REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             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

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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  

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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.