Case: Jodraj Singh Vs. State Of Rajasthan

subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted” [See also Gurpreet Singh v. State of Haryana, V (2002) SLT 231=(2002) 8 SCC 18 and Gagan Kanojia & Anr. v. State of Punjab, IX (2006) SLT 406=I (2007) CCR 89 (SC)=2006 (12) SCALE 479 ] 12. 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.13. 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.14. 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. 15. Reliance by the learned Counsel for the appellant on Mithu Singh v. State of Punjab, III (2001) SLT 166=II (2001) CCR 82 (SC)=(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 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. 16. 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 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., VIII (2005) SLT 302=IV (2005) CCR 200 (SC)=(2005) 13 SCC 323 ] 17. In Pardeep Kumar v. Union Administration, Chandigarh, VI (2006) SLT 120=III (2006) CCR 230 (SC)=(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.”

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.10. 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 be12. Moreover, while recording a judgment of conviction, the Court may consider a part of the deposition of a witness who had been permitted to beby 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.13. 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.14. 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.