Holding

The conviction under Section 302 read with Section 34 is valid; a single reliable witness and parts of hostile witness testimony may suffice to establish common intention.

Summary

The appellant Jodharaj Singh was convicted under Section 302 IPC read with Section 34 for the murder of Vishava Priya, based on an FIR that named him and detailed each accused's role. Although several prosecution witnesses turned hostile during the trials, the trial court and High Court relied primarily on the first informant (PW‑17) and a few remaining witnesses, finding sufficient material to establish the appellant's participation and common intention with the other accused. The appellant challenged the conviction, arguing that the hostile witnesses undermined the prosecution case and that the evidence did not prove common intention. The Supreme Court held that a conviction can be sustained on the testimony of a single reliable witness and that a court may consider parts of a hostile witness's deposition that are consistent with the prosecution case. It further affirmed that the appellant shared the common intention of the group, thereby upholding the conviction and dismissing the appeal.

Issues considered

The adequacy of evidence when multiple prosecution witnesses become hostile and whether a conviction can rest on a single witness.
The permissibility of relying on portions of a hostile witness's testimony in a criminal trial.
Whether the appellant shared a common intention with the co‑accused under Section 34 of the IPC.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34

Subjects

murdercommon intentionSection 34 IPChostile witnesssingle witness convictionevidentiary valuecriminal law

Judgment

A JODHRAJ SINGH
v.
STATE OF RAJASTHAN

APRIL 27, 2007

B (S.B. SINHA AND MARKANDEY KATJU, JJ.]

Penal Code. 1860-ss.302 and 34-Murder-FIR naming the accused
and stating the specific role played by each accused-Motive proved -
C Ultimate cause of death has found to be assault by co-accused-Four of the
Prosecution witnesses turned hostile-Version of the first informant
consistent-Conviction by courts below-On appeal, held: Accused was rightly
convicted by the reason of his common intention for commission of crime-
Even if some witnesses turned hostile, conviction can be based even on
testimony of single witness-In the fact situation of a case, it is permissible
D for a court to rely on one part of the deposition of hostile witness-Evidence-
Hostile witness-Evidentiary value-Criminal Law-Common intention.

Appellant-accused was tried for having caused death of one person PW-
17 (informant) had seen the accused along with other co-accused assaulting
E the deceased. The movie for assault was a dispute between the deceased and
one of the co-accused. PW-17 lodged FIR specifically naming the accused and
also categorically stating about the specific role played by each accused.
Appellant-accused was absconding. Hence, his case was separated from that
of the other accused. In the fact trial (relating to other accused) two witnesses
F turned hostile. In the second trial (relating to the appellant-accused) apart
from the two hostile witnesses two more witnesses turned hostile. Evidence
of the first informant was consistent in both the trials. Trial Court as well as
High Court convicted the accused u/s 302 IPC. Hence the present appeal.

Dismissing the appeal, the Court
G
HELD: I.I. The Trial Judge as also the High Court relied upon the
testimonies of the first informant (PW-17). There is no reason to differ
therewith. He not only named the appellant in the First Informaniion Report
but also in his deposition categorically stated about the role played by each of
H the accused person. [Paras 7 and 6] [853-F, E[

850
JODHRAJ SINGH v. ST ATE OF RAJAS THAN 851
1.2. Sufficient materials have been brought on records to establish that A
the appellant participated in commission of the offence. All the accuse..:!
persons came together in a tempo. They were armed with various weapons.
They assaulted the deceased. Courts below 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 a co-accused, but oniy by B
reason thereof existence of the common intention on the part of the appellant
cannot be said to be absent. The appellant shared common intention with the
other accused in committing the crime. [Paras 15 and 19) (855-E; 857-C-DI

Vatjayanti v. State of Maharashtra, 12005] 13 SCC 134; Triloki Nath C
and Ors. v. State of U.P., (2005) 13 SCC 323 and Pardeep Kumar v. Union
Administration, Chandigarh, (2006) IO SCC 608, relied on.

Mithu Singh v. State of Punjab, (2001) 4 SCC 193, distinguished.

2.1. The fact that in the case of the appellant herein two more prosecution D
witnesses turned hostile, 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.
[Para ll] 1854-E) E
2.2. While recording a judgment of a 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. [Para 13) F
2.3. 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 the 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 G
testimony of the witness who has been declared hostile. [Para 14) (855-C-D]

State of U.P. v. Ramesh Prasad Misra and Anr., [1996] 10 SCC 360 and
Gurpreet Singh v. State of Haryana, [2002) 8 SCC 18 relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 634 of H
852
A 2001.
SUPREME COURT REPORTS (2007] 5 S.C.R.

-.
From the Final Judgment and Order dated 25.04.2005 of the High Court
of Judicature of Rajasthan, Bench at Jaipur in D.B. Cr!. Appeal No. 1211 of
2002.

B Jitendra Singh Tanwar and Mohan Pandey for the Appellant.

Madhurima Tatia and Aruneshwar Gupta for the Respondent.

The Judgment of the Court was delivered by

C S.B. SINHA, J. I. Leave granted.

2. 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
D 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
E 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
F 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
G years. His case was separated from that of the other accused. Two separate
trials, thus, took place in relation to the said incident.

3. In the first trial involving the accused named in the First Information
Report, other than the appellant, several witnesses were examined. Two of
H them, viz., Ram Het (PW-8) and Ghasi Lal (PW-9) fully supported the
JODHRAJ SINGH v. STATE OF RAJASTHAN [S.B. SINHA, J.] 853

_ prosecution case. One Pratap Yadav (PW-10) and Alok Tripathi (PW-14), A
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.

4. The learned Sessions Judge as also the High Court, however, relied
on the testimonies of the said witnesses as they, when confronted with their B
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
upon that part of the testimonies of the said witnesses. The High Court,
therefore, by reason of the impugned judgment upheld the conviction and C
sentence of the appellant.

5. Mr. Mohan Pandey, learned counsel appearing on behalf of the
app~llant, 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 D
cannot be ruled out. It was submitted that as four prosecution witnesses had
turned hostile, the impugned judgment cannot be sustained.

6. 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 E
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.

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

8. 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:
G
"!. Abrasion Y. x Y. on left shoulder posteriorily.

2. Lacerated wound I" x 1/2" x B.D. vertical on left side of chin.

3. Lacerated would l" x Y," x l" on left angle of mouth.
H
854 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 4. Lacerated wound 3" x l" x 2" on fore head left side.

Bone broken in pieces, brain matter, badly lacerated eye ball pushed
inside.

5. Abrasion l" x Yi" vertical on left cheek.

B 6. Lacerated wound I" x Yi" x Yi" on left frontal parietal scalp.

7. Incised wound 4" x 2" x 2" transverse tempo parietal region left
side, and

8. Bruise I" x l" on nose."
c 9. 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).

I 0. In both the trials, common witnesses were examined. At the cost of
D repetition, we may state that the first informant had supported the prosecution
case in its entirety in both the trials. He has been believed.

11. The High Court took up all the appeals together for hearing. Tue
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
E 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.

12. In State of UP. v. Ramesh Prasad Misra and Anr., [1996] 10 SCC
F 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 OW I, his brother-in-law.
It is rather most unfortunate that these witnesses, one of whom was
an advocate, having given the statements about the facts within their
G special knowledge, under Section 161 recorded during inves.tigation,
have resiled froni 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 wmdd not be totally
H rejected if spoken in favour of the prosecution or the accused, but it
.. JODHRAJ SINGH v. STATE OF RAJASTHAN [S.B. SINHA, J.] 855
,.. .... can be subjected to close scrutiny and that portion of the evidence A
which is consistent with the case of the prosecution or defence may
be accepted ... "

[See also Gurpreet Singh v. State of Haryana, [2002] 8 SCC 18 and
Gagan Kanojia & Anr. v. State of Punjab, (2006) 12 SCALE 479]
B
13. 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.
c
14. 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
D
testimony of the witness who has been declared hostile.

15. 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 E
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. F
16. 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 G
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 H
856 SUPREME COURT REPORTS [2007] 5 S.C.R. :
A 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
B 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 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
c 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
D 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 !PC cannot be sustained and must be set aside."
E Such is not the position here.

17. In Vaijayanti v. 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
F 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
G 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."
H
JODHRAJ SINGH v. STATE OF RAJASTHAN [S.B. SINHA, J.] 857
[See also Triloki Nath and Ors. v. State of UP., [2005] 13 SCC 323] A
18. 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 B
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."
c
19. 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.

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

)

•