Kannan vs State

R. Mala, J.—The appellant/accused has come forward with this appeal challenging his conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No. 3, Madurai, dated 13.04.2007, made in Sessions Case No. 650 of 2006, whereby and whereunder, the appellant was convicted for the offence punishable under Section 436 IPC and sentenced to undergo 5 years rigorous imprisonment and to pay a fine amount of Rs.2,000/-, in default in payment, to undergo rigorous imprisonment for a period of three months.

The case of prosecution is that P.W.1 was the Executive Officer of Vilangudi Panchayat Union. A common lavatory worth about Rs.2,75,000/- was constructed for the use of women by the Vilangudi Panchayat Union. During summer season, many women would come to the lavatory. Therefore, a thatched shed was put up before the common toilet. On 18.02.2004, the appellant has set fire on the thatched shed and damaged the same. On 19.02.2004, when he came to the office, the Sanitary Supervisor, P.W.3 Pitchai and the member of the ward, P.W.2-Muthu, gave a complaint about the occurrence and in pursuance of which, P.W.1 placed the complaint Ex.P.1 before the Koodal Pudur Police Station.

P.W.2 is the resident of Chokkanathapuram. He is the Councilor of 12th Ward. He is the milk vendor. On 18.02.2004 at about 11.00 p.m., when he came to his shop, he saw the accused setting fire to the thatches that was put up before the public toilet. Immediately, P.W.2 gave information to the Supervisor-P.W.3 and on the next day, P.W.2 and P.W.3 gave a complaint to P.W.1.

P.W.6, when he was on duty at Koodal Pudur Police Station, on 22.02.2004, received the same and registered a case in Crime No. 77 of 2004, for the offences under Section 436 IPC and Section 3(1) of TNPPDL Act and prepared Ex.P.5 FIR. Then, he reached the place of occurrence and in the presence of witness Kubendran-P.W.5 and another, prepared observation mahazar Ex.P.4 and sketch Ex.P.6. Thereafter, he enquired the witnesses in the place of occurrence and recorded their statements. He also seized the portion of damaged piece of wooden stick and came back to the police station. On 23.03.2004 at Vilangudi Bus stop at about 14.00 hours, he arrested the appellant and brought him to the police station at 14.30 hours and sent him for remand and the material object has been seized at the place of occurrence under Ex.P.7-Athatchi. M.O.1 the burnt wood piece was sent to Court under Form 95, Ex.P.8. Then, he placed the file to the Inspector P.W.7, for further investigation.

P.W.7, the Investigating Officer, after receiving the file pertaining to the case in Crime No. 77 of 2004, enquired the witnesses and verified the statements recorded by P.W.6 and he also verified the observation mahazar and sketch prepared by P.W.6 and he did not prepare any observation mahazar or sketch separately. Then, after completion of investigation, he filed a final report against the appellant under Section 436 IPC and Section 3(1) of TNPPDL Act.

Before the trial Court, on behalf of the prosecution, P.Ws.1 to 7 were examined and Exs.P.1 to P.8 were marked along with M.O.1. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. On behalf of the defence, Ex.D.1 was marked.

The learned trial Judge, after considering the oral and documentary evidence, convicted and sentenced the appellant as stated above, against the which, the present appeal has been preferred.

The learned counsel appearing for the appellant would submit that there is a delay in preferring the complaint and the delay has not been properly explained. P.W.2, who is the Junior paternal uncle of the appellant, is having inimical towards the appellant for the past ten years and, therefore, his evidence cannot be looked into and his chief as well as cross- examination contradicted with each other. Therefore, eschewing the evidence of P.W.2, the other witness viz., P.W.4, who is alleged to be the eye witness, turned hostile. There is no evidence to prove that the appellant herein set fire on the thatched shed placed in front of the common toilet of the Vilangudi Panchayat Union. That factum was not considered by the Trial Court.

The learned counsel would further submit that finding that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt, the Trial Court has acquitted him for the charge under Section 3(1) of TNPPDL Act. Contending that there is no eye witness to prove that the appellant set fire on the thatched shed put up in front of the common toilet and caused damage and hence, the ingredients of Section 436 IPC have not been made out and the Trial Court failed to consider the same, he prayed for setting aside the conviction and sentence imposed by the Trial Court.

Resisting the same, the learned Government Advocate (Criminal side) would submit that P.W.1 was the Executive Officer of Vilangudi Panchayat Union Office and the Vilangudi Panchayat Union constructed a common toilet to the tune of Rs.2,75,000/- for the use of women and during summer season, many women would come to the lavatory. Hence, a thatched shed was put up in front of the common lavatory. P.W.2 is the eye witness. Since the occurrence is said to have taken place at 11.00 p.m., on 18.02.2004, there is no other eye witness and the evidence of P.W.2 itself is sufficient to convict the appellant under Section 436 IPC. The Trial Court has rightly convicted the appellant. Hence, she prayed for dismissal.

Considering the rival submissions made by both sides and on perusal of the typed-set of papers, it is seen that for the use of women, a common lavatory worth about Rs.2,75,000/- was constructed by the Vilangudi Panchayat Union and during summer season, many women would come to the lavatory and hence, a thatched shed was put up in front of the common toilet. P.W.1 was the Executive Officer. He received the complaint from P.W.2, who is the member of the Ward and P.W.3, who is the Sanitary Supervisor. In pursuance of which, P.W.1 placed the complaint Ex.P.1, before the Koodal Pudur Police Station and that has been received by P.W.6, based on which, a case was registered in Crime No. 77 of 2004, under Section 436 IPC and Section 3(1) of TNPPDL Act and prepared the printed FIR, Ex.P.5.

The only point to be decided in the appeal is whether there is any delay in preferring the complaint, if so, whether it is a fatal to the case of the prosecution.

According to the prosecution witnesses viz., P.Ws.1 to 4, the alleged occurrence is said to be taken place on 18.02.2004, at 11.00 p.m., but the case has been registered only on 23.02.2004 after a period of five days. That has been corroborated by P.W.7, the Investigating Officer and in his cross-examination, it has been stated that the complaint has been given after a period of five days from the date of commission of offence. But a perusal of the First Information Report would go to show that the complaint was preferred on 19.02.2004 and based on which, a case was registered. In such circumstances, this Court ought to have accepted the arguments advanced by the learned counsel for the appellant that there is a delay in preferring the complaint.

Admittedly, the delay in preferring the complaint is not fatal to the case of the prosecution. However, in the case on hand, it has to be considered as to whether it is a fatal to the case of the prosecution?

In the case on hand, P.W.2 and P.W.4 are alleged to be the eye witnesses. P.W.4 is the neighbour, who turned hostile. P.W.2, in his chief- examination, had stated that he saw the appellant setting fire on the thatched shed. Even though P.W.4 had given such statements earlier, during trial, he turned hostile by giving go by to the earlier statement. Therefore, except the evidence of P.W.2, no other evidence is available to decide as to whether the appellant has set fire on the thatched shed. Therefore, this Court has to decide as to whether the evidence of P.W.2 is reliable?

Admittedly, P.W.2 is none other than the junior paternal uncle of the appellant and in 313 statement, the appellant himself had stated that for the past ten years, there is a previous enmity between both the family. Furthermore, in the chief-examination, P.W.2 had stated that he witnessed the occurrence that the appellant had set fire on the thatched shed, but whereas, he has given a go by statement, during his cross-examination on recall, on a different date, that he has stated that he has not witnessed the occurrence. Therefore, a careful reading of chief as well as cross-examination and the further cross-examination of P.W.2 would go to show that his evidence is not trustworthy and hence, no reliance can be placed upon his evidence. Therefore, the evidence of P.W.2, who is alleged to be the eye witness and the delay in preferring the complaint are fatal to the case of the prosecution.

It is true that the shed has been got fire and damaged. P.W.5 is only the attestor of the observation mahazar and his evidence also falsified the case of the prosecution, because in his evidence, he had stated that he was enquired day after the occurrence, but the case has been registered only on 23.02.2004 and observation mahazar and seizure mahazar have been prepared only on 23.02.2004. In such circumstances, no reliance can be placed on the evidence of P.W.5 also.

Therefore, on going through the evidence of P.W.2, the alleged eye witness and P.W.4, who is the neighbour, who turned hostile, it is found that the prosecution has not proved the guilt of the appellant for the offence under Section 436 IPC beyond reasonable doubt and that factum was not considered by the Trial Court. Therefore, I am of the view that considering the delay in preferring the complaint and contradictory statement of eye witness P.W.2, the prosecution has failed to prove that the appellant was found guilty under Section 436 IPC. Hence, the conviction and sentence passed against the appellant are liable to be set aside.

In the result, the Criminal Appeal is allowed and the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No. 3, Madurai, dated 13.04.2007, made in Sessions Case No. 650 of 2006, are set aside and the appellant is acquitted from the charge. The fine amount, if any, paid by the appellant shall be refunded to him. The bail bond, if any, executed by the appellant shall stand cancelled.