HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 69 of 1995 Decided on: 17.11.2008 State of Himachal Pradesh ………Appellant. Versus Baldev Raj and others. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For respondents: Mr.Yoginder Paul, Advocate. Per V.K. Ahuja, J: This is an appeal filed by State of H.P. under Section 378 of the Code of Criminal Procedure against the judgment of the court of learned Sessions Judge, Mandi, dated 17.1.1994, vide which the respondents were acquitted of the charge framed against them under Sections 147, 427 read with Section 149, 436 read with Section 149 and 323 read with Section 149 of the Indian Penal Code. The prosecution story in brief is that on 26.4.1991, at about 10.15 p.m., complainant Baba Bhagwan Dass went to Police Post, Pandoh and lodged a report with the police. It was alleged by him that he had constructed a temple consisting of three rooms in the year 1987 and had been living there alongwith his disciple Bhagwan Dassi. It was alleged that at about 8.00 p.m., he was present in the temple alongwith his disciple Bhagwan Dassi, Sohan Singh and ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - one Fulan Devi and were sitting in the Aarti room when stones were thrown on the roof of his house. He came out and found that respondents numbering 9, named by him, were throwing stones. Because of the fear, he came in the puja room, locked it from inside and the respondents removed the doors of the two rooms and also removed the tin from the roof of the third room. It was further alleged that after removing the tin sheets, respondent Baldev threw petrol in the room and also lit fire. The persons present there saved themselves by coming out of the room and by throwing water and extinguished the fire. It was further alleged that this occurrence was witnessed by three persons, named by him, who were sitting in the room. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions, Mandi who tried the respondents under the aforementioned Sections, leading to their acquittal. We have heard the learned counsel for the parties and have gone through the evidence on record. On appraisal of the evidence led by the prosecution, it is clear that there are many infirmities in the prosecution story, which make the prosecution story doubtful and these infirmities make a dent in the prosecution story leading to the conclusion that the same was rightly not believed by the learned trial Court. The first contradiction pointed out by the learned trial Court was that in the report lodged with the police Ext.PA, the complainant Bhagwan Dass had mentioned that the respondents removed the tin sheets from the roof and threw petrol from that place. However, in his statement in the court as PW-1, he has stated that after removing the doors and after pelting the stones, all the respondents went on the roof of the room, made two holes therein and from - 3 - these two holes, poured petrol into the room, whereas in the report Ext.PA, it was alleged that the roof of the room, as a whole, was uprooted and there was no mention of any holes in the roof having been made and used for pouring the petrol. It is also surprising that when the doors of the room had been removed, what was the occasion for the respondents to go to the roof top, make holes and then throw petrol from those holes. Moreover, the complainant as PW-1 has stated that it was dark around the temple and only a small lamp was burning inside the room, but he has not been able to state as to how he identified the accused persons present at the spot. He has also stated that at the time of incident, electricity supply was not available to the temple premises because of the wrongful disconnection and he stated that it was dark around the temple. He has also stated that Sohan Singh and other ladies present with him inside the room did not come out to see as to who was throwing the stones and he alone came out, meaning thereby that the other witnesses had no opportunity to see as to who were the persons throwing the stones. He has further stated that he had seen the persons sitting there outside and the door had already been broken before the fire was lit and the accused did not enter the room through the doors. However, he did not suffer any burn injuries due to the fire that was caused inside the room by the accused. He further stated that he kept sitting on his seat inside the room. He further stated that Fulan Devi, Bhagwan Dassi and other inmates did not suffer any burn injury though some injuries were suffered by Fulan Devi and Bhagwan Dassi due to the pelting of stones. He stated that he also suffered injuries on his leg and chest due to the pelting of the stones, but he had not been medically examined. He stated that when he went to lodge - 4 - the report, the respondents noticed him going towards the Police Post but did not assault him though he passed close to them. From a perusal of the statement of PW-1 Bhagwan Dass, it looks surprising that he kept on sitting in his seat when the fire was lit at about 8.00 p.m. and he had gone to the Police Post at 10.00 p.m., but none of the persons sitting in the room suffered burn injuries, though he suffered some injuries and other persons had also suffered injuries due to pelting of stones. Surprisingly, the prosecution had not associated any medical officer to prove the injuries sustained due to burn or pelting of stones and the statement of the complainant or other witnesses in this regard do not find corroboration from any medical evidence. The complainant had admitted the enmity with the respondents, as has come up in his statement. Sohan Singh, while appearing as PW-2, had come up with another plea that there were shouts that ‘Bhagwan Dass we would murder you today’, which was never stated so by the complainant himself when he appeared as PW-1. PW-2 Sohan Singh has even come up with the plea that the shouts were made by accused Baldev, Puran Pradhan and Pappu, but how he could name the persons when he was sitting inside the room is not clear. He has also come up with the plea that three holes were made in the roof of that room, though the complainant stated that two holes were made, which was never alleged in the report lodged with the police. He stated that he came out, went to the Police Post and lodged the report and the timings given by him is around 9.00 or 9.30, but no such report lodged by him has been proved by the prosecution. He had further stated that the tin sheets had been taken by the respondents and carried to the house of Kaura, which was never stated by the complainant and from - 5 - where he saw this has not been stated by him in his statement. He has admitted that he had not seen the accused when they shouted that Bhagwan Dass would be killed. He again came up with the plea that he remained inside the room upto 10.00 p.m. since the stones were being hurled but his earlier statement shows that he had gone to the police post, lodged the report and by 9.00 or 9.30 p.m., he had returned to the premises of PW-1 Bhagwan Dass with the police force. Thus, it is in contradiction to the version given by him earlier or version of PW-1 Bhagwan Dass. PW-2 Sohan Singh has referred to the canny of petrol thrown inside the room, which was also taken in possession by the police, but according to the report of the expert received in the case Ext.PQ, the ash and the soil taken from the room were sent to the expert, but there were no traces of any petrol, meaning thereby that the versions of the witnesses is incorrect that the canny full of petrol was thrown inside the room, which rules out the possibility of the respondents having thrown petrol and then having lighted the fire. The complainant has stated about the number of persons present at that time as 9 in the report lodged by him, whereas the number was given as 30-35 persons at Pandoh, who were assisting the accused persons in committing the crime as stated in the court, whereas this fact was not mentioned by him in his earlier statement Ext.XA. PW-3 Bhagwan Dassi, the second eye witness, had given the number of persons who had entered the premises and stoned as 30-35 and she has come up with the plea that they chased all above named accused numbering 30-35 persons, which is not so in the version of the complainant or other eye witnesses. In her further examination, she had given the number as not less - 6 - than 60 persons who had attacked them and she was confronted with her earlier statement Ext.DB, where it was not so recorded. She stated that when the doors were broke open, she saw the accused persons in the courtyard outside the room, which was not stated by the two witnesses referred to above. She has also stated about the throwing of the canny mentioned above and the report of the expert does not substantiate that any petrol was thrown from the canny, which canny never caught fire, though the room was set on fire by the respondents. She came up with the another plea that they came out and were going to the shop of Raja Ram, when several persons chased them and pelted stones, which was never the version of the complainant or the other eye witnesses. She also stated that she suffered injuries on her foot and back with the stones and she was also got medically examined but the medical officer was not examined to prove her medical examination, if any. She has also referred to the enmity in between the accused and her guru and that they had quarreled about 10-15 times and earlier also these numbers of times, the stones were thrown on them. The fourth person present there at that time, namely, Fulan Devi was not examined for the reasons best known to the prosecution. PW-4 Vijai Kumar, a shop keeper, when examined, turned hostile and did not support the prosecution story. From the appraisal of the evidence led by the prosecution, it is clear that there are many contradictions and infirmities in the prosecution case and as such the findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. - 7 - In view of the above discussion, we hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. November 17, 2008. (V.K. Ahuja), (TILAK) Judge.