Kerala High Court
P.V.Ratheesh (25 Years) vs State Of Kerala Represented By on 25 March, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1029 of 2009(C)
1. P.V.RATHEESH (25 YEARS), S/O.KRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SMT.P.K.PRIYA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :25/03/2010
O R D E R
V.K.MOHANAN,J.
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Crl.Appeal No.1029 of 2009
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Dated this the 25th day of March, 2010
JUDGMENT
This is an appeal, preferred by the sole accused challenging the judgment dated 28.6.2008 in Sessions Case No.545/2006 in the Court of Additional Sessions Judge (ADHOC-I), Kasaragod, who is undergoing imprisonment in pursuance of the above judgment for the offences under Sections 454, 380, 436 of Indian Penal Code and Section 27 of Arms Act.
2. The prosecution case is that one Sareena and her two children were residing at Kakkattuthattil house and the accused set fire to the said house and destroyed the same and household articles, due to the reason that one Vijayan was frequently visiting her house which was objected by the neighbours as the said Sareena is a widow. Thus, according to the prosecution, on the basis of the First Information Statement given by PW1, Crime No. Crl.Appeal No.1029 of 2009 2 72/2006 was registered in the Ambalathara Police Station for the offences punishable under Sections 454, 380, and 436 I.P.C and Section 27 of the Arms Act.
3. On completing the investigation in the above crime, a report was laid under Section 173(2) of Cr.P.C before the Judicial First Class Magistrate Court-I, Hosdurg which was taken on file as C.P.121/2006 by an order dated 20.09.2006, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.545/2006 was instituted and subsequently made over to the trial court for disposal. On appearance of the accused, after hearing the prosecution as well as the accused, a formal charge was framed against the accused under Section 454,380, and 436 I.P.C and Sections 27 of the Arms Act which was read over and explained to the accused and he denied the charge and pleaded not guilty. Thereafter, the prosecution adduced its evidence consists of the oral testimonies of PWs.1 to 13 and the documentary evidence, Exts.P1 to P8. Besides the above, MOs.1 to 9 were identified and marked as material objects. Crl.Appeal No.1029 of 2009 3 No evidence either oral or documentary, produced from the side of defence. When the accused was questioned under Section 313 of Cr.P.C, the incriminating circumstance and evidence which emerged during the prosecution evidence, put to the accused and he denied the same and took a stand of total denial. On the basis of the available evidence and materials on record, the trial court found that the accused is guilty of all the charges levelled against him and accordingly the accused/ appellant is sentenced to undergo rigorous imprisonment for 4 years under Section 454 I.P.C and directed to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for three more months. Under Section 380 of I.P.C the same sentence was imposed against him. Under Section 436 I.P.C the accused is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- and in default in paying the fine, to undergo rigorous imprisonment for 6 more months and under Section 27 of the Arms Act, he is sentenced to undergo rigorous Crl.Appeal No.1029 of 2009 4 imprisonment for one year. The substantive sentences were directed to run concurrently. It was also directed that if the fine amount is realised, Rs.20,000/- shall be given to PW1 as compensation under Section 357 Cr.P.C for the loss, she suffered due to the mischief committed the accused. Set off was allowed. It is the above order of conviction and the sentence that challenged in this Jail Appeal which preferred from the accused/appellant, while he undergoing the imprisonment.
4. As the appellant is undergoing imprisonment, this appeal is preferred from the jail. Subsequently, Smt. Priya. K filed vakkalath and entered appearance to prosecute the appeal on behalf of the appellant. Accordingly, the requisite papers were furnished to the learned counsel appearing for the appellant as state brief:-
5. According to the prosecution, the incident was taken by 6.30 P.M on 12.5.2006 whereby the accused put fire to the dwelling house of the de facto complainant. The police registered Crime No.772/2006 on the basis of Ext.P1 FI Crl.Appeal No.1029 of 2009 5 statement dated 12.5.2006 which was recorded by PW12 on the basis of which Ext.P1(a) FIR was registered. In pursuance of the registration of the above crime, the police went to the spot and prepared Ext.P2 scene mahazar and at the time of preparation of the scene mahazar, they seized Mos.1 to 8 materials, which were identified through PW1. When PW1 examined she had deposed in terms of Ext.P1 FI statement. According to PW1, at the time of the alleged incident, she was not available in the circumstance and she had gone to the Registrar Office for getting non- encumbrance certificate and also for the purpose of taking photograph for a loan. She came to know about the incident only when she reached at the spot. At that time, PW2 and her mother were at the spot. According to PW1 she was told by PW2 that the accused was seen going along the pathway. It is the further case of PW1 that Ext.P8 used to visit her house which was objected by the accused because the accused as well as PW2 are strong sympathisers of different political parties who were on Crl.Appeal No.1029 of 2009 6 enemical terms. It is also the case of PW1 that she was threatened by the accused on the basis of the above reason that he will set fire to the house or she will be ravished. Thus, according to PW1, the accused had committed the mischief by setting fire to her dwelling house and also committed theft of MO9, rold gold necklace.
6. The other witness cited and examined by the prosecution is PW2 who is the sister of PW1. According to her, she found the gutter of the house and when she was bring water to put up fire she saw accused going along the path way. The other witnesses namely PWs. 3 and 4 cited as the attester to Ext.P2 scene mahazar turned hostile. PW5 cited as an occurrence witness also turned hostile, PWs. 6 and 7 also turned hostile who were cited to prove the seizure of MO9. PW8 is the attester of arrest memo with respect to the arrest of accused. According to him, he put his signature in Ext.P3 arrest memo at the police station. It is also relevant to note that even according to the prosecution, the accused raised objection against the Crl.Appeal No.1029 of 2009 7 frequent visit of PW8 in the house of PW1. PW9 is Head Constable attached to Ambalathara Police Station. Who arrested the accused and effected the recovery of MO9 from the possession of the accused. PW10 is the Village Officer who prepared Ext.P5 cite plan about the place of occurrence. PW11 is the Secretary of the Pullur-Periya Grama Panchayath who proved the ownership of the property which is in the name of the mother of the de facto complainant. PW12 is the Sub Inspector of Police who registered Ext.P1(a) FIR. PW13 is the Circle Inspector of police who conducted the investigation and laid the charge. It is on the basis of the materials that the trial court found that accused is guilty and imposed the above sentence.
7. The learned counsel for the appellant vehmentaly submitted that the trial court was laid moral issues involved in the case and overlooked the failure of the prosecution to establishe the case beyond reasonable doubt. The learned counsel pointed out that absolutely there is no legal evidence to connect the accused with the alleged crime and Crl.Appeal No.1029 of 2009 8 the only evidence available is that of the interested witnesses and official witnesses. The learned counsel pointed out that PW1 did not witness the incident and he preferred Ext.P1 FI statement on the basis of one she gathered from PW2 and her mother. The counsel further pointed out that all the witnesses cited by the prosecution namely PWs. 3 to 7 to prove the incidents, turned hostile. It is also the case of the learned counsel that the prosecution very much relied upon the evidence of PW8 who is admittedly enemical to the accused to prove the arrest of the accused. The learned counsel pointed out that PW8 had admitted that he put his signature on Ext.P3 in the police station. It is also the case of the learned counsel that there is no documentary evidence to show that the house in question belongs to and owned by PW1 and there is no evidence to show that MOs. 1 to 8 are with respect to the house which is put under fire. Therefore, according to the learned counsel, the trial court committed wrong in appreciating the evidence and understanding that arrived Crl.Appeal No.1029 of 2009 9 of doubt in favour of the appellant since the prosecution has miserably failed to establish the case beyond reasonable doubt.
8. On the other hand, the learned Public Prosecutor submitted that the evidence of PWs.1 and 2 and the evidence of PWs. 8 to 13 and the circumstances involved in the case would show that the accused is the sole person responsible for setting fire at the house of PW1 especially the recovery of MO9 rold gold necklace and match box from the possession of the accused immediately on the next day of the alleged incident would sufficient to connect the accused with the crime and therefore the trial court is absolutely right in convicting the accused/appellant and no interference is warranted.
9. I have carefully considered the arguments advanced by learned counsel for the appellant as well as the learned Public Prosecutor and also perused the materials and the evidence on record. It is pertinent to note that to canvas a conviction against the accused, the prosecution Crl.Appeal No.1029 of 2009 10 very much relied upon the evidence PWs. and 2 and PWs. 8 to 13. The very registration of the crime itself is on the basis of Ext.P1 FI statement given by PW1 who was not an eye witness to the incident. As I indicated earlier, what she stated before PW12 is the information that gathered by from her sister PW2. Though I have repeatedly gone from the evidence of PWs. and 2, there is no whisper to the effect that they have witnessed that the accused setting fire to the dwelling house of PW1. PWs. and 2 have no case that they have seen the accused coming out or running away from the house or the spot after the incident. What she had stated is that:-
" . . 6.15
. ."
10. In cross examination she stated that:-
" ."
11. This is the only portion of evidence deposed by PW2 to connect the accused with the incident. During the chief examination of PW1 she had stated that:-
Crl.Appeal No.1029 of 2009 11
" .
........................................................................................ .....................................................................................................
..
.
. .
.
. "
She continued to say:-
" . "
12. During the chief examination itself she has stated:- " . 6
.
.
."
13. From the reading it appears that she had made substantial improvement at the time of making deposition before the court from her earlier statement made before the police. In cross examination she had deposed:-
" .
.
. .
. .
.
.
."
14. She had further stated that:-
Crl.Appeal No.1029 of 2009 12
" .
."
She continued and said:-
"
.
.
.
"
15. Going by above version of PW1, it appears that she had a tendency to improvise her version before the police and to implicate the accused who had no enemity towards her other than the objection against frequent visit of PW8 in her house. If that be so, I am of the view that the trial court is absolutely wrong in appreciating the evidence of PW1 and convicting the accused by using the said interested version of PW1 who was maintaining some intimacy with PW8 who is a political opponent to the accused.
16. It is also relevant to not that all the independent witnesses cited and examined by the prosecution turned Crl.Appeal No.1029 of 2009 13 hostile and there is no independent witnesses to prove the incident as such and there is no evidence to show that MOs. 1 to 8 materials are pertaining to the house allegedly set fire by the accused. There is no documentary evidence to show that there was a house in which PW1 and her children were residing. The property is not in the name of PW1 and the actual owner of the property, namely, the mother of PW1, had never come forward to make the complaint even though the prosecution has a case that the mother of PW1 was there at the time of the incident.
17. The other evidence is that of PW8 which I have mentioned and he is highly interested and enemical witness to the accused and his evidence cannot be believed unless there is any independent evidence to corroborate his version. Admittedly, PW8 put his signature on Ext.P3 arrest memo at the police station. According to PW9, the accused was arrested from the bus stop to prove the arrest and the seizure of the MO9 though the prosecution has cited CW10 one Mr.Baburaj. The said witness was not summoned and Crl.Appeal No.1029 of 2009 14 examined by the prosecution and thereby the prosecution denied the opportunity of the trial court to have appreciated the entire situation and evidence with the help of independent evidence.
18. In the light of the above referred materials and discussions, I am of the view that the prosecution has miserably failed to adduce concrete, cogent and admissible evidence to substantiate its case against the accused.
19. PW8 has categorically admitted that several criminal cases are pending against him including a murder case. Still then, the prosecution chosen to PW8 as one of the witnesses to prove the arrest of the accused which fact itself is sufficient to doubt the veracity of the prosecution case. It is also relevant to not that in paragraph 13 of the impugned judgment, the trial court has observed "those PW1 and PW2 had sufficient reasons for suspecting the accused." From the above observation itself, it is sufficient to hold that the trial court convicted the accused/appellant Crl.Appeal No.1029 of 2009 15 based upon the doubt that created through the evidence of PWs. 1 and 2. The doubt very strong itself is not sufficient to replies the requirement of evidence to convict the accused.
20. In paragraph 13, the trial court on the basis of the presence of sword in the gutted house came to the conclusion that the sword was that of the accused and therefore it was the accused who set fire to the house. The above approach is highly arbitrary and illegal. There is no evidence to show that the said sword is belonged to the accused and the same was not identified as such. It is also on evidence to the effect that PW8 used to visit the house and was residing along with PW1which will be more clear from the statement and contained in the impugned judgment which reads as:-
"It is also his evidence that he was accused in several cases and on politically related one. Thus from the evidence of PW8 it can be seen that he being injured in a politically motivated attack he reside in the house of PW1 during treatment and brother of PW1 was his friends."
If that be so, there is no guarantee that the said Crl.Appeal No.1029 of 2009 16 award was not belong to PW8. If that be so, merely because the presence of a semi distracted sword accused cannot be connected with the crime especially when PW8 and the accused are in enemical terms and PW1 has gone some intimacy with PW8.
21. In the light of the above facts and circumstances and the discussion and materials referred above, I am of the view that the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt. Subsequently, the benefit should be given in favour of the accused and I do so. Accordingly, the conviction recorded by the trial court against the accused is liable to be set aside.
In the result, this Criminal Appeal is allowed setting aside the judgment dated 28.6.2008 in S.C.No.545/2006 of the Court of Addl.Sessions Judge (ADHOC-I), Kasaragod and setting aside the conviction and sentence imposed against him and accordingly, the appellant/accused is acquitted of all the charges levelled against him. As the conviction and Crl.Appeal No.1029 of 2009 17 sentence are set aside and the appellant/accused is acquitted of all the charges levelled against him, he is entitled to get release from jail forthwith, if he is not required in any other case.
The Criminal Appeal is allowed accordingly. The registry is directed to forward a copy of the gist of judgment to the concerned jail authorities forthwith.
V.K.MOHANAN,JUDGE.
mns/-