IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 Crl.Rev.Pet.No. 235 of 2001() -------------------------------------- CRA.18/1994 of SESSIONS COURT, MANJERI CC.634/1991 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER/ APPELLANT/ ACCUSED --------------------------- KOTTAPPADAN HAMZA, S/O. MUHAMMED, KARUVARAKUNDU AMSOM CHERUMBA DESOM, KAKRA. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT/ RESPONDENT/ COMPLAINANT -------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE S.I. OF POLICE, KARUVARAKUNDU BY PUBLIC PROSECUTOR SRI.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO. 235/2001 ORDER ON CRL.MP. 999/2001 IN CRL.RP. NO.235/2001 DISMISSED 21/05/2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.A. TO JUDGE A.K.BASHEER, J. ------------------------------------ Crl.Rev.Petition No. 235 of 2001 ------------------------------------ Dated this the 21st day of May 2008 O R D E R Petitioner was tried for the offence punishable under Sections 451 and 435 of IPC. The trial Court found him guilty and he was, accordingly, convicted and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.1,000/- under Section 435 of IPC. For the offence under Section 451 of IPC he was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.500/-. In appeal the Sessions Court confirmed the above Order of conviction and sentence. Hence this revision petition. 2. The prosecution case in a nutshell was that the petitioner/accused had committed trespass into the single room tenament (hut) of PW1 at about 10 PM on August 6, 1991 and then set fire to certain clothes belonging to PW1, PW2 and their children. The value of the clothes damaged in the fire was assessed at Rs.2,000/-. In support of its case the prosecution had examined Pws.1 to 6. Exts.P1 and P2 and MO1 series were marked in the case. There was no oral or documentary evidence on the side of the defence. 3. PW1 who was none other than the brother-in-law of the accused was not admittedly, available at the residence when the alleged crime was committed. According to him, he came to know about the incident on the next day. He went to the police station and reported the matter. The police recorded Ext.P1 First Information Statement. Accordingly, Ext.P1(a) First Information Report was registered. 4. PW2, the wife of PW1 deposed before the Court that she and PW3, her sister-in-law (her husband's sister) had gone to her uncle's residence in the neighbourhood for spending the night there, since PW1 was not at home. According to PW2 the accused had come to their residence during the night. She and PW3 saw the accused when they came out of the house to attend the call of nature. On the next day, it was found that some clothes had been burnt by fire. In short, PW2 did not see the accused setting fire to the clothes. She further stated that she could not say as to how the clothes happened to be burnt. PW3 is the wife of the accused (sister of PW1). According to this witness, she had been living separately from her husband because of ill-treatment for the last two years. PW3 deposed that she accompanied PW2 to the residence of her uncle. She also stated that the accused had come to the residence of PW1, in the night. At that time, they had gone to the neighbouring house. But she stated that she had come out of the house to attend the call of nature at about 10 PM. At that time, she saw somebody lighting the torch. Then she saw some smoke. She went and tried to find out what had happened. She also stated that she saw the accused and identified him. 5. PW4 attested Ext.P2 Scene Mahazar. PW5 Head Constable stated that he had recorded the First Information Statement and registered the First Information Report. PW6 who was the Investigating Officer spoke about the process of investigation. 6. PW2 and PW3 are the prime witnesses on the side of the prosecution. It was admitted by PW2 and PW3 that they had slept in the house of the uncle of PW1 on that night. PW2 admitted that she did not see the accused setting fire to the clothes. Of course, she deposed that the accused had come to the house in the night while she was in uncle's house. Her husband (PW1) was away. Interestingly PW3 stated that she and PW2 had come out of the house at about 10 PM to attend the call of nature. At that time, she saw somebody with a torch and a little later, late she found some smoke. According to PW3, she went to scene of occurrence on seeing the smoke and found the accused there. But PW2 did not have such a case at all. 7. There is yet another aspect to be noted. PW2 had stated that she had gone to the police station on the next day (August 7, 1993). The police had recorded her statement and obtained her signature. But the statement had never seen the light of the day. On the contrary, the prosecution had produced Ext.P1 First Information Statement admittedly given by PW1 on the next day of the incident. There is no explanation as to what happened to the signed statement of PW2, which according to her, was recorded by the police first. Though, there is some force in the contention by the learned public prosecutor that the deposition of PW2 and PW3 are quite natural and trustworthy. I am not satisfied that the accused can be convicted solely on the basis of the identification made by his estranged wife, particularly, since the prosecution had failed to give any plausible explanation for its omission to produce the statement of PW2 which was the earliest one recorded by the police. Having regard to the entire facts and circumstances of the case, I am satisfied that the petitioner is entitled to get the benefit of doubt. Therefore, the order of conviction and sentence against the petitioner is set aside. Revision petition is allowed. (A.K.BASHEER, JUDGE) skr