Gopal Krishan and Another vs State of Himachal Pradesh

Bhawani Singh, J.—The Appellants, cousins to each other, aged 17 and 18 years respectively, challenge their conviction by the learned Additional Sessions Judge, Kangra Division, by judgment dated 23-11-1985 in Sessions Case No. 10 of 1985 and Sessions Trial, No. 11 of 1985 under Sections 435/429 read with Section 34 of the Indian Penal Code. Instead of awarding them jail sentence at the stage of judgment, the trial court gave them benefit of Section 360 of the Code of Criminal Procedure thereby binding them down for a period of two years from the date of the judgment to maintain peace and to be of good behavior in the locality concerned. Accused No. 1 was directed to furnish bond in the sum of Rs. 5000/- with one surety in the like amount while accused No. 2 v/as ordered to furnish surety bond in the sum of Rs. 5000/- to the satisfaction of the Court to undertake to appear in the Court and to receive sentence when called upon to do so case of the breach of the said bonds.

By this appeal, these boys have challenged the judgment of the Additional Sessions Judge and want their acquittal. They have raised a number of submissions to assail the judgment through their counsel Shri S.S. Kanwar.

The facts of the case, in brief, are that the fathers of these cousins are real brothers. They live separate from their third brother, Shri Parkash Chand, the complainant, in the present case. The Appellants are living in this village, doing schooling. Their fathers are away in service. It is alleged by the prosecution that the complainant had constructed a Ghural divided by a half brick wall. The complainant used to keep his cattle, grass and other articles on one side and kitchen on the other side.

In the morning of 25-12-1984, a quarrel is stated to have taken place between the complainant and the Appellants as to the sloughing of some land near the residential buildings of the parties situate at a distance of about six feet from each other. On the night of 25-12-1985 at about 11 A. M., (Sic. PM ?) the complainant states that he and his wife were sitting in their house when they heard some bang from outside their house. He followed his wife to the verandah and saw the Appellants in the kitchen who jumped out through the window of the kitchen on seeing them. The ''Ghural was on fire. The complainant alleges that he sustained a loss of Rs. 10,000/- because about 600 bundles of grass, 8 wooden planks, 180 bamboo pieces, about 20 to 25 wooden rafters and one she-calf had been burnt in this fire. A number of villagers came on the spot and the fire was extinguished with their help. The First Information Report was lodged on 30-11-1984. After investigation, the trial commenced under Sections 436, 428, 427 read with Section 34 of the Indian Penal Code. The trial court came to the conclusion that the case falls u/s 435 instead of Section 436 of the Indian Penal Code.

On the other hand, the case of the Appellants was that a false case has been initiated against them. The relations of the families of the Appellants as well as of the complainants are strained since a very long time. Litigation between them is pending in a number of cases. They were present on the spot along with their m others to extinguish the fire. The complainant had revealed during and soon after the incident to some others, present on the spot, that he did not have any suspicion about anyone for the incident and that is why he kept quiet for a number of days and the day, the First Information Report was lodged, the complainant had no intention to lodge the same as he had gone to attend his office as well and the excuse of going to the doctor set up by the complainant, due to his illness with effect from 26-12-1984, was completely false. It was, by chance, that the policeman met him and both of them discussed and decided to involve the Appellants by initiating a case of this nature against them. However, it is alleged, that the Patwari of the ill aqua had filled up a form for compensation to be paid to the complainant by the Government due to loss by fire. In this form under the column "cause of fire", entry "accidental" had been written. So, it was an accidental fire due to complainant''s own mistake and, therefore, the Appellants allege that they have been intentionally involved in this false case. These are, in brief, the rival contentions of the parties.

The prosecution has pressed into service a number of witnesses. However, it is worthwhile to refer only to those who are material to the present case. Among them is the complainant Shri Prakash Chand (P. W. 3). He states that on hearing the voice of "thank" outside the room, he was, at that time, sitting with his wife, he followed his wife to the verandah and saw both he accused, identified with the light of torch in his hand, in the kitchen. The ''Ghural was on fire. Both the accused had run away through the window of the kitchen room. His wife took out the cow from the ''ghural but could not save the she-calf. Help was sought from the villagers; among them Shri Rikhi Ram (DW 2) was the first to arrive at the spot followed by Pritam Chand (P. W- 6) and others. He further states that he told, on inquiry, to Shri Pritam Chand, Rikhi Ram, Kali Dass, Mohinder etc. that the accused had set his ''Ghural and kitchen on fire. He had revealed the names of these accused to them. On the morning of 26-12-84, he had fallen ill and remained confined to bed till 29-12-1984. He was treated by vaidya Bir Singh. On 30-12-1984, he went to Kathog to take the medicines where he met Head Constable Karnail Singh to whom he narrated the incident only after he (Karnail Singh) had inquired from him as to what had happened to him. This witness further states that his statement Ex. PA was recorded by the said Head Constable on the basis of which the First Information Report was recorded.

In his cross-examination he admitted that a number of cases, civil as well as criminal, were pending between the parties and a few of them had been decided against him. He also admits that he did not go to the Society, situate at a distance of about km from his house, on 26-12-1984 to 29-12-1984 but said that he went to the Society on 30-12-1984 at 10 A.M.

He further states that the accused were standing in the kitchen after setting fire to it. The accused jumped out of the window of the kitchen when they saw the complainant and his wife. Again in his cross-examination he states that the kitchen does not have any doors or windows which falsify his earlier statement that the accused had jumped out of the kitchen through the window. He denies the suggestion that the fire may be due to dry grass which caught fire due to some fire either remaining in the hearth or from the lamp with which his daughter may have gone to the ''Ghural''. He states that he had shown prescription chit to the police on 30-12-1984 at Kathog but the police told him to keep the same with him. It is pertinent to point out here that this chit was neither taken by the police to explain the delay in the lodging of the First Information Report nor brought to the notice of the trial court to explain the delay. The only reasonable arid legitimate inference which can be drawn is that this witness is not telling the truth. Illness has been set-up simply to explain the delay in the lodging of the First Information Report; an effort has been made to explain the same by saying that he was confined to bed from 26-12-1984 to 29-12-1984.

On a suggestion, he states that he did not know if the accused were helping him in extinguishing the fire. Further, he says that he did not see the accused and their mothers on the spot after the incident. He admits that he did not report the matter after the incident to the Pradhan the next day nor did he submit any application to the Panchayat regarding this incident. He also admits that he did not send Shri Rikhi Ram (D.W- 2) to lodge the First Information Report to the police on his behalf.

Shrimati Kamla Devi (P.W.5), wife of the complainant, supports (P. W. 3), Shri Pritam Chand (P. W- 6) states that he went to the spot to help in the extinguishing of the fire. He was told by the complainant and his wife that the accused had set the ''ghural'' on fire. He admits that Rikhi Ram (DW 2) had reached the spot earlier than him and that except the complainant and his wife, Shri Rikhi Ram (DW 2) was the only person on the spot at that time. The mothers of the accused were-not do not present on the spot nor did he see the accused persons on the spot after the fire had broken out. He further states that he did not himself see the accused setting fire to the ''Ghural'' and that the distance between the houses of the accused and the complainant was hardly six feet.

Shri Bishamber Dutt (P.W- 7) is a witness to the statement of recovery of match box (Ex. PF) u/s 27 of the Evidence Act by accused No. 1.

Shri Karnail Singh, Head Constable, (P.W- 8) states that it was during patrol duty in Village Kathog on 30-12-1984 that the complainant met him and made the statement Ex. P. A to him. It was on this statement that the case was registered. In this case, he recorded the statements of witnesses and the recovery was also affected by him. He states that the complainant met him on the road-side at Kathog while he was going to the police station to lodge the report. He further states that the complainant told him that the matter could not be reported earlier because of his illness. He did not ask the complainant to adduce proof of his illness.

The accused in their statements u/s 313 of the Code of Criminal Procedure stated that there is enmity between the complainant and their fathers regarding land disputes and various civil cases were pending in the Court in regard to such litigation. They denied the allegation of the incident of quarrel which is alleged to have taken place in the morning of 25-12-1984. In answer to question No. 12, the accused stated that, in fact, they and their mothers were first to reach the spot and it was thereafter that Rikhi Ram (D W 2) came there. Father of Pritam Chand came before Pritam Chand (P.W. 6). The issue of illness of the complainant has been denied and so also the recovery of match box. It is further stated by them that they had been involved due to litigation, enmity and a number of cases having been decided in their favour. It is further stated that after the incident the complainant had revealed to Shri Rikhi Ram (Dw 2), Bhikhu Ram and Dev Raj of the village that he did not have any suspicion about the fire against anyone. It was only on 31-12-1984 that the complainant implicated them falsely in connivance with the police.

The accused produced three defence witnesses. Brij Lai (D.W-1) is the Patwari of the area. He prepared a compensation case in respect of the loss of ''Ghural by fire after visiting the spot on 26-12-1984 in the morning. Although he did not confirm from the complainant about the cause of fire, he had, under the column of "cause of fire" mentioned it due to "accident". The report of the cause of fire, he states in cross-examination, finds mention in the Rojnamcha at Serial No. 133. He denies the suggestion that the report in the Rojnamcha in the Patwarkhana was without any inquiry into the matter.

Shri Rikhi Ram (D W 2) states that he went to the spot on hearing the noise and saw the fire. Many persons were present including the complainant, his wife and wives of his brothers (mothers of the accused). Thereafter one Roshan came to the spot followed by many other persons of the village including Bhikhu Ram, Paras Ram, Dev Raj, Jaishi Ram and his sons. He further states that the accused were present there for extinguishing the fire. On inquiry, the complainant told him that he had no doubt on anyone. He, in his cross-examination, admitted that the fire was at its peak when he reached at the spot. He denies that Pritam Chand (P.W. 6) was not standing near the complainant and his wife nor does he know, if ever, during this time he was talking to the complainant and his wife during that night.

Shri Bhikhoo Ram (DW 3) is the Ward Panch of the village Panchayat. He states that when he reached the spot, there were 100/200 persons present there extinguishing the fire. On inquiry, the complainant told him that he did not have any suspicion about the fire against anyone. No application was presented by the complainant to the Panchayat regarding the fire. He went to the house of the complainant next day as well but he was not told by the complainant about the cause of the fire. He denies about the illness of the complainant as he used to see him daily after the fire incident. He states that only gully of maize were burnt inside the house other than the she-calf.

Shri S.S. Kanwar, learned Counsel for the accused, submits that the case against the accused is false concocted and deliberate. He refers to the motive part of it by submitting that the old enmity is persisting between the parties. The motive, he asserts, set-up by the prosecution by alleging the incident of quarrel having taken place in the morning of 25-12-1984 is thoroughly concocted and lame on which prosecution cannot be based. He further submits that the fire was accidental.

After giving due consideration to the submissions of the learned Counsel for the Appellants, I am of the opinion that the case against the Appellants is baseless and deliberate. The Appellants are in no way responsible for the fire. It may be accidental though no sincere effort has been made by the investigating agency to find out the real cause of it. The statement of Shri Parkash Chand (P.W- 3) and his wife Kamla Devi (P.W- 5) that the ''Ghurav had been set on fire and that they saw the accused in the kitchen and they ran away when seen by the complainant and his wife, do not inspire any confidence. It cannot be reasonably believed that the accused would remain in the kitchen after having set the ''ghural'' on fire. Therefore, if this part of the statement of the complainant Shri Parkash Chand (P.W 3) and his wife Shrimati Kamla Devi (P. W. 5) is disbelieved, then the only possible conclusion which can be reasonably drawn is that the accused were not seen by the complainant and his wife setting the ''ghural'' on fire and the statement to the contrary cannot be believed. in these circumstances, it can be safely concluded that the fire was accidental. The complainant and his wife also believed it to be true that is why they kept quiet over the matter and did not dispute this fact even before the Patwari who visited them the next day to prepare a claim for compensation. This was the first occasion for them to have setup a case of the nature they did subsequently. The statement of Shri Pritam Chand (P. W. 6) is thoroughly insignificant. His presence on the spot is denied and even if it is believed that he was there, his information on the material aspects of the case is based on whatever was spoken to him by the complainant and his wife. It does not, therefore, inspire confidence. In these circumstances, I disbelieve the versions of the complainant, his wife and Pritam Chand (P.W. 6).

Now, turning to the argument of Shri S.S. Kanwar that the case was deliberately initiated after concocting the story with the result that there is unexplained delay in the lodging of the First Information Report. Perusal of the matter on this aspect shows clearly that the case took a U turn on 30-12-1984 when the complainant met Shri Karnail Singh (P.W- 8). Reading between the lines, it appears that the complainant had no intention even on 30-12-1984 to lodge the First Information Report relating to this incident. The story of illness set-up by the complainant to explain the delay is absolutely unbelievable. It cannot be reasonably believed that a person is ill and he does not care to take medicines and when the illness is no longer there, looks for the doctor. Here also, there is no cogent and convincing explanation as to whether he actually left his house on 30-12-1984 for visiting the doctor because he states that he had gone to attend his duties in the office of Co-operative Society where he was employed. Neither vaidya Bir Singh has been produced as a witness nor the prescription chits were brought to the notice of the trial court which could be easily done. In the absence of clear, convincing and cogent evidence explaining the delay in the lodging of the F.I.R., the only legitimate inference which can be drawn is that the story of illness was simply set-up to explain the delay which cannot, therefore, be believed in these circumstances.

Lodging of First Information Report soon after the occurrence is of fundamental importance. It eliminates attempts of anyone fabricating the incident and trapping innocent persons into the case. Moreover, embellishments into the real story can be, to a greater extent, kept at bay, otherwise, longer the delay, more the chances of such information''s suffering from deficiencies, as discussed, thereby casting a doubt on the whole prosecution version. Looking to the facts of this case, the Complainant would have made every endeavor to lodge the F.I.R. either himself or through his wife or through Pritam Chand (P.W. 6) or Rikhi Ram (DW2) or the Pradhan of the Gram Panchayat or anyone out of the many persons who had come to extinguish the fire. Nothing was done. No explanation has been given on this aspect of the matter by the complainant. The recovery of match box does not inspire confidence. Match boxes are commonly kept by people and easily available. There was no idea to conceal it by the accused-Appellants. I think, it was recovered by the police u/s 27 of the Evidence Act, as it, usually, a common exercise by the police making investigation of a criminal case. I reject this evidence against the accused. In view of these circumstances, there is no other option but to reject the-whole case against the Appellants.

Looking to the case of the Appellants, I am fully convinced that their explanation is most reasonable, convincing and effective. They have plainly placed their case and the defence witnesses, more particularly, Shri Brij Lal (DW 1) has given the earliest position of the matter and there is no reason to disbelieve any one of them.

In light of the aforesaid examination of the matter, the conclusions and the reasoning of the learned Additional Sessions Judge are thoroughly conjectural and devoid of merit. I, therefore, allow this appeal, set-aside the conviction of the Appellants. The bail bonds and surety bond(s) executed by the Appellants in pursuance of the judgment of the learned Additional Sessions Judge are hereby cancelled and the accused discharged from any liability under them.