IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 116 of 1997. Decided on: 2.6.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Tara Devi. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. Advocate General. For the respondent : Mr. Vikas Rajput, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has arisen after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 26.6.1996, passed by the learned Additional Sessions Judge, Mandi, HP, in Sessions Trial No. 8 of 1994, acquitting the respondent-accused for the alleged offence, under Sections 436 IPC. 2. In order to adjudicate the criminal appeal, it is necessary to give the facts of the case as given by the prosecution. 3. Prosecution case against the accused, Tara Devi is that on 9.10.1993 at 4.30 p.m., Nand Lal gave information on telephone that his cow shed was on fire and action be taken. The report was recorded and ASI Bhed Ram went on the spot, where Madhav Ram complainant gave statement to the ASI that they were four brothers and were having joint land. His family cut grass from 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the land of their share and kept the same in the cow shed on 9.10.1993. When Madhav Ram was in his house, his daughter Santosh and the daughter of Nand Lal came weeping at about 3.30 p.m. and told that cow shed had been burnt. He went to the cow shed and saw that many persons had assembled there near the cow shed. However, after about two hours, the fire was extinguished with the help of the people of the village. Rama Devi and Narendra Kumari told that Tara Devi had put the cow shed on fire after taking out the cow from the cow shed. On this report, FIR No.170/93 was registered and investigation was carried out. After investigation of the case, the challan was put up and the same was committed to the Court of Sessions for trial. Charge-sheet under Section 436 IPC was framed against the accused to which she pleaded not guilty and claimed to be tried. 4. Prosecution has examined as may as seven witnesses in support of its case. In her statement under Section 313 Cr.P.C., the accused has denied the allegation and shown her innocence. 5. On examination of prosecution witnesses, we find that PW-1 Madhav Ram complainant has reiterated the version of the prosecution. According to PW-1 Madhav Ram, he constructed the cow shed two months prior to the occurrence. 8-10 days prior to the occurrence, he cut the grass from ‘Ghasni’ and the same was kept in the cow shed on 9.10.1993. On hearing the noise of burning of cow shed through his daughter Santosh along with Daksha Kumari, PW-1 Madhav Ram went to the spot and noticed that villagers were throwing water over the burning cow shed. At that time, Khub Ram, Rama Devi, Narendra Devi and many other 3 persons were endeavouring to extinguish the fire. According to PW-1, he had suffered loss of Rs. 4,000/- and he was informed by Rama Devi and Narendra Devi that the accused had set the cow shed on fire as the accused was carrying one ‘Darati’ and match box in her hand. Wooden sticks Ext. P-1 and Ext. P-2 along with bundles of grass Ext. P-4 and Ext. -5 were taken in possession. In cross-examination, PW-1 has deposed that SDM was apprised by Nand Lal that cow shed was belonging to PW-1, which was burnt. There are 10-12 houses near the cow shed and on enquiry by the police from the inhabitants of those houses, nobody told that the cow shed was burnt by the accused and only Rama Devi and Narendra Devi had told the police that the accused had put the cow shed on fire. Rama Devi is wife of Nand Lal and Nand Lal is the real brother of the complainant. PW-1 has stated that when Rama Devi and Narendra Devi told him that the accused had put the cow shed on fire, Dumni Ram, Bhagat Ram, Mitter Dev, Mohan Lal and SDM were present on the spot. However, on that day, statement of PW-1 was neither recorded by the SDM nor by the police. 6. PW-2 Narendra Kumari is daughter of Nand Lal aged about 13 years and PW-3 Rama Devi is wife of Nand Lal. In their testimonies, they have supported the case of prosecution and have stated that the cow shed was burnt by the accused. However, in cross-examination, PW-2 has stated that 20-25 persons from the village came within 3-4 minutes of the occurrence. 7. PW-4 Nand Lal, brother of the complainant, reiterated the prosecution version and has stated that 50-60 persons gathered had at the spot including Mitter Dev, Khema Ram, Rama Devi and Narendra Devi and he along with others had tried to 4 extinguish the fire. According to PW-4, his wife and daughter told that the accused with a ‘Darati’ in her one hand and match box in the other hand entered the cow shed and brought out the cow and bolted the door. PW-4 in his cross-examination has deposed that his wife and daughter had disclosed this fact to the police on the day of occurrence. Again, PW-4 has stated in his cross- examination that his wife and daughter had told him about half an hour after he had reached there that the accused had set the cow shed on fire. 8. PW-5 Khem Chand has deposed that he constructed the cow shed of the complainant and had charged Rs. 5000/-. He had already received Rs. 4000/- and Rs. 1000/- is to be received. As per testimony of PW-5, when he heard that the cow shed had burnt, he went to the spot and noticed that 40-50 persons were on the spot including Rama Devi, Dumni Ram, Madhav Ram, Murari Ram and Nand Lal etc. 9. PW-6 Shri Kuldip Chand ASI has prepared the challan. PW-7 ASI Bhed Ram has conducted investigation and recorded the statement of complainant Madhav Ram Ext. PC, on the basis of which FIR Ext. PD was registered. The prosecution witnesses in their usual discharge of duties have supported the prosecution case. However, nothing substantial is coming out from their testimonies. 10. On scrutiny of prosecution witnesses and material on record, we notice that police machinery was set in motion on telephonic message which was received from Nand Lal. It has come in evidence of the prosecution that fire broke on 9.10.1993 at about 3.30 p.m.. As per testimony of complainant, PW-1 Madhav 5 Ram, it took about two hours to extinguish the fire. SDM along with police came to the village and made enquiries immediately after the fire broke out but neither the SDM nor the police constable, who reached at the spot on 9.10.1993 tried to know as to what was deposed by 40-50 persons at the time of occurrence. PW-4 was said to have deposed that he reached the spot at 3.30 p.m. and 50- 60 persons were present there and after half an hour when he reached the spot, he was told that cow shed was set on fire by the accused. PW-4 has stated that he had informed the police on telephone and the SDM along with police came on the spot. In the report Ext. PF, recorded on telephone of Nand Lal received at 4.30 p.m. by the police, there is no mention that cow shed was constructed by Madhav Ram and it was set on fire by accused Tara Devi. According to Ext. PF, Nand Lal informed that cow shed was on fire and action be taken. SDM went to the spot along with police constable immediately. None of the witnesses has deposed that the SDM could not record the statements at the time of occurrence. 11. We notice that if SDM could go to the spot on 9.10.1993, why ASI could not go to the spot. SDM reached the spot immediately after the fire broke out in the cow shed. According to Ext. PF, there was only information that cow shed of Nand Lal was on fire and action has to be taken. If Nand Lal was knowing that cow shed of the complainant, Madhav Ram was on fire, why this was not told on telephone to the police, which is not elaborated any where by the prosecution. We also notice that only Nand Lal, his wife, his daughter and daughter of Madhav Ram have been examined, whereas, 40-50 persons said to have been gathered on the spot, who had made endeavour to extinguish the 6 fire, have not been examined. Even the persons residing in the village were also not examined. The incident and the allegations were not corroborated by any independent witnesses. None of the prosecution witnesses have specifically indicated that any of them has watched the incident. In the facts and circumstances, when cow shed was burning, a large number of persons at least more than 30 persons had assembled and out of them, a large number of persons were endeavouring hard to extinguish the fire. However, none of the independent witnesses or none of the persons, who assembled there or any person from the locality has come forward in support of the prosecution case. 12. On scrutiny of prosecution witnesses and material on record, the learned Additional Sessions Judge has found that the prosecution witnesses are not inspiring confidence and are not sufficient to prove the prosecution case. In our considered view, the prosecution has failed to prove its case beyond any reasonable doubt as there is no coherence or inconsistency and the prosecution version are not inspiring confidence. Therefore, there is no scope of any interference in the judgment of the trial Court. The criminal appeal being devoid of any merit is, therefore, dismissed. 13. We express our thanks for the assistance rendered by Mr. Vikas Rajput, Advocate, as counsel for the accused on State Expenses. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 2, 2010. (cr)