IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRL.A.No. 2497 of 2009() ------------------------ SC.134/2009 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): -------------- ROY, C.NO.4388, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SMT.R.PADMAKUMARI(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR BY ADV.SMT.LALIZA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.2497 of 2009 ---------------------------------------- Dated the 20th day of December , 2011 J U D G M E N T S.C.No.134 of 2009 of the court of Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha, is instituted upon the police charge, where the allegation is that the appellant who is the sole accused, out of his enemity towards PW6 in not transferring the house in question and property in his name, with the intention to destroy the house, heaped clothes and house hold articles in the bed room of the house bearing No.3/394 of Udumbannoor panchayat and set fire to the same at about 9 p.m. on 29.3.2009. According to the prosecution, the house hold articles, ration card and some other documents and currency of Rs.2,500/- etc. were burned and destroyed and thereby PW6 sustained loss of Rs.5,000/- and thus the accused has committed the offence punishable under 2 Crl.A.No.2497 of 2009 Section 436 of IPC. By the judgment dated 12.10.2009, the learned Judge of the trial court convicted the appellant and sentenced him accordingly. It is the above conviction and sentence challenged in this appeal. 2. Based upon the above allegation, crime No.94/09 was registered in the Karimannoor police station for the offence punishable under Section 436 of IPC and on completing the investigation, report was filed in the Judicial First Class Magistrate-Thodupuzha, which was received therein and instituted C.P.No.20/09 and subsequently by order dated 11.5.2009 in the above proceedings, the learned Magistrate committed the case to the Sessions court, wherein it is received as S.C.No.134 of 2009. When the accused is produced, after hearing the prosecution and the accused, who is represented by an advocate appointed as State Brief, a formal charge was framed for the offence punishable under Section 436 of IPC and when the same read over and explained to the accused, he denied the charge and pleaded not guilty. Consequently, the 3 Crl.A.No.2497 of 2009 prosecution adduced its evidence consists of oral testimony of Pws.1 to 9 and the documents Exts.P1 to P11. When the accused was examined under Section 313 of Cr.P.C., he denied the incriminating circumstances and evidence which emerged during the prosecution evidence and he maintained the stand of innocence. Finally, the trial court has held that, from an overall analysis of the evidence and materials and circumstances it appears that the prosecution has established its case that the accused had set fire to the dwelling house, where himself and PW6 were residing and accordingly, convicted him under Section 436 of IPC and on such conviction, he is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.25,000/- and in default he is directed to undergo rigorous imprisonment for a further period of 3 months. It is also ordered that on realisation of the fine amount, the same shall be paid to PW6 as compensation under Section 357(1) of Cr.P.C. It is the above findings, order of conviction and sentence challenged in this appeal. 4 Crl.A.No.2497 of 2009 3. As the appellant is undergoing imprisonment in pursuance to the above impugned judgment, he preferred this appeal from the jail and on receiving the same, as ordered by this Court the Registry has appointed Adv.Smt.R.Padmakumari, from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Smt.R.Padmakumari the learned counsel for the appellant and Smt.Laliza, learned Public Prosecutor for the State. 4. Among the prosecution witnesses examined, the first witness namely, PW1, is a fire man who deposed before the court that on getting an information regarding the incident at about 9.15 on 29.3.2009, party reached at the spot and put off the fire and during cross examination he had deposed that, 20 minutes taken to reach the spot. PW2 is the Secretary of Udumbannoor panchayat, who issued Ext.P1 ownership certificate showing that house bearing No.3/32 belong to PW6, the mother of the accused. PW3 is the then Village officer who prepared Ext.P2 sketch plan 5 Crl.A.No.2497 of 2009 with respect to the place of occurrence. PW4 is the attestor to Ext.P3 scene mahazar. He had admitted the signature and submitted during cross examination that he put the signature on the second day of the incident. PW5 is an attestor for Ext.P4 mahazar, in respect of the entry entered in the register. PW6 is none other than the mother of both the accused and PW8. PW6 admittedly is not an eye witness to the incident. However, Ext.P1 FI statement was given by PW6 and during the examination of PW6 she had admitted the same. PW7 is a neighbour and a portion of his 161 statement is marked as Ext.P7. PW8 is the another son of PW6 and the brother of the accused. When PW8 was examined, he is declared as hostile and the prosecution has got marked Exts.P8 and Ext.P9, the portion of his 161 statement. PW9 is the then Sub Inspector of police who prepared Ext.P10 FIR. He had also prepared Ext.P3 scene mahazar. According to PW9, during the investigation he had obtained Ext.P11 certificate from the Electrical Inspectorate which would show that there was no short 6 Crl.A.No.2497 of 2009 circuit or any electrical defect. These are the evidences and the materials and documents relied on by the court below in support of its finding and subsequently convicting the appellant. 5. The learned counsel for the appellant vehemently submitted that, the findings and the conviction and sentence awarded by the court below against the appellant are unsustainable and liable to be interfered. According to the learned counsel, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. After inviting my attention to the discussion that contained in para 10 of the impugned judgment, the learned counsel submitted that the learned Judge of the trial court simply accepted the 161 statement of PW8 and convicted the appellant and which approach of the learned Judge of the trial court is against the well settled position of law. In support of the above submission, the learned counsel invited my attention to a decision of the Division Bench of this Court reported in Narayanan Vs. State of Kerala 7 Crl.A.No.2497 of 2009 (ILR 2009(4) Kerala Series 759). It is also the submission of the learned counsel that, absolutely there is no eye witness to the incident and even the trial court has found that PW6 and the accused were not in good terms and PW6 is enemical to the accused. Thus under the above circumstances, according to the learned counsel the prosecution ought to have prove the case by clearing all shadows of doubt, and supported with concrete and acceptable evidence. But in the present case, the prosecution has miserably failed to discharge the above duty. It is also the submission of the learned counsel that though the prosecution has produced Ext.P11 report through PW9, the officer or the person who issued Ext.P11 was not examined and therefore the accused has prejudiced. Thus according to the learned counsel for the appellant, in the absence of any positive and acceptable and legal evidence, the findings of the court below cannot be justified and hence the appellant is entitled to get a clear acquittal. 8 Crl.A.No.2497 of 2009 6. The learned Public Prosecutor submitted that Ext.P1 FI statement was given by PW6, who is none other than the mother of the accused and though she had not witnessed the incident, she lodged Ext.P1 FI statement, on the basis of the information gathered by herself from her another son PW8, which is a contemporary document. It is also the submission of the learned Public Prosecutor that the attending circumstances and the materials brought on record by the prosecution proves that, the accused had an intention to set fire and therefore, merely for the reason that there is no eye witness to the incident, the accused cannot be permitted to escape from the penal liability. It is also pointed out by the learned Public Prosecutor that in Ext.P3 scene mahazar, the number of the house is shown, which was assigned after giving electric connection, and therefore the difference with respect to the house number that seen in Exts.P1 and P3 has no much importance. PW3 has also deposed that he had noted the number shown in Ext.P3 scene mahazar. Therefore, the contention of the 9 Crl.A.No.2497 of 2009 defence connected with the difference in the house number has no bearing. According to the learned Public Prosecutor, when PW8 was questioned by the police, he had deposed as per Exts.P8 and P9 and he had resiled from 161 statement so as to help the accused who is his brother. Therefore, the trial court is fully justified in acting upon the 161 statement of PW8. Thus according to the learned Public Prosecutor, the trial court is correct in its finding and convicting the appellant and hence no interference is required. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and the deposition of the witness and the other materials on record. 8. In the light of the rival arguments advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding that the prosecution has succeeded in 10 Crl.A.No.2497 of 2009 proving its case against the appellant and whether the prosecution has succeeded in proving the fact that the appellant has set fire to the dwelling house of PW6, where PW6 and the accused were residing. I have already referred to the prosecution evidence and materials. Ext.P10 FIR was registered on the basis of Ext.P1 FI statement given by PW6 and the very inception of the crime itself is on the basis of a statement given by a person who is not an eye witness to the incident. As correctly found by the learned Judge of the trial court, PW6 has no claim that she had witnessed the incident and she had deposed that all what she stated in Ext.P1 FI statement are only a hearsay information. It is true that when PW6 was examined, she had deposed about the affairs between herself and her own son-the appellant and also the demand of the appellant for the house and the property. PW1 has also stated that she had filed a complaint before the police, ie., Ext.P4, against the appellant. Though the learned Judge of the trial court has found that PW6 and the appellant are not in good terms, 11 Crl.A.No.2497 of 2009 the inconsistency regarding the date of lodging of Ext.P4 is not fatal to prosecution, since the enemities are relevant and not the date of the commencement of the enemity. I am unable to approve the above observation and finding. According to PW6, on her filing of Ext.P4 complaint, herself and the accused were called to the police station and the accused was directed by the police not to harass her. But the trial court has found that Ext.P4 complaint is seen filed on the date of the incident itself. If that be so, it cannot be ruled out that PW6 had managed to get file a petition on the date of the incident, so as to project the animosity of the appellant against PW6 and what she had stated about the earlier lodging of Ext.P4 complaint and the story regarding the summoning of PW6 and the appellant to the police station are only false. So no evidentiary value can be attached to Ext.P4 complaint. 9. As rightly pointed out by the counsel for the appellant, it is discernible from para 10 of the judgment that the learned Judge had by simply relied upon the 161 12 Crl.A.No.2497 of 2009 statement of PW8 and opted to convict the appellant. According to me, the above approach of the court below is perverse and illegal. In this juncture it is relevant to note that, though in the 161 statement of PW8 it is recorded that PW8 had witnessed the incident, there is no explanation as to why he did not chosen to lodge the FI statement and instead of that, Ext.P1 got lodged through the mother. The above sole reason is sufficient to reject the 161 statement of PW8. As argued by the learned counsel for the appellant, the 161 statement recorded by the police is not a substantial evidence. In the decision cited by the learned counsel for the appellant which I referred supra and after considering the decision of the Honourable Apex Court reported in Tahsildar Singh and another Vs. State of U.P. (AIR 1959 Supreme Court 1012), the Division Bench has held in para 19 as, “Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This 13 Crl.A.No.2497 of 2009 indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police- officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co- exist, it may be said that one contradicts the other.” It is relevant to note that, in the above decision, the statement of witnesses were examined under Section 164 also. In the present case, when PW8 was examined in the court he had denied such a statement especially Exts.P8 and P9 and the inevitable conclusion that can be arrived is that regarding the incident, the sole witness cited by the prosecution has also not supported the prosecution allegation. When the animosity between PW6 and the appellant already brought on record, according to me, the learned Judge of the trial court committed wrong in convicting the appellant, solely on the basis of the 161 statement of PW8. Eventhough the prosecution has succeeded in bringing out certain facts which are sufficient to constitute doubt, according to me, the doubt however 14 Crl.A.No.2497 of 2009 serious it may be, is not sufficient to replace the requirement of legal evidence to convict the appellant. Therefore, absolutely there is no legal and acceptable evidence to connect the appellant with the alleged incident. 11. In the light of the above discussion and the evidence and materials referred to above, I am of the firm view that, the prosecution has miserably failed to prove its case beyond reasonable doubt with supporting, cogent and acceptable evidence and therefore, I am unable to approve the findings and conviction recorded by the trial court and consequently the conviction recorded by the trial court against the appellant is set aside. 12. In the result, this Crl.Appeal is allowed setting aside the judgment dated 12.10.2009 in S.C.No.134/2009 of the court of the Addl.Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha, and accordingly the appellant/ accused is acquitted of all the charges levelled against him and he is set at liberty. 13. As the appellant is acquitted of all the charges 15 Crl.A.No.2497 of 2009 levelled against him, by setting aside the judgment impugned in this appeal, the appellant is entitled to get released from jail forthwith, if his detention is not required in any other case. 14. The registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, forthwith for appropriate action. V.K.MOHANAN, JUDGE ami/