Selvaraj vs State

R.S. Ramanathan, J.—The appellants were convicted for offences under Sections 427, 436 of IPC and Section 4 of TNPPD Act, 1992 and sentenced to undergo two years imprisonment for the offence punishable under Section 436 of IPC and to pay a fine of Rs.500/- in default to undergo one month simple imprisonment and sentenced to undergo one year simple imprisonment for the offence punishable under Section 4(1) of TNPPD Act, 1992 and to pay a fine of Rs.500/- in default to undergo one month simple imprisonment and sentenced to pay a fine of Rs.500/- for the offence punishable under Section 427 of IPC in default to undergo one month simple imprisonment. Aggrieved by the same, this appeal is filed.

The case of the prosecution is that one Nachimuthu Gounder, the father of P.W.1 and Subramania Gounder, father of the appellants were neighbours and they were having dispute in respect of S.No.170/2001 and the case is pending in the civil court. Therefore, the appellants due to enmity and with an intention of causing damage to the house and cattle of the Nachimuthu Gounder set fire to the Palmairah tree and it spread to the house of the Nachimuthu Gounder and caused damage to the tune of Rs.1,10,000/- and therefore, the appellants are liable to be convicted under Section 436, 427 and Section 4(1) of TNPPD Act, 1992.

The prosecution examined nine witnesses and marked six exhibits. On the defence side one witness was examined and no exhibits were marked. The prosecution produced and marked five material objects.

The case of the prosecution is that on 31.03.2005 at about 3.30p.m., when P.W.1, his brother Karuppusamy and mother Velathaal were in their house, they heard the sound of Subramania Gounder, father of the appellants that the cow shed is burning and P.W.1 was awakened by his brother and mother and when they saw the cow shed burning, they immediately rescued the cows, oxes, sheep and in that process the entire cow shed was damaged. The fire spread to the house of the P.W.1 and the bullock cart and articles found in the house along with the house were burned to ashes. On 01.04.2005 at about 2 p.m., they gave report before the police and the Inspector of police enquired about the occurrence and also asked about the persons who set fire or against whom P.W.1 had any suspicion and two days later, the Inspector of Police came and enquired and at that time, P.W.1 informed the police that witnesses Rasu, Angamuthu, Kathirvel and Ramachandran informed him that the appellants set fire to his property due to enmity and therefore, they have to be punished.

In support of the prosecution case, P.W.1, his brother Karuppusamy P.W.2 and Ramachandran P.W.3 were examined. P.W.4 is the Doctor who gave treatment to P.W.1 and P.W.5 is the observation mahazer witness P.W.6 is the photographer, P.W.7 is the Head Constable who recorded the F.I.R. on the basis of the statement given by P.W.1 and P.W.8 is the Doctor who treated P.W.1 and P.W.9 is the Inspector of Police who conducted investigation.

It is submitted by learned counsel appearing for the appellants that as per the F.I.R., and as per the evidence of P.W.1, P.W.1 and 2 were not eye witnesses and the father of the appellants by name Subramania Gounder shouted that the cow shed was burning and only after hearing his alarm, they went to the spot and found that the cow shed was burning and they removed the cattle from the place and the fire spread to the house and other properties and all the properties were gutted. He therefore, submitted that P.W.1 and P.W.2 did not state that the appellants set fire. P.W.3 Ramachandran was stated to be the eye witness. According to prosecution, P.W.1 and P.W.2 also deposed that Ramachandran P.W.3 and three others informed that the appellant set fire on that date. He submitted that the evidence of P.W.3 cannot be believed. According to P.W.1 on 01.04.2005, when he went to the police station to give the complaint, the Inspector of police enquired about the persons who set fire or who was responsible for the fire and at that time, he did not state the names of the persons and the Inspector of Police came on 03.04.2005 and enquired him and at that time, he informed that the appellants set fire and witnesses Rasu, Angamuthu, Kathirvel and Ramachandran saw that and they informed the same to him. P.W.3 the alleged eye witness stated in chief examination that he saw the first accused/ first appellant carrying a stick with cloth tied in the top and second appellant set fire to the stick carried by the first appellant and they threw the stick with fire on the palmairah tree and due to wind which was blowing towards Western direction, the fire spread to the cow shed of P.W.1 and he attempted to put of the fire and neighbours also came to that place and all of them tried to put off the fire and they also attempted to use compressor for spreading water and as there was electricity failure, they were not able to put off the fire and two months later police enquired him and he told the happening to the police officer. He did not state that he informed P.W.1 and P.W.2 about the overt act committed by the appellants namely, throwing the fire on the palmairah tree. It is further stated by P.W.3 that he along with neighbours went to the place to put off the fire. Therefore, it is seen from the evidence of P.W.3 that P.W.3 was present during the relevant time and he also attempted to put off the fire. But he did not inform P.W.1 of P.W.2 about the persons who was responsible for the fire. The evidence of P.W.3 cannot also be believed for the reason that if P.W.3 had told about the appellants that they had set the fire immediately after the occurrence P.W.1 would have mentioned the names of the appellants when he gave the F.I.R. on the next date. He therefore submitted reading the evidence of P.W.3 and P.W.1, it cannot be stated that P.W.3 could be an eye witness and if P.W.3 were an eye witness he would have informed P.W.1 about the persons who set on fire to the property. He therefore, submitted if P.W.3 cannot be believed, there is no eye witness and admittedly, there was enmity between the appellants and P.W.1 and P.W.2 and due to the enmity a false case was foisted against the appellants and it was not appreciated by the trial court. He therefore submitted that the order of the trial court has to be set aside.

The Learned Additional Public Prosecutor submitted the second appellant is dead and memo is also filed. He submitted that P.W.1 and P.W.2 were not eye witnesses regarding the setting of fire by the appellants. P.W.1 has stated that two days later he was informed by P.W.3 and others that the appellants have set fire to the property and that was also corroborated by P.W.3 in his evidence and there was no necessity for P.W.3 to give false evidence against the appellants. Considering the same fact in the appeal for various circumstances, it does not call for any interference.

Having regard to the submissions of the learned counsel appearing for the appellants and the learned Additional Public Prosecutor, we will have to see whether prosecution proved the case beyond reasonable doubt against the appellants.

As stated supra, P.W.1 and P.W.2 did not state who set fire to their property. According to P.W.1 and P.W.2 two days later P.W.3 and other informed them that the appellants set fire to the property. According to P.W.3, he and neighbours attempted to put off the fire and he did not state that he informed P.W.1 or P.W.2 about the persons who was responsible for the incident and according to him, he was enquired by the Inspector of police two months later and at that time, he informed about the involvement of the appellants. As rightly submitted by the learned counsel appearing for the appellants that if P.W.3 had seen the appellants setting fire to palmairah tree and that spread to the property of P.W.1 and he also attempted to put off the fire along with others, definitely, he would have informed P.W.1 of P.W.2 about the persons who set on fire on their property. Admittedly, the F.I.R. Was given on the next day at 2.00 p.m., and according to P.W.1, he was enquired by Inspector of Police while recording the statement and registering the F.I.R., particularly about the persons who set on fire or against whom he had any suspicion and he did not name the persons who set on fire. His evidence is that two days later, he was informed by P.W.3 and others and that was objected by the defence of P.W.3 and P.W.3 did not state that he informed P.W.1 and P.W.2, two days later and according to P.W.3, he did not inform them about the names of the appellants who set on fire and only informed the police after three months. Therefore, the presence of P.W.3 is highly doubtful and his conduct also makes it clear that he could not have been the eye witness for the occurrence. Therefore, if the evidence of P.W.3 is eschewed, there is no other evidence to connect the appellants with the occurrence. Further, it is admitted by P.W.1 that Subramania Gounder, the father of the appellants shouted that the property was burning and only after hearing his sound they attempted to put off the fire. If really, the appellants had set fire as stated by the prosecution, their father would not have raised the alarm and the fact that Subramania Gounder raised the alarm and only after hearing the same, P.W.1 and P.W.2 rushed to the spot and attempted to put off the fire would also prove that the appellant would not have set fire.

Further, the evidence of P.W.8 would also make it clear that the prosecution has not come out with clean hands. As per the evidence of P.W.8, the Doctor, he treated P.W.1 on 03.04.2005 at 8.00 a.m. P.W.1 was brought by Advocate Krishnamoorthy to their hospital and he informed that he was assaulted by four known person on 31.03.2005 at 3.00 p.m., and they also set fire to his house and he examined P.W.1 and he found some injuries and Ex.P.5 is the Accident Register. The evidence of P.W.8 is contrary to evidence of P.W.1 and P.W.1 did not state that he sustained injuries at the hands of four persons who set fire to his property. Therefore, it is seen from the evidence of P.W.8 that four known persons assaulted P.W.1 and also set fire to the property of P.W.1 and he was brought by Mr. Krishnamoorthy, Advocate to the hospital. The evidence of P.W.8 is also against the prosecution case. These aspects were not properly appreciated by the Court below and the Court below erred in concluding that P.W.1 to P.W.3 proved the case of the prosecution that the appellants set fire to the properties and for the reasons stated above, the evidence of P.W.1 to P.W.3 can not be believed and P.W.3 could not be the eye witness. Hence, prosecution failed to prove the case against the appellants beyond reasonable doubt and the appellants are liable to be acquitted.

In the result, this appeal is allowed and the order dated 06.07.2006 passed in S.C. No.100 of 2006 by the Additional District Cum Sessions Court (Fast Track Court No. 2) Coimbatore is set aside. The appellants are acquitted of charges against them and the appellants are set at liberty. The fine amount, if any, shall be refunded to the appellants and the bond, if any, executed shall stand discharged.