paragraphs 4, 5, 6 and 7, the undisputed position proved from the recorded facts.