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Himachal Pradesh High Court · body

2014 DIGILAW 1367 (HP)

ROSHANI DEVI v. STATE OF HIMACHAL PRADESH

2014-09-26

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. 1. Assailing the judgment dated 27.4.2006, passed by learned Sessions Judge, Mandi, H.P. in Sessions Trial No. 53 of 2004, titled as State vs. Smt. Roshani Devi, whereby accused-appellant Roshani Devi stands convicted for having committed an offence punishable under the provisions of Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs. 2000/- and in default of payment of fine, to further undergo imprisonment for a period of one month, accused has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 9.6.2004, Hari Singh (PW-1) lodged a complaint (Ext. PA) with the police to the effect that on 8.6.2004 his wife Roshani Devi (accused), with whom he had strained relations, entered his house and set his personal belongings on fire. On the basis of said complaint, F.I.R. No. 116 of 2004, dated 9.6.2004 (Ext. PD) was registered by HC-Milap Chand (PW-11) against the accused under the provisions of Section 436 of the Indian Penal Code. SI-Kapoor Chand (PW-14) investigated the matter, which revealed, that accused committed the alleged act at the time when the complainant alongwith his mother Smt. Mangali Devi (PW-2) had gone to attend the court proceedings at Jogindernagar. Accused had filed a complaint in the Court of Judicial Magistrate, Jogindernagar. The said act was witnessed by complainant's daughter Sita Devi (PW-4) and neighbour Rita Kumari (PW-3). Rita Kumari informed the incident to Pradhan Nagnu Ram (PW-6) and Sita Devi informed the incident to Hari Singh (PW-1). The incident was also witnessed by Dalip Kumar (PW-7), Ram Rakha (PW-9) and Kishori Lal (PW-13). With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 436 of the Indian Penal Code, to which she did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as fourteen witnesses and the statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which she pleaded false implication. No evidence in defence was led by the accused. 5. 4. In order to establish its case, prosecution examined as many as fourteen witnesses and the statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which she pleaded false implication. No evidence in defence was led by the accused. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal. 6. Assailing the judgment Mr. G.R. Palsra, learned counsel, has pointed out the illegalities and perversity in the findings returned by the Court below while appreciating the testimonies of the prosecution witnesses. 7. Having heard learned counsel for the parties, Court is of the considered view that trial Court has erred in convicting the accused, particularly when the complainant and his daughter did not support the prosecution case and testimony of Rita Kumari did not inspire confidence, also she being not a reliable witness on account of prior animosity and hostility. In fact, trial court committed grave illegality by not correctly and completely appreciating the testimonies of witnesses, which has resulted into travesty of justice. 8. Hari Singh (PW-1) simply states that he alongwith his mother had gone to attend the court case. At about 5.00 p.m. when he returned, he found his belongings, inside his house, burnt with fire. All that he states is that his daughter Sita informed him about the accused, in his absence, having come to take her belongings. His daughter had not informed the name of the person who set the personal belongings on fire. This version of his stands corroborated by Sita Devi (PW-4) who categorically denies having knowledge of the person who set the personal belongings on fire. It be only observed that despite extensive cross examination nothing fruitful could be elicited from the testimony of these witness. 9. Version of Mangali Devi (PW-2) that Sita Devi informed her of accused having set the personal belongings on fire is not corroborated. Also in cross examination she clarifies her statement by stating that Sita Devi had not informed her as to who had set the same on fire. Version of this witness is uninspiring in confidence also for the reason that loss on account of fire, so disclosed by her, is of rupees fifty thousand, whereas even as per prosecution case it was only rupees five thousand. Version of this witness is uninspiring in confidence also for the reason that loss on account of fire, so disclosed by her, is of rupees fifty thousand, whereas even as per prosecution case it was only rupees five thousand. But on the fact in issue, this witness did not see the occurrence of the incident and as such there is nothing in her testimony, apart from hearsay version, proving criminal intent, conduct or behaviour on the part of the accused. 10. Further witnesses viz. Dalip Kumar (PW-7), Ram Rakha (PW-9) and Kishori Lal (PW-13) have also not supported the prosecution case and in spite of their extensive cross examination nothing fruitful could be elicited from their testimonies. 11. While convicting the accused, trial court heavily relied upon the testimony of Rita Kumar (PW-3). Having perused the same, it is not inspiring in confidence. One she admits prior animosity and hostility against the accused inasmuch as there is long pending litigation between the two families. Also incident took place at the time when she was playing in the courtyard with Sita Devi. Now Sita Devi does not record presence of this witness on the spot at all. Her presence itself is doubtful. That apart, witness clarifies that she saw fire in the room three minutes after departure of Roshani Devi. The incident took place during broad day light. It is not the case of prosecution that members of family of Rita Kumari were not at home at that time. None else saw the accused. After all it is not the prosecution case that accused came stealthily. Also this witness did not inform the incident to anyone. Why so? has not been explained. 12. Version of independent witnesses Nirmal Singh (PW-5) and Nagnu Ram (PW-6) is on the basis of hearsay evidence and hence cannot be relied upon. 13. It is a settled principle of law that prosecution has to prove the charged offence, against the accused, beyond shadow of reasonable doubt. In the present case, none saw the accused set the belongings of the complainant on fire. The accused, even as per case of the prosecution, had come to collect her clothes. It was much after that she left, children in the compound saw the fire. None has ruled out the possibility of any other person, even amongst the neighbours, entering the house. The accused, even as per case of the prosecution, had come to collect her clothes. It was much after that she left, children in the compound saw the fire. None has ruled out the possibility of any other person, even amongst the neighbours, entering the house. The principle of last seen theory cannot be pressed in the given facts and circumstances. 14. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 15. Hence for all the aforesaid reasons, it cannot be said that the judgment passed by the trial Court is based on sound principles of law, clear and cogent piece of evidence or that testimony of relevant prosecution witnesses inspires confidence in any manner. As such, present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused is acquitted of the charged offences. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. 16. Appeal stands disposed of, so also the pending application(s), if any.