State of H.P. vs Smt. Sukesh Sharma

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 Additional Sessions Judge, Sirmaur District at Nahan, dated 31.12.2002, vide which he acquitted the respondent of the charge framed against her under Sections 506 and 436 I.P.C. Briefly stated, the facts of the case are that a report was lodged with the police by one Satya Nand on 20.12.2000 at 11.00 a.m., in which he had alleged that he had constructed a kitchen. On 20.12.2000, in the morning he was working in his field and his wife was cooking in the kitchen. One Smt. Sukesh Sharma was abusing his wife that they will set the kitchen on fire and he went to the spot. He found that the kitchen had been set on fire and Mashaal was being held by Smt. Sukesh Sharma in her hand. On this report, a case was registered and after investigation, the challan was filed before the Court of Chief Judicial Magistrate, Sirmaur District at Nahan, who committed the case to the Court of learned Sessions Judge, who assigned the case to the learned trial Court, who tried the respondent as detailed above, leading to her acquittal.

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

The first question which arises for consideration is as to whether there was a kitchen in existence and as to whether the same was built up by complainant PW-1 Satya Nand, one month prior to the occurrence.

No reference need to be made to the photographs with which the witnesses were confronted, as these were not exhibited but were only marked.

It has come up in the evidence of PW-1 Satya Nand that the land is entered joint between his father and the accused''s husband and other co-sharers, which finds credence from the copy of jamabandi Ext. PW7/B proved in evidence by the prosecution. PW-1 has claimed that the land fell into their private shares in a family arrangement, which took place 8-10 years ago, for which there is no evidence on record. He stated that this family arrangement was got entered in the revenue record, which also does not find mention in any of the copy of the jamabandi proved on record. On the one hand this witness has claimed that he had constructed the kitchen about a month prior to the occurrence, but he is not able to give length, width and height of the kitchen so got constructed by him. He admits that the accused claims the land underneath the kitchen belonging to her. His wife PW-2 Smt. Tara Devi has stated differently when she states that the kitchen has been in existence for the past about two years, which is contrary to the version of her husband. However, in cross-examination, she changes her version that the kitchen was constructed by her husband one month prior to the incident.

PW-3 Smt. Surmi Devi, mother of the complainant PW-1, has stated that three walled structure referring to the kitchen was constructed by the accused''s husband ten years ago, self stated that we later converted that structure into a kitchen. PW-2 Smt. Tara Devi and her mother-in-law has stated that the kitchen of three walled and one side of which was open, but as per PW-2 Smt. Tara Devi, there was no door, whereas PW-3 states that the kitchen had a door. In view of these contradictory statements of these witnesses, it cannot be said with certainty that this kitchen was constructed by the complainant PW-1 or there existed any kitchen or not.

Coming to the deposition of the material witness PW-2 Smt. Tara Devi, she has stated that when she was cooking food in the kitchen on 20.12.2000 around 8.30 a.m., the accused set the kitchen ablaze with a Mashaal and the kitchen, which was of thatched roof, was reduced to ashes. She cried for help, whereupon five persons came running to her for extinguishing the fire. Her mother-in-law was sitting in the courtyard of her house at that time. She further stated that when she came out of the kitchen, she saw the accused on the nearby pathway at a distance of about 60 metres from the kitchen. She looked at her and said: "Have you not yet burnt; I thought you must have been burnt." She then came to her holding an extinguished Mashaal and rubbed the extinguished end of the Mashaal against her throat and threw the Mashaal there only. She then went away through the same pathway. If she had already observed the accused setting the kitchen on fire, what credence can be given to her statement that she then saw the accused on the nearby path. In case, she had suffered any injury as a result of touch of the Mashaal, this must have been proved by the prosecution to substantiate her statement, which is not so.

In regard to the fact that her mother-in-law Smt. Surmi Devi came, who was sitting in the courtyard of her house, she has been examined as PW-3, who has stated that she was sitting in her courtyard at a distance of 5-7 feet from the kitchen. Alongwith her, one Govind Ram was sitting. Her daughter-in-law Tara Devi raised an alarm and the accused left the spot. She does not state that she saw the accused leaving the place with Mashaal in her hand and had seen setting the kitchen on fire. The said Govind Ram has been examined as PW-4, who has sated that he was on his way after dumping manure in his field when he saw the accused near the kitchen holding a Mashaal, which is contrary to the version of PW-3 Smt. Surmi Devi that he was sitting with her in her courtyard. She has not seen the accused leaving the place with a Mashaal in her hand which was burning, but this witness who is quite anxious to help the complainant states that he saw the accused with a Mashaal. He admitted his close relationship with one Surat Ram, Postman, who was his real brother and in what way he had tried to help the complainant party, his version cannot be believed.

PW-1 Satya Nand, about whom, no witness has stated about his presence at that time, has stated that when he was working in his field at a distance of about 100 metres from his house, he heard his wife shouting "Bachao-Bachao" and found that the kitchen had been set ablaze. He saw the accused, who is his aunt, going towards the road holding a torch in her hand. She was walking along the way, which is below their house. His presence at the spot does not stand established from the testimony of other witnesses. He says that he saw the accused going with Mashaal, but it looks surprising that the accused will use the Mashaal and will carry it while going in the common path, which part of his statement does not inspire confidence.

In his cross-examination, he has stated that he had seen the accused carrying Mashaal and the accused was at a distance of 60 metres from his house. It looks surprising that he saw the accused at a distance of 60 metres from his house, who still held a Mashaal and the version of all these three witnesses cannot be relied upon.

They had tried to prove that the kitchen was raised by them, which evidence is quite contradictory and not reliable. According to PW-3 Surmi Devi, by time the villagers reached the spot, the accused had reached the road, which is about 100 metres from the kitchen, which clearly shows that the statements of these witnesses are of no help to the prosecution. The prosecution had examined only PW-4 Govind Ram whose testimony had been referred to above, while two other persons reached to the spot, namely Ganga Devi and Deep Ram. PW-4 Govind Ram has clearly admitted that he took one hour to reach the road from the field and half an hour to reach the complainant''s kitchen and the accused had met him half kilometer from the complainant''s kitchen. He had not seen the accused setting the complainant''s kitchen on fire, but only had seen her running towards the road, that too after a considerable lapse of time.

PW-5 Surat Ram states that the kitchen had four walls and in one of the walls was fitted a door-frame, which is contrary to the version of other witnesses. His house is at a distance of one and a half furlongs from the spot and his presence at the spot is quite doubtful.

The version of PW-6 is that on hearing a noise from the side of the complainant''s house, he immediately went towards that side and found that complainant''s kitchen had been set ablaze and the accused was holding a Mashaal at a distance of about 30-35 feet from the kitchen, which statement does not inspire confidence in view of the testimony of PW-3 that by the time they reached the spot, the accused had already reached the road.

From the above discussion, it is clear that the prosecution has miserably failed to prove its case and the final conclusion drawn by the learned trial Court holding that the prosecution case does not stand proved, cannot be termed as perverse, calling for an interference by this Court. In view of the above discussion, 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 respondent shall stand discharged forthwith.