Page 1

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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.

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

1

Page 2

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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

2

Page 3

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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

3

Page 4

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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

4

Page 5

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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.

5

Page 6

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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

6

Page 7

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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

7

Page 8

Crl.A. No.524 of 2016 @ SLP(Crl.)2496/2016

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