IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.122 of 1994 Reserved on: 28.8.2008. Date of decision: 5.9.2008 State of H.P. Appellant Versus Narinder Kumar . Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Ram Murti Bisht , Dy. Advocate General and Mr. Ashwani K.Sharma, Advocate. For the respondent: Mr.Dharamvir Sharma, Advocate. V.K.Ahuja, J This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Kangra at Dharamshala dated 1.3.1994, vide which the respondent was acquitted of the charge framed against him under Sections 302, 201 and 436 IPC. Briefly stated, the facts of the case are that on 14.6.1993 at about 3.30 P.M. a statement was made by the complainant Shiv Kumar before the Police Officer that his father came to shop at about 7.40 AM and he himself had gone to Kotla for some work. It was further stated by the complainant that when he reached at about 10.45 AM by bus at Pakka Tiala, he learnt that their shop had been set on fire. He reached the spot and found several persons Whether the reporters of Local Papers may be allowed to see the Judgment? .Yes gathered there who stated that they had seen the fire but no person was present at that time. He also alleged that his father had also been burnt in the fire that broke out in the shop and their several articles of Maniyari and Kariyana worth Rs.2.00 lac were also destroyed in the fire. He also expressed his doubt on the respondent since he had come to their shop on the previous night at about 8.45 p.m. along with a boy and they both were missing from the village. He also stated that prior to the occurrence these boys were present in their shop along with one Drati and had been seen by Lamberdar Lekh Raj and Babu Ram. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate who committed the case to the learned trial Court who tried the respondent under sections mentioned above leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the evidence, particularly the testimony of PW-1 Dr. Suresh Sankhyan, who conducted the post-mortem examination on the dead body of deceased Jagat Ram, it is clear that he found two incised wounds and a fracture of Mandible near symphysis Mentii . This proves that the deceased had been firstly grievously injured and thereafter his shop was set on fire and he died due to Asphyxia as a combined result of the fire and ante- mortem injuries and ante-mortem burns. In his complaint made to the police, PW-2 Shiv Kumar has not stated as to who has set the shop on fire. He also did not state that he learnt from any of the witnesses that his father was injured before the shop was set on fire. He only expressed his suspicion against the accused who had been allegedly seen at the shop on that morning by PWs Babu Ram and Lekh Raj. Out of these two persons who had seen the accused before the occurrence at the shop, only Babu Ram has been examined as PW-3. He stated that about 8.15 AM on that day he had gone to the shop of Jagat Ram for purchasing Biri. The accused was present there with a Drat in his hand and one Sardarji made purchases and left the shop. The accused asked for a Jhabbal and Jagat Ram, now deceased told him that the same was with Jagdish and he was asked by the accused to bring the same but after he had hardly gone three or four steps, he heard a sound on which he looked back and found Jagat Ram lying injured in a pool of blood. The accused was standing near Jagat Ram. He was threatened by the accused and he also found Lekh Ram who is his brother standing behind him and they both raised an alarm. The accused ran after them. He further stated that several persons reached the spot and at that time the accused was ready to set the shop on fire. They ran away from the spot. The police came and he was summoned by the police at 3.00 P.M. and his statement was recorded at 5.00 p.m. He clearly stated that he had not come to the place of occurrence till the time he was summoned by the police since the time he left the place along with his brother Lekh Raj. PW-2 Shiv Kumar as complainant, has stated that both these witnesses had not met him till they were called to the spot by the police. PW-3 Babu Ram further stated that he had no talk with anyone regarding the occurrence and none came to their house and met them before he and his brother Lekh Raj were called by the police. This clearly shows that both the witnesses had no occasion to either tell the complainant PW-2 Shiv Kumar or any other person about the occurrence. It looks surprising that before he left the place, persons had gathered there and after that the shop was set on fire, but he did not join other persons for extinguishing the fire. He further stated that he and his brother Lekh Raj told the persons present at the spot what they had seen. His brother Lekh Raj was not examined by the prosecution. PW-3 Babu Ram has clearly stated that he never met PW-2 Shiv Kumar before arrival of police. Thus, it is quite surprising that how PW-2 Shiv Kumar had stated that the accused was seen present at the spot before the occurrence by PW Babu Ram and Lekh Raj. In case the complainant was knowing about this fact that this occurrence was witnessed by these two PWs, the omission to state these facts in the statement made by him to the police Ex.PB casts a shadow of doubt on the version put up by the prosecution since he has omitted to mention the material particulars relating to the presence of the accused or his identity and the part played by him. It is also in the testimony of PW-2 Shiv Kumar that at 10.45 A.M. itself he had come to Pakka Tiala and came to know that son of Parkash after having killed his father with a Drat had set him on fire but it finds no mention in his statement Ex.PB made to the police which is a material omission. It is also clear that PW-2 Babu Ram was resident of village Niar and the occurrence had taken place at Village Jalera and it looks surprising that he along with his brother came to the village of the deceased in the early hours to purchase Biris when shops are available in their village though they came up with an explanation that the shops were closed at that time. Therefore, PW-3 Babu Ram and his brother Lekh Raj are only chance witnesses and their presence at the place of occurrence was found to be doubtful by the learned trial Court. PW-2 Babu Ram, the brother of PW-3, Lekh Raj was a Lamberdar of the village and was a material witness and it was his duty to have informed the police about the occurrence once he had seen it, but he neither informed the police nor informed any other person about the occurrence which facts have come up in the testimony of PW-3 Babu Ram. None of the persons, who had gathered at the spot, have been produced by the prosecution to prove that they had gathered at the spot after the shop was set on fire and that PW-3 Babu Ram and his brother Lekh Raj were present at the spot, which fact could have been established by them. PW-5 Raghubir Singh, who reached the spot at 10.A.M. has stated that when he reached the spot, PW-3 Babu Ram was not present there at the spot and Babu Ram and his brother Lekh Raj came there after arrival of the police and Lekh Raj was interrogated by the Police. This witness nowhere stated that he was told either by Babu Ram or his brother Lekh Raj regarding the occurrence. Therefore, presence of PW-3 Babu Ram at the spot was taken as doubtful by the learned trial Court. The learned trial Court also observed that the FIR Ex.PB/1 was shown to have been recorded at 5.00 p.m. on 14.6.1993 but it was delivered to an official of the Court at 10.00 p.m. on 14.6.1993 and there was no explanation why it was not delivered at the residence of the Judicial Magistrate, which was at a distance of less than ½ Km. from the police station. To our mind, the fact that copy of FIR was delivered late, also cannot be ignored since it was required to be sent at the earliest as it was recorded at 5.00 p.m. and house of the Judicial Magistrate was at a distance of ½ Km, the same was required to be sent immediately to his residence. The learned trial Court had also referred to another infirmity in the disclosure statement Ex.PD leading to the recovery, which was recorded on 22.6.1993 and the accused was arrested on 18.6.1993 and why the disclosure statement was recorded after sufficient lapse of time also casts a doubt about the recovery of Drat which was effected from an open place accessible to all. In view of the above infirmities and other minor infirmities, the findings of acquittal recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. There is no merit in the appeal filed by the State of H.P. which is dismissed accordingly. The bail bonds furnished by the respondent stand discharged. (Deepak Gupta),J. September 5, 2008 (V.K.Ahuja),J. (sds)