State of Kerala v. Santhosh S/o Madhavan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **CRL.A NO. 1680 OF 2006** **AGAINST THE JUDGMENT DATED 29.11.2003 IN SC 331/2002 OF** **ASSISTANT SESSIONS JUDGE, TIRUR, MALAPPURAM** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REP BY THE CIRCLE INSPECTOR OF POLICE, PONNANI THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** ## **ACCUSED/RESPONDENT:** **SANTHOSH S/O MADHAVAN, PULIYAMKUNNATH HOUSE, KADAVANADU AMSOM DESOM, PONNANI.** **BY ADVS. RAJESH SIVARAMANKUTTY SRI.G.G.MANOJ** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1680 OF 2006** 2 ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.1680 of 2006** **------------------------------------** Dated this the 11[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 29.11.2003, passed by the Assistant Sessions Judge, Tirur in SC.No.331/2002. 2. By the impugned judgment the sole accused (respondent herein) was acquitted, by the court below, of the offence punishable under Section 436 of the Indian Penal Code. The State preferred this appeal challenging the judgment of acquittal. 3. The brief facts of the case are narrated below: 4. Shri.Prasad (PW1) was residing in house bearing door No.VIII/370(A). This house was damaged by fire on the night of 26.01.2002. PW1 suffered a loss of Rs.25,000/- in the incident. PW1 lodged Ext.P1 FIS before the Ponani Police Station on the morning of 27.01.2002. **CRL.A NO. 1680 OF 2006** 3 The Police registered FIR No.19/2002 alleging offence punishable under Section 436 IPC against the accused. 5. After completion of the investigation, the final report was submitted against the accused for the offence punishable under Section 436 of the Indian Penal Code before the Judicial First Class Magistrate Court, Ponani. 6. The case was committed to the Sessions Court, Manjeri, from where it was made over to the Trial Court. On the appearance of the accused charge under Section 436 IPC was framed against him. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 7. The prosecution examined PWs.1 to 11 and proved Exts.P1 to P8 and MOs.1 to 5. 8. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence the accused was called upon to enter on his defence **CRL.A NO. 1680 OF 2006** 4 and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is not guilty of the offence alleged and therefore he was acquitted. 9. Heard Sri.Rajesh Sivaraman Kutty, the learned counsel appearing for the accused and Sri.M.C.Ashi., the learned Public Prosecutor appearing for the State. 10. The learned Public Prosecutor submitted that the oral evidence of PWs.1, 3 and 5, corroborated by Ext.P1 FIS and MO1 series chappals, is sufficient to establish the case against the accused. 11. The learned Public Prosecutor submitted that the prosecution established the circumstances from which the conclusion of guilt of the accused can be drawn. 12. The learned counsel for the accused, per contra, contended that the prosecution failed to establish the charge against the accused beyond reasonable doubt and hence the judgment of acquittal requires no interference. 13. The only point that arises for consideration is **CRL.A NO. 1680 OF 2006** **==> picture [7 x 9] intentionally omitted <==** whether the judgment of acquittal passed by the court below warrants interference or not. ## **THE POINT** 14. The prosecution case is that on 26.01.2002 at midnight the accused set fire to the residential building where PW1 was residing and caused mischief to the tune of Rs.25,000/-. The prosecution mainly relied on the oral evidence of PWs.1, 3 and 5 and Ext.P2 scene mahazar to substantiate its case. 15. The case of the prosecution that the house bearing door No.VIII/370(A) was damaged by setting fire is not under challenge. 16. The issue to be considered is whether the prosecution succeeded in establishing that it was the accused who set fire to the house. 17. The prosecution rests on circumstantial evidence to substantiate its case. The prosecution relied on the following circumstances to prove that the accused set fire to the house and caused mischief: (1) PW1 saw the accused running away from the **CRL.A NO. 1680 OF 2006** **==> picture [7 x 9] intentionally omitted <==** courtyard of the house at the time of the incident. - (2) MO1 series footwears belonging to the accused were found at the courtyard of the house immediately after the incident. - (3) MO2 plastic can which contained petrol was recovered from the side of the road near the house. - (4) PW1 and the accused were on inimical terms and therefore there was motive on the part of the accused to commit the offence. 18. PW1 gave evidence that when he woke up in the night he saw the accused running away from the courtyard of the house jumping over the compound wall on the southern side. It is pertinent to note that in Ext.P1, the earliest statement given by PW1 to the Police at 09.00 a.m. on the day after the incident, he had not specifically mentioned the name of the accused but only stated that a man who resembled the accused ran away from the scene. But in the statement given before the court he specifically mentioned that it was the accused who ran away at the relevant time from the courtyard of his **CRL.A NO. 1680 OF 2006** **==> picture [7 x 9] intentionally omitted <==** house. Going through the statement of PW1 and Ext.P1, it is seen that he was not sure that it was the accused who ran away from the scene. The court below after noticing this discrepancy found that the oral evidence of PW1 to the effect that it was the accused who committed the mischief was not credible. 19. The second circumstance relied on by the prosecution is that MO1 series chappals allegedly worn by the accused were found near the steps on the southern side of the house. PWs.1 and 5 identified MO1 series chappals as belonging to the accused. Both the witnesses gave evidence that they had seen the accused wearing those chappals some days prior to the incident. The court below observed that as MO1 series chappals had no unique features the evidence of PWs 1 and 5 that the chappals belonged to the accused is not believable. The trial court applied the reasoning that it was unusual that the chappals worn by a person would attract the attention of others unless they had got some special features. This Court finds no reason to disturb the said finding made by **CRL.A NO. 1680 OF 2006** 8 the trial court. 20. The third circumstance relied on by the prosecution is the recovery of MO2 can which allegedly had contained Petrol. The case of the prosecution is that the Petrol contained in MO2 was used to commit the mischief. The relevant question is the connection of the accused with MO2 which the prosecution failed to substantiate. There was not even evidence that the MO1 had contained Petrol as the same was not sent for chemical analysis. Prosecution failed to establish any connection of MO1 with the accused. 21. The last circumstance relied on by the prosecution is the element of motive. It is the case of the prosecution that the accused was living in inimical terms with PW1 in connection with a financial transaction with one Mr.Backer for obtaining visa. It is the case of the prosecution that PW1 and the accused had given money to Mr.Backer for obtaining visa. Their relationship strained on account of the dispute arose in connection with the money transaction with Mr.Backer. It has also **CRL.A NO. 1680 OF 2006** 9 come out in evidence that some litigations were pending between the parties. The specific case of PW1 is that the accused had developed enmity towards him. There is no reason to disbelieve the version of PW1 that the accused had enmity towards him. Hence prosecution has succeeded in establishing the fourth circumstance. 22. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. [vide: **Brajendrasingh v. State of MP and Another** (2012 **CRL.A NO. 1680 OF 2006** 10 Criminal Law Journal (SC) 1883)] 23. With a view to satisfactorily prove the commission of a crime on the basis of circumstantial evidence, the prosecution must satisfy, (1) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established; (2) the circumstances should have a tendency to unerringly point to the guilt towards the accused; and (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime is committed by the accused and none else. (vide: **Sardar Khan v. State of Karnataka** [AIR 2004 SCC 1695]) 24. In the instant case the prosecution failed to establish the conditions required for securing a conviction against the accused in the back drop of the principles discussed above. 25. The learned counsel for the accused contended that the accused having been acquitted by the trial court is entitled to the presumption of innocence and further **CRL.A NO. 1680 OF 2006** 11 that the accused having secured his acquittal the presumption of his innocence is further re-affirmed and strengthened by the trial court. The learned counsel for the accused further submitted that if two reasonable conclusions are possible on the basis of the evidence on record the appellate court should not disturb the finding of acquittal recorded by the trial court. 26. The apex court in **Chandrappa and others vs. State of Karnataka** [(2007) 4 SCC 415] following various authorities on the subject deduced the general principles, regarding the powers of appellate court while dealing with an appeal against an order of acquittal, as follows: - (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. - (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. - (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient **CRL.A NO. 1680 OF 2006** 12 grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 27. In my view, if in the light of the above circumstances, the trial court felt that accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, I am of the **CRL.A NO. 1680 OF 2006** **==> picture [13 x 9] intentionally omitted <==** considered view that, the view taken by the trial court for acquitting the accused was possible and plausible. For the above said reasons the appeal lacks merits. In the result the appeal is dismissed. Sd/- **K. BABU, JUDGE** AS