IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr. Appeal No. 419 of 2004. Date of decision: 10.10.2011 Chuni Lal …..Appellant Versus State of HP ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1. For the Appellant: Mr. N.S. Chandel, Advocate. For the Respondent: Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, Judge (Oral): The appellant, hereinafter to be referred as “the accused” was convicted by the learned Sessions Judge, Kangra at Dharamshala in Sessions Case No. 5-N/VII-2004, (Sessions Trial No. 18 of 2004) decided on 10.9.2004 for the offences punishable under Sections 436 and 506 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- under Section 436 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 2,000/- under Section 506 of the Indian Penal Code. Feeling aggrieved, the accused filed the present appeal. 2. The facts in brief, can be stated thus. The accused was running a hotel at Nurpur bazaar near the rain shelter. PW- 1 Roshan Lal (complainant) was a hawker selling fish and eggs 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - in a small temporary tin roofed shed (khokha) raised by him near the rain shelter on the side of motor road in the bazaar at Nurpur. During night, the complainant used to lock the shed and open it in the morning to run his business. On 26th June, 2003, it is alleged that when the complainant alongwith his wife PW-2 Smt. Santosh Kumari were busy in their business , around 1:30 p.m. the accused came there and threatened them to remove the “Shed,” lest he would burn them alongwith the superstructure, then the accused picked up kerosene oil bottle from the shed and sprinkled it inside and put it on fire. The complainant and his wife raised hue and cry. On this, PW-3 Manohar Lal Municipal Councilor got attracted. The accused was hurling abuses . PW-3 Manohar Lal aforesaid reached the spot and apprised the police telephonically. The said message was recorded in the police station, the copy whereof is Ext. PW6/A. 3. PW-7 SI Kamaljit Singh visited the spot alongwith the police party and recorded the statement Ext. PW1/A of the complainant, under Section 154 of the Code of Criminal Procedure which culminated into FIR Ext. PW6/B. The police also drew the site plan Ext. PW7/A. Photographs Ext. P-7 to P-11 of the place of incident were also taken. The fire was put off, the burnt material Exts. P-2 to P-6 were also taken into possession and sealed with seal impression “K” in the presence of PW-3 Manohar Lal and Trilok Singh. The accused was present on the - 3 - spot, he was interrogated and he produced the match box Ext. P-1 which was taken into possession vide memo Ext. PW1/B. He was arrested, later granted bail. 4. After recording the statements of the witnesses and completing the challan, it was presented against the accused for his trial in the Court. 5. Finding prima-facie case under the aforesaid Sections, the accused was accordingly charge-sheeted, tried and convicted by the learned trial court, hence the present appeal. 6. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. 7. It stands established on the record that the complainant PW-1 Roshan Lal was running a khokha (a temporary shed) on the motorable road, near the rain-shelter at Nurpur whereas the accused was running his Dhaba at a little distance away from his shed. The complainant had been using temporary shed for selling the fish and eggs. It appears that the site of khokha was being claimed by the accused of his own and at times he used to threaten the complainant to remove it from the spot, but however, it stands established that the said khokha was not of a recent origin, but was existing on the spot for sometime past. 8. The alleged incident is stated to have been taken place during the day time and the accused was allegedly - 4 - drunk. Though he was arrested on the same day at about 7:00 p.m., but was not medically examined on the same day, thus this fact was remained unsubstantiated on record. His medical examination conducted on the next day, is of no consequence. Further, as per the case of prosecution after committing the offence in the open day light, the accused did not escape but was present on the spot even when many people had gathered and the police arrived, which appears to be against the human conduct. Normally the offender would make a clear pair of heals on committing the offence to avoid his arrest or even beatings by the public. 9. The most important fact giving rise to a reasonable doubt is that immediately the police on getting the information, reached the spot, put-off the fire and took the photographs but no article which was used for frying the fish or any utensils to run or used in the khokha were found on the spot. Even the stove which was used for frying purpose was also not shown when the police had arrived. Further the photographs show the empty egg-trays collected near the ashes. The complainant was running the khokha to sell the fishes and eggs. Neither the fishes, nor the eggs were found on the spot. Thus it appears that it was a stage managed show. 10. In my opinion, the above discrepancies are material and relevant to appreciate the statements of the complainant, his wife and real brother to arrive at the truth. Neither the - 5 - bottle/container in which the kerosene oil was kept taken into possession by the police, nor it was found on the spot. 11. PW-1 Roshan Lal stated that immediately after sprinkling the kerosene oil by the accused, which was kept in a bottle in his khokha, he put it on fire and when he raised hue and cry PW-3 Manohar Lal came on the spot, but Manohar Lal stated that when he reached the spot, there were many other persons present before his arrival. Though PW-2 Smt. Santosh Kumari wife of the complainant, stated that they had no rivalry with the accused, but it stands established from the fact that the accused was running a dhaba nearby and he had been objecting to the running of the khokha at that place, by the complainant is indicative of the facts that their relations interse were not cordial. 12. Further PW-5 Trilok Chand is the real brother of the complainant. He stated that he was running a Rehri near Chowgan. The accused was hurling abuses to the complainant and he reached the spot on hearing the alarm, about 100/150 persons had assembled there. Nobody had put off the fire, nor the accused was caught by anyone. 13. On the critical examination of the aforesaid evidence, it is evident that it was a busy place. The incident complained of, took place in a broad day light, many people were present, but no independent person came forward to substantiate the version of the complainant. Only the interested - 6 - witnesses i.e. the complainant, his wife and brother were examined. Their testimonies, if scanned in the light of the discrepancies referred to above, make the prosecution case quite doubtful. The possibility of the complainant having set his Khokha on fire after remaining articles/utensils to avoid loss and then raising hue and cry to attract people from the vicinity to implicate the accused in this case cannot be ruled out. 14. To place implicit reliance on the statements of PWs- 1, 2 and 5 in the aforesaid circumstances, in my opinion would be hazardous. Thus, the prosecution case against the accused stands not established beyond reasonable doubt, as such the impugned judgment of conviction and sentence is unsustainable and is accordingly set aside. The accused stands acquitted of the offences charged against him, by giving him the benefit of doubt. Consequently, the appeal is allowed. The fine amount, if deposited be refunded to him. 15. The accused is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. 16. Send down the record. October 10, 2011 (Surinder Singh), (Krn Guleria) Judge