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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Minor variations between medical evidence and ocular evidence do not take away primacy of the latter MANU/SC/1770/2019 - (18 Dec 2019) </td> </tr> <tr> <td align="left" valign="top">State of Uttar Pradesh Vs. Ravindra and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">The State as Appellant assails the acquittal of the three Respondents by the High Court, reversing their conviction under Sections 302/149, 307/149, 147, 148 and 452 of the Indian Penal Code, 1860 (IPC) ordered by the Trial Court. Learned Counsel appearing for the Appellant, submitted that, the High Court erred in setting aside a well-considered order of conviction. PW-1 was injured in the same incident. The presence of PW-3 as an eye witness has also not been doubted. The number of injuries found on the injured and the two deceased cumulatively corroborates the number of assailants. The allegations of assault by the Respondents are specific. Acquittal of the Respondents, in view of the nature of ocular evidence available, is unsustainable. 
The manner of occurrence, the fact that all the Accused were well armed, they chased the deceased coupled with the assault on those who tried to come to the rescue of the deceased, the number of injuries on the two deceased and the injured leaves no doubt that, the assailants were most definitely more than two persons. In the nature and number of injuries, there can be no doubt that, the assailants may well have been five in number. Likewise, the fact that there may not be any firearm injury on the deceased is considered irrelevant for fixing vicarious liability as member of an unlawful assembly once the presence of the Accused possessed of a weapon of assault chasing the deceased along with others stands established by reliable ocular evidence. 
The determinative factor is the assembly consisting of five or more persons fully armed and who entertained one or more of the common objects, as specified in Section 141 of IPC. It cannot be laid down as a general proposition of law that, unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The Respondents well understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 of IPC. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. 
The "common object" of an assembly is to be ascertained from the acts and language of the members comprising it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 
Present Court is unable to hold that, there is such gross variation between the ocular evidence and the medical evidence so as to discredit an injured witness and an eye witness to order acquittal. In Kamaljit Singh v. State of Punjab, it was observed that, it is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely Rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference. The order of the acquittal of the Respondents is set aside and they are directed to surrender within four weeks for serving out the remaining period of their sentence. The appeal is allowed.</td> </tr> <tr> <td align="left" valign="top" >Relevant : Kamaljit Singh v. State of Punjab, <manuid>MANU/SC/0824/2018</manuid></td> </tr> <tr> <td align="left" valign="top" >Tags : Unlawful assembly, Acquittal, Legality</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>