IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 1509 of 2003(A) ------------------------------------- [S.C.NO.65/2002 OF ADDITIONAL SESSIONS COURT (ADHOC)-1, KOTTAYAM, CR. NO.295/2001 OF ETTUMANOOR POLICE STATION] .................... APPELLANT/ACCUSED: ---------------------------------- BIJULAL, S/O. BHASKARAN, PAZHIKUNNEL VEEDU, ONAMTHURUTHIL VILLAGE, KURUMALLOOR KARA. BY ADV. SRI.P.BABU KUMAR. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ETTUMANOOR BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J ----------------------------------------- Crl.Appeal No. 1509 OF 2003 ---------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT The accused was convicted by Additional Sessions Judge (Adhoc)-1), Kottayam for offence punishable under Section 436 IPC and was sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.25,000/-. This appeal is directed against the said conviction and sentence. The case of the prosecution in a nutshell is stated thus: 2. PW1 Jose was conducting a kiosk, which is situated on the side of Neendoor-Manjoor public road at a place called Mangattukavala. It was used to store and sell provisions, stationary items etc. PW1 and the accused were on enimical terms. It was alleged that it was because of PW1 the marriage proposal in favour of the accused was fizzled out. Hence to wreck vengeance the accused set fire to the aforesaid kiosk. The kiosk and the articles kept in it were destroyed in fire, causing a loss of Rs.50,000/- to PW1. 3. Based on the first information statement given by PW1 Crl.Appeal No. 1509 OF 2003 2 the FIR(Ext.P7) was registered by PW8 the Sub Inspector. The investigation was conducted by PW9. Ext.P8 is the scene mahazar prepared by him. The fact that the kiosk which was used to store and sell provisions, grocery items etc. was destroyed in the early morning of 5.8.2001 is not in serious dispute. It is also not in dispute that the kiosk and articles belonged to PW1. PW4, the Scientific Assistant reported on examination that roof of the shop was completely burnt along with the provision items. Partly burnt modern roof pieces, wooden pieces etc. and other articles were found scattered in the vicinity. The wooden planks of the walls were also partly burnt. It was opined by PW4 that fire was of a longer duration and it erupted from inside the shop. Samples of burnt remnants were collected from the scene of crime and were handed over to PW8 Investigating Officer. Those articles were sent to Forensic Science Laboratory, Thiruvananthapuram for detailed examination. Ext.P4 is the report prepared by PW4 regarding the inspection of the scene conducted by him as aforesaid. 4. The prosecution mainly relied upon the oral testimonies given by PW5 and PW6. The learned counsel for the accused Crl.Appeal No. 1509 OF 2003 3 would submit that the evidence given by PW5 cannot in any way help the prosecution to prove that the mischief was done by the accused. Even if it is accepted that he was alerted by the bustle from the road and so he happened to go to the scene and saw somebody running away from near the kiosk towards east it will not help the prosecution as he did not identify the person who was seen running away. 5. The learned counsel for the accused would submit that since no evidence could be collected to prove the complicity of the accused, PW8 invented an idea to rope in the accused by creating artificial evidence. According to the prosecution the accused had removed some articles from the shop/kiosk and put or dumped those articles in an abandoned well situated nearby. Those articles according to the prosecution were seized by PW8 as per Ext.P6 mahazar. MO1 to MO14 series are the properties alleged to have been recovered or taken out from the well mentioned above. The prosecution contends that those articles were taken out from the well mentioned above based on the disclosure statement given by the accused, Ext.P6(a). The question for consideration is whether the evidence given by PW8 Crl.Appeal No. 1509 OF 2003 4 that the accused had given such a statement leading to the discovery of the fact, namely the factum of putting or dumping of those materials or objects inside the well and the recovery and seizure of those articles inspires confidence in the mind of the court. 6. PW6 is the autorikshaw driver. According to him he had taken a patient to the hospital and at about 1.30 p.m he was returning to his house which is somewhere near the kiosk mentioned above. According to him while he was so returning the accused was seen sitting on the edge of the shop in question. According to PW6 he had asked the accused whether he accompanies him in the autorikshaw but the accused refused. After reaching his house PW6 went to bed. After sometime he was alerted by the commotion and so he went to the scene and found that the shop was on fire and so he also tried to extinguish the fire. The learned counsel for the appellant would submit that to the police he did not say that when he was asleep he was alerted by the voice or commotion or that he went to the place of incident at night. Whatever that be, even if the evidence given by PW6 is accepted that the accused was found sitting in the Crl.Appeal No. 1509 OF 2003 5 varandha of the shop at about 1.30 am court cannot jump to the conclusion that the shop was set on fire by the accused. It may be possible to hold that the incident of setting fire did take place at about 2 a.m to 3 a.m. The learned counsel would submit that even if the evidence given by PW6 is accepted in toto still that cannot be a circumstance to hold that it was the accused who set fire to the shop. 7. Of course, the prosecution has relied upon the evidence of PW7 to prove that MO1 to 14 were taken out from the abandoned well. It does not lend credence to the case of the prosecution that Mos.1 to 14 were put by the accused in that abandoned well. 8. The learned counsel for the appellant would project the falsity of the case put forward by the prosecution. There is no case for the prosecution that lock of the shop was broken prior to the fire having been set on. Therefore, before the fire broke there was no possibility for taking out the articles mentioned above from the shop. The only other possibility is that those articles could have been taken out after the fire was extinguished because no prudent man would jump into the burning shop to Crl.Appeal No. 1509 OF 2003 6 take out such articles of negligible value only to see that those articles are dumped into the well to create evidence against himself. It is pointed out that some of the articles which were taken out from the well were burnt or half burnt. Therefore, the learned counsel for the appellant would submit that it is reasonable and probable that after the fire was extinguished some of the articles were put in the abandoned well only to create evidence of “Section 27 recovery” which the investigating officer seems to have felt the only evidence that could be created/collected by him to rope in the accused and to fasten the criminal liability on the accused. The evidence on that aspect produced by the prosecution appears to be artificial or introduced by the investigating agency, the learned counsel for the appellant submits. The improbabilising circumstances mentioned earlier cast serious doubt on the prosecution case with regard to the complicity of the accused. There is no direct or convincing circumstantial evidence to hold that it was the accused who set fire to the shop. Hence the conviction of the accused for the offence under Section 436 IPC can not be sustained. It is liable to be set aside. Crl.Appeal No. 1509 OF 2003 7 In the result, the appeal is allowed. Conviction and sentence passed against the appellant are set aside. Accused/appellant is set at liberty. The bail bond executed by the accused will stand cancelled. N.K.BALAKRISHNAN, JUDGE mns