IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1379 OF 2009 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Dubba Jallaiah & 16 others ..... Respondents/Accused The Court made the following: JUDGMENT: The Criminal Appeal under Sections 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State against the judgment, dated 28.07.2007, in S.C.No.314 of 2006, on the file of the learned Assistant Sessions Judge, Nalgonda, whereunder and whereby all the accused were found not guilty for the offences punishable under Sections 143, 448 and 436 read with 149 IPC. 2. The brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows. In the year 1990, P.Ws.1 and 2 occupied 100 square yards of Government site in Sy.No.10 at Munugode village and they have constructed a hut in that land and they have been residing in it. During the course of time, the Revenue Department granted patta in the name of P.W.2 for that 100 square yards of the site. But the Sarpanch of the Munugode Village, the Village Secretary and ward members of Munugode Village abused P.Ws.1 and 2 stating that the land belonged to Gram Panchayat and they had no right to construct a hut in it. On 19.12.2004 at about 9.00 a.m., all the accused formed themselves into an unlawful assembly and criminally trespassed into the hut of P.Ws.1 and 2. At that time, P.W.1 was out of station. The accused have forcibly driven out P.W.2 from the house and removed the thatched roof and threatened P.W.2 with dire consequences. On that, P.W.2 rushed to the Police Station and lodged a complaint. The Police registered a case in Crime No.70 of 2004. When the police went to the scene of occurrence and on seeing them, all the accused ran away. Thereupon, on the intervening night of 19/20.12.2004, all the accused criminally trespassed into the hut of P.Ws.1 and 2 and set fire to the same to cause mischief. The hut was burnt to ashes and P.Ws.1 and 2 sustained a loss to a tune of Rs.40,000/-. Then P.W.1 lodged a report to the Police on 20.12.2004 at about 2.00 p.m. Basing on the said report, P.W.4, who was the Assistant Sub-Inspector of Police, registered a case in Crime No.71 of 2004 under Sections 448 and 436 IPC and commenced the investigation. P.W.4 recorded the statement of P.W.1 and then he visited the scene of occurrence and conducted the scene of offence panchanama and seized M.Os.1 to 4. P.W.5, who was the Sub-Inspector of Police, took up investigation and after completion of the investigation, P.W.5 filed a charge sheet for the charges under Sections 143, 448 and 436 read with 149 IPC against the accused. 3. When the charges under Sections 143, 448 and 436 read with 149 IPC were framed against the accused, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 5 and got marked Exs.P1 to P3, besides case property M.Os.1 to 4. 5. After closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, after considering the evidence on record, came to the conclusion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and accordingly acquitted the accused. Challenging the same, the present Criminal Appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges under Sections 143, 448 and 436 read with 149 IPC and whether the judgment of the trial Court is correct, legal and proper? 8. Counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.1 to 3 is very clear that on the intervening night of 19/20.12.2004, all the accused formed themselves into an unlawful assembly and criminally trespassed into the hut of P.Ws.1 and 2 and set fire to it to cause mischief; that there is no other reason to disbelieve the evidence of P.Ws.1 to 3, and hence, she prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless the contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or contrary to law, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. No doubt, P.Ws.1 and 2 are testified before the Court that on the intervening night of 19/20.12.2004, all the accused formed themselves into an unlawful assembly and criminally trespassed into their hut and set fire to it to cause mischief, but their evidence cannot be given much importance for the simple reason that they did not state that the accused set fire to the hut on the intervening night of 19/20.12.2004, when they were examined during the course of investigation by the police under Section 161 (3) of Cr.P.C. The improvements made by P.Ws.1 and 2 with regard to the participation of the accused in the commission of offence cannot be brushed aside lightly. The above improvements made by P.Ws.1 & 2 during the course of trial can be said to go to the root of the case. By these improvements, the main substratum of the prosecution case is changed. There cannot be any dispute that certain improvements or omissions are bound to occur even in a case of a truthful witness who was made to depose about the incident after lapse of few years. When the improvements or omissions affect the main substratum of the prosecution case, they cannot be ignored as insignificant. Therefore, when P.Ws.1 and 2 stated for the first time in the Court that the accused were the persons who participated in the commission of offence by setting fire to the hut, the same cannot be accepted. Perhaps, that is the reason why the trial Court has not placed any reliance on the evidence of P.Ws.1 and 2. 11. P.W.3 is not the eye witness to the incident. He came to know about the incident later. P.Ws.4 and 5 are the Investigating Officers who spoke about their objective findings with regard to the arson. 12. There is no dispute that the hut of P.Ws.1 and 2 was burnt. The evidence of P.Ws.4 and 5 would clearly go to show that the hut of P.Ws.1 and 2 was burnt, but the question is who set fire the hut? As there is no evidence to show that the accused committed the offence, the trial Court rightly acquitted the accused. The said order does not suffer from any infirmities so as to call for interference by this Court. There are absolutely no compelling or substantial reasons to interfere with the same. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 13. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 28.07.2007, in S.C.No.314 of 2006, on the file of the learned Assistant Sessions Judge, Nalgonda. _______________ (K.C. BHANU, J) Date: 3rd November, 2009 KL