Neelam Bahal & Anr. Vs. State of Uttarakhand
Email[From the Judgement and Order dated 05.12.2008 of the High Court of Uttarakhand at Nainital in Criminal Appeal No. 751 of 2001 (Old No. 1077 of 1991]
[From the Judgement and Order dated 05.12.2008 of the High Court of Uttarakhand at Nainital in Criminal Appeal No. 751 of 2001 (Old No. 1077 of 1991]
Ms. Kamini Jaiswal, Ms. S. Bakshi, Mr. A. Shrestha, Advocates, for the Appellant(s).
Mr. A.P. Sahai, Mr. Jatinder Kumar Bhatia, Advocates, for the Respondent(s).
Evidence Act, 1872
Section 3 – Penal Code, 1860, Sections 307, 34 – Independent witness – Reliability – PW was earlier in the employment of the victim and later on employed by the accused – The accused and the victim both having differences – Subsequently victim brought the said witness to the house of the accused to resolve the matter – There, accused party entering into altercation and caused stab injuries. Held, that PW was independent witness and there is no reason to doubt his testimony. (Para 5)
Section 3 – Penal Code, 1860, Sections 307, 34 – Injured witness – Reliability – Injured coming to the house of the accused where altercation took place – Altercation on account of injured’s employee joining employment of accused – Injured himself bringing the said PW to the house of the accused – Graphic description of the event stated. Held, that it is difficult to disbelieve the statement of the injured witness. (Para 5)
Section 3 – Penal Code, 1860, Sections 307, 34 – Injured witness – Reliability – Discrepancies – Injured witness and an independent witness – Some differences in the statement – Examination after a long lapse of time of about five years. Held, that such differences / discrepancies are bound to occur in the statement as parrot like deposition after a long lapse of time would smack of tutoring. Some differences in the facts, would advance the credibility of the witnesses. (Para 5)
Penal Code, 1860
Sections 307, 34 – Evidence Act, 1872, Sections 3, 45 – Attempt to murder – Employee of the complainant left and joined the accused – Both though friends earlier, developed strained relations – In order to resolve the differences, complainant brought the employee to the accused – Altercation followed – Accused brought knife and gave two stab injuries one on the left side of the chest and other on the left shoulder – Medical evidence not suggesting if the injuries were dangerous to life – Injured however remained in hospital for 15 days. Held, that the case of the accused falls in the category of grievous hurt and therefore the appropriate conviction is under Section 326. Sentence reduced to the period of one year already undergone. (Paras 8, 9)
Sections 34, 307 – Evidence Act, 1872, Sections 3, 45 – Common intention – Evidence – Complainant/ injured bringing the employee to the house of the accused – Altercation followed – One accused bringing the knife and causing two stab injuries – Sister of the accused also involved – No evidence to show that she knew that her brother was carrying a weapon in his pocket though the prosecution case is that after the quarrel started brother rushed inside the house and brought knife – No specific overt act attributed to sister – Only tenuous role of altercation stated. Held, that there is a clear doubt about her participation in the offence and therefore she is entitled to benefit of doubt. (Paras 6 & 7)
Ed.: With respect, it is submitted that as per Section 320, clause Eighthly grievous hurt is defined when injured is confined for 20 days.
1. This appeal arises from the following facts:
2. 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 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 Section 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 Section 307 IPC and sentenced him to undergo seven years R.I. and Neelam Bahal and Raj Bahal under Section 307/34 IPC and sentenced them to undergo two years R.I. each.
3. 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.
4. 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 Section 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 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.
5. 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 witnesses. 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.
6. 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.
7. 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.
8. 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:
‘1. Incised wound 5 cm 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.
In general condition of the patient was very bad. Pulse was very week. B.P. could not be recorded.’
9. 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 grievous hurt. Rakesh Bahal alone should thus be held guilty under Section 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 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.
10. The appeal is disposed of as above.
11. We direct that the bail bonds executed by Neelam Bahal shall stand discharged.
