IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 525 of 2000 Date of decision: 15.05.2008 Piar Singh & Anr. ... Appellants Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Ashok Sharma, Advocate. For the respondent: Mr. J.S. Guleria, Law Officer. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellants against the judgment of the Court of learned Sessions Judge, Mandi, dated 6.9.2000, vide which the appellants were held guilty under Sections 451 and 436 read with Section 34 I.P.C. and were sentenced as under:- Under Section 451 IPC: Rigorous imprisonment for a term of one year and to pay a fine of Rs.1000/- each and in default of payment of fine, to undergo imprisonment for one month. Under Section 436 I.P.C: Rigorous imprisonment for a term of four years and to pay a fine of Rs.2000/- each and in default of payment of fine, to undergo imprisonment for additional term of two months. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the facts of the case are that on 1.6.1997, an information was received by the police at 8.10PM that a fire had taken place in the shops at Kanaid. On receipt of this information, MHC Police Station, Balh gave information to MHC Police Station, Sundernagar about this fact and entry at serial No. 30 was recorded at 8.30PM by MC at Police Station, Sundernagar. Thereafter, SI/SHO alongwith ASI Harish Chand and other police officials proceeded to the spot in a Mini Bus. He reached there and recorded the statement of PW-5 Budhi Singh, owner of the liquor vend. He alleged that he had given his shop on rent to Ashwani Kumar, liquor vend contractor. Today at 7.45PM, he was standing outside the liquor vend on the side of the road alongwith Man Singh and his younger brother Ghanshyam. He stated that both the appellants hereinafter referred to as the accused came there on a Scooter No. HP 31-0061, went inside the liquor vend and demanded liquor from Surajmani, a Salesman on credit. He stated that these persons were already under the influence of liquor. The said Salesman refused to give the liquor on credit and both the appellants picked up some bottles, broke them and the Salesman raised an alarm for help. He alongwith other persons went there to save him and the accused persons took out the broken bottles, gave a threat to him that they will set the liquor vend on fire. Thereafter, appellant Piar Singh took a matchbox from co-appellant Kinder Singh and set the liquor vend on fire. The Salesman was rescued by Budhi Singh and others. He raised an alarm and several persons gathered there and information was also sent to Fire Brigade people who 3 came there. He suffered damage to the shop to the extent of Rs.25,000/- or Rs.30,000/- in this fire. This statement of Budhi Singh was recorded at 9.30PM and on the basis of this report, FIR Ext.PW13/E was registered at 10.00PM. It appears that thereafter efforts were made to apprehend the appellants who were apprehended at a distance of about 300Mtr. from the liquor vend on a scooter and were sent to the Medical Officer vide application Ext.PW9/A and medical examination was conducted vide MLC Exts. PW9/B and PW9/C at 11.10PM. The Medical Officer also opined that the appellants appeared to have consumed alcohol but not intoxicated. After investigation, the challan was filed before the Court and after committal, the appellants were tried by the learned trial Court leading to their conviction as detailed above. I have heard learned counsel for the parties and have also gone through the record. On a perusal of the evidence led by the prosecution, it is clear that complainant PW-5 Budhi Singh had clearly stated that he was standing there outside the liquor vend alongwith his brother Ghanshyam and one Man Singh. Thus, the eye witnesses were not only PW-5 Budhi Singh, but PW-6 Man Singh and PW-7 Ghanshyam, brother of the complainant and PW-2 Surajmani, Salesman who had been taken out of the shop only after the shop had been set on fire. Thus, it is clear that the occurrence in question was witnessed by these four persons and out of these four persons none have stated on oath that the liquor vend was put on fire by the appellants. In coming to its finding holding the appellants 4 guilty, the learned trial Court had partly relied upon the statement of PW-5 Budhi Singh who turned hostile and did not support the assertions made by him in Ext. PW5/A. Some assistance had been taken from the statement of PW-2 Surajmani, Salesman who had also not stated that the liquor vend was set on fire by the appellants. The other two eye witnesses PW-6 Man Singh and PW-7 Ghanshyam have not supported the prosecution story and were declared hostile. In coming to its findings, the learned trial Court partly relied upon the version given by PW-1 Ashwani Kumar and PW-4 Kamal Kumar observing that it has come up in the evidence of PW-1 Ashwani Kumar, liquor vend contractor, that a telephonic call at 8.30PM was received by the Munshi, Police Station, Sundernagar that the liquor vend had been put on fire. It was also observed by the learned trial Court that Kamal Kumar PW-4 was also sitting at that time. To my mind, this reliance was wrongly placed upon by the learned trial Court upon the statements of these two witnesses. Reliance was placed upon such evidence in view of Section 6 of the Evidence Act. The information had been received only at Police Station, Balh which was subsequently conveyed to the M.C. at Sundernagar and I have also made a reference to the rapat that a fire had taken place in the liquor vend at Kanaid and no telephonic message has been received from PW-5 Budhi Singh. In his statement as PW-5 Budhi Singh has no where stated that he gave information to the police on telephone in which he alleged that this offence was committed by the appellants. The first information report was received at Police Station Balh, which report has not been proved by the prosecution. The only 5 report proved in evidence is the one recorded by the M.C. Police Station, Sundernagar on the basis of what information he received from MHC Police Station, Balh, which has been referred to above Ext. PW13/A, which does not refer to any information received from PW-5 BUdhi Singh naming the person involved in the offence. Therefore, the learned trial Court had wrongly relied upon the statement of these two witnesses being corroborative to the prosecution story. Coming to the other corroboration by the learned trial Court, the learned trial Court had rightly observed that the statements of hostile witnesses cannot be discarded in full but can be accepted in part also. No corroboration can be taken from the statement of PW-5 since no eye witnesses had clearly stated that this liquor vend was set on fire by the appellants. The learned trial Court had rightly observed that no benefit can be taken by the appellants in the behavior of the Surajmani, Salesman, PW-2 by running from the spot since human behaviour differs from person to person and since he ran away from the place without informing the police or the family members and this subsequent act cannot be said to be sufficient to discard his testimony. However, the fact remains that neither PW-2 Surajmani, Salesman nor PW-5 Budhi Singh have stated that they saw the appellants setting the liquor vend on fire. The other two eye witnesses, namely, PW-6 Man Singh and PW-7 Ghanshyam have not clearly supported the prosecution story and were declared hostile. There is no reason for PW-6 or PW-7, brother of the owner of the liquor shop, namely, PW-5 Budhi Singh to falsely depose or favour the accused persons since they have every reason to support PW-5, 6 but they have not supported him. It has come up in the statement of PW- 5 Budhi Singh that Surajmani, Salesman, PW-2 had been taken out after the shop was set on fire, but the said PW-2 Surajmani no where stated when he ran away from the spot after the shop had already been set on fire. In view of the above, it follows that there was no legal evidence as against the appellants to hold that it was the appellants who had set the shop on fire. Apart from the above, there are some other facts which cannot be ignored. The statement was recorded by the police at 9.30PM. The FIR was registered at 10.00PM and thereafter, request to the police was made vide Ext. PW9/A after 10.00PM. Since Medical Officer had deposed as PW-9 that he examined the accused at 11.10PM and by that time FIR had already been registered based upon the statement of PW-5, but there is no reference in the said application sent to the Medical Officer by the S.H.O. that the shop had been set on fire by the appellants. Rather he alleged that it was heard in the area that this shop has been set on fire by the appellants. This clearly shows that the possibility that statement of PW-5 was recorded subsequently cannot be ruled out. It also looks surprising that the appellants were apprehended at a distance of 300Mtr. from the liquor vend. It has come up in the statement of PW-13 Inspector Hans Raj and looks surprising that the appellants were roaming there within distance of 1.00KM after having set the shop on fire. They were quite aware that if they will be near the place of occurrence, they will be apprehended. From which ever angle, the facts of the case are looked into, it is clear that there is no legal 7 evidence to prove the guilt of the appellants and as such, the findings of the learned trial Court holding the appellants guilty in convicting and sentencing, are not sustainable in the eyes of law. The appeal filed by the appellants is accepted and the judgment of conviction and sentence is set aside. Fine if recovered shall be refunded back. Bail bonds stand discharged forthwith. A copy of the judgment be sent to the learned trial alongwith record. ( V.K. Ahuja ) May 15, 2008 Judge (BSS) 8