IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 204/2001 Date of decision: 23. 2. 2011 State of H.P. …..Appellant Versus Hira Nand and others ……Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondent: Mr. M.L. Chauhan, Advocate. R.B. Misra, J. (Oral) The present Criminal Appeal has come up for adjudication after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 16.5.2000, passed by the learned Judicial Magistrate Ist Class Court No. 2 Rohru District Shimla in police Challan No. 73-2 of 1995, under Sections 25, 27 of the Indian Arms Act and 382 read with Section 34 Indian Penal Code in reference to FIR No. 219 of 1995 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - dated 13.8.1995, acquitting the accused/respondents for the aforesaid offences. 2. The prosecution case in brief is that Thankari Devi on hearing dog barking came out and noticed that sheep was taken by three persons. On making noise, sheep was left and persons ran-away. On hearing noise, her grand-son Rakesh Kumar and daughter-in-law Birma Devi also came on the spot. The moment they reached at the spot, fourth person, the person holding a gun, pointed out the gun towards Rakesh Kumar but both Rakesh Kumar and Birma Devi escaped however, they snatched the gun. The person after having been over powered disclosed his name as Hira Nand. 3. After investigation, the accused persons were charge sheeted for the aforesaid offences. 4. In order to prove its case, prosecution examined as many as ten witnesses. PW1 is Smt. Thankari Devi, PW2 is Smt. Birma Devi, PW3 is Shri Thonku Ram, PW4 is Shri Bhagmal, PW5 is Shri Bhagwan Singh, PW6 is Shri Mohinder Singh, PW7 is Shri Rakesh Kumar, PW8 is Shri Daulat Ram PW9 Shri Abdul Rashid as Investigating Officer and PW10 Om Parkash. - 3 - 5. We notice that only three witnesses, namely, PW1 Thankari Devi complainant, PW3 Birma Devi and PW7 Rakesh Kumar grand son of PW1 have deposed about the occurrence. PW1 Thankari Devi had stated in her examination-in-chief that four persons were taking her two sheeps, however, subsequently indicated that three persons were seen taking away two sheeps. In cross examination, PW1 stated that 15-20 people were gathered on the spot. In cross-examination categorically PW1 stated that she did not see any one taking out sheeps from the cow-shed. As such the testimony of PW1 is not reliable. 6. PW2 Smt. Birma Devi in her endeavour to support the prosecution case has stated that she did not see the occurrence taking place. She stated in cross-examination that previously she could not identify the accused persons but now she recognizes them. PW2 has also stated that on hearing noise, large number of people had gathered on the spot but strangely enough neither any person was cited nor was examined by the prosecution. Nothing concrete is emanating from the testimony of PW2 in favour of the prosecution. - 4 - 7. PW7 Rakesh Kumar said to be the grand son of the complainant has stated that after apprehending HIra Nand, he was given in custody of Shakru Ram when PW7 along with his mother, PW2 Smt. Birma Devi and PW1 Thankari Devi had gone to met Krishan lal, Bhagwan Dass and Mohinder Singh. Such statement, however, is not recorded in the FIR Ext. PW10/A. PW1 Thankari Devi and PW2 Birma Devi have however not stated in such a manner. Shakru Ram has also not been examined by the prosecution. As indicated in FIR Ext. PW10/A and as per statement of complainant under Section 154 of the Code of Criminal Procedure (Ext.PW9/A) when complainant raised voice, accused persons left the sheep and fled-away and only thereafter PW2 and PW7 came on the spot. Diwan Singh, Soni and Shakru Ram stated to have come on the spot were neither examined nor referred to by the prosecution. 8. PW5 Bhagwan Singh, was called on the spot by the complainant along with PW2 Birma Devi and PW7 Rakesh Kumar has indicated that whatever statement was given by him was at the behest of Rakesh Kumar (PW7). As such it appears that PW5 has not seen the occurrence. - 5 - 9. PW6 Mohinder Singh has also not supported the prosecution case and was declared hostile. 10. In view of the statement of PW1 Thankari Devi in cross-examination that adjoining to her house are the houses of Dhyanu and Balku. It is also emerging from the testimony of PW2 Birma Devi made in cross-examination that on her noise number of people had gathered on the spot and similarly PW7 has deposed that 5-6 people had gathered on the spot. It has been indicated that Soni, Shakru and Diwan were also present on the spot but strangely enough neither both the neighbours, namely, Dhyanu and Balku nor any independent witness present on the spot was examined. 11. We also note that there is discrepancy regarding Supurdari of the sheeps. As per prosecution, two sheeps black in colour were given to the complainant on Supurdari. The complainant PW1 deposed (as per Ext. PW1/A) that sheeps were given to her on Supurdari and in opening line of her cross-examination PW1 stated that sheeps were given on supurdari to Miru and Thonku. PW2 Birma Devi in cross examination deposed that sheeps were given on Supurdari to Thounku and Bhagmal. PW3 - 6 - Thonku Ram deposed that sheeps were given to him on supurdari whereas PW4 Bhagmal deposed that sheeps were given on supurdari to Thankari Devi. 12. PW7 Rakesh Kumar in cross examination stated that sheeps were given on supurdari to Thonku and Bhagmal. In view of the testimony of above mentioned prosecution witnesses, it appears that there is discrepancy which goes to the root of the case. We also take note that the incident took place on 12.8.1995, whereas, FIR was recorded on 13.8.1995 as Ext. PW10/A and report was sent to the Magistrate after a considerable delay, in derogation to the requirement of Section 157 (1) of the Code of Criminal Procedure, whereas office of the learned Magistrate was located at a walking distance as such there were no reason for sending the report by unexplained considerable delay. 13. Prosecution has also failed to obtain any report from the expert whether the alleged arms were working condition and falls within the Arms and ammunition as such each of such information make the prosecution case fatal. 14. In view of the aforesaid facts and circumstances, the prosecution has failed to bring home the guilt to the accused and the learned trial - 7 - Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In view of the above, the present Criminal appeal being devoid of any merit, is dismissed. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B Misra), Judge February 22, 2011 (Surinder Singh), (cm) Judge.