The criminal revision is preferred by the accused against the finding of the learned I Additional Sessions Judge, Madurai dated 12.02.2007, in C.A.No.1 of 2004, confirming the finding of the Assistant Sessions Judge cum Chief Judicial Magistrate, Madurai dated 29.12.2003, in S.C.No.220 of 2003.
2.In S.C.No.220 of 2003, the revision petitioner stood tried for offences under Section 4 of Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 and
Section 506(i) I.P.C. The trial Court found him guilty on both the counts and awarded a sentence of rigorous imprisonment for 2 years and fine of Rs.5,000/-, in default rigorous imprisonment for a period of 6 months in respect of offence under Section 4 of Tamil Nadu Public Property (Prevention of damage and Loss) Act 1992 and Rigorous Imprisonment for a period of one year in respect of offence under
Section 506(i) I.P.C.
3.Against the conviction and sentence passed by the Assistant Sessions Judge (Chief Judicial Magistrate), Madurai, the accused has preferred C.A.No.1 of 2004 on the file of the I Additional Sessions Court, Madurai.
4.The first appellate Court, has dismissed the appeal and confirmed the conviction and sentence passed by the trial Court.
5.Against the concurrent judgments passed by the Courts below, the present criminal revision case has been filed by the accused.
6.The case of the prosecution is that on 27.09.2002, at about 10.00 P.M., the accused set fire to the stack of corn fodder, placed at the backside of the house of P.W.1, as a result of which the stack of corn fodder worth Rs.3,500/- was destroyed. The fire also spread to the adjacent house of one Murugayee, which also suffered extensive damage.
7.The complaint in respect of the occurrence which had taken place on 27.09.2002 at about 10.00 P.M. was registered by P.W.9, the Head Constable of Kallikudi Police Station at 8.00 P.M. on 30.09.2002. The explanation for the delay in registering the F.I.R. is that P.W.1 and P.W.2, mother and daughter, had been intimidated by the accused and since the husband of P.W.1 was away on the date of occurrence, they preferred the complaint only on 30.09.2002, after the return of P.W.1's husband.
8.In the course of trial, P.Ws.1 to 11 were examined and Exs.P.1 to 5 were marked on the side of the prosecution.
9.The evidence of P.W.1 is to the effect that the accused, admittedly her relative, teased her dauther P.W.2, which was objected to by her. Angered by this, the accused has threatened to set on fire her house along with the inmates there of. One month thereafter, the accused repeated the teasing of P.W.2, which led to a verbal altercation, whereat the accused threatened that he would destroy the house of P.W.1 before the next morning. P.W.1's husband was away. At about 10.00 P.M. on 27.09.2002, when P.W.1 and her daughter P.W.2 went to feed the cattle, they heard a noise of somebody walking on the stack of corn fodder. Before they reached the spot, the accused set fire thereto. It is her evidence in chief that in the light of the fire, they saw the accused. It is her further evidence that they raised a hue and cry and that some people gathered there.
10.In so far as the occurrence is concerned, the evidence of P.W.2, the daughter of P.W.1 is also substantially on the same lines. P.W.3, the relative of P.W.1 has also spoken of having seen the accused running away from the scene of occurrence.
11.P.W.4, who is said to be an eye-witness to the occurrence had turned hostile. It is that P.W.4, who had made a call to the fire service, as a result of which the fire service came to the scene of occurrence and put out the fire.
12.P.W.5, who was at the scene of occurrence immediately after the occurrence, witnessed the fire. But it is his deposition that he did not know who set fire to the stack of corn fodder.
13.P.Ws.7 and 8 are the witnesses to the Observation Mahazar and both of them have turned hostile. While P.W.7 denied his signature on the Observation Mahazar, P.W.8 admitted his signature, but informed that the signature was obtained at the police station.
14.P.W.9 is the Head Constable, who registered the F.I.R. P.W.10 is the Inspector of Police, who conducted part of the investigation. P.W.11 is the Inspector of Police, who continued the investigation and after completing the investigation filed the charge sheet.
15.I have heard Mr.M.Michael Bharathi, learned counsel for the petitioner and Mr.N.Murugan, learned Government Advocate (Criminal side) for the respondent.
16.Learned counsel for the appellant submitted that there is an undue delay in filing the complaint and that such a delay has not been properly explained. He submitted that in an admitted case of prior enemity, the possibility of false implication loomed large and particularly given the animosity between P.Ws.1, 2 and the accused. He also submitted that in all probability, none had shown what actually happened and that P.W.1 has preferred a false complaint only to spite the accused. He submitted that the decisions relied on by the trial Court to accept the prosecution's explanation for the delay in filing the F.I.R. would not apply to the facts of the present case and that such delay is fatal to the prosecution case.
17.Learned Government Advocate (Criminal side) laid heavy reliance on the judgments of the Court below and submitted that the same ought not be interfered with, since P.Ws.1 to 3 have clearly spoken about the occurrence.
18.On consideration of the rival submissions, I am of the view that though delay is not always fatal to the prosecution case in the present case it has to be found to be so. This is so, because this is a case of admitted animosity between the prosecution witnesses and the accused. P.Ws.1 to 5 and the accused are all relatives. P.Ws.4 and 5 have not supported the prosecution case. It is found both in the complaint and in the evidence of P.W.1 that immediately after the fire several persons gathered. If that be so, it stands to reason that if indeed any one was aware of who had caused the fire, a complaint would have been lodged before the police if not by P.W.1 and P.W.2, who claimed to have intimidated by the accused, by some one else as the house of one Murugayee also had suffered extensive damage. The decision of the Honourable Apex Court reported in 2001 criminal Law Journal 4242 relied on by the trial Court to arrive at the finding of conviction by negating the arguments on the delay in the F.I.R. are not applicable in the facts and circumstances of the case. On the other hand the observations of the Honourable Apex Court in the case of Bijoy Singh v. State of Bihar, (2002) 9 SCC 147 are more appropriate: "6.This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. (emphasis supplied)." Applying the above test, the admitted animosity of P.Ws.1 and 2 towards the accused and the delay in lodging of the F.I.R. would render suspect the prosecution case.
19.Further, the fact of P.W.1 and P.W.2 going out to feed the cattle in the dead of night, just as and when the accused was on the scene of occurrence and committed the offence is too much of a coincidence to be believed.
20.This Court is of the view that a material witness Murugayee, whose house is also said to have been affected in the fire and who had suffered loss of property owing thereto, ought to have been examined.
21.This Court is of the considered opinion that in circumstances where P.Ws.1 and 2 are enemically disposed the accused, it is quite reasonable to apprehend the possibility of false implication of the accused, particularly when the F.I.R. is delayed by 3 days. When such is the case, the benefit of the doubt should flow to the accused and hence, the criminal revision case is to be allowed.
22.In the result, the Criminal Revision Case is allowed by setting aside the judgments of the Courts below. The accused is acquitted of all the charges framed against him. The bail bond executed by the accused stands cancelled and the fine amount, if any, paid, shall be refunded to the accused.
sj To:
1.The Inspector of Police, Kallikudi Police Station, Madurai District.
2.The I Additional District Sessions Judge, Madurai.
3.The Assistant Sessions Judge, (Chief Judicial Magistrate), Madurai.
4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.