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)
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)
