IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 286 of 1997 Decided on June 28, 2010 ________________________________________ State of H.P. …Appellant Versus Sant Ram and Others. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr.J.S.Rana, Assistant Advocate General. For the respondents: Mr. G.R. Palsra, Advocate. Justice R.B. Misra,J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 8.11.1996, passed by the Learned Additional Sessions Judge, Mandi, H.P. in Sessions trial No. 30 of 1992, under Sections 436, 147, 149, 452, 427 and 506 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case, that on 24.6.1992, an FIR was lodged by Netar Singh, son of Shri Parma Ram, who had stated that he was Pardhan of Gram Panchayat Malthehar, since 1991 and belonged to Jat community. He has further stated that in the year, 1990, daughter of Ram Singh Jat, namely Lata, was kidnapped by Rama Nand, son of Kanaura, belonging to scheduled caste and both of them are untraced. In the year, 1991, Jagta belonging to scheduled 2 caste died in village Malthehar. The accused persons, who were also scheduled caste, held out at the time of cremation of Jagta, that the deceased was their Kuram and therefore, they were participated in cremation. Such decision was taken by the accused persons being scheduled caste community. In the year, 1992, all the accused persons obstructed the truck of Netar Singh (PW.1) and gave beatings to the driver and also to Netar Singh and for that a case was registered in Police Station, Balh. Therefore, on 20.6.1992, all the accused persons threatened PW.1 to kill him. On 23-24.6.1992, in the intervening night, when PW.1 was sleeping in his house, his tractor was parked out side the house and Barsin was lying near the tractor. At about 12 at night, he heard a noise of something burning. But PW.1 thought that it was raining outside and when he came out of his house, he noticed that the accused persons were present in his courtyard and Barsin crop was on fire. Accused Harnam was seen to be holding a kerosene Can in his hand and accused Thakur Dass and Kanshi Ram were holding burning Mashals in their hands. They threatened that PW.1 would also be put on fire. PW.1 raised alarm, in the meanwhile, Mahesh Kant and Lekh Ram came to the spot. Thereafter, accused persons ran away from the spot. PW.1 further stated that his cow-shed was also set on fire and Oxen were inside the cow-shed, which had been taken out by the accused persons themselves. Dry grass was also lying in the cow-shed which was burnt. Two tyres of the tractor of PW.1 were also burnt. As such, PW.1 sustained a loss of Rs.15-20 thousand. Then accordingly, FIR Ex.PW.1/A was registered at Police Station. Police came to the spot and inspected the place of occurrence. 3 3. In cross-examination, PW.1 has stated that he was not aware as to whether relations between Kanaura Ram and Ram Singh were cordial. However, he has further stated that they are relatives to each other as Kuram because of the marriage of daughter of Ram Singh with the son of Kanaura. The accused persons belong to Chamar community. 3. After investigation, the accused were charged for the aforesaid offences and the case was committed for Sessions Trial. 4. In order to prove its case, the prosecution examined as many as nine prosecution witnesses. Whereas, the accused / respondents in their statements under Section 313 of Cr.P.C. have denied the prosecution case. The accused persons, in support of their case, have examined two witnesses in their defence. 5. On analysis of the prosecution witnesses, it is noticed that PW.1 Netar Singh, complainant in support of prosecution case has stated that in the intervening night of 23-24.6.1992, he was sleeping in his house after parking the tractor outside his house and Barsin was also lying by the side of the tractor. At about 12 in the night, he heard the sound of something burning and he thought that it was raining outside. When he came out of the house to pick up the Barsin, he found that all the accused persons were present in his courtyard and Barsin crop was on fire. PW.1 Netar Singh observed that accused Harnam Singh and Kanshi Ram were holding burnt Mashals in their hands. However, they were threatening PW.1 to put him also on fire. After that he raised alarm, on which Mahesh Kumar and Lekh Ram came to the spot and accused persons ran away from the spot. PW.1 however, in his cross-examination has stated that his father may have got a claim of Rs.700/- for the loss in fire. 4 6. PW.2 Khub Ram has stated that in the month of June, 1992, at about 12 or 12.30 a.m. he heard the noise from the cow-shed of PW.1 Netar Singh, and on going to the spot, he saw accused Sant Ram and Kanshi Ram running from the spot. However, PW.2 has further stated that his house is at a distance of 500 meters from the cow-shed of the complainant and cow-shed of the complainant is not visible from his house because of hillock lying in between. When PW.2 reached the spot there were 50-60 persons putting off the fire. 7. PW.3 Baldev has stated that police told him that accused Harnam Singh had produced a Can Ex.P3 in the Police Station, which was taken into possession vide recovery Memo Ex.PW.3/A. 8. PW.4 Narpat Ram has stated that he went to the spot and took photographs Ex.P4 to Ex.P7. In the cross-examination, PW.4 has stated that no tyre of truck was shown to him and dry grass at the door of cow-shed and roof was also in proper condition and roof was not burnt. He has further stated that Barsin crop was shown which was spread in the courtyard and there was a little ash in the same. As such, PW.4 has not supported the case of the prosecution. 9. PW.5 Kishan Singh has stated that on hearing noise at about 10-11 p.m. on 23.6.1992, he went to the spot on the next day and found that fooder inside the cow-shed of Netar Singh burnt and cow shed was also partly burnt. He had further noticed that the tyres of the tractor were partly burnt. However, testimony of PW.5 is contradictory to the statement of PW.2 Khub Ram, who has stated that he heard the noise between 12 or 12.30 a.m. Whereas, PW.5 has stated that he heard the noise at 10-11 p.m. 5 10. PW.6 Mohan Singh has stated that he saw accused Thakur Dass and Kanshi Ram exchanging hot words with the Pardhan. 11. PW.7 Mahesh Kant has stated that on 23.6.1992, at about 11 p.m., when he came out from his house to urinate, he saw accused going towards the house of Pardhan. He has further stated that after 15 minutes, he heard the noise of Pardhan that his tractor was set on fire. However, PW.7 has not observed anybody in the courtyard of Netar Singh. The testimony of PW.7 is also contradictory regarding timing of the incident, who has also given contradictory version regarding presence of anybody in the courtyard of Netar Singh contradictory to the versions of PW.1 and PW.7. Therefore, PW.7 had also not supported the prosecution case. He has also not observed the accused persons having Mashals in their hands, as such, PW.7 declared hostile. 12. PW.8 Narender Singh has deposed that he heard the noise from the house of Pardhan Netar Singh, “Bachao Bachao” as the house of Netar Singh was at a distance of 5-7 steps from his house. He has further stated that when he came out of the house, he observed that the tyre of the tractor and Barsin were on fire and some persons were running from the spot, out of whom, he could recognize Sant Ram. PW.8 was also declared hostile. 13. PW.9 Ramji Dass has stated that on 24.6.1992, at about 3.00 a.m. PW.1 had lodged a complaint Ex.PW.1/A in the Police Station, and when PW.9 went to the spot, he observed about 69 persons were present on the spot. He has further observed Barsin and tyre of the tractor in a burnt condition. 6 14. DW.1 Gopal Singh, Office Kanungo, proved the copy of the report Ex.D1 of fire victim of Ratti village. According to him, an amount of Rs.700/- was given to Parma son of Padmu, resident of Ratti as compensation as per office order Ex.D2. 15. DW.2 Jagdish Chander, patwari, has stated that report No. 356, dated 24.6.1992 Ex.D3, was correct according to the original report brought to him. According to him, the fire victim generally get the report, regarding the damage in fire, recorded in Rojnamcha Wakyati. 15. On analysis of the prosecution witnesses, we notice that FIR was recorded on 24.6.1992, indicating that Mahesh Kant and Lekh Ram came to the spot and after seeing them, accused persons ran away from the spot. However, there is no direct evidence available to connect the accused with alleged setting Barsin, tyres of the tractor and cow-shed on fire. Out of two independent witnesses, who were said to have been come to the spot first of all. Only PW.7 Mahesh Kant has been examined who too declared hostile. The another eye witness Lekh Ram was not examined by the prosecution for the reasons best known to the prosecution. PW.2 Khub Ram also not supported the case of the prosecution, he has stated that his house was about 500 meters away from the cow-shed of the complainant, which was burnt, and in between his house and the cow- shed of the complainant, there is a hillock between the house of the complainant and his house, and he could not observe the incidence. However, when he reached to the spot, he observed 50-60 persons were already present, who were extinguishing the fire. However, nothing has been indicated that out of these 50-60 persons already present on the spot had seen the accused running from the spot. 7 However, none of the independent witnesses were examined, who could have stated that they have seen the accused running from the spot. 16. PW.8 Narender Singh has stated that though his house is 5-7 steps from the cow-shed of the complainant. However, when he reached the spot 7-8 persons were extinguishing fire with buckets. However, he has also given the contradictory version as PW.2 had seen 50-60 persons present on the spot and extinguishing fire and PW.8 had seen 7-8 persons extinguishing fire with buckets. PW.8, whose house is about 5-7 steps from the cow-shed of the complainant, has even not seen the accused persons running from the spot. 17. None of the prosecution witnesses had indicated anybody was carrying match box except that PW.1 complainant has stated that accused persons were carrying Mashals in their hands and were challenging him from the courtyard. Whereas, other prosecution witnesses including PW.2, PW.3, PW.5, PW.6, PW.7 and PW.8 have not observed anybody including accused in the courtyard of the complainant. In fact, none has observed the presence of accused persons on the spot. More so, Rs.700/- was said to have been received by the father of the complainant as compensation as per reports Ex.D1, D2 and D3 proved by DW.1 Gopal Singh, Office Kanungo and DW.2 Jagdish Chand Patwari. But however, it is surprised to note that how the father of the complainant after having received Rs.700/- as compensation, tolerate that the complainant may have some endeavor to implicate the accused out of enmity in order to take revenge from the accused persons on caste basis. 8 18. On careful consideration of the prosecution witnesses, we notice that none of the prosecution witnesses have seen the accused setting on fire the tyre of the tractor, Barsin and the cow-shed of the complainant. Contradictory version has come out from the testimonies of the prosecution witnesses, and for the same cause, compensation has been received from the father of the complainant. In view of the facts and circumstances, the case appears to have been initiated out of enmity. 14. On scrutiny of the prosecution witnesses and material on record, learned Additional Sessions Judge has rightly arrived at the findings that the prosecution had failed to prove its case beyond all reasonable doubts and to bring home the guilt to the accused. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. (Justice R.B. Misra), Judge. June 28, 2010 (Justice V.K. Sharma) (Purohit) Judge