IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1411 of 2008 Between: The State of Andhra Pradesh, represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Appellant AND Pendyala Baburao and another .. Respondents JUDGMENT: The Criminal Appeal is directed against the acquittal of both the accused in respect of an offence punishable under Section 436 of the Indian Penal Code by the judgment dated 17-04-2006 in S.C.No.12 of 2006 on the file of the Assistant Sessions Judge, Yellamanchili. The Sub-Inspector of Police, S. Rayavaram police station filed the charge sheet in Crime No.48 of 2005 alleging that there was disputes between Rayi Ramaraju and the accused about a path way and there was panchayat on 27-05-2005 before elders, who advised Rama Raju to leave the path way. It was alleged that both the accused in the meanwhile went towards the thatched cattle shed of Ramaraju and the 1st accused set fire to the thatched shed over which the 2nd accused poured kerosene. Ramaraju sustained a loss of Rs.10,000/- due to the shed being burnt to ashes and on his complaint, the crime was registered, the scene of offence was examined, a rough sketch was prepared, the burnt wooden pieces and ashes were recovered and the accused were arrested. Hence, the charge. The offence was taken cognizance by the Judicial Magistrate of First Class, Yellamanchili in PRC.No.11 of 2005 and after furnishing copies of documents to the accused on their appearance, the case was committed to the Court of Session. The Court of Session made over the case to the trial Court, which framed a charge under Section 436 of the Indian Penal Code on the appearance of the accused to which they pleaded not guilty. PWs.1 to 8 were examined and Exs.P.1 to P.8 and M.Os.1 and 2 were marked during trial. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and Exs.D.1 to D.3 were marked on their behalf. The trial Court considered appropriate points for determination and rendered the impugned judgment, firstly opining that the thatched shed was being used for custody of property and is a building. The trial Court further noted that the prosecution case is that the 2nd accused tried to set fire to his own house by pouring kerosene and not about his pouring kerosene on the thatched shed of PW.1. The trial Court also observed that there was no damage to the house of 2nd accused by his alleged trial to set fire his own house, which was allegedly obstructed by PW.3. The trial Court also noted that the claim of PW.3 that he had seen the 2nd accused pouring kerosene over his house and attempting to set fire is not corroborated by the evidence of PW.1 or the contents of Ex.P.1. PW.2 on the other hand admitted that she did not state to the police about the 2nd accused pouring kerosene and PWs.4 and 5 did not speak about the claim of PW.3 that the 1st accused came and took away the 2nd accused when he was lighting the fire. The trial Court also noted that any attempt by the 2nd accused to set fire to his own house, which did not go further, will not constitute an offence under Section 436 of the Indian Penal Code. The trial Court observed that there is a dispute about a passage leading to panchayat before the elders and the intention of the accused in allegedly committing the offence was also considered not established, as PW.1 did not speak about the same. The trial Court also observed that PW.1 and PW.2 themselves stated that there is no dispute about any passage between the parties and PW.1 was noted to be not a direct witness. Ex.P.1 was noted not to refer to his being at a marriage and PW.2 informed about the incident. PW.2, the only eye- witness, was noted to have contradicted herself about the reason for her presence near the scene of offence between her statement to the police and the evidence. The very claim of PW.2 running, crying, going all the way to the marriage venue to inform PW.1 about the incident was considered unnatural. The trial Court also observed that PW.3 with passage dispute with the accused is inimical to them and PWs.4 and 5 contradicted themselves by denying Exs.D.1 and D.3-portions of their statements to the police. The trial Court also observed that whether PW.1 alone or PWs.1 and 2 or PWs.1 to 3 went to the police station was also contradicted and not examining any other persons on the ground that no body else did not come forward is not acceptable. The trial Court after, referring to the various precedents cited for the prosecution, opined that the prosecution failed to prove the intention or the incident leading to giving the benefit of reasonable doubt to both the accused. Their acquittal for those reasons led the State represented by the learned Public Prosecutor to file the present appeal contending that the ingredients to constitute the offence punishable under Section 436 of the Indian Penal Code have been established by the prosecution witnesses with the cogent evidence and without any material contradictions. Therefore, the acquittal is requested to be reversed. Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/appellant is heard. Sri M. Surya Kumar, learned counsel is appearing for the accused. The point for consideration is whether there any strong and convincing grounds to reverse the acquittal of the accused? The accused during their examination under Section 313 of the Code of Criminal Procedure admitted about the passage dispute between them and PW.3 and the elders deciding against them in a panchayat. They also admitted about the house of PW.4 being burnt, but denied any burning of the house of PW.1. Both of them claimed innocence of the alleged offence and claimed to have been beaten by PW.1, his father and the Sub-Inspector of Police. Though there was no abnormal delay in the First Information Report being given or the same reaching the Magistrate, the very report-Ex.P.1 discloses earlier disputes about the death of Venkata Ramana and about a right of passage. PW.1 was clearly not an eye-witness as per Ex.P.1 and PW.2 was claimed in Ex.P.1 to have informed PW.1 and others about the 1st accused setting fire to the thatched shed and escaped. The reason for which PW.2 was in the neighbouring co-garden was not stated in Ex.P.1 and the 2nd accused was not alleged to be involved in any manner in the thatched shed of PW.1 or the house of PW.4 setting fire. Ex.P.2-Panchanama of the scene no further information was disclosed and so are the photographs and rough sketch-Exs.P.6 and P.8. Exs.D.1 to D.3 portions of the statements of the witnesses denied by them and asserted by the investigating officer do not run consistent with the prosecution story and Pallala Tatha cited as an eye-witness was given up on the ground of his being won over by the accused and so was the other mediators for the Panchanama. The evidence of PW.1, PW.3 and PW.4 is necessarily tainted with interestedness and would require specific independent corroboration before acceptance. The investigating officer does not even know who is the scribe of Ex.P.1 and his examining only persons who came forward to depose obviously left out the other witnesses who could have thrown independent light on the allegations of the prosecution. The trial Court in the impugned judgment had brought out the various material contradictions and inherent improbabilities in the evidence of the witnesses, which need no replication and the only eye-witness-PW.2 does not inspire confidence when the manner of information from PW.2 to PW.1 is the subject of inconsistent versions at different stages from different witnesses. The participation of the 2nd accused in setting the thatched shed of PW.1 on fire was clearly contradictory in the evidence and the trial Court also had the benefit of observing the demeanour of the witnesses in assessing their creditability. Interference with which impressions require very strong and convincing reasons which are not present herein. The Criminal Appeal should, therefore, fail. Accordingly, the Criminal Appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 08-12-2011 Ksn