IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Crl.L.P..No. 472 of 2008() -------------------------- CC.280/2004 of J.M.F.C.,NILAMBUR .................... : COMPLAINANT: ----------------------------- ERANGHIKKAL KUNHEERUMMA, MAMMEDKUTTY MUSLIYAR, ANDIKUTHUPARAMBIL, PONGALLUR, MAMPAD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: ACCUSED: --------------------- 1. KOZHIPPARAMBHAN ABDULLA, AGED NOT KNOWN S/O.MOHAMMEDALI, MAMPAD AMSOM, KOOLIKKAL DESOM, MAMPAD P.O., NILAMBUR TALUK, MALAPPURAM. 2. STATE OF KERALAL REPRESENTED BY PUBLIC PROSECUTOR, MANJERI. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.L.P.No.472 of 2008 ---------------------------------------- Dated this the 17th day of June 2008 O R D E R This application is for leave under Section 378(4) Cr.P.C to prefer an appeal against a verdict of not guilty and acquittal in a prosecution for offences punishable under Sections 447 and 435 read with 34 I.P.C. There were two accused originally. The first accused is no more and only the second accused was available for trial. 2. Admittedly there are civil disputes and bitter animosity between the petitioner and the accused persons. The alleged incident took place on 24/2/2003 at about 6 p.m. The crux of the allegations is that the two accused persons, in furtherance of their common intention, set fire to an item of property which allegedly belongs to and is in the possession of the petitioner/complainant. This allegedly resulted in loss of an amount of Rs.13,000/- to the property. Complaint was filed before the learned Magistrate. The same was referred to the police under Section 156(3) Cr.P.C. Investigation was completed and negative final report was filed. Thereafter, the present protest complaint has been filed by the petitioner/complainant. Crl.L.P.No.472/08 2 2. The learned Magistrate took cognizance of the offences alleged. The first accused expired and the charge against him abated. Trial proceeded. In the trial, PWs 1 to 5 were examined and Exts.P1 to P5 were marked. PWs 1 is the complainant and PW2 is a nephew of hers. PW3 is another witness who did not support the case. According to him, he has not witnessed the alleged act of arson committed by the accused persons. PWs 1 and 2 supported the case of the complainant. The accused, in the course of cross-examination of the witnesses and when examined under Section 313 Cr.P.C denied all circumstances which appeared in evidence and which were put to him. He took the stand that the property belongs to him and the allegation that he had set fire to his own property is improbable and artificial. He relied on Ext.P3 document which was piece of evidence introduced on the side of the complainant through PW4 , the Station House Officer of the Fire Force Office. In Ext.P3 it was asserted that the fire was caused by the accidental throwing of a cigarette butt. Of course it was observed that further investigation is necessary. 3. The learned Magistrate, in these circumstances, came to the conclusion that the evidence of PWs 1 and 2 is interested. Crl.L.P.No.472/08 3 There are inter se incongruity on material aspects between the testimony of PWs 1 and 2. Their evidence runs counter to the conclusion in Ext.P3 report proved by PW4 relied on by the complainant herself. In any view of the matter, the learned Magistrate came to the conclusion that safe reliance cannot be placed on the oral evidence of PWs 1 and 2 to enter a verdict of guilty and conviction against accused. Accordingly, the learned Magistrate proceeded to pass the impugned judgment. 4. This petition for the grant of leave to appeal has been preferred by the petitioner/complainant. The short question is whether leave ought to be granted. Where there is an arguable case and the possibility of a contra finding, this court would be justified in granting leave. But leave cannot be claimed or granted as a matter of course. I have considered the materials available and the response of the learned Magistrate to such materials. I must alertly remind myself of the nature and quality of the jurisdiction of this court which is called upon to consider the acceptability of a judgment of acquittal. The trial court is evidently has the occasion of seeing the witnesses performing on the witness stand before it. That evident advantage of the trial court in the matter of appreciation of evidence must be alertly Crl.L.P.No.472/08 4 borne in mind. The presumption of innocence in favour of the accused available at the commencement of the trial stands further fortified by the judgment of acquittal rendered by the trial court. This second aspect has also got to be borne in mind. Having considered all the relevant inputs, I am persuaded to agree that there is absolutely no merit in the prayer for grant of leave. I am satisfied that the respondent/accused does not deserve to be suffer the unnecessary trauma of vexation which must necessarily follow if leave is granted for filing this appeal. 5. This application for leave is in these circumstances dismissed. (R.BASANT, JUDGE) jsr