State of Himachal Pradesh vs Kanta Devi and Others

V.K. Ahuja, J.—This is an appeal filed by the State of H.P. u/s 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Bilapsur, dated 11.3.2003, vide which the respondents were acquitted of the charge framed against them under Sections 147, 149, 435, 436 I.P.C.

Briefly stated, the facts of the case are that on 26.10.1995, a statement u/s 154 Cr.P.C. was made by Rattan Chand, in which he alleged that his younger brother Amar Nath was married in 1991 with Nirmala Devi who died on 16.10.1995. It was alleged that today at about 12.15 P.M., from the side of village Sunhani 300 women and 200 men came towards there house and set there houses on fire. Firstly his house was set on fire, then that of Amar Nath, his brother and Atma Ram�s house and grass lying there were burnt in the fire. It was alleged that this procession was being led by Prakasho Devi, Pradhan, Mahila Mandal, Shakuntla Devi, Pradhan, Mahila Mandal, Jai Dei, Member, Gram Panchayat and Nirmala�s mother and aunts (Chachis). From the male persons, he could name only one person, namely father of Nirmala, who was there. He stated that he does not know the names of other persons. It was alleged that to take revenge for the death of Nirmala Devi, they had set their houses on fire.

On this report, a case was registered and on completion of the investigation, police filed the challan before the Court of learned Sub Divisional Judicial Magistrate, Ghumarwin, who committed the case to the Court of learned Sessions Judge, who tried the respondents, as detailed above, leading to their acquittal.

We have heard the learned counsel for the parties and have gone through the record of the case.

On appraisal of the evidence led by the prosecution, it is clear that to substantiate its case, the prosecution has examined nine witnesses. The reference firstly has to be made to the witnesses of occurrence examined by the prosecution.

Complainant Rattan Chand has been examined as PW-1, who reiterated the allegations made in the police statement that about 300 ladies and 250 men came to their houses. He stated that the house having 4 rooms with double storeyed belonged to him and his brother Atma Ram and they were residing separately. The accused were raising slogans. He stated that Roshni Devi and Kanta Devi had set the Palli that is corner of his house on fire by litting fire with match box and match stick. Savitri and Kamla Devi were present at that time outside the house. The houses were reduced to ashes and they had been put to loss of Rs. 3,50,000/-. He further stated that Roshni Devi and Kanta Devi had also set the house of Amar Nath on fire by litting fire with match box and match stick. He also stated that the accused had also burnt the house of Bhagat Ram. The cow sheds were also destroyed in the fire. He stated that the police was holding inquiry in the nearby Panchayat Ghar and the S.H.O. came to the spot and recorded his statement. It is clear from a perusal of his statement that out of about 550 persons who came to their houses, he only named about 14/15 persons, namely Lekh Ram etc., who were present in that gathering. No part was attributed to them. The part attributed about the setting of houses on fire is of Roshni Devi and Kanta Devi. He was not confronted with his statement recorded u/s 154 Cr.P.C., though he should have been confronted with the said statement if the accused persons wanted to take benefit of not naming all these persons in the said statement. However, the fact remains that due to inadvertence or otherwise, the complainant was not confronted with the statement made by him u/s 154 Cr.P.C., in which he had not named these two persons specifically, who had lit the houses on fire. He had only alleged that this procession was being led by Prakasi Devi, Shakuntla Devi and Jai Dei and Nirmala�s mother and aunts. He has also stated that he cannot name any person except the father of Nirmala, who was also not named. It is clear that there was omission to mention the names of two of the accused persons, who had set the houses on fire, that is, Roshni Devi and Kanta Devi and now the complainant in Court has come up with the statement that the fire was lit to the houses by these two persons. This is a material omission and cannot be ignored and it is clear that these two accused persons were not named in the FIR, though he does not state that he is not knowing them.

The other eye witness examined is PW-2 Kamla, who has stated that all the accused persons had come to their houses to take revenge on account of death of Nirmala. There were about 300 ladies and 200 gents including the accused. She stated that her house is at a distance of 100 yards from the house of Rattan Chand. She stated that accused Roshni and Kanta had set the house of Rattan Chand on fire by and remaining accused persons were with them. She stated that after setting the house of Rattan Chand on fire, the accused set the house of Bhagat Ram on fire as well as that of Amar Nath. She has also that the police had come to their village regarding the inquiry about the death of Nirmala. She admitted that some of the accused persons are witnesses in the case and they have deposed against them in that case. She denied her knowledge if they were with the police at that time at Berthin Panchayat Ghar, but did not state specifically that they were present at the spot. She also stated that 1000 school children were also raising slogans on that day regarding the death of Nirmala. She now stated that her house was at a distance of half K.M. from the road and is at a lonely place at a distance of about 1 K.M. from the main village. She admitted that they are out of six accused in the death case of Nirmala.

The third witness is PW-3 Raj Kumar, who has stated that he was present in his house when he saw the accused persons coming towards their houses raising slogans. Thereafter, he stated that the accused persons set the house of Rattan Chand on fire and he named Ram Piari and Vidya Devi, who had set the house on fire, which is contrary to the versions of PW-1 Rattan Chand and PW-2 Kamla, who have specifically stated that the fire was lit by Roshni Devi and Kanta Devi. He also stated that there were also 150 persons apart from the accused. He admitted that his brother is accused in the case regarding the death of Nirmala.

PW-4 Dy.S.P. Mohinder Kumar, was investigating the case regarding the death of Nirmala at the Panchayat Ghar. PW-5 Arun Bhardwaj, Tehsildar, was present in the Panchayat Ghar at that time. PW-6 LHC Prem Lal, photographer, had only taken the photographs, while PW-7 Shyam Bhagat Negi was posted as S.P. and had gone to the Panchayat Ghar for holding talks.

PW-8 Smt. Savitri Devi has stated that Nirmala was wife of his younger brother. Accused came to near their house and set the house of Rattan Chand on fire. She did not state as to who had set the houses on fire and simply stated that all of them were there and she identifies them today.

From the above discussion of the evidence, it is clear that three eye witnesses only have deposed in regard to the occurrence and the persons who had set the houses on fire, have been named differently by one set of witnesses comprising of the complainant and another witness and by another set of witnesses comprising one witness. The learned trial Court had also observed that the witnesses are relatives and the accused persons were either members of the family of Nirmala, who had died, in which a case against the complainant party was pending and was being enquired into at that time and they may be the persons whose number was over 500, who were agitating about the death of Nirmala Devi, but the identity of the persons, who have been implicated in the case, was not established and the specific part played by them in setting the house on fire has also not been established. The mere fact that they may be persons amongst the agitators, is not sufficient to hold that their guilt stands established and even their identity has not been established that they were present at that time by all the eye witnesses examined by the prosecution.

In view of the above discussion, it is clear that the final conclusion drawn by the learned trial Court holding that the guilt of the respondents was not established, cannot be said to be perverse, calling for an interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged.