IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 235 of 2001()
1. KOTTOPPADAN HAMZA
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :21/05/2008
O R D E R
A.K.BASHEER, J.
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Crl.Rev.Petition No. 235 of 2001
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Dated this the 21st day of May 2008
O R D E R
Petitioner was tried for the offence
punishable under Sections 451 and 435 of IPC. The trial
Court found him guilty and he was, accordingly,
convicted and sentenced to undergo simple imprisonment
for one month and to pay a fine of Rs.1,000/- under
Section 435 of IPC. For the offence under Section 451
of IPC he was sentenced to undergo simple imprisonment
for three months and to pay a fine of Rs.500/-. In
appeal the Sessions Court confirmed the above Order of
conviction and sentence. Hence this revision petition.
2. The prosecution case in a nutshell was that
the petitioner/accused had committed trespass into the
single room tenament (hut) of PW1 at about 10 PM on
August 6, 1991 and then set fire to certain clothes
belonging to PW1, PW2 and their children. The value of
the clothes damaged in the fire was assessed at
Rs.2,000/-. In support of its case the prosecution had
examined Pws.1 to 6. Exts.P1 and P2 and MO1 series were
marked in the case. There was no oral or documentary
evidence on the side of the defence.
3. PW1 who was none other than the brother-in-law
of the accused was not admittedly, available at the
residence when the alleged crime was committed.
According to him, he came to know about the incident on
the next day. He went to the police station and
reported the matter. The police recorded Ext.P1 First
Information Statement. Accordingly, Ext.P1(a) First
Information Report was registered.
4. PW2, the wife of PW1 deposed before the Court
that she and PW3, her sister-in-law (her husband’s
sister) had gone to her uncle’s residence in the
neighbourhood for spending the night there, since PW1
was not at home. According to PW2 the accused had come
to their residence during the night. She and PW3 saw
the accused when they came out of the house to attend
the call of nature. On the next day, it was found that
some clothes had been burnt by fire. In short, PW2 did
not see the accused setting fire to the clothes. She
further stated that she could not say as to how the
clothes happened to be burnt. PW3 is the wife of the
accused (sister of PW1). According to this witness, she
had been living separately from her husband because of
ill-treatment for the last two years. PW3 deposed that
she accompanied PW2 to the residence of her uncle. She
also stated that the accused had come to the residence
of PW1, in the night. At that time, they had gone to
the neighbouring house. But she stated that she had
come out of the house to attend the call of nature at
about 10 PM. At that time, she saw somebody lighting
the torch. Then she saw some smoke. She went and tried
to find out what had happened. She also stated that she
saw the accused and identified him.
5. PW4 attested Ext.P2 Scene Mahazar. PW5 Head
Constable stated that he had recorded the First
Information Statement and registered the First
Information Report. PW6 who was the Investigating
Officer spoke about the process of investigation.
6. PW2 and PW3 are the prime witnesses on the
side of the prosecution. It was admitted by PW2 and PW3
that they had slept in the house of the uncle of PW1 on
that night. PW2 admitted that she did not see the
accused setting fire to the clothes. Of course, she
deposed that the accused had come to the house in the
night while she was in uncle’s house. Her husband
(PW1) was away. Interestingly PW3 stated that she and
PW2 had come out of the house at about 10 PM to attend
the call of nature. At that time, she saw somebody with
a torch and a little later, late she found some smoke.
According to PW3, she went to scene of occurrence on
seeing the smoke and found the accused there. But PW2
did not have such a case at all.
7. There is yet another aspect to be noted. PW2
had stated that she had gone to the police station on
the next day (August 7, 1993). The police had recorded
her statement and obtained her signature. But the
statement had never seen the light of the day. On the
contrary, the prosecution had produced Ext.P1 First
Information Statement admittedly given by PW1 on the
next day of the incident. There is no explanation as to
what happened to the signed statement of PW2, which
according to her, was recorded by the police first.
Though, there is some force in the contention by the
learned public prosecutor that the deposition of PW2
and PW3 are quite natural and trustworthy. I am not
satisfied that the accused can be convicted solely on
the basis of the identification made by his estranged
wife, particularly, since the prosecution had failed to
give any plausible explanation for its omission to
produce the statement of PW2 which was the earliest one
recorded by the police.
Having regard to the entire facts and
circumstances of the case, I am satisfied that the
petitioner is entitled to get the benefit of doubt.
Therefore, the order of conviction and sentence against
the petitioner is set aside. Revision petition is
allowed.
(A.K.BASHEER, JUDGE)
skr