IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 705 of 1996. Decided on: 15.5.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Laxmi Singh. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent : Mr. Chaman Negi, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has arisen after the leave to appeal has been granted in reference to judgment, dated 26.6.1996, passed by the learned Sessions Judge, Kinnaur, Sessions Division, Rampur in case No. 29-R/7 of 1995/94 in reference to the offences under Sections 451, 380, 342 IPC read with Section 307 IPC. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. The prosecution case in brief is that the police has received one application from Chief Inspector, H.R.T.C., Tapri, wherein the complainant has alleged that on 29.2.1992, he along 1 Whether reporters of the local papers may be allowed to see the judgment? 2 with Ved Parkash, Inspector reached at Tapri at 7.00 p.m. and stayed in the house of Khem Raj Gupta, Superintendent. One Mohan Lal, Inspector and Parkash Chand, Peon were also staying there. During night one person came with kerosene oil gallon and sprinkled the oil on the bed and tried to put it on fire by lighting the match stick. Mohan Lal, Inspector told him that the persons seems to be Laxmi Singh, Conductor, who removed his coat and coat of Ved Parkash along with Attache and thereafter, ran away. The accused was caught by the flying squad on 26.2.1992, when certain passengers were found without tickets and the entire money was pocketed by the accused. On the basis of the complaint of Hari Dutt, the case was registered and the police immediately visited the spot. The police has taken in possession, the articles from the spot and prepared the site plan. They have recorded the statements of the witnesses. After completing the investigation and receipt of the report of the Chemical Examiner, the present challan was filed in the Court against the accused. 4. The accused was charged for offence(s) punishable under Sections 342, 380, 451 IPC read with Section 307 IPC to which the accused pleaded not guilty and claimed trial. 5. The prosecution in support of its case has examined eight witnesses in all, whereas, the accused in his testimony, under Section 313 Cr.P.C. has expressed his innocence and has denied the allegations of the prosecution. 6. On analysis of material on record, we find that PW-1 Devi Singh and PW-2 Chhotu Ram have not supported the prosecution version and have been declared hostile. Likewise, 3 PW-3 Surender Kumar, Clerk, H.R.T.C. has also stated that the appointment letter of accused Laxmi Singh was in the Court file which is Ext. PW-3/A. 7. PW-4 Prem Singh, Regional Manager, H.R.T.C. has placed the abstract of Duty Register to the police. PW-5 Mohan Lal, Inspector has supported the prosecution version while stating that on 29.2.1992, the Flying Squad comprising of Hari Dutt, Ved Parkash and Prem singh came at about 7.00 p.m.. They all took dinner and went to sleep. At about 2.15 a.m., he heard noise and noticed that some one was lighting the match stick. He had seen the alleged accused and had asked him why he had entered the room. The alleged accused immediately went out and bolted the door from outside. Light was switched on and all persons were awakened. On their knocking at the door, the same was opened by Driver Puran Chand, who was sleeping in the adjoining room. The witness had seen the kerosene oil is being sprinkled on the quilt of Ved Parkash and a plastic Can was also found lying there. The background of such mischief done by the alleged accused was the incident of 26.2.1992, when the alleged accused was found carrying passengers without tickets. 8. Hari Dutt reported the matter to the police and police had come to the spot on the next day at about 11-12 noon. In cross-examination, PW-5 Mohan Lal has deposed that Hari Dutt and Ved Parkash got up when the alleged accused had already left the room. As per testimony of PW-5, Police Post is at about a distance of 50 yards from the above place where they were residing. 4 9. PW-6 Hari Dutt, Chief Inspector while supporting the prosecution version has stated that at about 2.00 a.m. alleged accused had entered the room and sprinkled kerosene oil on the cot of Ved Parkash and tried to set on fire. He made inquiry from the alleged accused as to what he was doing. The alleged accused removed his attaché along with a coat and thereafter, he ran away from there after bolting the room from outside. According to PW-6 Hari Dutt, the alleged accused ran away from the spot and jumped towards Satluj river and when he had gone to Powari to inform his colleague, they were not present there, as such, he got down from the bus where Ved Parkash, Puran Dass and Mohan Lal met him and all of them had went to Tapri, where the matter was reported to the police vide application Ext. PW-6/A. In cross-examination, PW- 6 Hari Dutt has stated that he had not tried to report the matter to the police during night despite the fact that Police Post is only two minutes walkable distance from the spot. Next day also, the matter was not reported to the police. PW-6 in his cross-examination has stated that he did not call the persons from the surrounding area to apprehend the alleged accused and has also stated that he woke up with Mohan Lal and saw the alleged accused lighting his match stick. 10. PW-7 Ved Parkash, a member of the Flying Squad, with Hari Dutt, Chief Inspector while supporting the prosecution case in his cross-examination stated that he has not seen the attaché and the coat in the Court. He has denied the recovery of articles from the alleged accused. He has also denied the knowledge as to who had bolted the room from inside. He did not 5 remember as to whether the door was single or was in two parts. He did not know about removal of coat and other articles from the room. He was unaware about the efforts of Hari Dutt to search the alleged accused at Tapri. 11. PW-8 Jagdish Chand, Conductor, H.R.T.C. has not supported the prosecution case substantially. PW-9 Man Chand has only produced the record of Check Post. PW-10 Mast Ram is said to have prepared the challan only. PW-11, Sant Singh was Incharge, Police Post in the year 1992 and said that the FIR was lodged, however, it was not within his knowledge. PW-12 Ramesh Chand to whom the sealed parcels were handed over by ASI Mangat Ram which were subsequently sent to F.S.L. Bharari. 12. PW-13 Thena Ram had taken two sealed parcels and handed over the same to F.S.L. Bharari. PW-14 Investigating Officer has, however, stated that on 6.3.1992, he received one application at Tapri. Said application was sent by him to Police Station, Nichar for registring the case and on 7.3.1992, he received the file and started the investigation. 13. We after having going through the prosecution witnesses and the material on record noticed that the FIR was lodged on 6.3.1992. As such, there was delay of six days in lodging the FIR. Incident is alleged to have taken place on 29.2.1992 and FIR was lodged on 6.3.1992 Ext. PW-10/A, whereas, the police came on the spot on 1.3.1992 as per versions of PW-1 Devi Singh and PW-2 Chhotu Ram and on 1.3.1992 only possession of the articles were taken. As per version of PW-11 Sant Singh, application was shown by M.C. Duni Chand to him but 6 the application remained unattended and the application Ext. PW- 6/A was signed on 1.3.1992 and as per endorsement of the Incharge, Police Post, Sungra, it was forwarded by him on 6.3.1992 for registration of the case. There is no explanation by the Investigating Officer why the application remained unattended in the office or why it was kept in Police Post. Time of incident as indicated in the FIR was 7.00 p.m., whereas in the complaint, it has been stated that in night hours the accused had entered the room. Nothing is known as to how the time of incident was mentioned in FIR as 7.00 p.m. 14. PW-5 through his testimony has indicated that he noticed the alleged accused inside the room and asked him what he is doing and the alleged accused ran away after removing the coat and attaché and bolted the room from outside, whereafter, Parkash Chand and Puran Chabnd were awakened who were sleeping in the adjoining room. As per version of PW-5 Mohan Lal, the place where they had stayed was thickly populated and other people were also residing in the building and the Police Post is about 50 yards from that place and as per version of PW-6 Hari Dutt, complainant, when the door was locked from outside, he came out from other side, where Puran Chand and Parkash chand were sleeping and they tried to locate the accused but he was not traced. As per version of PW-7 Ved Parkash, the room was locked from inside and the door was very weak. It could be opened by one jerk. The witnesses, Mohan Lal, Hari Dutt and Ved Parkash have stated that when they entered the room, they saw the accused sprinkling the kerosene oil and tried to put the cot on fire while it 7 was noticed by Mohan Lal, who raised alarm and the alleged accused left the room while removing two coats and attaché. 15. All the witnesses have, however, stated that in the morning the alleged accused was traced out. However, they are silent about the articles said to have been stolen. The Investigating Officer has nowhere stated as to what has happened the stolen articles. The prosecution, however, has miserably failed to explain the delay in filing the FIR whereas, the Police Post was only 50 yards from the place of incident and casual approach in alleged serious offences was made on the part of the complainant as well as prosecution. There is apparent contradiction in the testimony of the prosecution witnesses in respect of the manner how the room was bolted and observing the alleged accused while coming in the room and running away and doing the mischief. From the testimony of the prosecution witnesses, it appears that none has observed the alleged accused and the entire story appears to be concocted and is based on hear say. The versions of prosecution witnesses are not in harmony and PW-1 and PW-2 have been declared hostile and the prosecution has failed to link the alleged accused with the alleged offence and entire chain of story is missing and the unexplained delay of six days has in fact become fatal to the prosecution case. 16. After carefully going through the impugned judgment, record and witnesses, we find that there is no scope of interference in the impugned judgment and the prosecution has rightly been found to have failed to bring home the guilt to the alleged accused, 8 as such, the benefit of doubt has rightly been given to the accused, therefore, the appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 15, 2010. (cr)