IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 CRL.A.No. 1188 of 2004() ------------------------ AGAINST THE ORDER IN CRLP.401/2004 OF THIS COURT DATED 06/07/2004 ( SC.80/1998 OF ASSISTANT SESSIONS COURT, THALASSERY) .................... APPELLANT: COMPLAINANT ------------------------------------------ M.KUNHIKANNAN S/O.KUNHOOTTY, AGED 66 YEARS, KONGOTTOCHAL PARAMBIL HOUSE, PUTHUR AMSOM, CHRUVANCHERI DESOM, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS SMT.T.J.SEEMA RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. C.P.ANANDAN S/O. KELAN, PUTHUR AMSOM, CHENDAYAD, KANNUR DISTRICT. 2. T.K.KRISHNAN S/O.KUNHIKANNAN, JEEP DRIVER, KLN 8737, THANNIKUNDIL HOUSE, KOLAVALLUR AMSOM DESOM, THALASSERY, KANNUR DISTRICT. 3. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GRASHIOUS KURIAKOSE FOR R2 PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2011, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 1188 OF 2004 = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF NOVEBER, 2011 J U D G M E N T This appeal is preferred by the defacto complainant against the judgment of acquittal in S.C. 80 of 1998 on the file of the Principal Assistant Sessions Judge, Thalasserry. Two shop buildings bearing Door No. 123 and 124 of Kolavallur village were alleged to be in the possession of the appellant. According to the appellant, the buildings were constructed by him and he is a commercial tenant under the mother of the first respondent. According to the first respondent, the appellant is a tenant of the buildings owned by him. At 11.30 p.m. on 23.12.1996, while the appellant was sleeping at his house near the shop building, he woke up on hearing the bursting sound of coconuts from the shop rooms and found that the shop buildings were on fire. He did not see as to who set fire. At 3.30 a.m., on the following day, ie. On 24.12.1996, he went to the Kolavallur Police Station and gave Ext.P5 First Information statement on the basis of which the Circle Inspector of Police who was examined as DW.2 registered a case as Crime No. 32 of 1996 for which Ext.P1 FIR was prepared. After Crl. A. 1188/2004 2 investigation, DW.2 filed Ext.P3 Refer Report stating that the assailants could not be detected out. Being aggrieved, the appellant preferred a protest complaint before the Chief Judicial Magistrate, Thalassery. The learned Magistrate took cognizance and after due enquiry, the case was committed to the Sessions Judge, Thalassery who made over the case to the Assistant Sessions Judge. 2. The Assistant Sessions Judge, after hearing either side, framed a charge for offence under Section 436 read with Section 34 I.P.C. against respondents 1 and 2. When read over and explained, they pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1to P5 were marked. On the side of respondents 1 and 2, DWs. 1 and 2 were examined and Exts.D1 to D3 were marked. The learned Assistant Sessions Judge on appraisal of the evidence, arrived at a conclusion that PWs 2 and 4 who alone have implicated respondents 1 and 2 with the offence are not believable. Consequently, respondents 1 and 2 were acquitted under Section 235 Cr.P.C. by the impugned judgment, assailing which this appeal was preferred. 3. I have heard Advocate Sri. Cibi Thomas appearing for the appellant as well as Sri. Gracious Kuriakose, Senior Advocate appearing for Crl. A. 1188/2004 3 respondents 1 and 2. Perused the judgment impugned and the evidence on record. 4. PW.3 is the son of the appellant who was examined as PW.1. Both of them, though had seen the shop building on flame, had not seen as to who set fire to the shop building. PWs 2 and 4, who are friends of PW. 3, claim that at 11.30 p.m. while they were returning from Kunnathurpadi temple in a jeep they saw the first respondent setting fire to the shop building and escaping from the place in a jeep driven by the second respondent. In cross examination, it was revealed that they did not care to report the incident to PW.1 or PW.3. PWs 2 and 4 are admittedly politicians residing 12 kms. away from the spot of occurrence. They also did not care to report to the police or to the fire force or to put off the fire. But they would claim that they had reported the matter to PW.1 two days later. Even, prima facie, their evidence is not credible. DW.2 would depose that during the course of investigation he had questioned PWs 2 and 4 and recorded their statements. But they had not stated that they had seen respondents 1 and 2 setting fire to the shop building. It is in that circumstances, the Assistant Sessions Judge disbelieved PWs 2 and 4. By the testimony of DW.2 it is revealed that since 1981 the first respondent is a cancer patient and had undergone surgery for Crl. A. 1188/2004 4 colostomy. It was also revealed by Ext.D1 that the claim of the appellant as the owner of the building in pursuance to a commercial lease transaction was found against by the civil court. Whereas the plea of the mother of the first respondent that the appellant is only a building tenant was upheld by the civil court and there was a decree for eviction. The Assistant Sessions Judge, while disbelieving PWs 2 and 4 had taken note of these circumstances also. The learned counsel appearing for the appellant submitted that PWs 2 and 4 did not care to report to the appellant as the area was tense due to political fight between two political parties. That explanation is not at all convincing. In the above circumstances, I find that the conclusion arrived by the trial judge is probable and it cannot be said that the conclusion is anyway contrary to the evidence or arbitrary or perverse so as to be rectified in exercise of the appellate powers of this Court. The appeal is devoid of merits. In the result, this appeal is dismissed. P.S. GOPINATHAN, (JUDGE) knc/-