IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 355 of 1997 Decided on: 4.10.2010 State of H.P. ..…Appellant Versus Hoshiar Singh. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Bhuvnesh Sharma, 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 dated 26.3.1997, passed by learned Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 11 of 1996, acquitting the respondent-accused for the offence, under Sections 436/511 of Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that respondent-accused came to his mother-in-law’s house where Smt. Sureshta Devi and his wife Sushila Devi reside and a marriage function was going on in that family. At that time, the mother-in-law of respondent-accused, namely, Vidya Devi was sleeping in her room and respondent-accused arrived in the courtyard and knocked the door of the house of his mother-in-law while holding a canny in his hand and when door was not opened, he managed to open the window and poured the petrol inside the room and lit the match box and threw it inside and set the house on fire. The canny, being carried by respondent-accused, was also destroyed in the fire. Smt. Sureshta Devi raised noise, consequent upon, respondent-accused ran away and the fire was extinguished with water. Consequent upon burning, rain- coat and bed-cover were partly burnt, however, the house was saved from having gutted into the fire. Very surprisingly, it was found during investigation that the relations between the respondent-accused and his wife Sushila Devi were not cordial for quite some time and the latter had come to reside in her parental house. After investigation, respondent-accused was charged for the aforesaid offence and the case was committed to the Court of Sessions. 3. In order to prove its case, prosecution examined as many as ten witnesses, namely, PW-1, Sureshta Devi, elder sister of the wife of respondent-accused, PW-2, Sushila Devi, wife of respondent-accused, PW-3, Kamlesh Kumari, PW-4, Vidya Devi, the mother-in-law of respondent-accused, PW- 5,Updesh Kumar, PW-6, Dhian Chand, PW-7 Jagat Ram, PW-8, 3 Baldev Singh, PW-9, ASI Sarwan Kumar and PW-10, ASI Nain Singh, whereas, the respondent-accused, through his statement, under Section 313 Cr.P.C., denied the prosecution case. 4. PW-1 and PW-2 are said to be the star witnesses of the prosecution. PW-1, Smt. Sureshta Devi, has stated that respondent-accused was holding in his hand a canny and remained at the spot for 10-15 minutes and 25-30 women were present in the house of Piar Chand. Although, according to PW- 1, the respondent-accused was holding plastic canny in his hand on his arrival at the spot and when he threatened to put the house on fire, PW-1 and others did not make noise. PW-1 has also stated that the Barat left the village at about 5.00 P.M. and respondent-accused was also invited to attend the marriage but he did not join the marriage party. She also stated that the respondent-accused noticed her and others sitting in the house of Piar Chand. According to PW-1, those 25-30 women, who were present at that time in the house of Piar Chand, were dancing and singing. PW-1 has further stated that the women, Pradhan Dhian Chand, Updesh and Purshotam etc. helped in extinguishing the fire and her cousin Dharam Singh informed the police telephonically and the police reached at the spot at about 6.00 A.M. 5. On scrutiny of prosecution witness, PW-2 Smt. Sushila Devi, the younger sister of PW-1, Smt. Sureshta, it appears that initially Sushila was being treated nicely for about four years after marriage but thereafter relations between Sushila and respondent-accused became strained and two 4 months prior to the occurrence, she was given beating by the respondent-accused and resultantly, she came to the house of her parents. On the fateful day, respondent-accused alleged to have come with plastic canny in his hand and knocked the door of his mother-in-law, while she was sleeping inside the room. The respondent-accused proclaimed that he will put the entire family on fire and pushed the shutter of the outer window and by opening, poured the petrol inside the room through the window, lit a match stick and put it inside and, as such, there was fire. PW-2 raised noise and respondent-accused ran away and fire was extinguished. PW-2 further deposed that on arrival of the police at the spot, half burnt plastic canny was taken into possession along with rain-coat, bed-sheet and umbrella, whereas, contrary to it, PW-1 has stated that the canny used was also destroyed. In cross-examination, PW-2 has stated that respondent-accused remained at the spot for about one hour but he fled away immediately after igniting the fire. As per testimony of PW-2, respondent-accused was sitting in the house of Piar Chand where he arrived at about 8.00 P.M., while the marriage party left the house at about 6.00 P.M. PW-2 has very categorically stated that the respondent-accused watched the Barat at the spot and when respondent-accused threatened that he will put the entire house on fire, at that moment, neither PW- 1 nor PW-2 did raise any alarm. PW-2 has, so much so, stated that before igniting the fire 4-5 other ladies had also seen the respondent-accused at the spot. PW-2 has further stated that those 4-5 ladies were Smt. Kesari, Giani and Chinti and at that time, respondent-accused was heavily drunk and he was not in 5 a position to walk properly. As per testimony of PW-2, respondent-accused might have sustained the burn injuries. However, PW-2 did not notice those injuries. As per testimony of PW-2, the respondent-accused was knocking at the door and he was speaking loudly. Updesh was the first person, who arrived at the spot, but at that time, respondent-accused also left the spot. 6. Smt. Vidya Devi, PW-4, the mother-in-law of the respondent-accused, in her endeavour to support the prosecution case, has stated that respondent-accused came and knocked at the door of her room while she was sleeping. After some time, she got up and saw the fire inside ‘Obri’ and consequent upon such fire, bed-sheet, umbrella, rain-coat Ext.P1 to Ext.P3, respectively, were burnt. 7. PW-3, Smt. Kamlesh Kumari, was examined by the prosecution, who has stated that on 17.11.95, at about 9.30 P.M., when she was present at her own shop, she heard noise regarding fire in the village as her shop is by the side of a thoroughfare. PW-3 observed a man passing in front of her shop and he was Hoshiar Singh respondent-accused. However, PW-3 has not seen Hoshiar Singh (respondent-accused) setting the house on fire by pouring petrol. 8. PW-5, Updesh Kumar, has stated that on 17.11.95, at about 9.30 P.M., while he was present in his house, heard the noise about the fire in the village and he immediately came to the house of Kashmir Singh and noticed one petrol canny lying in the courtyard and observed fire inside the room. He also observed women extinguishing the fire with the water but he 6 (PW-5) prevented them from doing so and required them to use the mud and they started doing so. PW-5 has further observed that bed-sheet and rain-coat was burnt in fire. In cross- examination, PW-5 has stated that when he arrived at the spot, he merely noticed the females there but not any male but later on, i.e. after an hour, several men, including Pardhan, arrived at the spot. 9. The statements of prosecution witnesses are full of inconsistencies and contradictions. In the facts and circumstances, the presence of PW-2 itself is doubtful. In view of the testimony of PW-1, canny was burnt, whereas, in view of the testimony of PW-2, it was half burnt, however, in view of the testimony of Pradhan, canny was noticed in the court-yard. It is very surprising that when the marriage party left the village at about 5.00 P.M., 25-30 ladies were singing and dancing and only few ladies were extinguishing the fire and when PW-5 came on the spot, he noticed the females and not any male and after half an hour, male persons were noticed. In view of the testimony of PW-1 and PW-2, the presence of respondent- accused and duration of his stay is also doubtful. The motive of igniting fire by pouring petrol is also not clear and from the testimony of PW-2 an improvement was made in the manner of extinguishing the fire as none of the prosecution witnesses, including PW-1, PW-2 and PW-3, has said that mud was used for extinguishing the fire. The entire story of the prosecution is not believable and is full of inconsistencies and probabilities. 10. In the facts and circumstances, learned Sessions Judge has rightly arrived at the finding that the prosecution has 7 failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt of the respondent-accused. Accordingly, the appeal, being devoid of any merit, is dismissed. 11. Bail bonds, furnished by the respondent-accused are hereby discharged. (R.B. Misra), Judge. October 4, 2010 (V.K. Sharma), Judge. (vs)