IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 70 of 2003 Date of decision: 5.4.2010. State of H.P. …. Appellant. Vs. Hari Dutt Attri and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Rajesh Mandhotra, Deputy Advocate General For the respondents No.2 to 4 & 6 to 12: Ms. Archana Dutt, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 22.8.2001 of the learned Judicial Magistrate 1st Class, Kasauli at Solan in Criminal Case No. 6/2 of 2000/95 whereby he acquitted the accused of having committed offences punishable under Sections 147, 148, 149, 353 and 332 of the Indian Penal Code. The appeal as against respondents No. 1 and 5 already stand abated due to their death. The prosecution story in brief is that on 31.10.1994 the police received information that a quarrel was taking place between two parties at Kimughat. Thereafter, ASI Yashpal Singh alongwith HC Om Prakash, constable Rama Nand, constable Sultan Singh went to the spot. When they reached the spot they saw that about 250-300 persons were 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 throwing stones on the house of Shri Iqbal Singh. The windows of the house had been broken and some people were throwing kerosene oil, grass and burnt wood into the house. Constable Rama Nand and the other police officials were trying to control the fire as well as the crowd. At about 8.15 p.m one of the persons from the crowd threw kerosene oil on constable Rama Nand and his dress caught fire and he sustained burn injuries on his leg and other parts of the body. Thereafter he was taken to the hospital at Dharampur. The matter was reported to the police on the basis of which the F.I.R was registered against the accused persons. Investigation was got done and after investigation the accused were challaned for having committed the offences detailed here-in-above. The accused pleaded not guilty and claimed trial. After trial, they have been acquitted. Hence the present appeal. At the outset, it may be stated that for reasons best known to the prosecution the accused were never charged with having committed an offence punishable under Section 436 IPC. The whole case of the prosecution is that the accused persons alongwith other persons were trying to set the house of Iqbal Singh on fire and the second offence they committed was that when Rama Nand constable was performing his duty they obstructed him in the performance of his duty. The second 3 offence flows out of the first offence and a common challan should have been filed. Be that as it may, this Court is now dealing only with the offences with which the accused are charged with that they had formed an unlawful assembly and this unlawful assembly obstructed constable Rama Nand in the performance of his duty and caused grievous burn injuries to him. The evidence led by the prosecution has been considered in detail. None of the witnesses including Rama Nand, the injured person, has been able to identify the person who allegedly threw the bottle of kerosene at him. In fact, if the statements of the witnesses made on oath in Court are gone through in detail no overt act is ascribed to any of the accused persons. All that is stated is that the accused persons were standing on the lintel of the building. The witnesses have admitted that a huge crowd of 250-300 persons were present and witnesses could not identify who were the person who were throwing kerosene oil or inflammable material into the house and who were the person who were trying to prevent the fire from spreading. Neither, PW-1, HC Om Prakash nor PW-2 Rama Nand, the injured person, has identified any of the persons who were throwing the kerosene oil and other inflammable material on the house. To the similar effect is the statement of PW-3. No 4 doubt, this witness stated that the accused persons were throwing stones and had broken windows and glasses of the house which led to the fire but on the other hand he stated that it was dark at the spot and could not positively identify the offending persons. Admittedly, 250-300 persons had gathered at the spot and none of the accused persons were previously known to the witnesses nor they were having some special identification marks. No test identification parade was done. Even in Court the two main witnesses have clearly deposed that they cannot positively identify the person who threw the kerosene. As far as the forming of an unlawful assembly is concerned, there is not an iota of evidence to show that any unlawful assembly was formed by the accused. In view of the above discussion, I find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. 5th April, 2010. (Deepak Gupta) ™ Judge.