Case: Jodraj Singh Vs. State Of Rajasthan

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, awas 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.2. 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 Hetand Ghasi Lalfully supported the prosecution case. One Pratap Yadavand Alok Tripathihowever, 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.3. 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 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.

Reasoning:
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.