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CASE NO.: Appeal (crl.)  634 of 2007

PETITIONER: Jodhraj Singh

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   634             OF 2007 [Arising out of SLP (Crl.) No. 2284 of 2006]

S.B. SINHA,  J :

       Leave granted.

       Appellant together with various others were tried for commission of  an offence under Section 302 of the Indian Penal Code for causing murder of  one Vishava Priya @ Lalla on 13.12.1992.  A First Information Report in  relation to the said incident was lodged by one Ashok Kumar Sharma.  The  incident allegedly took place at about 6 p.m. on the said date.  In the First  Information Report, the complainant alleged that at the said date and time  when he himself and his uncle Mahendra Kumar had been getting the Pattis  loaded near the road, a tempo (a three wheeler) occupied by one Ajij Naeem,  Bhupendra and the appellant arrived.  The accused were armed with  weapons like lathi, dhariya, ballam and sariya.  As there existed a dispute  between the deceased and Bhupendra, apprehending that they may kill him,  the complainant and the said Mahendra Kumar immediately came to the  place of occurrence and found the appellant and others assaulting the  deceased.  They, on seeing them, ran away.  A First Information Report was  lodged at about 9.10 p.m. on the same day.  Appellant was named therein  along with others, wherein it was alleged that he was armed with a gandasi  and he along with others assaulted the deceased.  It was furthermore alleged  that Bhupendra had thrown a stone on the deceased, due to which he  suffered a wound on his head.  Investigation into commission of the offence  was carried out.  Upon completion of the investigation, a chargesheet was  filed against the appellant as also the said Ajij, Naeem and Bhupendra.   Appellant had been absconding for about seven years.  His case was  separated from that of the other accused.  Two separate trials, thus, took  place in relation to the said incident.

       In the first trial involving the accused named in the First Information  Report, other than the appellant, several witnesses were examined.  Two of  them, viz., Ram Het (PW-8) and Ghasi Lal (PW-9) fully supported the  prosecution case.  One Pratap Yadav (PW-10) and Alok Tripathi (PW-14),  however, were declared hostile therein.  In the second trial, where the  appellant was involved, they also turned hostile.  Appellant was, however,  convicted.  Four separate appeals were preferred before the High Court.   

       The learned Sessions Judge as also the High Court, however, relied on  the testimonies of the said witnesses as they, when confronted with their  earlier statements, accepted that they had deposed against the appellant.   According to them, they did so on having been asked to do so by some  villagers.  The learned Sessions Judge as also the High Court did not rely

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upon that part of the testimonies of the said witnesses.  The High Court,  therefore, by reason of the impugned judgment upheld the conviction and  sentence of the appellant.

       Mr. Mohan Pandey, learned counsel appearing on behalf of the  appellant, at the very outset drew our attention to the fact that the deceased  was a known criminal and a large number of cases were pending against him  and as such the possibility of his being killed by some unknown persons  cannot be ruled out.  It was submitted that as four prosecution witnesses had  turned hostile, the impugned judgment cannot be sustained.

       The first informant Ashok Kumar Sharma examined himself as PW- 17.  He, as noticed hereinbefore, not only named the appellant in the First  Information Report but also in his deposition, he categorically stated about  the role played by each of the accused persons.  He stated that the appellant  took part in the entire assault and furthermore inflicted a gandasi blow on the  head of the deceased.  He knew all the accused persons including the  appellant from his childhood.   

       Both the learned Trial Judge as also the High Court relied upon the  testimonies of the said witness.  We see no reason to differ therewith.   

       Dr. Rakesh Kumar Sharma (PW-13) conducted the post mortem on  the dead body of the deceased at about 9.45 a.m. on 14.12.1992.  He found  the following ante-mortem injuries on the person of the deceased:

"1. Abrasion < x < on left shoulder posteriorily. 2. Lacerated wound 1" x 1/2" x B.D. vertical on  left side of chin. 3. Lacerated would 1" x =" x 1" on left angle of  mouth. 4. Lacerated wound 3" x 1" x 2" on fore head left  side. Bone broken in pieces, brain matter, badly  lacerated eye ball pushed inside. 5. Abrasion 1" x =" vertical on left cheek. 6. Lacerated wound 1" x =" x =" on left frontal  parietal scalp. 7. Incised wound 4" x 2" x 2" transverse tempo  parietal region left side, and 8. Bruise 1" x 1" on nose."

       Ram Het (PW-2 in the first trial and PW-8 in the second) spoke in  details about the participation of the accused persons including the appellant  herein.  So did the other eye-witness Ghasi Lal (PW-9).

       In both the trials, common witnesses were examined.  At the cost of  repetition, we may state that the first informant had supported the  prosecution case in its entirety in both the trials.  He has been believed.

       The High Court took up all the appeals together for hearing.  The only  distinctive fact in the case involving the appellant was PWs 8 and 9 turned  hostile, but the same, in our opinion, would not materially alter the  prosecution case, as a conviction can even be based on the testimony of a  single witness.  The courts furthermore are entitled to rely upon a part of the  testimony of a witness who has been permitted to be cross-examined by the  prosecution.   

       In State of U.P. v. Ramesh Prasad Misra and Another [(1996) 10 SCC  360], this Court opined:

"7. The question is whether the first respondent  was present at the time of death or was away in the  village of DW 1, his brother-in-law. It is rather  most unfortunate that these witnesses, one of

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whom was an advocate, having given the  statements about the facts within their special  knowledge, under Section 161 recorded during  investigation, have resiled from correctness of the  versions in the statements. They have not given  any reason as to why the investigating officer  could record statements contrary to what they had  disclosed. It is equally settled law that the evidence  of a hostile witness would not be totally rejected if  spoken in favour of the prosecution or the accused,  but it can be subjected to close scrutiny and that  portion of the evidence which is consistent with  the case of the prosecution or defence may be  accepted\005"

       [See also Gurpreet Singh v. State of Haryana, (2002) 8 SCC 18 and  Gagan Kanojia & Anr. v. State of Punjab, 2006 (12) SCALE 479]           Moreover, while recording a judgment of conviction, the court may  consider a part of the deposition of a witness who had been permitted to be  cross-examined by prosecution having regard to the fact situation obtaining  in the said case.  How the evidence adduced before it shall be appreciated by  the court would depend on the facts and circumstances of each case.   

       It is trite that only because a witness, for one reason or the other, has,  to some extent, resiled from his earlier statement by itself may not be  sufficient to discard the prosecution case in its entirety.  The courts even in  such a situation are not powerless.  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.   

       Appellant was seen in the company of the other accused.  Sufficient  materials have been brought on records to establish that he participated in  commission of the offence.  All the accused persons came together in a  tempo.  They were armed with various weapons.  They assaulted the  deceased.  The learned Sessions Judge as also the High Court found  existence of a motive for commission of the offence.  They left the place of  occurrence together.  It may be that the ultimate cause of death was found to  be an assault by stone on the head of the deceased which is said to be the act  of Bhupendra but only by reason thereof existence of the common intention  on the part of the appellant cannot be said to be absent.   

       Reliance by the learned counsel for the appellant on Mithu Singh v.  State of Punjab [(2001) 4 SCC 193] is misplaced.  Therein, no overt act was  attributed to the appellant therein.  The court found that no evidence was  brought on records as against him, save and except ipse dixit on the part of  the witnesses.  This Court, in the aforementioned fact situation, opined:

"6. To substantiate a charge under Section 302  with the aid of Section 34 it must be shown that  the criminal act complained against was done by  one of the accused persons in furtherance of the  common intention of both. Common intention has  to be distinguished from same or similar intention.  It is true that it is difficult, if not impossible, to  collect and produce direct evidence in proof of the  intention of the accused and mostly an inference as  to intention shall have to be drawn from the acts or  conduct of the accused or other relevant  circumstances, as available. An inference as to  common intention shall not be readily drawn; the  culpable liability can arise only if such inference  can be drawn with a certain degree of assurance.  At the worst Mithu Singh, accused-appellant, knew  that his co-accused Bharpur Singh was armed with

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a pistol. The knowledge of previous enmity  existing between Bharpur Singh and the deceased  can also be attributed to Mithu Singh. But there is  nothing available on record to draw an inference  that the co-accused Bharpur Singh had gone to the  house of the deceased with the intention of causing  her death and such intention was known to Mithu  Singh, much less shared by him. Simply because  Mithu Singh was himself armed with a pistol  would not necessarily lead to an inference that he  had also reached the house of the deceased or had  accompanied the co-accused Bharpur Singh with  the intention of causing the death of Gurdial Kaur.  In our opinion, an inference as to Mithu Singh,  accused-appellant having shared with Bharpur  Singh a common intention of causing the murder  of the deceased Gurdial Kaur cannot be drawn. His  conviction under Sections 302/34 IPC cannot be  sustained and must be set aside."           Such is not the position here.

       In Vaijayanti Vs. State of Maharashtra, [(2005) 13 SCC 134], as  regards formation of common intention, this Court opined:

"Section 34 of the Indian Penal Code envisages that  "when a criminal act is done by several persons in  furtherance of the common intention of all, each of such  persons, is liable for that act, in the same manner as if it  were done by him alone".  The underlying principle  behind the said provision is joint liability of persons in  doing of a criminal act which must have found in the  existence of common intention of enmity in the acts in  committing the criminal act in furtherance thereof.  The  law in this behalf is no longer res integra.  There need not  be a positive overt act on the part of the person  concerned.  Even an omission on his part to do something  may attract the said provision.  But it is beyond any cavil  of doubt that the question must be answered having  regard to the fact situation obtaining in each case."

       [See also Triloki Nath and Others v. State of U.P., (2005) 13 SCC  323]

       In Pardeep Kumar v. Union Administration, Chandigarh [(2006) 10  SCC 608], this Court opined:

"12. It is settled law that the common intention or  the intention of the individual concerned in  furtherance of the common intention could be  proved either from direct evidence or by inference  from the acts or attending circumstances of the  case and conduct of the parties. Direct proof of  common intention is seldom available and,  therefore, such intention can only be inferred from  the circumstances appearing from the proved facts  of the case and the proved circumstances."

       We are, having regard to the materials brought on record by the  prosecution, satisfied that the appellant shared common intention with the  other accused in committing the crime.

       We, therefore, do not find any infirmity in judgments of the learned  Sessions Judge and the High Court.  The appeal is dismissed accordingly.