IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:45/1998 Decided on: 17.3.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Naraini Devi and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate. _____________________________________________________ Surjit Singh, J (oral). This appeal by the State is directed against the judgment dated 7.7.1997 of Sessions Court whereby respondents numbering 16, who were charged with and tried for offences under sections 147 and 436 read with section 149 of the Indian Penal Code, have been acquitted. A report was lodged by PW-7 Ajit Singh, a police official, with Bharari Police that on 11.4.1992 at 3.00 or 3.30 P.M., a mob consisting of 500-700 women and 400-500 men has set the shop and the saw-mill of one Balbir Singh of Bharari on fire. Report lodged by PW-7 Ajit Singh is Ex.PW-7/A. During the course of 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 investigation of the said FIR, statements of PW-1 Subda Devi, PW- 2 Kalasi Devi, PW-3 Raj Kumari, PW-4 Barfi Devi wife of Balbir Singh and PW-5 Suharu Devi mother of Balbir Singh whose shop and saw mill were burnt, were recorded under section 161 of the Code of Criminal Procedure. Statement of Subda Devi (PW-1, Kalasi Devi (PW-2) and Raj Kumari (PW-3) were recorded on 13.4.1992, while statement of Barfi Devi (PW-4) was recorded on 17.4.1992 and that of Suharu Devi (PW-5) on 18.4.1992. These witnesses stated to the police that a mob of 700 men, women and children gathered around their houses and the present respondents who were part of the mob, set their houses ablaze. On completion of investigation, report under section 173 of the Code of Criminal Procedure was filed in the Court of Judicial Magistrate, who committed the case to the Sessions Court. Court of Sessions charged the respondents as aforesaid. Respondents pleaded not guilty and, therefore, they were put on trial. Prosecution mainly relied upon the testimony of PW-1 Subda Devi, PW-2 Kalasi Devi, PW-3 Raj Kumari, PW-4 Barfi Devi and PW-5 Suharu Devi to bring the charge home to the respondents. All these witnesses testified that the houses of PW-1, PW-2 and PW-3 and the shop and sawmill of Balbir Singh, husband of PW-4, had been set on fire by the present respondents. Respondents pleaded innocence in their statements under section 313 of the Code of Criminal Procedure. Trial court acquitted the respondents. We have heard the learned Additional Advocate General and also counsel for respondents and gone through the evidence. 3 It has come in evidence that a lady by the name of Krishani Devi had been murdered a few days prior to the incident. Said Krishani Devi was wife of respondent Amar Singh. Durga Dass, husband of PW-1 Subda Devi, Budhi Singh husband of PW-2 Kalasi Devi, Kamal Raj, husband of PW-3 Raj Kumari and Balbir Singh, husband of PW-4 Barfi Devi were among the persons, who were accused of murdering said Krishani Devi. Police had arrested all of them and they were in custody at the time when alleged incident of mischief by fire took place. Even though the incidents of fire had taken place on 11.4.1992, none of the above named five witnesses lodged report with the Police. It was a police official, namely, PW-7 Ajit Singh, who lodged the FIR, after the incident of setting on fire the saw mill and shop of Balbir Singh took place around 3.30 P.M. As per the FIR, the shop and sawmill of Balbir Singh had been set ablaze by a mob of more than one thousand persons comprising 500-700 ladies and 400-500 men. Subda Devi (PW-1), Kalsi Devi (PW-2) and Raj Kumari (PW-3) made statements to the police under section 161 of the Code of Criminal Procedure two days after the incident of burning of their houses. The incident involving the burning of their houses took place on 11.4.1992 at 6.00 P.M. The aforesaid three witnesses made the statements to the police on 13.4.1992. All the witnesses stated that they went to the Police Station on the day next following the day of occurrence and lodged report with the police but no report lodged by these witnesses with the police on the next following day, i.e. 12.4.1992, is available on 4 record. That means these witnesses did not lodge any report with the police but only associated in the investigation of the case and made statements on 13.4.1992 under section 161 of the Code of Criminal Procedure, i.e. two days after the occurrence. Since the husbands of PW-1 Subda Devi, PW-2 Kalasi Devi and PW-3 Raj Kumari were involved and arrested in the case of murder of Krishani Devi wife of one of the respondents, namely, Amar Singh, the possibility of these three witnesses having named the respondents as perpetrator of the crime cannot be ruled out, particularly when the FIR records that a mob of 1000-1200 persons was responsible for setting the property of the alleged murderers of Krishani Devi on fire. This is particularly so when no FIR was lodged by these witnesses and also they took two days even to make their statements, under section 161 of the Code of Criminal Procedure. In view of above stated position, the appeal is dismissed. Surjit Singh), J (Rajiv Sharma), J 17.3.2010 *awasthi*