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.
-----------------------
8
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.
-----------------------
8
