IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 113 of 2002 Date of Decision : June _16_ , 2011 State of Himachal Pradesh Appellant Versus Raj Kumar and another Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant/State. For the respondents : Mr. Chaman Negi, Advocate, vice Mr. Anup Chitkara, Advocate, for the respondents. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 12.11.1999, accused were put to trial. In terms of judgment dated 17.10.2001, passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 43-ST/7 of 2000, titled as State of H.P. versus Raj Kumar and another, the accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 12.11.1999 at about 6.00 p.m. accused Raj Kumar and accused Nalin Sharma came to Whether reports of Local Papers may be allowed to see the judgment? 2 the liquor vend at village Narag where Sh. Suresh Kumar (PW-2) and Sh. Hans Raj were working as salesmen. Accused purchased three bottles of local liquor and demanded one pint of English liquor free. The salesmen refused to oblige and consequently the accused threatened them by saying that their days were numbered. At about 10.00 p.m. Sh. Suresh Kumar (PW-2) and Sh. Hans Raj closed the shutter of the liquor vend for the purposes of sleeping inside. Later at about 11.00 p.m. they heard the accused persons tie the shutter of the liquor vend from outside with wires and loudly shout that be tied properly so that the shutter could not be opened. The accused also tied the shutter of the adjoining shop of tailor master Sh. Sudesh Kumar wherein Sh. Zulfam (PW-3) and Sh. Shyam Lal were sleeping. Thereafter the accused threw petrol on the shutters of the shops and set them on fire. Sh. Zulfam and Sh. Shyam Lal shouted for help which attracted the attention of Sh. Sarvjeet Singh (PW-4) who after opening the shutter of the shop of the tailor master rescued the occupants. Thereafter Sh. Zulfam, Sh. Shyam Lal and Sh. Sarvjeet Singh heard cries of Sh. Suresh Kumar and Sh. Hans Raj coming from inside the liquor vend. The shutter of the vend was opened and both were rescued from there. Sh. Suresh Kumar and Sh. Hans Raj informed the Manager of the liquor vend about the incident and then reported the matter to the police and F.I.R. No. 85/99 (Ext. PD), dated 13.11.1999 was registered at Police Station Pachhad, District Sirmaur, H.P. at 11.30 a.m. The matter was investigated by ASI-Balraj (PW-6). Statements of the witnesses were 3 recorded. Wires, burnt pieces of plastic, cloth and wood were seized by the police and sent to the Forensic Science Laboratory for examination and report was obtained by the police. With the completion of the investigation challan was presented in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 342, 436, 307 all read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined six witnesses and the statements of the accused under Section 313 Cr. P.C. were also recorded. The Court below acquitted the accused of the charged offences for the reason that prosecution failed to prove the case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence on record. 5. According to the accused there was prior animosity between them and Sh. Suresh Kumar hence they stand falsely implicated. Accused have led one witness (Sh. Rattan Singh, DW-1) to establish this fact. 6. Without even considering the defence taken by the accused, we are of the considered view that the prosecution story, as narrated by PW-2, does not inspire confidence and it cannot be said that the charges against the accused stand established and proved by clear, cogent, consistent evidence and reliable witnesses. 4 7. According to the prosecution, on 12.11.1999 accused had demanded free liquor from Sh. Suresh Kumar and Sh. Hans Raj. On their refusal they were threatened by the accused of dire consequences. Now Sh. Hans Raj has not been examined in the Court and version of Sh. Suresh Kumar (PW-2) in this regard does not inspire confidence. No doubt in Court he has unequivocally supported the prosecution case but we are of the view that he has made several improvements rendering his version to be doubtful. The fact that the accused had demanded free liquor does not stand mentioned in the F.I.R. (Ext. PD) with which he was confronted with. This renders his version to be doubtful and an after thought. Thus the genesis of the dispute cannot be said to have been fully established by the prosecution on record. At that time in the liquor vend there were two persons. The matter could have been conveniently reported to the local members of the Panchayat or to the owners/employees of the adjoining shops. From the site plan (Ext. PL) it is evident that liquor vend is located in the heart of the bazaar and there are at least six shops there. 8. With regard to the incident which took place at 11.00 p.m., wherein the accused allegedly tied the shutters of the two shops from outside and after sprinkling petrol set them on fire, we also feel the prosecution case to be weak. The fact that fire took place is not in dispute. There is nothing on record to show that the report of the Forensic Science Laboratory indicated that any inflammable material was found in the articles sent for analysis. 5 9. With regard to the second incident prosecution has relied upon the testimonies of Sh. Suresh Kumar (PW-2), Sh. Zulfam (PW- 3) and Sh. Sarvjeet Singh (PW-4). PW-3 and PW-4 have not supported the prosecution case at all. They were declared hostile and cross examined by the Public Prosecutor and yet nothing fruitful could come out in their testimonies. It cannot be said that they have deposed falsely. They specifically deny that PW-2 informed them about the threats given by the accused in connection with the incident which took place at 6.00 p.m. They deny that PW-2 had narrated to them the cause of the fire. 10. The sole testimony of PW-2, in our considered view, does not inspire confidence at all. He has made several improvements in Court. He was confronted with F.I.R. (Ext. PD) recorded by the police in which there is no reference about the fact that accused had demanded free liquor. Importantly this witness has contradicted his earlier version as recorded in Ext. PD and also the version of police officials SI-Dilshad Mohammad (PW-5) and ASI-Balraj (PW-6). In Ext. PD he specifically states that petrol was sprinkled from the front side of the shop on the shutters from outside. Whereas in Court he has taken a different stand and deposed that petrol was sprinkled through the holes in the bathroom which was on the side of the liquor vend. Now there is nothing on record to show the extent of damage caused in the bathroom. Undisputedly fire was extinguished by Sh. Sarvjeet from the side of the shutters and not the bathroom. Further if while tying the shutters from outside Sh. Suresh Kumar 6 had heard the accused talking with each other then why is it that he did not raise any hue and cry at that moment? Attention of neighbours could have been conveniently and easily attracted. Why did he wait for the accused to set the shutters on fire if he had already come to know that they were up to some mischief? Further in F.I.R he gets recorded that after setting the shutter on fire accused went away hurling abuses, which fact is not deposed by him in Court. We find that this witness has not disclosed the whole truth. We also find that this witness waited for sufficiently long time to report the matter to the police. He first brought the matter to the notice of the Manager Sh. Arun Kumar, who has not been examined in the Court, and then came to the police. What transpired between the two has not come on record. Further the possibility of consultation and due deliberation of false implication of the accused in this case cannot be ruled out. 11. Having perused the testimonies of the prosecution witnesses on record we find that no case for interference is made out. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and trustworthy material on record. 12. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated 7 the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June _16_, 2011 (PK)