INDIRA DEVI AND ORS.versusSTATE OF HIMACHAL PRADESH

                            [2016] 3 S.C.R. 568



A                       INDIRA DEVI AND ORS.
                                     v.
                   STATE OF HIMACHAL PRADESH
                     (Criminal Appeal No. 524 of2016)
B                             JUNE 03, 2016
           [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]
          Penal Code, 1860 - ss. 3071149 a11d s. 148 - Conviction under
    - Prosecution case that land dispute befl1'een the victim a11d the
    husband of appellant no. 1 - On the fatefit! day, victim beaten by
c   appellants and two others - Gun shot injuries inflicted by husband
    of appellant no. 1 and axe injuries inflicted by husband of appellant
    no. 3 _:_FIR lodged by victim for offences uls. 14711481307 rlw s.
    149 ands. 25 of Arms Act against three appellants-ladies alongwith
    husband of appellant no. 1 and 3 - Conviction offive charge sheeted
    accused uls. 3071149 ands, 148 by the courts below - On appeal,
D   held: Courts below should not have believed the exaggerated and
    contradictory deposition of the victim qua appellants - Medical
    evidence did not corroborate the subsequent allegations made by
    the victim against appellants - Trial court ignored the contradiction
    and subsequent development qua the three appellants as also erred
E   in not keeping in mind that injured witness when interested must be
    subjected to carefitl scrutiny - High Court erred in not analyzing
    the evidence of the victim as well as the medical evidence with care
    and caution -Thus, appellants acquitted of all the charges by
    extending them benefit of doubt.
          Allowing the appeal, the Court
F
          HELD: 1.1 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
G
    vendetta. The trial court ignored the contradiction and subsequent
    development qua the three appellants 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. [Paras 6, 7)
H   (572-D-F]
                                  568
INDIRA DEVI AND ORS. v. STATE OF HIMACHAL PRADESH                    569



       1.2 As per prosecution case there is no corresponding injury A
on the person of victim to support the allegation of assault against' ·
the appellants. Coupled with this fact the initial version also creates
a serious doubt that the specific allegations against the appellants
have been developed later in the course of deposition in Court.
Such allegation came only from PW-1 without support from any
                                                                        B
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 bearing the appeal.
Unfortunately for the appellants, such consideration did not take
place. [Para 8] [573-B-D]                                               c
        1.3 A perusal of the impugned judgment shows that the
High Court did not consider the specific case of the appellants
that they were merely by-standers and specific allegations against
them have been added subsequently, contrary to the statement
 before the police. The High Court erred in not analyzing the D
evidence of the victim 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 IPC. [Para 9] [573-D-l<']
                                                                        E
        1.4 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 F
 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
                                                                        G
 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. The conviction and sentence imposed
  against the appellants are set aside and are acquitted of all the
  charges by extending them the benefit of doubt. [Para 10] [573-
  G-H; 574-A-B]                                                         H
570             SUPREME COURT REPORTS                            [2016] 3 S.C .R.



A           CRlMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 524 of 2016.
             From the Judgment and Order dated 02.01.2016 of the High Cou11
      of 1-Iimachal Pradesh at Shim la in CRA No. 4015 of 2013.
            Naresh Kumar Tomar, Bal raj Dewan, Ad vs. for the Appellant.
B
             Suryanarayana Singh, Sr. Addi. AG Ms. Pragati Neekhra, Adv.
      for the Respondent.
            The Judgment of the Cow1 was delivered by
             SHIVA KIRTI SINGH, J. I. All the three appellants who are
c     ladies were arrayed as accused alongwith Brij Lal, husband of appellant
      no. I and Dev Raj, husband of appellant no. 3, in FIR no. 198 of2011
      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 !PC and Section 25 of the Arms Act. The learned
      Additional Sessions Judge Ghumarwin, Bilaspur accepted the prosecution
D
      case against all the five chargesheeted accused in Sessions Trial No.
      1017 of 2012 and imposed the sentence of rigorous imprisonment (RI)
      for five years and a fine ofRs.5,000/-each forthe offence under Section
      307 read with Section l 49 of the !PC. RI for six months and a fine of
      Rs.1,000/- each was also imposed on all the convicts for offence under
E     Section 148 of the !PC. Accused Brij Lal was further sentenced to
      undergo simple imprisonment for two years along with a fine ofRs.3,000/
      - for offence under Section 25 of the Arms Act. In default of payment of
      fines, fu1iher substantive sentences of varying periods were a !so ordered
      by the trial cou11. In appeal the High Court of Himachal Pradesh at
      Shim la by the impugned judgment and order dated 2.1.2016 passed in
F
      Criminal Appeal No. 4015of2013. 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
G
      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
1-1   subsequent specific allegations against the appellants as mere
INDIRA DEVI AND ORS. v. STATE OF HIMACHAL PRADESH                             571
               [SHIVA KIRTI SINGH, J.]

exaggerations and improvements fit to be discarded in view of specific         A
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
                                                                               B
words, as per learned counsel for the appellants the Courts below have
erred in fact and in law in applying Section 149 of the !PC 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
                                                                               c
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.            D
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,             E
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.
                                                                               F
       5. As PW-1, the victim Shriram deposed on 16.8.2012 in Com1
giving details of civil dispute/land dispute between him and his brothers.
He claimed to have forbidden the accused persons from 1ifting 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              G
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         H
572            SUPREME COURT REPORTS                          [2016] 3 S.CR.


A     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-
B
      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.
             6. The trial comtjudgment discloses that the defence confronted
c     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
D     the Doctor, the trial comt 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.
E
             7. The proposition of law that an injured witness is generally
      reliable is no doubt co1Tect but even an injured witness must be subjected
      to careful scrutiny if circumstances and materials available on record
      suggest that he may have falsely imp Iicated some innocent persons also
      as an after thought on account of enmity and vendetta. The trial comt
 F    erred in not keeping this in mind.
             8. The medical evidence of PW-17, Dr. Superiya Atwal proves
      the injury on left side of the face of PW-I to be a gun shot injury. The
      second injury was an abrasion on the medial aspect of left hand, Sx I cm
      in size. The third injury was a bleeding one on the back of right hand
G     5x5xl/4 cm in size extending from thumb region to middle finger. The
      fourth injury was again an abrasion on front of right thigh of2xl 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-
H
      mm;n•Hoo tho Doctw •dm;ttoo thot ;njory no. 2 wru> po";bJe even by ~
INDIRA DEVI AND. ORS. v. STATE OF HIMACHAt PRADESH                             573
               [SHIVA KIRTI SINGH, J.]

a fall on hard surface. A careful analysis of the injuries as proved by the     A
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 I 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
                                                                                B
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 doubtthat specific allegations against the appellants
have been developed later in the course of deposition in Court. Such
allegation has come only from PW-I without support from any                     c
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. Unfo1tunately for the appellants,
such consideration did not take place.
                                                                                D
       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- I as well as the medical evidence with care and caution in           E
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.                                     F
        I 0. 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
                                                                                G
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           H
574                SUPREME COURT REPORTS                      [2016] 3 S.C.R.



A     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 re&son 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 ?,;-1d do not agree with the learned counsel for the State who
B
      has soug:n 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. I has been exempted from surrendering in this case. She
      now need not surrender. The other appellants shall be released from
c     custody forthwith if not required in any other case. The appeal stands
      allowed.


      Nidhi Jain                                                 Appeal allowed.