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Saturday, May 9, 2015

‘common object’, it is not necessary that there should be prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.” (Emphasis supplied) 31. We are of the view that in the present case, even if it is assumed that there was no common object of killing, but only of stopping the deceased and others from contesting the elections, it cannot be ruled out that the common intention to kill might have arisen on the spur of the moment. The actions of the appellants and the injuries inflicted on the body of the deceased also go to substantiate the same. We, therefore, uphold the judgment and order passed by the High Court of Uttarakhand at Nainital, confirming the judgment and order of the Additional Sessions Judge/Special Judge, Anti Corruption, U.P. (East), Dehradun. Accordingly, these appeals are dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 507  OF  2013
Sanjeev Kumar Gupta                                … Appellant

                                  :Versus:

State of  U.P. (Now State of Uttarakhand)    … Respondent

      WITH
                      CRIMINAL APPEAL NO. 508  OF  2013

Saurabh                                                 … Appellant

                                  :Versus:
State of  U.P. (Now State of Uttarakhand)        … Respondent
                                     AND
                      CRIMINAL APPEAL NO. 509  OF  2013

Nitin @ Vippu                                           … Appellant

                                  :Versus:
State of  U.P. (Now State of Uttarakhand)        … Respondent
                                     AND
                      CRIMINAL APPEAL NO. 510  OF  2013

Dheeraj Kalra                                             … Appellant

                                  :Versus:
State of  U.P. (Now State of Uttarakhand)         … Respondent
                                     AND



                      CRIMINAL APPEAL NO. 511  OF  2013

Bhagat Singh                                            … Appellant

                                  :Versus:

State of  U.P. (Now State of Uttarakhand)        … Respondent
                                     AND

                      CRIMINAL APPEAL NO. 512  OF  2013
Som Prakash                                        … Appellant

                                  :Versus:

State of  U.P. (Now State of Uttarakhand)        … Respondent
                                     AND

                      CRIMINAL APPEAL NO. 513  OF  2013
Rishi Kumar                                        … Appellant

                                  :Versus:

State of  U.P. (Now State of Uttarakhand)        … Respondent

                               J U D G M E N T
Pinaki Chandra Ghose, J.
1.    In these appeals, by special leave,  the  appellants  have  challenged
the judgment and order dated 8th April, 2011 passed by  the  High  Court  of
Uttarakhand at Nainital, in Criminal Appeal  No.675  of  2001,  whereby  the
High Court has dismissed the appeals preferred by the appellants herein  and
confirmed the judgment and order of the  Additional  Sessions  Judge/Special
Judge, Anti Corruption, U.P. (East),  Dehradun,  convicting  the  appellants
under Section 302 read with Section 149 of the Indian Penal Code, 1860  (for
short “I.P.C.”) and sentencing them to life imprisonment and to pay  a  fine
of Rs.10,000/- each.

2.    The facts pertinent to the case, as unfolded by the  prosecution,  are
that on 24.9.96 at about  10:30  A.M.,  Vipin  Singh  Negi,  Alok  Chandana,
Suyesh Kukreti and Rajneesh Chhatwal were standing  near  the  cycle  stand,
situated within the campus of D.A.V. (P.G.) College,  Dehradun  and  at  the
same time, accused  Dheeraj  Kalra  along  with  Rish  Kumar,  Som  Prakash,
Saurabh, Nitin @ Vippu, Bhagat and Sanjeev Kumar @ Happy armed with  Lathis,
Knives and Khukries reached there and asked Vipin Singh Singh Negi and  Alok
Chandana to withdraw their names from the election of  Commerce  Faculty  of
the College. When they refused to withdraw their names  from  the  election,
they  were  assaulted  by  the  accused  persons  with  the  help  of  their
respective arms. As a result this assault,  Alok  Chndana  and  Vipin  Singh
Negi received serious injuries.  Alok  Chandana  was  immediately  taken  to
Coronation Hospital by  some  College  students  but  he  succumbed  to  his
injuries on the succeeding day. Vipin Singh Negi lodged a written  complaint
of the incident at the Police Station, Dalanwala. On  the  strength  of  his
written complaint, a case was registered on the same day at  11:00  A.M.  as
Case Crime No.275/96 under Sections 147, 148,149,  307,  323  I.P.C.,  which
was later converted under Section 302 I.P.C.

3.    Charges were framed against all the accused persons under Section  148
and Section 302 read with Section 149 of I.P.C.  An  additional  charge  was
framed against accused Rishi Kumar, Saurabh and Dheeraj under  Sections  147
and 323 read with Section 149 of  I.P.C.   Likewise  additional  charge  was
framed against accused Sanjeev @ Happy,  Som  Prakash,  Nitin  @  Vippu  and
Bhagat under Section 302 read  with  Section  149  of  I.P.C.  Charges  were
denied by all the accused persons and claimed to be tried.  Prosecution,  in
support of charges, have examined Vipin Singh Negi (PW-1), Dheeraj Negi (PW-
2), Suyesh Kukreti (PW-3), Rajneesh Chatwal (PW-4), Dr. Ajay Sharma  (PW-5),
Dr. C.M. Tyagi (PW-6), A.S.I. Rajendra Pal (PW- 7), Dr. Bharat Kishore  (PW-
8), Mahendra Pal Sharma (PW-9), Const.  493  Anil  Kumar  (PW-10),  Virendra
Kumar Sharma (PW-11) and Sub Inspector Prem Pal Singh (PW-12).

4.    Shri Vipin Singh Negi (P.W.-1) is an eye witness and he also  received
injuries in the incident. In  addition  to  substantiating  the  prosecution
version, he disclosed the specific role played by  the  accused  persons  at
the spot. He disclosed that accused Bhagat had caused injury with his  knife
on the back of Alok Chandana, accused Som Prakash caused injury on his  neck
with Khukhri, accused Nitin @ Vippu caused injury below his  left  eye  with
his Khukhri.   P.W.-1 also stated  that  when  he  strived  to  rescue  Alok
Chandna, he was caught hold by accused Saurabh and  Rishi,  whereas  accused
Dheeraj Kalra instantly caused head injury with  a  Danda.  After  receiving
injuries, Alok Chanda ran towards canteen but fell down near the  I.G.N.O.U.
building as he got tangled with the  wire-fencing.  Accused  Dheeraj  Kalra,
Saurabh and Rishi chased him and  attacked  again  with  Dandas.  About  300
students had assembled at the place of  occurrence  and  Alok  Chandana  was
instantaneously taken to  the  Coronation  Hospital  on  a  Motorcycle.  Two
students of the  College  also  brought  Vipin  Singh  Negi  (PW-1)  to  the
Coronation Hospital. Vipin Singh Negi along with Suyesh Kukreti went to  the
Police Station, Dalanwala and  appraised  of  the  incident  to  the  Police
Officer on duty and lodged  a  written  complaint,  which  was  written  and
signed by this witness. After registration of the  case,  this  witness  was
brought to the Coronation Hospital for medical  examination.  The  shirt  of
witness, which he was wearing at the time of  incident,  was  taken  by  the
Police in their possession and a memo was prepared in this  regard  and  the
shirt was sealed in presence of this witness. A charge-sheet  was  filed  by
the Inspector (Police) Vikas Sharma, against the  accused  persons,  namely,
Dheeraj Kalra, Rishi Kumar, Saurabh,  Som  Prakash,  Sanjeev  Kumar  @Happy,
Nitin @ Vippu and Bhagat Singh under Sections 147, 148, 149, 323,  307,  302
I.P.C.

5.    In the Court of the Additional Sessions  Judge,  Special  Judge,  Anti
Corruption, U.P. (East), after  hearing  the  counsel  for  the  parties  at
length, the Court opined that there was no delay in filing of the  FIR,  and
the nature of FIR is that of a substantive piece of evidence which could  be
used for corroboration or contradiction.  It  does  not  require  containing
neither the  exhaustive  details  of  occurrence  nor  a  catalogue  of  the
particulars. The FIR was lodged within half an hour of  the  occurrence  and
such an early reporting of the  occurrence,  with  all  its  vivid  details,
gives assurance regarding truth of its version.

6.    During cross-examination, the complainant has  also  stated  the  fact
that  he  was  nervous  and  due  to  that  he  omitted  some  details.  The
complainant has lodged the FIR within half an hour on the same day. The  eye
witness Vipin Singh Negi (PW-1) was also cross-examined at  length,  on  the
issue of the identity of the accused persons. He clearly disclosed  that  he
knew accused Som Prakash and Rishi about one year prior to  this  occurrence
and also knew of the location of their residence.  The  statement  of  P.W.1
Vipin Singh Negi has been corroborated by Suyesh Kukreti (P.W.3). There  was
no contradiction  in  the  testimonies  of  the  abovementioned  prosecution
witnesses and the Sessions Judge relied on them. The  prosecution  case  was
further supported by the testimony  of  Rajeev  Negi  (P.W.2).  The  medical
examination also fully supported the case  of  the  prosecution.  Thus,  the
Trial Court convicted Dheeraj Kalra, Surabh, Rishi  Kumar,  Nitin  @  Vippu,
Som Prakash, Bhagat and Sanjeev @ Happy under Section 302 read with  Section
149 of I.P.C. and sentenced them to imprisonment for  life  and  a  fine  of
Rs.10,000/- was imposed on each of them. All the accused persons  were  also
convicted  under  Section  148  of  I.P.C.   and   sentenced   to   rigorous
imprisonment for two years. However, the  sentences  were  directed  to  run
concurrently.

7.    The finding of the High Court was concurrent with that  of  the  Court
of Sessions and it cancelled  the  bail  of  the  appellants  affirming  the
conviction and sentence of the accused persons under Section 302  read  with
Section 149 and under Section 148 of I.P.C.

8.    We have heard the learned counsel  appearing  for  the  appellants  as
also the counsel for the State of Uttarakhand. For a proper analysis of  the
evidence on  record,  we  need  to  examine  the  statements  given  by  the
prosecution and defense witnesses in detail.

9.    The injured eyewitness and complainant in the present  case  is  P.W.1
Vipin Singh Negi, who disclosed the specific roles  played  by  the  accused
persons in the occurrence.  He  disclosed  the  weapons  which  the  accused
persons possessed  and  the  injuries  sustained  by  the  deceased  and  by
himself. Accused Bhagat Singh caused the injury with knife on  the  back  of
Alok Chandana, Som Prakash caused injury  on  the  neck  with  knife,  Vippu
caused injury with Khukri below the left eye of Alok. In an attempt to  save
Alok Chandana, P.W.1 was caught hold by accused Saurabh and accused  Dheeraj
Kalra instantly caused head injury with Danda. After receiving injuries  the
deceased Alok Chandana ran towards  the  canteen  but  fell  down  near  the
I.G.N.O.U. building as he got trapped in wire  fencing.  He  further  stated
that during the incident, about  300  students  had  assembled.  Thereafter,
Alok Chandana was instantaneously brought to  the  Coronation  Hospital  and
P.W.1 was also taken to the same  hospital.  Thereafter,  P.W.1  along  with
Suyash Kukreti reached the  police  station  and  a  written  complaint  was
lodged. It was signed by P.W.1. and thereafter  P.W.1 was  also  brought  to
Coronation Hospital by a  constable.  The  shirt  which  P.W.1  was  wearing
during the incident was seized and a memo was prepared  and  the  shirt  was
sealed. The shirt and vest of Alok Chandana was also taken by the Police  in
possession for which a memo was prepared.

10.   P.W.2 Shri Rajeev Negi, is also an eye witness, who has supported  the
prosecution version. He has stated in his deposition that the incident  took
place on 24.9.96 at about 10:00 A.M. He was taking tea at  the  Canteen  and
saw Alok Chandana coming towards the  I.G.N.O.U  building  from  the   Cycle
Stand and after  trapping into wire fencing fell down. He was  being  chased
by accused Saurabh, Rishi, Dheeraj Kalra and  they  attacked  him  after  he
fell down. This prosecution witness has also  supported  the  fact  of  Alok
Chandana being taken to the Coronation hospital and the filing of the FIR.

11.   Prosecution witness  Shri  Suyesh  Kukreti  (P.W.3)  is  also  an  eye
witness, and he has corroborated and confirmed the statements of P.W.1.

12.   Eye witness and prosecution  witness  Shri  Rajneesh  Chatwal  (P.W.4)
confirmed his presence along with Alok Chandana, Vipin  Singh  Negi,  Suyesh
Kukreti near the cycle stand on 24.9.1996 at about 10:30 A.M.  however  this
witness has turned hostile.

13.   Medical examination was conducted by Dr. Bharat  Kishore  (P.W.8)  and
it corroborates the prosecution story and confirmed  that  the  injuries  of
Vipin Singh Negi and Alok Chandana could have been received on 24.9.1996  at
about 10:30 A.M. He has further stated that  the  injuries  to  Vipin  Singh
Negi could have been caused by Danda and injuries  to  Alok  Chandana  could
have been caused by knife and one of his injury could  have  been  sustained
by friction. The  statement  of  P.W.8  gets  strengthened  further  by  the
statement of Dr. C.M. Tyagi, who conducted the internal examination  of  the
deceased and found the frontal bone fractured and right  lung  ruptured.  On
external examination, Dr. Tyagi found all the injuries as were found by  Dr.
Bharat Kishore (P.W.8).

14.   The accused persons have adduced  evidences  in  their  defense.  Shri
P.S. Bisht (D.W.1), Office Superintendent of  D.A.V.  College  produced  the
record of the College pertaining to  the  year  1996-1997  and  stated  that
accused Som Prakash and Rishi were not the students in the Commerce  Faculty
of D.A.V College during 1996-1997 session.

15.   Shri Jaswant Singh (D.W.2) is the Contractor in-charge  of  the  cycle
stand from 1989 till date. He has  brought  to  light  the  timings  of  the
classes in the College, starting at 7.55 A.M. and continuing till 1:30  P.M.
and thereafter evening classes to start at 6:00 P.M. and continue till  8:00
P.M. He stated that he remained present at the stand during  that  time  and
he was present at the cycle stand during the said timings on 24.9.1996.

16.   Shri Tejendra Pal Singh (D.W.3) resides just  opposite  the  residence
of accused Saurabh. He deposed that on 24.9.1996, at  about  10:30  A.M.  he
saw Saurabh with his father outside his residence and they were ready to  go
to their shop.

17.   Shri Pravesh Kumar Nagpal (D.W.4) is  the  neighbour  of  the  accused
Saurabh in the commercial premises. The shop of  this  witness  is  situated
just opposite to the shop of Saurabh’s father. He stated that  on  24.9.1996
at about 10:30 A.M., he saw accused Saurabh with his father going  to  their
shop. He further stated that at 10:30 A.M. to 10:45 A.M. when he was  having
a conversation with the father of the  accused  Saurabh,  Saurabh  told  his
father that some incident had occurred in the College and he  was  going  to
the hospital.

18.   Learned counsel for appellant Sanjeev Kumar Gupta submitted  that  the
Trial Court as also the High Court overlooked the  fact  that  the  name  of
appellant Sanjeev Kumar  Gupta  was  not  mentioned  in  the  F.I.R..  P.W.1
neither mentioned his name in the examination-in-chief  nor  in  the  F.I.R.
It is only in the  cross-examination  that  P.W.1  has  made  allegation  of
participation by the appellant Sanjeev Kumar Gupta. Learned counsel for  the
appellant submitted that the appellant has been  falsely  implicated,  which
is evident from the fact that details of all the accused were  mentioned  in
the F.I.R. except accused Sanjeev. The Trial Court and the High Court  ought
to have appreciated that the  prosecution  story  stands  disproved  by  the
evidence of P.W.4 Rajnish Chatwal, because  while  the  prosecution  alleges
that P.W.4 had taken the deceased Alok Chandana to the  Coronation  Hospital
immediately after the incident and that  he  had  given  a  statement  under
Section 161 Cr.P.C., the said P.W.4 clearly  denied  the  prosecution  story
stating that neither he had given statement under Section  161  Cr.P.C.  nor
did he know any of accused persons. Furthermore, the counsel submitted  that
even the main witnesses (P.W.1 and P.W.3) have  stated  that  only  four  or
five of the accused persons attacked the deceased, but the Trial  Court  and
the High Court maintained the conviction of all  seven  of  them.  The  High
Court and Trial Court should have appreciated that  the  evidence  of  P.W.1
and P.W.3 was not trustworthy and reliable. P.W.3 himself  is  named  as  an
accused in another murder case.  Regarding  the  place  of  occurrence,  the
learned counsel submitted that the prosecution  story  is  unbelievable  as,
according to the prosecution, the incident took place at two  places,  first
near the cycle stand and next near  the  I.G.N.O.U  building.  However,  the
F.I.R. only states that the incident took place  at  the  cycle  stand.  The
counsel argued that P.W.1 also stated that he was at  the  cycle  stand  and
had not gone to I.G.N.O.U building where the deceased  was  stated  to  have
fallen down. The prosecution story that the deceased had  fallen  down  near
the I.G.N.O.U building and was again attacked there, is untrue. In  addition
to that, no witness has stated that they had seen the accused attacking  the
deceased after having fallen down at the I.G.N.O.U building. Therefore,  the
Trial  Court erred in not considering that the deceased could have died  due
to falling on the ground. The  counsel  submitted  further  that  the  Trial
Court erred in holding that the fact  that  the  dying  declaration  of  the
deceased was not recorded, was not significant. The Trial Court should  have
appreciated that  conviction  under  Sections  148/149/302  I.P.C.  was  not
sustainable in view of the fact that the objective of the  assembly  was  to
threaten the deceased and the motive of murdering Alok Chandana did not  and
could not arise.

19.   The arguments put forward by learned counsel appearing  for  appellant
Dheeraj Kalra were as follows: Dr. Bharat Kishore  prepared  the  report  of
the injuries and as per the report only one injury was found on the body  of
the informant. Further, the learned counsel also questioned the  absence  of
a dying declaration, and the inconsistent views of the  eye  witnesses.  The
mere refusal by the deceased and P.W.1 to  withdraw  their  names  from  the
election of Commerce Faculty of College cannot be a motive  of  the  accused
persons to commit the alleged crime under Section 302 read with Section  149
IPC. The evidences of the alleged crime do not connect the accused with  the
crime as no weapon was recovered by the Police and the blood  on  the  shirt
of the deceased could not be ascertained during  chemical  examination,  and
thus, it could not be ascertained that it  belonged  to  the  deceased.  The
high Court and Trial Court  had  wrongly  disbelieved  the  plea  of  alibi,
according to the counsel.

20.   Learned counsel appearing for appellant Rishi  Kumar,  submitted  that
the appellant was not armed and was not a member of  the  unlawful  assembly
and, therefore, could not have been convicted under Section 149 I.P.C.   The
F.I.R. was ante timed. Further, P.W.1 neither stated in the  F.I.R.  nor  in
Section 161 Cr.P.C. statement that Alok Chandana, after  being  beaten  near
the cycle stand, ran  towards  I.G.N.O.U.  building  and  got  entangled  in
barbed wire fencing and fell down where he got Lathi blows. This shows  that
there was clear improvement. He further  submitted  that  the  Courts  below
failed to appreciate that the medical evidence does not support  the  ocular
evidence and also failed to note the improvements made.

21.   Learned counsel appearing for appellant  Saurabh  took  the  following
defenses:  That the common object was missing  in  respect  of  the  present
appellant; there was contradiction in the version stated  by  P.W.1  in  the
F.I.R. and in his deposition in Court; the credibility of P.W.1  as  an  eye
witness is weakened by the  medical  version.  Further  there  was  no  test
Identification Parade conducted which was  imperative  as  there  were  some
members who were stated to be outsiders. P.W.1 and P.W.3 are not  consistent
in their deposition.  In  addition  to  the  above,  the  evidences  of  the
alleged crime do not connect with the accused  appellant  as  no  weapon  of
offence was recovered by the Police and  the  blood  on  the  shirt  of  the
deceased could not be ascertained.

22.   Learned counsel appearing for Nitin@ Vippu submitted that the name  of
this appellant is mentioned in the F.I.R. without  parentage.  There  is  no
specific allegation  against  him  of  having  weapon  and  only  a  general
allegation of assault is made against  him.  The  allegation  of  causing  a
Khukhri blow by him below the left eye of the deceased is not  supported  by
medical evidence.

23.   The injury attributed to appellant Bhagat Singh is the knife  blow  on
the back of the deceased. Learned counsel appearing for  the  appellant  has
taken similar grounds, of absence of common object and  not  being  part  of
unlawful assembly.  In addition to  this,  there  is  contradiction  in  the
statement of P.W.1 in the F.I.R. and his deposition  in  Court.  Along  with
this the counsel has taken the plea of contradictions in the ocular  version
and the medical version and the absence of a Test Identification Parade.

24.   Learned counsel appearing  for  appellant  Som  Prakash  took  similar
grounds of defense as in the cases of abovementioned  appellants.  The  role
attributed to Som Prakash was that he attacked the deceased with  Khukri  on
the neck of Alok Chandana from behind. The additional defense taken  was  of
no common object being present.

25.   We believe that the following issues have emerged from  the  arguments
put forward by the defense and  from  the  testimonies  of  the  prosecution
witnesses. Firstly, the place of occurrence of the incident;  Secondly,  the
inconsistencies in the statements given by the prosecution witnesses in  the
F.I.R and their statements in  Court;  Thirdly,  the  question  of  unlawful
assembly and common object being present.

26.   The appellants in the present case  have  raised  the  common  defense
that there has  been  an  improvement  by  the  prosecution  witnesses  with
respect to the place of occurrence of the incident. However, from a  perusal
of the site map it becomes clear that the  incident  originally  took  place
near the cycle stand and on receiving the injuries Alok Chandana  (deceased)
ran away from the place and fell down after 10-20 steps. Out  of  the  seven
accused, he was chased by four accused and injuries were caused  to  him  by
them near I.G.N.O.U building, which was hardly 10-20 steps  from  the  place
where he fell down after getting trapped with the  wire.   The  veracity  of
the above-mentioned distance has come forth in the cross-examination of  the
witnesses. We believe a person may presume them  to  be  one  place  or  two
separate places. Therefore, in our opinion, the discrepancy with respect  to
the place of occurrence has no bearing on the prosecution case.

27.   We believe that the  testimonies  of  the  prosecution  witnesses  are
consistent, on the whole, and minor discrepancies are such that  those  will
not weaken the prosecution case. The prosecution witnesses have  established
the presence and participation of  all  the  accused  in  the  offence.  The
medical examination has gone further to strengthen  their  testimonies.  The
statement of P.W.1 Vipin Singh Negi gets corroborated by the  injury  report
prepared by Dr. Bharat Kishore (P.W.8) of Coronation Hospital  who  recorded
the injuries on the person of Vipin Singh Negi (P.W.1). Dr.  Bharat  Kishore
found a lacerated wound on the head of P.W.1, which  supported  the  version
of the prosecution witness. Another  eyewitness  P.W.3  Suyash  Kukreti  has
supported the version given by P.W.1. He has named  all  the  seven  accused
with respect to their presence at the cycle stand.  He  has  also  supported
P.W.1 with respect to  their  individual  roles  played  in  assaulting  the
deceased and P.W.1.  With respect to the question of presence of  the  seven
accused persons and the individual role played by them, we find  that  there
is no inconsistency in the statements of the prosecution witnesses.

28.   Coming to the question of inconsistency with the  statement  given  by
P.W.1 in the F.I.R and the statement given in the  Court,  we  do  not  find
this  to  be  fatal  to  the  prosecution  case.  We  cannot  rule  out  the
possibility of post incident trauma and shock which might have  been  caused
to the injured eye witness. In  such  a  situation  one  cannot  expect  the
witness to depose about every detail with accuracy. Further, this Court  has
held in a number of cases that the testimony of an injured eye  witness  has
to be given much credence. Apart from this, this  Court has also  laid  down
in Dharmendrasinh alias Mansing Ratansinh Vs. State  of  Gujarat,  (2002)  4
SCC 679, that when other  evidence, such as medical evidence,  supports  the
prosecution’s case, the difference in what is stated in the  F.I.R.  and  in
Court  as  regards  the  weapon  of  offence   is   a   very   insignificant
contradiction. This Court in paragraph 10 of  the  above-mentioned  judgment
observed:

“…In this connection, the other related argument which has  been  raised  is
that in the F.I.R. P.W.3 had mentioned that the appellant had assaulted  the
children with an axe but later on changed her statement in the Court  saying
that it was by mistake she had mentioned ‘axe’  in the F.I.R.  but  in  fact
it was dharia. In our view it is a very  insignificant  contradiction  which
may not lead to any worthwhile conclusion in view of the fact  that  it  was
immaterial whether the weapon was an axe or a  dharia  as  both  are  sharp-
edged weapons and according to the statement of the doctor the  injuries  as
received by the two children were caused by a sharp-edged weapon. There  was
thus no design or purpose in changing the statement or  deliberately  giving
out something wrong in the first information report about  the  weapon  used
by the appellant to cause the  injuries  upon  the  deceased  persons.   The
medical  evidence  supports  the  prosecution  case  in  all  respects.   We
therefore find no force in this submission as well.”


In the present case also, the testimonies of the prosecution witnesses  have
been fully corroborated by the medical reports of the doctors  who  examined
the  deceased  and  the  injured  witness.  Therefore,  we  hold  that   the
testimonies of the prosecution witnesses are fully reliable  and  there  has
been no improvement made.

29.   We do note that the investigation suffers from certain flaws  such  as
non-recovery of the weapon used by the accused appellants  and  recovery  of
the blood stained shirt  after  six  days  of  the  date  of  the  incident.
However, merely on the basis of these circumstances the entire case  of  the
prosecution cannot be brushed aside when  it  has  been  proved  by  medical
evidence corroborated by testimonies of the prosecution witnesses  that  the
deceased died a homicidal death. This Court has held  in  Manjit  Singh  and
Anr. Vs. State of Punjab and Anr., (2013) 12 SCC 746,  that  when  there  is
ample unimpeachable ocular evidence and the same has received  corroboration
from medical evidence, non-recovery of blood stained  clothes  or  even  the
murder weapon does not affect the prosecution case.

30.   Now, we come to the question as to whether the accused persons  formed
an unlawful assembly. It is not  disputed  that  the  accused  persons  were
present at the site of the incident and  were  armed  with  deadly  weapons.
They  had  shared  the  common  intention  of  stopping  the  deceased  from
contesting for the elections. These  circumstances  are  indicative  of  the
fact that all the accused  persons,  at  that  time,  were  the  members  of
unlawful assembly because their common object was to  threaten  and  prevent
the deceased and other persons from contesting  the  College  elections.  As
far as the argument regarding the absence of a common intention to kill  the
deceased or  the prior concert is concerned, we are of the view that it  can
arise at the spur of the moment. This Court in the case of Ramachandran  and
Ors. Vs. State of Kerala, (2011) 9 SCC 257, has observed:
“17. Section 149 IPC  has  essentially  two  ingredients  viz.  (i)  offence
committed by any member of an unlawful assembly consisting of five  or  more
members, and (ii) such offence must  be  committed  in  prosecution  of  the
common object under Section 141 IPC) of the  assembly  or  members  of  that
assembly knew to be likely to be committed  in  prosecution  of  the  common
object.
18. For ‘common object’, it is not necessary  that  there  should  be  prior
concert in the sense of a meeting of the members of the  unlawful  assembly,
the common object may form on the spur of the moment; it is enough if it  is
adopted by all the members and is shared by all of them.”

                                             (Emphasis supplied)

31.   We are of the view that in the present case, even  if  it  is  assumed
that there was no common  object  of  killing,  but  only  of  stopping  the
deceased and others from contesting the elections,  it cannot be  ruled  out
that the common intention to kill  might have arisen  on  the  spur  of  the
moment. The actions of the appellants and  the  injuries  inflicted  on  the
body of the deceased also  go  to  substantiate  the  same.  We,  therefore,
uphold the judgment and order passed by the High  Court  of  Uttarakhand  at
Nainital, confirming the judgment  and  order  of  the  Additional  Sessions
Judge/Special Judge, Anti Corruption, U.P.  (East),  Dehradun.  Accordingly,
these appeals are dismissed.



….....….……………………J
(Pinaki Chandra  Ghose)




….....…..…………………..J
(R.K. Agrawal)
New Delhi;
May 08, 2015.
ITEM NO.1A               COURT NO.12               SECTION II
(for Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                      Criminal Appeal  No(s).  507/2013

SANJEEV KUMAR GUPTA                                Appellant(s)

                                VERSUS

STATE OF U.P.(NOW UTTARAKHAND)                     Respondent(s)

WITH
Crl.A. No. 508/2013
Crl.A. No. 509/2013
Crl.A. No. 510/2013
Crl.A. No. 511/2013
Crl.A. No. 512/2013
Crl.A. No. 513/2013

Date : 08/05/2015      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s)       Mr. Y. Prabhakara Rao, Adv.

                       Mr. K.T.S. Tulsi, Sr. Adv.
                       Mr. R.S. Suri, Sr. Adv.
                       Mr. A. Sharan, Sr. Adv.
                       Mr. Nagendra Rai, Sr. Adv.
                       Mr. Rahul Malhotra, Adv.
                       Mr. Avinash Kumar, Adv.
                       Mr. Chanchal Kumar Ganguli, Adv.
                       Ms. Aprajita Mukherjee, Adv.

                       Mr. Umang Shankar, Adv.

                       Mr. M. C. Dhingra, Adv.
                       Mr. Rajesh Sachdeva, Adv.

For Respondent(s)      Mr. Aditya Singh, Adv.
                       Mr. Jatinder Kumar Bhatia, Adv.

                       Mr. Jatinder Kumar Sethi, Adv.
                       Mr. Umesh Arora, Adv.
                       Mr. Prem Prakash, Adv.

                       Dr. Abhishek Atrey, Adv.
                       Mr. Ashutosh Kr. Sharma, Adv.
                       Mr. Sumit Rajora, Adv.

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  R.K.
Agrawal.

      The appeals are dismissed in terms of the signed reportable  judgment.



      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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