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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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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)