Indira Devi vs State Of Himachal Pradesh

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

JUDGMENT

SHIVA KIRTI SINGH, J.

1. 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

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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.

2. 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

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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.

3. 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.

4. 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

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to home and was taken to hospital where he gave the statement to

police which is contained in the FIR.

5. 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

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hospital at Shimla. But before that his statement was recorded by

the police at Bilaspur.

6. 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.

7. 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.

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8. 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

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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.

9. 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.

10. 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

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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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