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Tuesday, June 14, 2016

benefit of doubt = In view of discussions made earlier, we are of the view that the Courts below should not have believed the exaggerated and contradictory deposition of the victim qua the appellants in view of the fact that the parties were having land dispute from before and even then in the FIR no specific role was assigned to the appellants while specific role was assigned to two co-accused. The medical evidence also does not corroborate the subsequent allegations made by the victim against the appellants. The broad features of the case also reveal that the two male accused were allegedly having a gun and an axe in their hand and they used these weapons only to cause injuries which did not pose any danger to the life of the victim. In such circumstances the women accused could have hardly any reason to unnecessarily get involved into assault so as to cause simple injuries by fists and kicks. For all the aforesaid reasons we find merit in the submission advanced on behalf of the appellants and do not agree with the learned counsel for the State who has sought to support the impugned judgment and order. The conviction and sentence imposed against the appellants are set aside and they are acquitted of all the charges by extending them the benefit of doubt. The appellant no.1 has been exempted from surrendering in this case. She now need not surrender. The other appellants shall be released from custody forthwith if not required in any other case. The appeal stands allowed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.524 OF 2016
                (Arising out of SLP (Crl.) No. 2496 of 2016)

Indira Devi and Ors.                               …..Appellants

      Versus

State of Himachal Pradesh                          …..Respondent


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

All the three appellants who are ladies were arrayed as   accused  alongwith
Brij Lal, husband of appellant no. 1 and Dev Raj, husband of  appellant  no.
3, in FIR no. 198 of 2011 lodged  by  victim  Shriram  with  Police  Station
Ghumarwin, District Bilaspur (Himachal Pradesh) for offences  under  Section
147/148/307 read with Section 149 of the IPC and  Section  25  of  the  Arms
Act. The learned Additional Sessions Judge Ghumarwin, Bilaspur accepted  the
prosecution case against all the  five  chargesheeted  accused  in  Sessions
Trial No. 10/7 of 2012 and imposed the  sentence  of  rigorous  imprisonment
(RI) for five years and a fine of Rs.5,000/-  each  for  the  offence  under
Section 307 read with Section 149 of the IPC. RI for six months and  a  fine
of Rs.1,000/- each was also imposed on all the convicts  for  offence  under
Section 148 of the IPC. Accused Brij Lal was further  sentenced  to  undergo
simple imprisonment for two years  along  with  a  fine  of  Rs.3,000/-  for
offence under Section 25 of the Arms Act. In default of  payment  of  fines,
further substantive sentences of varying periods were also  ordered  by  the
trial court. In appeal the High Court of Himachal Pradesh at Shimla  by  the
impugned judgment and order dated 2.1.2016 passed  in  Criminal  Appeal  No.
4015 of 2013, affirmed the conviction  and  sentences  as  noted  above  and
dismissed the appeal as one without any merit.
On behalf of the three appellants a common argument has been  advanced  that
both the Courts below failed to notice and appreciate  vital  contradictions
in respect of overt act  alleged  against  the  lady  accused  persons,  the
appellants, as mentioned in the initial version of the occurrence  contained
in the first information report and in  the  subsequent  deposition  of  the
informant Shriram rendered during the trial. The argument has  been  further
elaborated  by  urging  that  had  the  Courts  below  noticed   the   vital
contradictions, they would have treated the subsequent specific  allegations
against the appellants as mere exaggerations  and  improvements  fit  to  be
discarded in view of specific role assigned in the FIR only against the  two
male appellants Brij Lal and Dev Raj, own brothers of the  informant.  As  a
further corollary it has  been  urged  that  the  appellants  were,  in  all
probability present merely as  on-lookers  and  hence  they  did  not  merit
conviction by holding them guilty  of  sharing  a  common  object  with  the
assailants of the victim. In other words, as per  learned  counsel  for  the
appellants the Courts below have erred  in  fact  and  in  law  in  applying
Section 149 of the IPC against the appellants for convicting  them  for  the
offences allegedly committed by the two male accused persons.
   In order to appreciate the aforesaid submissions and  arguments  advanced
on behalf of the appellants it is not necessary to go into  details  of  all
the materials and evidence available on record. It is sufficient  to  notice
the allegations made by the victim informant in the FIR and in his  evidence
recorded in the course of trial along with the injuries  as  proved  by  the
medical evidence adduced by the Doctor, PW-17.
In the FIR recorded on the date of occurrence  itself  i.e.  26.12.2011  but
after receiving medical treatment the informant victim disclosed that  there
was land dispute between him and his brother Brij Lal. It is alleged in  the
FIR that on the previous day two trees of Khair had fallen down and  on  the
date of occurrence at about 8 o’clock in  the  morning  when  the  informant
wanted the trees to be cut into pieces, allegedly the five accused  persons,
Brij Lal, Dev Raj and the three appellants came  at  the  spot  and  started
beating him. Brij Lal was having gun which he fired at  his  left  jaw.  Dev
Raj assaulted with axe at the right arm. The victim came back  to  home  and
was taken to hospital where  he  gave  the  statement  to  police  which  is
contained in the FIR.
As PW-1, the victim Shriram deposed on 16.8.2012 in Court giving details  of
civil dispute/land dispute between him and his brothers. He claimed to  have
forbidden the accused persons from lifting the pieces of  fallen  trees  and
when his orders were ignored, he protested and resultantly  suffered  a  gun
shot injury on the left side of his face at the hands of accused  Brij  Lal.
He was then caught by Dev Raj who gave him a kick with his  right  knee  and
as a result he fell down. Thereafter Dev Raj caused an injury on  his  right
hand with an axe. Thereafter an obvious  improvement  has  appeared  in  the
deposition of the victim that appellant no. 2 Fullan Devi attacked him  with
a ‘darat’ (sharp cutting weapon) which hit on his left hand, the  other  two
appellants also gave him  beatings  with  kicks  and  fist  blows.   He  has
specified that blood oozed out only from left jaw and right  hand.  Dev  Raj
allegedly run away with the gun. In the next breath he added  that  Dev  Raj
ran away from the spot along with the appellants.  Only  Brij  Lal  remained
at the spot and he further assaulted the victim as a result whereof he  fell
down. Since son of the victim was away from the village, his two  daughters-
in-law came to the spot and took him to his house. His son  came  later  and
took him on a vehicle to Bilaspur where he was subjected to x-ray  and  some
treatment and then referred to a hospital at Shimla.  But  before  that  his
statement was recorded by the police at Bilaspur.
The trial court judgment discloses that the defence  confronted  the  victim
PW-1 with his earlier statement wherein he had not alleged that Fullan  Devi
assaulted him with a ‘darat’.  But  the  trial  court  in  para  24  of  the
judgment misdirected itself by  confining  the  consideration  only  to  the
issue as to whether the complainant who was  an  injured  should  be  relied
upon or not.  In view of his being an  injured  witness  as  proved  by  the
Doctor, the trial court chose to place full reliance on his deposition.  The
error committed by the trial court was in  ignoring  the  contradiction  and
subsequent development quo the three appellants herein and  its  failure  to
consider whether the complainant should be believed only  in  part  qua  the
male accused persons and not in respect of the appellants. This approach  of
the trial court is clearly erroneous in law.
The proposition of law  that an injured witness is generally reliable is  no
doubt correct but even an injured witness  must  be  subjected  to   careful
scrutiny if circumstances and materials available on record suggest that  he
may have falsely implicated some innocent persons also as an  after  thought
on account of enmity and vendetta. The trial  court  erred  in  not  keeping
this in mind.
 The medical evidence of PW-17, Dr. Superiya  Atwal  proves  the  injury  on
left side of the face of PW-1 to be a gun shot  injury.  The  second  injury
was an abrasion on the medial aspect of left  hand,  5x1  cm  in  size.  The
third injury was a bleeding one on the back of  right  hand  5x5x1/4  cm  in
size extending from thumb region to middle finger.  The  fourth  injury  was
again an abrasion on front of right thigh of 2x1 cm in  size.  According  to
Doctor, the injury no. 2 could have been caused with blunt side of  ‘darat’,
whereas injury no.3 could have been caused by an axe. Injuries no. 2  and  4
were opined as simple in nature. In cross-examination  the  Doctor  admitted
that injury no. 2 was possible even by a fall on  hard  surface.  A  careful
analysis of the injuries  as  proved  by  the  medical  evidence  creates  a
distinct impression that injury no. 2 is not by a sharp cutting weapon  like
‘darat’ and besides being simple it may have been on account  of  fall.  The
victim, PW 1 has admitted that  after  receiving  gun  shot  injury  he  was
assaulted by Dev Raj and made to fall. He has also alleged  further  assault
by Brij Lal after the other accused had gone away. Thus as  per  prosecution
case there is no corresponding injury on the person  of  victim  to  support
the allegation of assault against the lady accused persons, the  appellants.
Coupled with this fact the initial version  also  creates  a  serious  doubt
that specific allegations against the appellants have been  developed  later
in the course of deposition in Court. Such allegation has come only from PW-
1 without support from any independent witness. In  such  circumstances  and
due to lack of convincing medical  evidence,  the  credibility  of  specific
allegations against the appellants required  serious  consideration  by  the
trial  court  and  also  by  the  High  Court  while  hearing  the   appeal.
Unfortunately for the appellants, such consideration did not take place.
A perusal of the impugned  judgment  shows  that  the  High  Court  did  not
consider the specific case of the appellants as noted above that  they  were
merely by-standers and specific allegations against  them  have  been  added
subsequently, contrary to the statement before the police. We find that  the
High Court erred in not analyzing the evidence of the victim  PW-1  as  well
as the medical evidence with care and  caution  in  the  light  of  specific
defence  of  the  appellants  that  there  was  no  reliable  material   and
circumstances to rope them with the assault upon  the  victim  made  by  the
other accused persons, with the aid of Section  149  of  the  IPC.  On  this
account the impugned judgment and order therefore stands vitiated  not  only
on facts but also in law.
We  have  given  anxious  consideration  to  the  allegations  against   the
appellants in the FIR as well as  in  the  evidence  that  has  come  during
trial. In view of discussions made earlier, we are  of  the  view  that  the
Courts below should not have  believed  the  exaggerated  and  contradictory
deposition of the victim qua the appellants in view of  the  fact  that  the
parties were having land dispute from before and even then  in  the  FIR  no
specific role was  assigned  to  the  appellants  while  specific  role  was
assigned to two co-accused. The medical evidence also does  not  corroborate
the subsequent allegations made by the victim against  the  appellants.  The
broad features of the case also  reveal  that  the  two  male  accused  were
allegedly having a gun and an axe in their hand and they used these  weapons
only to cause injuries which did not pose any danger  to  the  life  of  the
victim. In such circumstances  the  women  accused  could  have  hardly  any
reason to unnecessarily get involved into assault  so  as  to  cause  simple
injuries by fists and kicks. For all the aforesaid reasons we find merit  in
the submission advanced on behalf of the appellants and do  not  agree  with
the learned counsel for the State who has sought  to  support  the  impugned
judgment  and  order.  The  conviction  and  sentence  imposed  against  the
appellants are set aside and they  are  acquitted  of  all  the  charges  by
extending them the benefit of doubt. The appellant no.1  has  been  exempted
from surrendering in this case.  She now  need  not  surrender.   The  other
appellants shall be released from custody forthwith if not required  in  any
other case. The appeal stands allowed.
                                                          .…………………………………….J.
                                [DIPAK MISRA]

                                                          ……………………………………..J.
                       [SHIVA KIRTI SINGH]
New Delhi.
June 03, 2016.
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