It is undisputed that the evidence of an injured witness stands on a higher level but at the same time, it is equally true that receiving the injuries in an incident is a fact which merely proves the presence of the injured witness at the place of incident but the same is no guarantee of the fact that whatever the injured witness deposes is gospel truth. Shyam Singh v. State of U.P., 2020 (110) ACC 498.
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Common object is different from common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing 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. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined keeping in view the nature of the assembly, the arms carried by the members and the behavior of the members at or near the scene of the incident. 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. Under the explanation to section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful assembly is not material. An assembly which, at its commencement or even for sometime thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante. Ram Lal v. State of U.P., 2016 (92) ACC 399.
The lodgment of two FIR’s is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, the prohibition does not cover the allegations made by the accused in the First FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIR’s is permissible. Surender Kaushik v. State of U.P., (2013) 5 SCC 148.