Maruthamuthu vs State

Bhaskaran, J.—The revision is by the first accused against the judgment of the learned First Additional Sessions Judge, Salem in Crl. App.

143 of 1982, confirming his conviction under S. 436, I.P.C., and the sentence of rigorous imprisonment for a period of three years and six months

imposed by the learned Assistant Sessions Judge, Namakkal in S.C.J. 18 of 1982.

The revision petitioner, who was first accused in the trial court, along with another (second accused, who was acquitted by the trial court; was

charged under S. 436, I.P.C., road with S. 34, I.P.C., on the allegation that on 6th May, 1982 at about 3 a.m., in Andikuttai village, both the

accused set fire to the house of Ponnuswami (P.W. 1) and caused damage to his properties worth Rs. 6,300. The first accused was also charged

under S.506, Part II, I.P.C. in that, while setting fire to the house of Ponnuswami, (P.W. 1) the first accused threatened to throw him into the said

fire. On the evidence, the learned trial Judge held that the charge against the first accused under S. 436, I.P.C., alone has been proved by the

prosecution and convicted and sentenced him as set out supra. He found the first accused not guilty under S.506, Part II, I.P.C, as also the second

accused under S. 436, I.P.C., read with S. 34, I.P.C, and acquitted them of those charges.

The prosecution case is that on the day prior to the date of occurrence at about 3 p.m. while P.W. 1 was in his house, the first accused abused

for the theft of his hen and cocoanut facing towards the house of P.W. 1, impliedly saying that P.W. 1 was responsible for the theft. P.W. 1 went

to the house of Periaswmi (P.W. 3) and reported the same. Again, in the evening, at about 5 p.m. the first accused came in front of the house of

P.W. 1 with a Koduval and threatened to cut P.W. 1 and his family members. Immediately P.W. 1 took his wife and children to the house of P.W.

3 and left them there. He then came to his house and was sleeping alone in the house. Early in the morning at about 3 a.m., he came out to answer

calls of nature. At that time, he saw both the accused standing in front of his house, each with a stick, and his house was burning from all sides. On

seeing P.W. 1, the first accused asked the second accused to catch hold of P.W. 1, and put him on fire. Frightened by that P.W. 1 ran towards

the house of P.W. 3, which is half a furlong away and brought P.W. 3 and others. P.W. 1''s wife P.W. 2 also came to that place. On seeing P.Ws.

1 to 4 and others, the accused ran way from the place. In the fire, a number of articles kept in the house got burnt. P.W. 1 went to Namagiripettai

police station and lodged a complaint at 11 a.m. P.W. 6 Sub Inspector of Police, investigated the case. The Inspector of Police, Rasipuram laid

the charge sheet against both the accused. On the evidence, the learned trial Judge found the first accused alone guilty and convicted and

sentenced him as set out supra. On appeal, the learned Sessions Judge confirmed the conviction and sentence. Hence the revision.

In the revision, Learned Counsel for the petitioner-first accused submitted that the entire prosecution case rests mainly on circumstantial

evidence. He further submitted that on the same set of evidence, when both the accused were charged under S. 436, I.P.C. read with S. 34,

I.P.C., and one is acquitted, the conviction of the other accused is not sustainable. In this connection, he relied on the decision reported in Pohalya

Motya Valvi Vs. State of Maharashtra, . In that case, two persons were charged under S.302, I.P.C., read with S.34, I.P.C. The evidence is

circumstantial in nature. Both the accused were last seen in the company of the deceased and the accused failed to satisfactorily account for the

disappearance of the deceased. On that evidence, the Sessions Court acquitted both the accused. But on appeal by the State against the aquittal of

one of accused alone, the Bombay High Court allowed the appeal and convicted the accused. The Supreme Court, on appeal by that accused,

held that when two persons were last seen in the company of the deceased, it is the responsibility of both of them for the disappearance of the

deceased and when one of them is acquittal of the charge of murder and no appeal is filed against his acquittal, the very circumstance that the

deceased was last seen with them ceases to be of an incriminating charactar and the other accused also cannot be convicted solely on that basis. In

the instant case, also there is no eye witness to the occurrence of setting fire to the house of P.W. 1.

The evidence of P.W. 1, is that he saw both the accused standing in front of his house each with a stick while his house was burning. His further

evidence is that on seeing him, the first accused threatened to throw him on the fire. This version of P.W. 1 has been disbelieved by the trial Court

and the first accused was acquitted of that charge. P.W. 6, the investigating officer has admitted in his evidence that from his investigation it could

not be gathered clearly as to who set fire to the house of P.W. 1. The further evidence against the accused is that on being informed by P.W. 1 to

P.W. 3, P.Ws. 1 to 3, and others rushed to the house of P.W. 1, and they saw the house of P.W. 1 burning and both the accused running away

from that place. Disbelieving this piece of evidence, the second accused has been acquitted.

No doubt, the decision cited supra relates to different set of circumstances wherein both the accused are liable to explain disappearance of the

deceased who was last seen with the accused. In the instant case, the learned Magistrate concluded as if there is greater evidence against the first

accused than against the second accused, which is factually incorrect. Therefore, when both the accused were found in suspicious circumstances,

and when no adverse inference is drawn against one, that benefit should also be given to the other accused. Therefore, the conviction of the first

accused on the same set of evidence is not sustainable as has been held by the Supreme Court in the above cited decision. Further, the fact that the

accused were seen in front of the house of P.W. 1 itself is not an incriminating circumstance against the first accused since the houses of P.W. 1

and the first accused are in the same street facing each other. Therefore, it is quite possible that just like P.W. 1, coming out of the house, the first

accused also could have come out of his house to answer calls of nature. It is admitted by P.W. 1, that the house of P.W. 3, is half a furlong away

from his house. Therefore, it is most improbable that the accused will be standing in the same place till P.W. 1 goes to the house of P.W. 3 and

brings him to the scene place. The motive for the occurrence is, that prior to the occurrence the first accused threatened to finish P.W. 1, and his

family members. Even assuming this motive to be true, that is not sufficient to prove the charge when there is lack of other evidence. In the

circumstances, on the ground that the same set of circumstantial evidence, when two accused are charged of the offence under S. 436, I.P.C, read

with S. 34, I.P.C, and one is acquitted, the conviction of the other cannot be sustained.

In the result, the revision is allowed; the conviction and sentence imposed on the revision petitioner are set aside and the revision petitioner-first

accused is acquitted.