IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 198 of 1996. Judgment reserved on: 23.2.2010 Date of decision: 23.4.2010 State of H.P ..Appellant Versus Rikhi Ram & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Sh.Vivek Singh Thakur, Addl.Advocate General with Sh.R.M.Bisht, Deputy Advocate General. For the respondents: Ms.Kanchan, Advocate vice Mr.S.D.Gill, counsel, for the respondents. _____________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 13.3.1995 passed by the learned Sessions Judge, Hamirpur in Sessions Case No.10 of 1993 whereby he acquitted the accused of having committed offences 2 punishable under Sections 436, 147 and 429 of the Indian Penal Code. The prosecution story, in brief, is that PW/5 Nagina Ram owned a cattle shed which was situated on the land comprised in Khasra No.67 measuring 2 kanals 5 marlas. This land was previously owned by one Lobhi Ram, as is apparent from the Jamabandi for the year, 1990-91, Ext.PH. The said land was purchased by accused Rikhi Ram and mutation in this regard was attested on 20.2.1992. However, 5 marlas of land falling underneath the cattle shed was purchased by Nagina Ram from accused Rikhi Ram and mutation No.221 to this effect was attested on 16.6.1992. The area purchased by the complainant Nagina Ram was depicted as Khasra No.67/1, as per Shajra Tatima, Ext.PG. According to the prosecution, on 18.10.1992, the five accused persons came together to the land in question and started erecting wooden poles and thereafter raised fencing with barbed wire in order to enclose the area situated behind the cattle shed. On that day, Nagina Ram was not present in his house. His 3 wife Barfo Devi, PW4, daughter Simro Devi, PW/2 and son Mulakh Raj, PW/3 were present. They saw the accused persons raising the fence at about 8.30 a.m in the morning. They then left their house for their fields situated at a distance of about more than 1 k.m. to cut grass from the same. At about 9.30 a.m. they heard the villagers of adjoining village namely Bhola shouting that a house in village Drondla is on fire. Simro Devi rushed towards her house and from a distance, she saw that the cattle shed owned by them was on fire. She raised an alarm and thereafter, her mother Barfo Devi and brother Mulakh Raj followed her and they reached their house. They saw the accused persons standing near the cattle shed which was on fire. On seeing Simro Devi, her mother and her brother, the accused persons ran away. A hammer Ext.P/3, spade Ext.P/4 and unused barbed wire, Ext.P/6 were found lying nearby. Alongwith the cattle shed, a buffalo and a fresh calf also perished in the fire. Simro Devi and her brother left the house to report the matter to the police. On the way, they met Dy.SP who informed Police Station, Bhoranj about the 4 incident. Thereafter, the statement of Simro Devi was recorded under Section 154 of the Criminal Produce Code. After completing the investigation, challan was filed against the accused. The accused were charged with having committed the offences detailed here-in- above. They pleaded not guilty and claimed trial. After trial, the accused have been acquitted. Hence the present appeal by the State. There is no dispute that a fire took place and that the cattle shed was destroyed in the fire and that a buffalo also died in the same. The question is whether the prosecution has proved beyond reasonable doubt that the accused set the cattle shed on fire. There was no eye witness to the incident and it is only on the circumstantial evidence that the accused persons were raising fence to demarcate their area and were present on the spot that this case was made out against them. According to PW/3 and PW/4, the accused persons erected poles on the boundary of the area for the purpose of fencing their land with barbed wire. This circumstance, that the accused were raising fence is not 5 sufficient to convict them. It is well settled law that in the case of circumstantial evidence, the circumstances should be linked together in such a fashion that the only irresistible conclusion which can be drawn is the guilt of the accused. The hypothesis of guilt should be conclusive, consistent and should exclude any chance of any other person having committed the offence. In case there is any chance of the accused being innocent, the Court has to decide the matter in favour of the accused. According to the prosecution, the witnesses were in their field about more than 1 km. away when they heard the hue and cry that a house in village Drondla was on fire. Even if they ran, it would take at least 7-8 minutes to reach the spot. The accused were still present on the spot. If the accused had set the cattle shed on fire, they would have run away. It is not also disputed that the accused started erecting the fence in the presence of the prosecution witnesses. If their intention was to set the cattle shed on fire, they would have not come openly to erect the fence. The chance of the fire being set off accidentally is highly 6 probable and cannot be ruled out. The learned Trial Court rightly held that no reliance could be placed on the statement of PW/2 Simro Devi since she in cross- examination refused to answer the questions put to her by the defence counsel. Even if the prosecution version is accepted in toto, there is a possibility of the cattle shed having been destroyed in an accidental fire. In view of the aforesaid discussion, the learned Trial Court was fully justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge April 23, 2010 (Sanjay Karol) (m) Judge