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Himachal Pradesh High Court · body

2000 DIGILAW 122 (HP)

PREM SINGH v. STATE OF H. P.

2000-05-26

M.R.VERMA

body2000
JUDGMENT M.R. Venna, J.: This appeal has been preferred by the appellant/ accused here-in after referred to as the accused] against the judgment dated 17.5.1999 passed by learned Additional Sessions Judge, Sirmaur District at Nahan whereby the accused has been convicted and sentenced under Section 4361.P.C. to rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- and in default for payment of fine to undergo further rigorous imprisonment for six months. 2. Case of the prosecution against the accused, in brief is that Himachal Pradesh Forest Corporation has hired the building of one Nagender Singh in village Banjar, the ground floor whereof serves the purpose of stores. The said ground floor consists of (three rooms. In September, 1996 Corporation had stored 1353 rins of resin (Baroza) in the said rooms. PW-2 Randeep Singh was the Chowkidar of the Corporation of the concerned depot whose duty was to keep watch and ward on the resin tins so stored. On the night intervening 5th and 6th of September, 1996 at about 12.30 AM on hearing some souid PW-2 Randeep Singh who was sleeping in the room of the upper storey of the building came out of the room and was in the torch light that the accused had lit a container (kupi) of resin and threw it inside the store room where resin tins were kept, through a h61e (teera) in the wall of the room as a result the stores were set on fire. PW-2 tried to apprehend the accused but failed. Thereafter he raised hue and cry hearing which Uma Dutt (PW-1) came on the spot. Both of them tried to extinguish the fire but failed. PW-2 then informed Nagender Singh owner of the building and Bhupender Bhandari (PW-6) who came of the spot. A few other persons had also come on the spot but the fire could not be extinguished despite efforts. Immediately thereafter PW-2 alongwith PW-6 Bhupinder Bhandari went to village Chaloh and informed Lai Singh, Deputy Ranger of the Corporation (PW-3) about the incident. The resin tins kept in the ground floor of the building and the building were destroyed in the fire. The matter was reported byPW-2 at Police Station Pachhad and thus F.I.R. Ex. PA came into being. The investigation was entrusted to PW-11 H.C. Ashok Kumar who proceeded to the spot. The resin tins kept in the ground floor of the building and the building were destroyed in the fire. The matter was reported byPW-2 at Police Station Pachhad and thus F.I.R. Ex. PA came into being. The investigation was entrusted to PW-11 H.C. Ashok Kumar who proceeded to the spot. In the meanwhile, PW-3 on receipt of the information as aforesaid went to the police station and took alongwith him the S.H.O. and the Tehsildar and went to the place of incident in the early hours of the morning. The services of the fire brigade were also requisitioned which finally extinguished the fire. PW-11 after reaching on the spot inspected the same and prepared spot map Ex.PY. He took in possession resin kupi (Ex.P-1), pieces of charcoal (Ex.P-2) and ash (Ex.P-3) vide memo Ex.PB which were made into a parcel and sealed with seal-H. The burnt resin tins numbering 1353 were also counted on the spot. He arrested the accused on 6.9.1996. On 8.9.1996 the accused made a disclosure statement Ex.PC in the presence of Lai Singh (PW-3) and Devinder Dutt (PW-10) to the effect that he had concealed a match box under a pine tree in village Ser. Pursuant to the said statement the accused led the police party to the spot, spot map whereof is Ext.P-2 and got recovered a match box containing match sticks Ext.P-15 which was made into a parcel and sealed with seal impression-T. The impression of the seal used for sealing the parcels were taken separately and the seals were handed over to PW Devinder Dutt Sharma. The memo regarding this recovery is Ext. PD. Two of the burnt resin thins (Exts.P-16 & r»-17) were also taken in possession by the police each vide memo Exts. PE and PF. The documents relating to the extraction and storing of the resin in the said depot and the permits relating theretp i.e. Exts.PG, PH, PJ, PM, PN, PO, PQ, PR, PS, PT, PU, PV, PW, P-4 were also taken in possession vide memos Exts. PK and PL. The place of occurrence was got photographed and the photographs are Exts.P-5 to P-14. The tins Exts.P-16 & P-17, Kupi Ext.p-1, Charcoal pieces Ext.P-2 and ash Ext. P-3 were sent to the State Forensic Science Laboratory for analysis and the report received from such Laboratory is Ext. PX. PK and PL. The place of occurrence was got photographed and the photographs are Exts.P-5 to P-14. The tins Exts.P-16 & P-17, Kupi Ext.p-1, Charcoal pieces Ext.P-2 and ash Ext. P-3 were sent to the State Forensic Science Laboratory for analysis and the report received from such Laboratory is Ext. PX. On being satisfied of the commission of an offence punishable under Section 436 l.P.C. by the accused, the Officer Incharge, Police Station, Pachhad accordingly submitted a charge-sheet against the accused to the concerned Court. The accused was tried by the learned Additional Sessions Judge, Nahan on a charge under Section 436IPC. 3. The prove the charge against the accused, prosecution examined 11 witnesses. 4. The accused in his statement under Section 313 Cr.P.C. has admitted the hiring of the building in question for the purpose of storing resin tins, raising of alarm by PW-1 and PW-2 to attract the villagers and their coming to the spot, the reaching of the fire-brigade on the spot and extinguishing the fire by it, and taking of the photographs of the spot. However, he has denied the rest of the case of the prosecution and has claimed that he was called to the spot by the officials of the Corporation to extinguish the fire. However, on suspicion he was beaten by them. He has further claimed that he is innocent and has falsely been implicated in the case. The accused however did not lead any defence. 5. The learned Additional Sessions Judge found the accused guilty of the commission of the offence punishable under Section 436 IPC and accordingly convicted and sentenced him as aforesaid. Hence, the present appeal. 6. I have heard the learned counsel for the accused and the learned Additional Advocate General for the State and have also gone through the records. 7. The learned counsel for the accused had contended that the case against the accused has been engineered to save PW-2 from the liability to account for the resin store catching fire or the fire incident itself might be a deliberate act to conceal some wrong acts like mis-appropriation of the resin kept in the store. To substantiate his contention the learned counsel had argued that there had been inordinate delay in lodging the F.I.R. The delay is not explained at all. To substantiate his contention the learned counsel had argued that there had been inordinate delay in lodging the F.I.R. The delay is not explained at all. According to the learned counsel, the F.I.R. had infact been lodged after the investigation had commenced, therefore, the case of the prosecution is an outcome of due deliberations, concoction and after throught rendering the impugned conviction and sentence unsustainable. 8. On the other hand the learned Additional Advocate General while supporting the impugned judgment had contended that the prosecution case is fully established in view of the statement of the eye witnesses duly corroborated by other circumstantial evidence on the record, therefore, the impugned conviction and sentence calls for no interference. 9. Before I proceed to examine the rival contentions for the parties, it may be pointed out that it is well settled that wrongful acquittals are undesirable and shake the Confidence of the people in the administration of criminal justice worse however is the wrongful conviction of an innocent person are far more serious and its reverberations can be felt in a civilised society. All this highlights the importance of ensuring that there should be no wrongful conviction of an innocent person. It is for this reason that (i) the accused is presumed to be innocent unless proved guilty, (ii) to prove the guilt of the accused the prosecution has to stand on its own legs and cannot be permitted to take advantage of the weakness of the defence, and (iii) if two views are possible on the basis cf the evidence led in the case one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused must be accepted. 10. In view of the above cardinal principles of administration of criminal justice, I now proceed to examine the rival contentions for the parties and the merits of the case. 11. It is the case of prosecution that the store was set on fire on the night intervening 5th and 6th day of September, 1996 at 12.30 AM and the F.I.R. Ex.PA was lodged at 11.15 AM on 6.9.1996 i.e. after about II hours of the occurrence. The distance between the place of occurrence and the police station is about 13 Kms. The distance between the place of occurrence and the police station is about 13 Kms. PW-2 who lodged this report has not explained the delay in lodging the F.I.R. He has stated that he gave telephonic information of the occurrence to PW-3 but has not assigned any reason as to why the information was not given to police telephonically. PW-3 has admitted receipt of such information at about 4.30 AM when he was present at Sarahan. Police Station Pachhad is also at Sarahan and at the time of receipt of information he was in the close vicinity of the police station. In this cross-examination he had clearly and unambiguously admitted that he had come to know that the accused had put the stores on fire. Immediately after receipt of information about the occurrence he admittedly contacted the police and Tehsildar, Pachhad and even went to the police station and informed about the occurrence. However, no report was lodged. There is no explanation as to why the F.I.R. was not recorded on his information when he had full information about the occurrence including the name of the accused. 12. It is further stated by PW-3 that after having informed the police about the occurrence he alongwith the Tehsildar and the police went to the spot where they reached at 7 AM. The police officials who accompanied him were the S.H.O. concerned and a constable. It indisputably and admittedly is established on the record that when PW-3, Tehsildar and the police reached on the spot, apart from a large number of persons including the prosecution witnesses who claim to have come to know of the occurrence and the accused from PW-2, almost immediately after the occurrence, PW-2 the informant and the accused were present there. However, the S.H.O. concerned neither himself took the initiative of recording the statement of anyone under Section 154 Cr. P.C. nor anyone from amongst those present including informant come forward to disclose the details of the occurrence and the name of the accused. 13. It is thus clearly established that the complainant had the means (telephone) to report the matter to the police immediately after the occurrence say by about 4.15 AM when he gave telephonic information to PW-3. He did not do so. 13. It is thus clearly established that the complainant had the means (telephone) to report the matter to the police immediately after the occurrence say by about 4.15 AM when he gave telephonic information to PW-3. He did not do so. Then PW-3 having full details of the occurrence at 4.15 AM could immediately thereafter lodge the report when he went to the police station and gave the information to the police which was not reduced to writing. Neither he ensured recording of the report nor the police cared to do so. No reason is assigned to explain this conduct. In any case if anything was wanting, which is though nobodys care, statement under Section 154 Cr.P.C. could f be made and recorded at 7 AM on 6.9.96 when the police had also reached on the spot. | The fact not disputed for the prosecution however is that the report was lodged at the police station at 11.15 AM. 14. In Thulia Kali vs. The State of Tamil Nadu, AIR 1973 SC 501 the Hon ble Supreme Court while dealing with the importance of F.I.R. and effects of delay in lodging the F.I.R. has held as under :- "12....... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at - the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberations and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberations and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the present case Kopia daughter-in-law of Madhandi deceased according to the prosecution case, was present when the accused made murderous assault on the deceased. Valanjia-raju, step-son of the deceased is also alleged to have arrived near the scene of occurrence on being told by Kopia. Neither of them, nor any other villager, who is stated to have been told about the occurrence by Valenjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance in our opinion would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it." 15. The above case was cited before the learned trial judge who came to the conclusion that" the facts of the said ruling are hardly of any help to the accused for the simple reason that in that case the report was not lodged for more thai) 20 hours after the occurrence even though the police station was only two miles away from the place of occurrence. In the case in hand it is sufficiently borne on record that the matter was immediately reported to the police even during the night time of the occurrence. It is admitted case of the prosecution that police reached on the spot alongwith TehsiJdar and Forest Corporation officials in the wee hours of the same day i.e. 6.9.1996". 16. In case the above conclusion of the learned trial judge is admitted to be correct for the sake of arguments then the so called F.I.R. Ex. PA is no F.I.R. but a statement to the police under Section 162 Cr.P.C. for all intents and purposes, hence I inadmissible as F.I.R. The alleged information given during night has admittedly not been reduced to writing. PA is no F.I.R. but a statement to the police under Section 162 Cr.P.C. for all intents and purposes, hence I inadmissible as F.I.R. The alleged information given during night has admittedly not been reduced to writing. The S.H.O. concerned to whom such oral information was allegedly given has not been produced to support this version to at least show that non- recording of the First Information Report in this case being contrary to the provisions of Section 154 Cr.P.C. was only an irregularity. Therefore, the conclusion of the learned trial Judge that the occurrence was immediately reported to the police is untenable. 17. The answer to the question whether mere had been delay in reporting the commission of a cognizable offence to the police does not invariably depend on exceptionally long lapse of time and distance between the place of occurrence and the police station, but on the time that elapsed between the occurrence and the lodging of the report, distance between the place of occurrence and the police station and above all the means and opportunity available for prompt reporting. In the instant case, information could be given to the police telephonically at about 4.15 AM by PW-2 when he telephonically informed PW-3 about the occurrence. It could also be given by PW-3 around the same time in writing or could be got recorded at the police station when he had gone there after admittedly having full information about the occurrence and the accused. In any case, information could be given to the S.H.O. on the spot at 7 AM but was given at 11.15 AM at the police station. No reason is assigned for this delay. The only inference which can, therefore, be drawn is that there had been deliberate delay in recording the FIR raising considerable doubt about the veracity of PW-2 the only alleged eye-witness of the occurrence. In view of this conclusion the statements of other witnesses who learnt about the alleged involvement of the accused in the commission of the offence are thus rendered unreliable, and cannot be acted upon. The delay in lodging the FIR is thus fatal to the case of the prosecution. 18. In view of this conclusion the statements of other witnesses who learnt about the alleged involvement of the accused in the commission of the offence are thus rendered unreliable, and cannot be acted upon. The delay in lodging the FIR is thus fatal to the case of the prosecution. 18. One of the circumstance relied upon by the learned trial Judge as a corroborative piece of evidence is the alleged motive that the accused while drunk on 5.9.1996, had misbehaved with Smt. Shama wife of PW-5 Surinder Singh. PW-5 has stated so. PW-6 Bhupender Singh brother of PW-5 has corroborated the version of PW-5 and has further stated that when he made enquiries from the accused, he threatened and when the witness was about to beat him, he fled away. None of the witnesses claim that the accused misbehaved in their presence. Said Smt. Shama had not been examined to state about the alleged incident of misbehaviour by the accused. Hence, adverse inference has to be drawn against the prosecution. The alleged motive thus is not established. 19. The next circumstance relied by the learned trial Judge is that the accused has admitted his presence on the spot, arrival of fire brigade and reaching of the police on the spot and taking of photographs but his defence is that he was called to the spot and was beaten up by the forest Corporation Officials and has thus put up a false defence. Admittedly many persons had gathered on the spot after the incident. Police and fire brigade admittedly reached thereafter. Therefore, from the presence of the accused on the spot after the occurrence inference of his guilt cannot be drawn from it for the simple reason that he was allegedly charged by PW-2 after the occurrence, why should then he return to the spot if he is guilty of the offence ? In the ordinary course of human" conduct a culprit who had been seen committing an offence will not return to the place of occurrence where a large number of persons had gathered and will definitely try to bolt away on arrival of the police which the accused did not do nor the police arrested him despite being known as the offender and present on the spot. In this situation the only legitimate inference will be in favour of innocence of the accused. 20. In this situation the only legitimate inference will be in favour of innocence of the accused. 20. The plea of the accused that he was beaten up on the spot though is not proved but in the facts and circumstances of the case this does not in any manner lend credibility to the case of the prosecution which cannot take benefit of the weakness of the defence and has to stand on its own legs. 21. Equally un-reliable is the alleged disclosure statement Ex.PC and consequential recovery of match box Ex.P-15 vide memo Ex.PD. It is admitted by PW-11 Ashok Kumar, Investigating Officer, that the match box P-15 was recovered from an open place which was accessible to the public and at a distance of 20 meters from the place of occurrence. Similarly, according to PW-10 Devinder Dutt Sharma Ext.P-15 was recovered from an open place at a distance of 5 to 7 feet from the door of the depot (Stores). Thus, what emerges is that;(i) the place of alleged recovery of Ext.P-I5 is open and accessible to all, (ii) it is in the close vicinity of the place of occurrence which was visited by so many persons after the incident; (iii) the recovered article is so commonly available; and (iv) if had been recovered on the third day of the occurrence; therefore, this circumstance is rendered unreliable. 22. It has been suggested to PW-2 that the resin tins were smuggled by him with the help of Nagender Singh and Bhupinder Singh (PW-6) and the case has been concocted to falsely implicate the accused. The suggestion has been denied even if true. There are certain circumstances which emerge from the evidence from which the inference favourable to the above suggestions are possible. 23. It is the version of PW-2 that he had seen and recognised the accused setting the stores on fire, and then he came down from the upper storey and ran after the accused the chased him for about 5 minutes. This time is enough to cover a distance of more than a kilometer in the process of chasing. It is contrary to the ordinary human conduct that instead of crying for help and attempting to extinguish the fire, this witness thought it proper to run after the accused whom he had recognised. 24. This time is enough to cover a distance of more than a kilometer in the process of chasing. It is contrary to the ordinary human conduct that instead of crying for help and attempting to extinguish the fire, this witness thought it proper to run after the accused whom he had recognised. 24. In this cross examination PW-2 stated that prior to chasing the accused he had gone to the house of PW-1 Uma Dutt, narrated the occurrence to him and then chased the accused and after 5 minutes chase, it took another five minutes for him to return, when he took PW-1 alongwith him and started to extinguish the fire. Again it is contrary to the ordinary human conduct and if so, the witness was least interested in extinguishing the fire at the first instance and then take care of other matters. 25. The resin tins should have been melted by the fire which took more than 1/2 day to extinguish it with the help of fire brigade. PW-3 admits that resin tins on fire must melt. However, the resin tins in given number though damaged by fire were taken in possession by the police vide Memos Exts. PE and PF. What renders this recovery still more suspicious is that despite the spot having been visited by the Investigating Officer on 6.9.1996 and having taken in possession the other incriminating material on the same day vide memo Ex PB, the tins are taken in possession after 10 days i.e. on 16.9.1996. This recovery admittedly has not been made by PW-11. The police official who might have effected this recovery has not been examined nor any explanation has been offered for the inordinate delay in this recovery. The only legitimate inference which can, therefore, be drawn is that this recovery is false. 26. The premises set on fire admittedly had been hired by the Forest Corporation for the purpose of depot (stores). However, it is the version of the prosecution itself that 50 resin tins of Nagender Singh brother of PW-5 and PW-6 were also stored in the same premises. In the ordinary course the premises hired for storing the resin tins belonging to Forest Corporation could not be allowed to be used by Nagender Singh for storing his resin tins therein. If it is so PW-2 was in dereliction of his duties doing favour to Nagender Singh. 27. In the ordinary course the premises hired for storing the resin tins belonging to Forest Corporation could not be allowed to be used by Nagender Singh for storing his resin tins therein. If it is so PW-2 was in dereliction of his duties doing favour to Nagender Singh. 27. Two of the resin tins so recovered were sent for chemicaJ analysis and vide report Ex.PX, PW-9 B.R. Rawat the then Scientific Officer F.S.L. Janga did not find resin contents therein. This strengthen the view that the recovery of these tins vide Memos Ext, PE and PF was fake. 28. The above discussion leads me to the conclusion that the prosecution evidence is far from being cogent, reliable and trustworthy and could not be acted upon to record conviction and sentence cannot be sustained. 29. As a result this appeal is allowed. The impugned conviction and sentence are set-aside and the accused is acquitted of the charge against him. 30. The accused who is presently in jail be set at liberty forthwith unless required to be detailed in any other case. 31. Fine if recovered be refunded to the accused. Appeal allowed.