Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1944 (HP)

State of H. P. v. Raj Kumar

2015-12-21

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal has been instituted at the instance of the State against the judgment dated 8.7.2015, rendered by the learned Sessions Judge (Forests), Shimla, H.P. in Sessions Trial RBT No. 23-S/7 of 2015/14, whereby the respondent-accused, who was charged with and tried for offences punishable under Sections 435 and 436 IPC has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 1.6.2013 at about 6:00 AM, PW-1 Khem Chand left to Seri village. His wife also came to village Seri after sending children to the school. At about 1:15 PM, Bimla, wife of Jagat Ram telephonically informed that a fire has broken out in his house. He alongwith other family members came to village Makdog on foot. He noticed that outside his house at a distance of 40 meters, two stacks of fuel wood were burnt and smoke was coming out from inside his house. When he opened the lock of the door, he noticed that the door was bolted from inside. He came to the back side of his house. The window of the middle room was completely burnt. Godrej Almirah was also on fire. The fire was extinguished. He found household articles lying scattered in burnt condition. He suspected that accused Raj Kumar was responsible for the same. A civil litigation was already pending with the accused. The police recorded the statement of PW-1 Hukam Chand under Section 154 Cr.P.C, vide Ext. PW-1/A. It was sent to Police Station Boileauganj and FIR Ext. PW-7/A was registered. The police visited the spot. The photographs were clicked. The investigation was completed and challan was put up before the Court after completing all the codal formalities. 3. The prosecution has examined as many as 15 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. He denied the prosecution case. The learned Trial Court acquitted the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. M.A.Khan, learned Addl. Advocate General, appearing for the State has vehemently argued that the prosecution has proved its case against the accused. 5. We have gone through the impugned judgment and records of the case carefully. 6. PW-1 Khem Chand deposed that on 1.6.2013, he left for village Seri at about 6:00-6:15 AM. His wife Meena Devi also came to village Seri after sending the children to the school. 5. We have gone through the impugned judgment and records of the case carefully. 6. PW-1 Khem Chand deposed that on 1.6.2013, he left for village Seri at about 6:00-6:15 AM. His wife Meena Devi also came to village Seri after sending the children to the school. He received a telephonic call from Bimla Devi that fire has broken out in his house. He along with his wife rushed to his house. On reaching, he found that two stacks of fuel wood were burnt. He found smoke coming out from inside the room. The room was bolted from inside. He went to the back side of the house and found that the window was burnt. After entering the house, he found various domestic articles kept inside the almirah and trunks burnt. According to him, this incident was committed by accused Raj Kumar. He was having civil litigation with the accused which is pending in the civil courts. His statement Ext. PW-1/A was recorded. During cross-examination, he deposed that he reached village Makdog by 2:00 PM. The villagers had also gathered on the spot by the time he reached. No one from the village tried to extinguish the fire. The fire was broken out only in the middle room. He has not seen the accused in the village. Self stated that he saw him while boarding a bus, by which he travelled from village Makdog to Seri. He admitted that he had not seen the accused with his own eyes putting fire in his house. He also admitted that accused got registered FIR No. 221/12 against him and his family members. 7. PW-2 Meena Devi is the wife of the complainant. In her cross-examination, she also admitted it to be correct that she had not seen the accused Raj Kumar at village Makdog. She admitted that there was FIR against her at Police Station (West). 8. PW-3 Bimla Devi deposed that on 1.6.2013, Smt. Laxmi came to her house and asked for the mobile number of Khem Chand as fire had broken in his house. She supplied the number. Khem Chand and his wife reached on the spot at 2:00 PM. There was fire inside the middle room of the house. The villagers had also gathered on the spot. She also admitted that she has not seen the accused putting the house on fire. 9. She supplied the number. Khem Chand and his wife reached on the spot at 2:00 PM. There was fire inside the middle room of the house. The villagers had also gathered on the spot. She also admitted that she has not seen the accused putting the house on fire. 9. PW-4 Laxmi Devi deposed that on 1.6.2013, at about 12:00-12:30 PM, she detected the smoke coming out from the house of Khem Chand. She informed Bimla Devi telephonically about the same. Sh. Khem Chand along with his wife reached on the spot at about 2:00-2:30 PM. The witness was declared hostile by the prosecution. 10. PW-5 Baldev deposed that he is mason by profession. On 1.6.2013, at about 12:00 noon, he came to his house for lunch. When he was about to leave for his work, at about 12:30, he noticed that accused was going towards the house of Khem Chand. The accused went nearby the place where the two fuel wood stacks were lying. He lit the fire. Khem Chand and his wife reached the spot at 1:45 PM. The fire broke out inside the house of the complainant. The clothes and other articles of the complainant were kept in a heap and put to the fire in the middle room. The police visited the spot. The seizure memo Ext.PW-5/A was prepared. 11. PW-6 Asha Chauhan, deposed that she was Pradhan of Gram Panchayat Kohbag since 1995. Makdog village is in her Panchayat. She visited the spot. The whereabouts of the accused could not be traced w.e.f 1.6.2013 to 3.6.2013. 12. FIR was registered by PW-7 ASI Mast Ram vide Ext. PW-7/A, on the basis of the statement recorded under Section 154 Cr.P.C. 13. PW-15 S.I. Harish Kumar visited the spot on 2.6.2013. He prepared the spot map vide Ext. PW-15/A. The case property was taken into possession. 14. According to the case of the prosecution, accused Raj Kumar had put the stack of wood on fire and also the house of the complainant. PW-1 Hukam Chand has admitted that he has not seen the accused in the village. No one from the village has tried to extinguish the fire. It was expected from the villagers to put off the fire when they had gathered on the spot. PW-1 Hukam Chand also admitted that accused had got registered FIR No. 221/12 against him and his family members. No one from the village has tried to extinguish the fire. It was expected from the villagers to put off the fire when they had gathered on the spot. PW-1 Hukam Chand also admitted that accused had got registered FIR No. 221/12 against him and his family members. Similarly, PW-2 Meena Devi has admitted that FIR was registered against her at Police Station (West). She had also not seen accused at village Makdog. PW-3 Bimla Devi has also not seen the accused putting house of the complainant on fire. According to her, Laxmi Devi came to her house to get the phone number of Hukam Chand. However, PW-4 Laxmi Devi deposed that on 1.6.2013 at about 12:00-12:30 PM, she detected smoke coming out from the house of Khem Chand. She informed Bimla Devi telephonically about the same. 15. PW-5 Baldev is the material witness. According to him, he has seen accused Raj Kumar putting the house on fire. However, in his statement under Section 161 Cr.P.C., he has not stated so. He has made improvement from his earlier statement. PW-15 SI Harish Kumar has not ascertained as to whether the house of Hukam Chand was visible from the house of PW-5 Baldev or not. In case the accused was seen putting fire on the house of complainant, it would have been stated so in the statement recorded under Section 161 Cr.P.C. PW-5 Baldev Singh, for the first time, has made such a version when his statement was recorded in the Court as PW-5. 16. The Division Bench of the Allahabad High Court in the case of Munesh vrs. State of U.P., reported in 2004 Cr. L.J. 1529, has held that the evidence of witnesses can only be accepted if on core or substratum of prosecution case their statement in trial Court is consistent with their statement under Section 161 Cr.P.C. and where it is not, the Court would have no compunction in rejecting it. State of U.P., reported in 2004 Cr. L.J. 1529, has held that the evidence of witnesses can only be accepted if on core or substratum of prosecution case their statement in trial Court is consistent with their statement under Section 161 Cr.P.C. and where it is not, the Court would have no compunction in rejecting it. It has been held as follows: “[16] We have no reservations in observing that if witnesses do not state about the core/substratum of the prosecution case in their statements under Section 161, Cr.P.C. and when during the course of their cross examination, in the trial Court, confronted with the omission, fail to give a plausible explanation for it, as is the case with Madan Lal P.W. 2 and Suresh Chandra P.W. 3, it would be extremely hazardous to accept their testimony, for there is always the lurking fear in the mind of the Court that in order to fill the lacuna in their evidence, they have made improvements. We make no bones in observing that in Criminal cases, evidence of witnesses can only be accepted, if on the core/substratum of the prosecution case their statement in the trial Court is consistent with their statement under Section 161, Cr.P.C. and where it Is not, as is the case here, the Court would have no compunction in rejecting it.” 17. Thus, the prosecution has failed to prove the case against the accused that the accused has put the house of complainant on fire. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 8.7.2015. 18. Accordingly, there is no merit in this appeal and the same is dismissed.