Neelam Bahal & Anr vs State Of Uttarakhand

CRIMINAL APPEAL NO. 1012 OF 2009

NEELAM BAHAL & ANR. .. APPELLANT(S)

vs.

STATE OF

UTTARAKHAND .. RESPONDENT(S)

O R D E R

This appeal arises from the following facts:

Satish Chandra (PW.3) was running a video and tea

shop in Tagore Villa, Dehradun and had employed Shanichar

(PW.2) as a servant. It appears that Shanichar and Satish

Chandra fell out over the payment of wages on which the former left his employment and accepted fresh employment

with Rakesh Bahal, one of the appellant's herein, as a

servant in his shop. On account of this development the

relations between the parties, who were otherwise well

known to each other, became extremely strained and some

threat was given by the Rakesh Bahal that in case Shanichar

was not returned to his employment, dire consequence would

follow on the complainant party. As a result of some

compromise, however, it was ultimately agreed that

Shanichar would return to Rakesh Bahal and for that

purpose Satish Chandra took Shanichar on his scooter to

the residence of Rakesh Bahal. It is further the case of

the prosecution that there was some altercation between

Rakesh Bahal on the one hand and Satish Chandra, Neelam -2-

appellant (sister of Rakesh Bahal) and mother Raj Bahal on

the other, and in the course of this altercation Rakesh

Bahal, caused two injuries with a knife which he was

carrying on the person of Satish Chandra. Satish Chandra

was removed to the hospital but en route he told his

brother Rajiv (PW.4) as to what had transpired and on this

information a report was lodged by (PW.4) in the police

station. The investigation was thereafter started and

various steps therein were taken and on the completion

thereof a charge under Sec. 307/34 was framed against the

three accused - Rakesh Bahal. his mother Raj Bahal and sister Neelam Bahal. The trial Court in its judgment dated

27/5/1991 relying on the statement of Shanichar (PW.2) and

the injured himself Satish Chandra (PW.3) as also on the

evidence of Dr.S.M.Sehgal (PW.1) who had examined Satish

Chandra on his admission to the hospital on the crucial

day, convicted appellant Rakesh Bahal under Sec.307 IPC and

sentenced him to undergo seven years R.I. and Neelam Bahal

and Raj Bahal under Sec.307/34 IPC and sentenced them to

undergo two years R.I. each.

An appeal was thereafter filed in the High Court of

Uttarakhand at Nainital by all three and was ultimately

dismissed qua Rakesh Bahal and Neelam Bahal, the

appellants herein, but as Raj Bahal had in the meanwhile

passed away the appeal qua her was disposed of as having abated. It is in this situation that the matter is before

us after grant of special leave.

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Ms. Kamini Jaiswal, the learned counsel for the

appellants has raised several argument in the course of the

hearing. She has pointed out that there was absolutely no

justification in believing the story given by PW.2 and PW.3

as several other witnesses from the locality including one

Rajender Kapur and Bablu were admittedly present at the

place of incident and though examined by the police, had

not been produced as witnesses in Court. It has further

been pleaded that the evidence of PW.2 did not inspire confidence and as it suffered from glaring improvements

vis-a-vis his statement under Sec.161 of the Cr.P.C., the

entire story stood falsified. It has also been contended

that in any case Neelam Bahal, appellant could not have

been roped in with the aid of Section 34 as no injury had

been attributed to her, and as per the prosecution story

she had only held Satish Chandra along with her mother so

as to facilitate the infliction of the injury and that she

was unaware that Rakesh Bahal was carrying a knife on his

person. It has also been submitted that in any case in the

background of the fact that Dr. S.M.Sehgal (PW.1) had not

given a categoric opinion as to the nature of injury, the

conviction, if at all, would fall under Section 323 or 324

of the IPC. Ms. Jaiswal's arguments have been controverted by the learned counsel for the State. He has

submitted that there was absolutely no reason to discard

the evidence of PW.2 and PW.4 and the mere ipsi dixit of

the accused in their statements under Section 313 of the

-4- Cr.P.C. with regard to the fact that Satish Chandra had an

evil eye on Rakesh Bahal's sister including Neelam, which

had led to the incident was not borne out from the

evidence. It has also been pleaded that a case of common

intention vis.-a-vis. Neelam Bahal was also made out and

that from the overall tenor of the evidence of Dr.

S.M.Sehgal (PW.1) it was apparent that the injury caused to Satish Chandra was dangerous to life.

We have considered the arguments advanced by the

learned counsel for the parties. We find absolutely no

reason to doubt the statements of PW.2 and 4 with regard to

the incident. PW.2 was an independent witness in as much

that he had been employed with the complainant party as

well as the accused party at various times. It also

appears that he was the focus of the quarrel and the

motive that had precipitated the incident, as both the

parties were pushing for employing which had led to the

unpleasant situation between them. Likewise we find

difficult to disbelieve the statement of PW.3 the injured

victim himself as he has given a graphic description as to

what had happened. It is true, as has been contended by Ms. Jaiswal, that there are some differences between the

statements of these two witnesses but they are bound to

occur with the evidence being recorded after about five

years. It must also be borne in mind that a parrot like

deposition after a long lapse of time smacks of tutoring

and some differences in fact advance the credibility of the

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witness. We also find that the counter version given by

the accused cannot be accepted. The accused has claimed

that PW.3 had an evil eye on Neelam Bahal but if that was

the reason for the incident they were further called upon

to explain as to how the injuries had been suffered by PW.3, more particularly as the incident had apparently

taken place outside the residential home of the appellants.

We are, however, of the opinion that there is some

uncertainty about the involvement of Neelam Bahal,

appellant No.1. The facts of the case indicate that she

was perhaps not aware that Rakesh Bahal was carrying a

weapon in his pocket or on his person. The prosecution

evidence also reveals that it was only after the quarrel

had reached a certain pitch that he had rushed inside the

house and had brought a knife and caused the injuries to

Satish Chandra. We also find that no specific overt act

has been attributed to Neelam Bahal and only a very tenuous

role that has been ascribed to her. To our mind this kind

of evidence creates a clear doubt as to her participation. We are, therefore, of the opinion that Neelam Bahal,

appellant No.1 must be given the benefit of doubt, and

thereby acquitted. The appeal qua her is allowed.

We also find some merit in Ms. Jaiswal's third

argument with regard to the nature of the offence. We have

very carefully gone through the evidence of PW.4 - Dr.

Sehgal. We re-produce the injuries hereunder:

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"1. Incised wound 5cm x 1.5 cm depth not probed on outer aspect of left side of chest, 28 cm below left axilla.

2. Incised wound 6 cm x 2 cm x bone deep on top of left shoulder.

2 In general condition of the patient was very bad. Pulse was very week.

B.P. could not be recorded."

A reading of the above would indicate that though

the general condition of the patient was very bad yet there

is no categoric statement in the medical certificate issued

by Dr. S.M.Sehgal that the injuries were in fact dangerous

to life. We are unable to fathom as to whether this was a

deliberate omission or an oversight but whatsoever it may

be. The benefit must accrue to the accused. We have also

gone through the evidence of Dr.S.M.Sehgal and find that he

had admitted that he had not mentioned that the injury was

dangerous to the life as he did not think it necessary to do so. At the same time we are unable to accept Ms.

Jaiswal's statement that the case would fall under Section

323 or 324 of the IPC but in the light of the statement of

victim that he had remained in hospital for fifteen days

due to the injuries caused to him, makes out a case of

grevious hurt. Rakesh Bahal alone should thus be held

guilty under Sec.326 of the IPC simplicitor. We are told

that he has already undergone almost one year of the

sentence and in the light of the fact that the incident

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happened in the year 1987 when he was a young man of about

25 and now must be of middle age, we reduce the sentence to the period already undergone by him.

The appeal is disposed of as above.

We direct that the bail bonds executed by Neelam

Bahal shall stand discharged.

.................J. (HARJIT SINGH BEDI)

.................J. (DEEPAK VERMA) New Delhi, December 2, 2009.