SANJEEV KUMAR GUPTAversusSTATE OF U.P. (NOW STATE OF UTIARAKHAND)

                         [2015] 5 S.C.R. 122


A                    SANJEl;V KUMAR GUPTA

                                   v.
        STATE OF U.P. (NOW STATE OF UTIARAKHAND)
B               (Criminal Appeal No.507of2013 etc.)

                            MAYOS,2015

     [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
c
          Penal Code, 1860 - s. 3021149 and s. 148 - Murder
  -Prosecution case that accused persons armed with weapons
  asked the victim and PW 1 to withdraw their names from the
  college election - On refusal, accused persons assaulted
D them and the victim succumbed to his injuries the next day
  - PW 1 suffered injuries and lodged a complaint -Accused
  persons convicted u/s. 3021149 and s. 148 and sentenced
  accordingly by the courts below - On appeal, held: Medical
  evidence corroborated by testimonies of the prosecution
E witnesses proved that the deceased died a homicidal death
  - No inconsistency in the statements of the prosecution
  witnesses as regards the presence of the accused persons
  and the individual role played by them - Testimonies fully
  reliable and no improvement made - Discrepancy with
F regard to the place of occurrence; the testimony of the
  prosecution witnesses as also certain flaws in the
    investigation not fatal to the prosecution case - Even if it is
  assumed that there was no common object of killing, but only
G of stopping the deceased and others from contesting the
  elections, the common intention to kill might have arisen on
  the spur of the moment - Actions of the accused and the
  injuries inflicted on the body of the deceased substantiate
  the same - Thus, order passed by the courts below upheld.
H
          Dismissing the appeals, the Court
                               122
  SANJEEV KUMAR GUPTA v. STATE OF U. P. (NOW                 123
           STATE OF UTIARAKHAND)

       HELD: 1.1 The appellants raised the defense that A
there was 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 became clear
that the incident originally took place near the cycle stand
and on receiving the injuries AC (deceased) ran away B
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 building, which
was hardly 10-20 steps from the place where he fell down C
after getting trapped with the wire. The veracity of the
said distance came forth in the cross-examination of the
witnesses. It is believed that a person may presume them
to be at one place or two separate places. Therefore, the
discrepancy with respect to the place of occurrence has o
no bearing on the prosecution case. [Para 26] (136-F-H;
137-A-B]

       1.2 ·it is believed that the testimonies of the
prosecution witnesses are consistent, on the whole, and       E
minor discrepancies are such that those will not weaken
the prosecution case. The prosecution witnesses
established the presence and participation of all the
accused in the offence. The testimonies of the
prosecution witnesses have been fully corroborated by         F
the medical reports of the. doctors who examined the
deceased and the injured witness. The statement of
P.W.1 gets corroborated by the injury report prepared
by the doctor-P.W.8 of the Hospital who recorded the
injuries on the person of P.W.1 and P.W.3 supported the       G
version given by P.W.1. He named all the seven accused
with respect to their presence at the cycle stand. He also
supported P.W.1 with respect to their individual roles
played in assaulting the deceased and P.W.1. With            H
124      SUPREME COURT REPORTS               [2015] 5 S.C.R.


A respect to the question of presence of the seven accused
  persons and the individual role played by them, there is
  no inconsistency in the statements of the prosecution
  witnesses. Therefore, the testimonies of the prosecution
  witnesses are fully reliable and there has been no
B improvement made. [Para 27,28) [137-C-F; 138-H;139-A]

         1.3 The inconsistency in the statement given by
  P.W.1 in the F.1.R and the statement given in the court, is
  not fatal to the prosecution case. The possibility of post
C incident trauma and shock which might have been
  caused to the injured eye witness cannot be ruled out.
  In such a situation one cannot expect the witness to
  depose about every detail with accuracy. The testimony
D of an injured eye witness has to be given much
  credence. [Para 28) [137-G-H; 138-A]

         1.4 The investigation suffers from certain flaws
  such as non-recovery of the weapon used by the
  accused appellants and recovery of the blood stained
E 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
F by testimonies of the prosecution witnesses that the
  deceased died a homicidal death. [Para 29] (139-B-C]

         1.5 It is not disputed that the accused persons
  were present at the site of the incident and were armed
G 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
H object was to threaten and prevent the deceased and
  SANJEEV KUMAR GUPTA v. STATE OF U. P. (NOW                125
           STATE OF UTTARAKHAND)

other persons from contesting the College elections. As A
far as the argument regarding the absence of a common
intention to kill the deceased or the prior concert is
concerned, it can arise at the spur of the moment. [Para
30] [139-E-G]
                                                             B
       1.6 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 C
and the injuries inflicted on the body of the deceased
also go to substantiate the same. Therefore, the
judgment and order passed by the High Court is upheld,
confirming the judgment and order of the Additional
                                                          0
Sessions Judge/Special Judge. [Para 31] [140-D-F]

  Dharmendrasinh alias Mansing Ratansinh Vs. State
  of Gujarat2002 (3) SCR 193: (2002) 4 SCC 679; Manjit
  Singh and Anr. Vs. State of Punjab and Anr. 2013 (11)
  SCR 107: (2013) 12 SCC 746; Ramachandran and               E
  Ors. Vs. State of Kera/a 2011 (13) SCR 923: (2011) 9
  sec 257 - referred to.
                   Case Law Reference
                                                             F
2002 (3) SCR 193          Referred to.        Para 28

2013 (11) SCR 107         Referred to.        Para 29

2011 (13) SCR 923         Referred to.        Para 30
                                                            G
      CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 507 of 2013.

      From the Judgment and Order dated 08.04.2011 of the
                                                             H
126       SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A High C()urt of Uttrakhand at Nainital in Criminal Appeal No.
  675of2001 (old No. 1887 of2000)

                               WITH

B Crl.A. Nos. 508, 509, 510, 511, 512 & 513 of2013

         K. T. S. Tulsi, R. S. Suri, A. Sharan, Nagendra Rai, Y.
  Prabhakar Rao, Rahul Malhotra, Avinash Kumar, Chanchal
  Kumar Ganguli, Ms. Aprajita Mukherjee, Umang Shankar, M.
C C. Dhingra, Rajesh Sachdeva, for the Appellant.

         Aditya Singh, Jatinder Kumar Bhatia, Jatinder Kumar
  Sethi, Umesh Arora, Prem Prakash, Gaurav Agrawal (AC),
  Dr. Abhishek Atrey, Ashutosh Kr. Sharma, Sumit Rajora, for
D the Respondent.

          The judgment of the Court was delivered by

          PINAKI CHANDRA GHOSE, J. 1. In these appeals,
  by spec:ial leave, the appellants have challenged the judgment
E and order dated 81h 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
F Corruption, U.P. (East), Dehradun, convicting the appellants
  under Section 302 read with Section 149 of the Indian Penal
  Code, 1860 (for short "l.P.C.") and sentencing them to life
  imprisonment and to pay a fine of Rs.10,000/- each.

G       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
H thecampusofD.A.V. (P.G)College, Dehradunandatthesame
SANJEEV KUMAR GUPTA v. STATE OF U.P.(NOW STATE 127
  OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

time, accused Dheeraj Kalra along with Rish Kumar, Som              A
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 Facuity
of the College. When they refused to withdraw their names           B
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          C
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 AM. as Case Crime No.275/96 under            D
Sections 147, 148, 149, 307, 323 l.P.C., which was later
converted under Section 3021.P.C.

        3. Charges were framed against all the accused
persons under Section 148 and Section 302 read with Section E
149 of l.P.C. An additional charge was framed against accused
Rishi Kumar, Saurabh and Dheeraj under Sections 147 and
323 read with Section 149of1.P.C. Likewise additional charge
was framed against accused Sanjeev@ Happy, Som Prakash,
Nitin @ Vippu and Bhagat under Section 302 read with F
Section 149 of l.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), AS.I. G
Rajendra Pal (PW- 7), Dr. Bharat Kishore (PW-8), Mahendra
Pal Sharma (PW-9), Const. 493Anil Kumar (PW-10), Virendra
Kumar Sharma (PW-11) and Sub Inspector Prem Pal Singh
(PW-12).
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128        SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A            4. ShriVipin Singh Negi (P.W.-1) is an eyewitness 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
B    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 rescueAlok Chandna, he was caught
C    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 l.G.N.O.U. building as he got tangled with the wire-fencing.
    Accused Dheeraj Kalra, Saurabh and Rishi chased him and
o   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
E   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
F   examination. The shirt of witness, which he was wearing atthe
    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
G   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 l.P.C.

           5. In the Court of the Additional Sessions Judge, Special
H
 SANJEEV KUMAR GUPTAv. STATE OF U.P.(NOW STATE 129
   OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

Judge, Anti Corruption, U.P. (East), after hearing the counsel A
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 B
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.
                                                                 c
        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        D
(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      E
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       F
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 l.P.C. and sentenced them to
imprisonment for life and a fine of Rs.10,000/-was imposed       G
on each of them. All the accused persons were also convicted
under Section 148 of l.P.C. and sentenced to rigorous
imprisonment for two years. However, the sentences were
directed to run concurrently.
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130         SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A             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 l.P.C.
B
         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
C 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.
D   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
E   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
F   but fell down nearthe l.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
G   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 wrs
    seized and a memo was prepared and the shirt was sealf
H
 SANJEEV KUMAR GUPTAv. STATE OF U.P.(NOW STATE 131
   OF UTIARAKHAND) [PINAKI CHANDRAGHOSE, J.]

The shirt and vest of Alok Chandana was also taken by the A
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 B
10:00 A.M. He was taking tea at the Canteen and saw Alok
Chandana coming towards the l.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 C
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 D
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 E
stand on 24.9.1996 at about 10:30A.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 F
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 thatthe injuries to Vi pin Singh
Negi could have been caused by Danda and injuries to Alok
Chandana could have been caused by knife and one of his G
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. H
132       SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A 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
B 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.

c         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
  7.55A.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
D 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
E opposite the residence of accused Saurabh. He deposed that
  on 24.9.1996, at about 10:30A.M. he saw Saurabh with his
  father outside his residence and they were ready to go to their
  shop.
F        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
G goingtotheirshop. Hefurtherstatedthatat 10:30A.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 Col!ege and he was going to the hospital.
H
SANJEEV KUMAR GUPTAv. STATE OF U.P.(NOW STATE 133
  OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

          18. Learned counsel for appellant Sanjeev Kumar Gupta           A
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               B
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.            C
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               o
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             E
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.3was not trustworthy and reliable. P.W.3 himself            F
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            G
the cycle stand and next nearthe l.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
atthe cycle stand and had not gone to l.GN.O.U building where
the deceased was stated to have fallen down. The prosecution              H
134        SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A story that the deceased had fallen down near the l.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 atthe l.GN.O.U
  building. Therefore, the Trial Court erred in not considering
B 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
C have appreciated that conviction under Sections 148/149/302
  l.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
D   appearing for appellant Dheeraj Kalra were as follows: Or.
    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
E   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
F   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.
G   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
H
 SANJEEV KUMAR GUPTAv. STATE OF U.P.(NOW STATE 135
   OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

not a member of the unlawful assembly and, therefore, could A
not have been convicted under Section 1491.P.C. The F.l.R.
was ante timed. Further, P.W.1 neither stated in the F.1.R. nor
in Section 161 Cr.P.C. statement thatAlok Chandana, after
being beaten near the cycle stand, ran towards l.G.N.O.U.
building and got entangled in barbed wire fencing and fell down B
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 C
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
                                                                  0
contradiction in the version stated by P.W.1 in the F.l.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. E
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.                                F

        22. Learned counsel appearing for Nitin@ Vippu
submitted that the name of this appellant is mentioned in the
F.1.R. without parentage. There is no specific allegation against
him of having weapon and only a general allegation of assault G
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 H
136       SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A 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.l.R. and his deposition in Court.
B Along with this the counsel has taken the plea of contradictions
  in the ocular version and the medical version and the absence
  of a Teist Identification Parade.

          24. Learned counsel appearing for appellant Som
C 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.
0
          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
E the statements given by the prosecution witnesses in the F.l.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
F 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
G 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
  l.GN.O.U building, which was hardly 10-20 steps from the place
H where he fell down after getting trapped with the wire. The
SANJEEV KUMAR GUPTA v. STATE OF U.P.(NOW STATE 137
  OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

veracity of the above-mentioned distance has come forth in A
the cross-examination of the witn.esses. 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.
                                                                  B
        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. C
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 D
injuries on the person ofVipin 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 E
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 F
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.l.R and the statement given
in the Court, we do not find this to be fatal to the prosecution G
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
                                                                 H
138       SUPREME COURT REPORTS                   (2015] 5 S.C.R.


A 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
  Mansinq Ratansinh Vs. State of Gujarat, (2002) 4 SCC
  679, that when other evidence, such as medical evidence,
B supports the prosecution's case, the difference in what is
  stated in the F.l.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:
c     "... In this connection, the other related argument which
      has been raised is that in the F.l.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
D
      F.l.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
E     as both are sharp-edged weapons and according to the
      statement of the doctor the injuries as received by the
      tv"o 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
F     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."
G
    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
H
 SANJEEV KUMAR GUPTAv. STATE OF U.P.(NOW STATE 139
   OF UTTARAKHAND) [PINAKI CHANDRAGHOSE, J.]

prosecution witnesses are fully reliable and there has been no A
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 B
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 C
ManjitSinghandAnr. Vs. State of PunjabandAnr., (2013)
12 sec 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
                                                                  0
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 E
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 F
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 G
the case of Ramachandran and Ors. Vs. State of Kera/a,
(2011) 9 sec 257, has observed:
  "17. Section 149 IPC has essentially two ingredients viz.
  (i) offence committed by any member of an unlawful            H
140           SUPREME COURT REPORTS               [2015] 5 S.C.R.


A        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.
B
         18. For 'common object', it is not necessary thatthere
         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
c        moment; it is enough if it is adopted by all the
         members and is shared by all of them."

                                          (Emphasis supplied)

D          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
E 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,
F U.P. (East), Dehradun. Accordingly, these appeals are
  dismissed.

      Nidhi Jain                                  Appeals dismissed.


G