Sanjeev Kumar Gupta v. State Of Uttar Pradesh (Now State Of Uttarakhand) .

Pinaki Chandra Ghose, J.— In these appeals, by special leave, the appellants have challenged the judgment and order dated 8-4-2011 passed by the High Court of Uttarakhand at Nainital, in Sanjeev Kumar v. State of U.P 2011 SCC OnLine Utt 453, 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 Penal Code, 1860 (for short “IPC”) 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 24-9-1996 at about 10.30 a.m, Vipin Singh Negi, Alok Chandana, Suyesh Kukreti and Rajneesh Chatwal were standing near the cycle-stand, situated within the campus of DAV (PG) College, Dehradun and at the same time, accused Dheeraj Kalra along with Rishi Kumar, Som Prakash, Saurabh, Nitin alias Vippu, Bhagat and Sanjeev Kumar alias Happy armed with lathis, knives and khukries reached there and asked Vipin 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 of this assault, Alok Chandana 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 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 of 1996 under Sections 147, 148, 149, 307 and 323 IPC, which was later converted under Section 302 IPC.

3. Charges were framed against all the accused persons under Section 148 and Section 302 read with Section 149 IPC. An additional charge was framed against accused Rishi Kumar, Saurabh and Dheeraj under Sections 147 and 323 read with Section 149 IPC. Likewise additional charge was framed against accused Sanjeev alias Happy, Som Prakash, Nitin alias Vippu and Bhagat under Section 302 read with Section 149 IPC. The charges were denied by all the accused persons and claimed to be tried. The 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), ASI Rajendra Pal (PW 7), Dr Bharat Kishore (PW 8), Mahendra Pal Sharma (PW 9), Constable 493 Anil Kumar (PW 10), Virendra Kumar Sharma (PW 11) and Sub-Inspector Prem Pal Singh (PW 12).

4. Shri Vipin Singh Negi (PW 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 on the back of Alok Chandana, accused Som Prakash caused injury on his neck with khukri, accused Nitin alias Vippu caused injury below his left eye with his khukri. PW 1 also stated that when he strived to rescue Alok Chandana, he was caught hold by accused Saurabh and Rishi, whereas accused Dheeraj Kalra instantly caused head injury with a danda. After receiving injuries, Alok Chandana ran towards canteen but fell down near Ignou 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 Coronation Hospital on a motorcycle. Two students of the College also brought Vipin Singh Negi (PW 1) to Coronation Hospital. Vipin Singh Negi along with Suyesh Kukreti went to Police Station Dalanwala and apprised 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 the 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 alias Happy, Nitin alias Vippu and Bhagat Singh under Sections 147, 148, 149, 323, 307 and 302 IPC.

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 the 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 eyewitness 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 PW 1 Vipin Singh Negi has been corroborated by Suyesh Kukreti (PW 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 (PW 2). The medical examination also fully supported the case of the prosecution. Thus, the trial court convicted Dheeraj Kalra, Saurabh, Rishi Kumar, Nitin alias Vippu, Som Prakash, Bhagat and Sanjeev alias Happy under Section 302 read with Section 149 IPC 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 IPC 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 Session 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 IPC.

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 defence witnesses in detail.

9. The injured eyewitness and the complainant in the present case is PW 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, PW 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 Ignou 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 PW 1 was also taken to the same hospital. Thereafter, PW 1 along with Suyash Kukreti reached the police station and a written complaint was lodged. It was signed by PW 1 and thereafter PW 1 was also brought to Coronation Hospital by a constable. The shirt which PW 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. PW 2 Shri Rajeev Negi, is also an eyewitness, who has supported the prosecution version. He has stated in his deposition that the incident took place on 24-9-1996 at about 10.00 a.m He was taking tea at the canteen and saw Alok Chandana coming towards Ignou 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 Coronation Hospital and the filing of the FIR.

11. The prosecution witness Shri Suyesh Kukreti (PW 3) is also an eyewitness, and he has corroborated and confirmed the statements of PW 1.

12. The eyewitness and the prosecution witness, Shri Rajneesh Chatwal (PW 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. A medical examination was conducted by Dr Bharat Kishore (PW 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 PW 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 (PW 8).

14. The accused persons have adduced evidence in their defence. Shri P.S Bisht (DW 1), Office Superintendent of DAV 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 DAV College during 1996-1997 session.

15. Shri Jaswant Singh (DW 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 (DW 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 (DW 4) is the neighbour of 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 accused Saurabh, Saurabh told his father that some incident had occurred in the College and he was going to the hospital.

18. The 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 FIR. PW 1 neither mentioned his name in the examination-in-chief nor in the FIR. It is only in the cross-examination that PW 1 has made allegation of participation by the appellant Sanjeev Kumar Gupta. The 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 FIR except accused Sanjeev. The trial court and the High Court ought to have appreciated that the prosecution story stands disproved by the evidence of PW 4 Rajneesh Chatwal, because while the prosecution alleges that PW 4 had taken the deceased Alok Chandana to Coronation Hospital immediately after the incident and that he had given a statement under Section 161 CrPC, the said PW 4 clearly denied the prosecution story stating that neither he had given statement under Section 161 CrPC nor did he know any of the accused persons.

19. Furthermore, the counsel submitted that even the main witnesses (PW 1 and PW 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 the trial court should have appreciated that the evidence of PW 1 and PW 3 was not trustworthy and reliable. PW 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 Ignou building. However, the FIR only states that the incident took place at the cycle-stand. The counsel argued that PW 1 also stated that he was at the cycle-stand and had not gone to Ignou building where the deceased was stated to have fallen down. The prosecution story that the deceased had fallen down near Ignou 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 Ignou 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 IPC 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.

20. The arguments put forward by the 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 eyewitnesses. The mere refusal by the deceased and PW 1 to withdraw their names from the election of Commerce Faculty of College cannot be a motive for 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 the trial court had wrongly disbelieved the plea of alibi, according to the counsel.

21. The 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 IPC. The FIR was ante-timed. Further, PW 1 neither stated in the FIR nor in Section 161 CrPC statement that Alok Chandana, after being beaten near the cycle-stand, ran towards Ignou 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.

22. The learned counsel appearing for appellant Saurabh took the following defences: that the common object was missing in respect of the present appellant; there was contradiction in the version stated by PW 1 in the FIR and in his deposition in the court; the credibility of PW 1 as an eyewitness 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. PW 1 and PW 3 are not consistent in their depositions. In addition to the above, the evidence of the alleged crime does not connect with the appellant-accused as no weapon of offence was recovered by the police and the blood on the shirt of the deceased could not be ascertained.

23. The learned counsel appearing for Nitin alias Vippu submitted that the name of this appellant is mentioned in the FIR 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 khukri-blow by him below the left eye of the deceased is not supported by medical evidence.

24. The injury attributed to appellant Bhagat Singh is the knife-blow on the back of the deceased. The 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 PW 1 in the FIR and his deposition in the 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.

25. The learned counsel appearing for appellant Som Prakash took similar grounds of defence 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 defence taken was of no common object being present.

26. We believe that the following issues have emerged from the arguments put forward by the defence 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 FIR and their statements in the court; thirdly, the question of unlawful assembly and common object being present.

27. The appellants in the present case have raised the common defence 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 (the 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 Ignou building, which was hardly 10-20 steps from the place where he fell down after getting trapped with the wire. The veracity of the abovementioned 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.

28. 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 PW 1 Vipin Singh Negi gets corroborated by the injury report prepared by Dr Bharat Kishore (PW 8) of Coronation Hospital who recorded the injuries on the person of Vipin Singh Negi (PW 1). Dr Bharat Kishore found a lacerated wound on the head of PW 1, which supported the version of the prosecution witness. Another eyewitness PW 3 Suyash Kukreti has supported the version given by PW 1. He has named all the seven accused with respect to their presence at the cycle-stand. He has also supported PW 1 with respect to their individual roles played in assaulting the deceased and PW 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.

29. Coming to the question of inconsistency in the statement given by PW 1 in the FIR 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 eyewitness. 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 eyewitness has to be given much credence. Apart from this, this Court has also laid down in Dharmendrasinh v. State of Gujarat (2002) 4 SCC 679 , 2002 SCC (Cri) 859, that when other evidence, such as medical evidence, supports the prosecution case, the difference in what is stated in the FIR and in the court as regards the weapon of offence is a very insignificant contradiction. This Court in para 10 of the abovementioned judgment observed:

“10. … In this connection, the other related argument which has been raised is that in the FIR PW 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 FIR 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.”

30. 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.

31. We do note that the investigation suffers from certain flaws such as non-recovery of the weapon used by the appellant-accused and recovery of the bloodstained 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 v. State of Punjab (2013) 12 SCC 746 , (2014) 4 SCC (Cri) 531, that when there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non-recovery of bloodstained clothes or even the murder weapon does not affect the prosecution case.

32. 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 on the spur of the moment. This Court in Ramachandran v. State of Kerala (2011) 9 SCC 257 , (2011) 3 SCC (Cri) 677 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 a 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)

33. 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 2011 SCC OnLine Utt 453 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.