Shanthamalleshappa vs The State Of Karnataka

5. The case of the prosecution was that accused no.1 is the elder brother of husband of PW-1 Smt. Manjula Devi. It is alleged that there were civil disputes among the brothers with regard to the family property. On the day of Shivratri festival on 23.02.2009 at about 08:30 p.m., when the husband of PW-1 had gone to temple, when PW-1 along with her mother and children were in house, at about 09:30 p.m., accused no.1 along with accused nos.2 to 4 threw kerosene oil on the thatched shed situated in front of the house of PW-1 and set it on fire. It was alleged in the complaint lodged before the police under Ex.P1 that all the accused have committed the offence, as such, all were charged for offence punishable under Section 436 read with Section 34 IPC. It was alleged that after setting the thatched shed on fire, all the accused fled away from the scene of occurrence on motor cycles.

6. It is the case of the prosecution that on receiving the information, PW-7 the ASI, Chamarajanagar Rural Police Station, rushed to the spot and received the written complaint from PW-1 and on its basis registered the case against accused nos.1 to 4. On completion of investigation, chargesheet was filed against accused nos.1 to 4 for the offence punishable under Section 436 IPC read with Section 34 IPC. The accused denied the charges and claimed trial.

8. Pleading that the fine imposed on the accused is not in conformity with Section 436 of IPC, for the enhancment of punishment, State filed appeal and questioning the conviction recorded and fine imposed, accused nos.1 to 4 have also preferred appeal. Before the appellate court, additional documents were filed along with application under Section 391, Cr.P.C. The said application was allowed and 4 Crl.A.@ SLP(Crl.)Nos.7322-23/18 documents were marked as Ex.D1 to D4. The High Court, by referring to the oral and documentary evidence on record, has partly allowed the appeal of the accused and set aside the conviction recorded against accused nos.2 to 4 and also allowed the appeal of State and enhanced the sentence imposed on accused no.1 to simple imprisonment for six months and a fine of Rs.50,000/-, in default to undergo simple imprisonment for a further period of 1½ months.

12. There are material contradictions in the oral evidence adduced on behalf of the prosecution and further, except the interested testimony of PWs-1 to 3, no other independent 11 Crl.A.@ SLP(Crl.)Nos.7322-23/18 person is examined as a direct witness to the incident. In view of the material contradictions in the evidence of PWs-1 to 7 and the documentary evidence, filed before the appellate court, which is not considered at all, we are of the view that the trial court as well as the appellate court has committed serious error in arriving at the conclusion that accused no.1 has committed the offence punishable under Section 436 IPC. The material contradictions as referred to above were not noticed by the trial court as well as the High Court which resulted in perverse findings against the accused for recording conviction against him and to impose the sentence. Considering the entire evidence on record, and having regard to peculiar facts of the case, we are of the view that if the impugned judgments are allowed to stand it will lead to miscarriage of justice, as such, impugned judgments are liabale to be set aside.

13. For the aforesaid reasons, we find merit in these appeals. Accordingly, these criminal appeals are allowed by setting aside the conviction recorded and sentence imposed in the judgment dated 17.01.2011 in Sessions Case No.59 of 2009 on the file of District & Sessions Judge, 12 Crl.A.@ SLP(Crl.)Nos.7322-23/18 Chamarajanagar and the judgment of the High Court dated 28.06.2017 in Criminal Appeal Nos.531 of 2011 and 248 of 2011. Resultantly, the appellant-accused is acquitted of the charge and the bail bonds, if any, furnished by the appellant-accused stand discharged. The appellant-accused is entitled for refund of the fine amount deposited by him.

[R. Subhash Reddy] New Delhi December 10, 2018 13