IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 40 of 1997 Date of decision: 25.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Sarna Devi & others .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 15.07.1996, passed by the learned Sessions Judge, Sirmaur at Nahan, District Sirmaur, in Sessions Trial No. 49-N/ 7 of 1995, acquitting the alleged accused under Sections 452, 436, 323 read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, Kamlesh Kumari (complainant) made a complaint to 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... the police that accused Sarna Devi, Sangto and Gojar Devi, being the members of the same family, but residing separately in village Nariwala and there was a dispute between them regarding cultivation of the land, owned by their father-in-law, Banta Ram, in the same village. On 18.09.1994, accused sent one Sadhu Ram under the influence of liquor to the house of Kamlesh Kumari, in the evening, who misbehaved with Kamlesh Kumari, however, she pushed Sadhu Ram out of the house. Thereafter, at about 9:30 P.M., on the same day, all the three accused allegedly came to the 'chhappar' (thatched roof) of the complainant and gave her beatings with fist blows. On raising hue and cry, one Bartu Ram came to the spot and rescued the complainant from the clutches of the accused. Then Sarna Devi accused had allegedly put the thatched chhappar of the complainant on fire and thereby loss of Rs. 4,000/- to 5,000/- was caused to Kamlesh Kumari. The ash of the burnt chhappar was taken into possession. Photographs of the spot were taken and on completion of the investigation, all the accused-respondents were challaned for the offences under Sections 436, 452 and 323 read with Section 34 of the Indian Penal Code. The learned Sub Divisional Magistrate, Court No. 1, Paonta Sahib, supplied the copies of the documents relied upon under Section 173 Cr.P.C. Thereafter, the case was committed to the Sessions Court. 3. Prosecution in order to prove its case examined as many as six witnesses, whereas, accused-respondents in their statements under Section 313 Cr.P.C. denied the prosecution case. 4. On scrutiny of prosecution witnesses, we notice that PW-1 Kamlesh Kumari, being the complainant, had narrated the ...3... prosecution case and she has stated that three accused had entered her chhappar at village Nariwala, gave beatings to her and torn her shirt. However, on raising alarm, Bartu Ram came there and rescued her from the clutches of the accused. Thereafter, Sarna Devi accused put the grass of the roof of the chhappar on fire from inside the chhappar and in that incident 4-5 quilts, one charpai (cot), two wrist watches were burnt. A double bed sheet and four 'bichhonies' had partly been burnt and loss had occurred. In cross-examination PW-1 Kamlesh Kumari stated that accused entered her chhappar and gave beatings to her inside the chhappar, where she received scratches and abrasions on her body and her shirt was also torn. She got medically examined on the same night. In cross-examination, PW-1 Kamlesh Kumari, admitted that there is a dispute about the possession of the land owned by the father-in-law of the parties and she had earlier also lodged the complaints against the accused- respondents. PW-1 has also stated that at the instance of her husband, Pawan Kumar, a meeting of the respectable persons of the village was convened, in which the parties were present and document, Ex. D1, was executed. 5. PW-2 Bartu Ram, alleged to have seen the occurrence and has stated that all the three accused-respondents gave beatings to the complainant Kamlesh Kumari with fist in open space, in front of chhappar of complainant, however, PW-2 has rescued the complainant. PW-2 further stated that thereafter Sarna Devi accused had put the thatched roof of the chhappar of the complainant on fire with the matchbox from outside the chhappar in which some articles of the complainant were burnt and semi burnt and complainant had ...4... suffered loss of Rs. 400 to 500. However, PW-2 in his testimony in cross-examination has denied that any of the accused entered the house of the complainant or gave her beatings inside the chhappar, rather he has stated that the whole occurrence took place in an open space, outside the chhappar of the complainant. PW-2 has also denied to see any injury on the person of the complainant. PW-2 has further stated that neither there was any injury on the person of the complainant nor her clothes were torn. Whereas, PW-2 had accompanied the complainant to the Police Station for lodging a report. PW-2 has also emphatically indicated in cross-examination that relations of the parties were strained due to their litigation with regard to the land of their father-in-law. 6. PW-3 HC Dharam Singh had placed on record the earlier FIRs lodged by Kamlesh Kumari, complainant, against the accused- respondents, as Ex. P1 and Ex. P2. PW-4 Shri Arvinder Pal, had taken the photographs of the spot in question. PW-5 S.I. Mahant Ram had recorded the FIR, Ex. PA and PW-6 ASI Shyam Lal is the Investigating Officer of the case. 7. On examination of the prosecution witnesses and material on record, we notice that according to prosecution all the three accused entered the chhappar of the complainant Kamlesh Kumari and gave beatings to her, however, the version of PW-1, Kamlesh Kumari (complainant), is belied by the testimony of Bartu Ram (PW-2), who had seen the occurrence and had accompanied PW-1 to the police station for lodging the FIR, had denied the prosecution version by stating that none of the accused had entered the chhappar of the complainant and by standing in an open space, ...5... in front of the chhappar of the complainant, they quarreled and from outside the chhappar they put fire. From the testimony of prosecution witnesses nothing is emanating that the accused had entered into the chhappar of the complainant and gave beatings to complainant. 8. As per the statements of PW-1 Kamlesh Kumari and PW-2 Bartu Ram, accused gave beatings to the complainant with fist blows for 15 to 20 minutes. Accused persons might have given beatings to the complainant and have caused injuries on the person of the complainant. As per the testimony of PW-1 Kamlesh Kumari (complainant) she received scratches and abrasions on her body and her shirt was also torn. As per her testimony, she has shown the injuries on her person and torn shirt to the police and she was also medically examined, but, there is no evidence to this effect that the complainant was medically examined by the doctor and doctor had found any scratches and abrasions on her person. There is no medical evidence to support this version of the complainant. 9. PW-2 Bartu Ram, who is stated to have accompanied PW-1 Kamlesh Kumari (complainant) to the police station for lodging a report, has himself denied that the complainant has received any injuries on her person or her shirt was torn. Similarly, ASI Shyam Lal (PW-6), Investigating Officer, has also denied that he has noticed any injuries or torn shirt of the complainant, therefore, the version of PW-1 regarding sustaining injuries on her person and her shirt being torn is false for lack of being corroborated from any other reliable prosecution witness. 10. Undisputedly, the relations between the parties were not ...6... cordial and were inimical, such relations may prove double edged weapon. A possibility cannot be ruled out that the complainant had levelled false allegations against the accused-respondents in the present case. Admittedly, chhappar (thatched roof) (dwelling house of PW-1 complainant) was burnt allegedly at the instance of accused Sarna Devi, in that respect PW-1 complainant and PW-2 Bartu Ram had stated that Sarna Devi accused put the chhappar of the complainant on fire at about 9:30 P.M. on 18.09.1994, however, their testimonies are contradictory, as PW-1 complainant stated that Sarna Devi put fire from inside of the chhappar and as per the testimony of PW-2, who has clearly stated that Sarna Devi put fire from outside the chhappar. 11. As per PW-1 loss to the tune of Rs. 4000 – 5000 was suffered by her. As per the testimony of PW-1, 4-5 quilts, one charpai (cot), two wrist watches were burnt, however, ASI Shyam Lal had denied having found burnt articles and had denied to have noticed any burnt or half burnt articles. Neither any semi burnt or fully burnt articles were shown to the Investigating Officer nor such articles were taken into possession. The photographs of the spot are Ex. P6 to Ex. P8. In the photographs Ex. P7 and P8 the grass and the Sarkandas of the roof of the chappar are lying on one side of the chhappar, whereas, in photograph, Ex. P6 the grass inside the chhappar is only shown to be burnt. If the fire to the chhappar had been put from outside, then the grass of the roof of the chhappar must have been burnt completely, but as shown in the photographs Ex. P7 and P8, the grass is lying intact, though at one side of the chhappar. 12. We are of the considered view that the testimony of ...7... PW-2 Bartu Ram that Sarna Devi had put the grass of the chhappar on fire from outside does not seem to be correct. If the accused had put the chhappar on fire then the articles in the chhappar must have been burnt or semi burnt. But the Investigating Officer has indicated that no burnt or semi burnt articles were shown to him nor he had taken them into possession. Rather it had come to his investigation that the articles in the chappar had already been shifted to the house of PW Bartu Ram before the chhappar was allegedly put on fire. The complainant has also admitted that she has not taken any steps to extinguish the fire of chhappar, rather she had started for lodging the report to the police station with Bartu Ram. Such conduct of complainant (PW-1) is not in consonance with the prosecution version. One of the important improbability is that if some one's chhappar is put on fire, naturally he should have made endeavours to extinguish the fire to save the chhappar and the articles thereto. 13. Since as per the testimonies of PW-1 and PW-2, the relations between the parties were not cordial and they were inimical and as such there could be possibility that after complainant had shifted her articles to a safer place from the chhappar in question and thereafter the fire broke out in the chhappar. 14. We also noticed that document Ex. D1 was prepared in the Panchayat of the village, which was signed by PW-1 complainant and PW-2 Bartu Ram. In such document, PW-1 has mentioned that they did not know how the fire in the chhappar broke out. Though the complainant Kamlesh Kumari and PW-2 Bartu Ram have stated that their signatures were obtained on it under pressure, but the scribe, Chain Singh (DW-2) and witness Ram Parkash (DW-1) have ...8... denied this aspect and stated that complainant party had put their signatures on it at their own free and sweet will and had shown their lack of knowledge about the person putting the chhappar on fire. 15. In view of the facts and circumstances of the case, no cogent and convincing evidence is available on record to infer that accused Sarna Devi had put the chhappar of the complainant on fire by entering the same. 16. On analysis of the prosecution witness and material on record and having considered the apparent contradictions and improbabilities, we are of the considered view that the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 25th June, 2010 (virender)