Crl.A.@ SLP(Crl.)Nos.7322-23/18

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1583-1584 OF 2018 [Arising out of S.L.P.(Crl.)Nos.7322-7323 of 2018]

Shanthamalleshappa ... Appellant

Versus

State of Karnataka ... Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. These criminal appeals have been preferred by accused

no.1,  in  the  crime  registered  on  the  file  of  the

Chamarajanagar  Rural  Police  Station,  in  the  State  of

Karnataka aggrieved by the conviction recorded and sentence

imposed in the judgment dated 17th January 2011 passed in

Sessions  Case  No.59  of  2009  by  the  learned  District  &

Sessions Judge,  Chamarajanagar and the judgment of the High

Court in Criminal Appeal No.531 of 2011 c/w Criminal Appeal

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No.248 of 2011 passed on 28.06.2017 by the High Court of

Karnataka  at Bangalore.

3. Accused nos.1 to 4 in the aforesaid crime were charged

for offence under Section 436 read with Section 34 of Indian

Penal Code (IPC).  The learned District & Sessions Judge,

Chamarajanagar has convicted all the four accused for the

offence  under  Section  436  read  with  Section  34  IPC  and

imposed  the  fine  of  Rs.10,000/-,  in  default,  to  undergo

simple  imprisonment  for  two  months  on  accused  no.1  and

imposed  a  fine  of  Rs.5,000/-  on  accused  nos.2  to  4,  in

default, to undergo simple imprisonment for a period of one

month.

4. Aggrieved by the conviction recorded and fine imposed,

accused have filed Criminal Appeal No.531 of 2011 and the

State of Karnataka has preferred Criminal Appeal No.248 of

2011  seeking  enhancement  of  punishment,  before  the  High

Court.  The High Court, by judgment dated 28th June 2017,

allowed the appeal, filed by the accused, in part by setting

aside the conviction recorded and fine imposed on accused

nos.2 to 4 and allowed the appeal of the State by imposing

the sentence on accused no.1 to undergo simple imprisonment

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for a period of six months and to pay a fine of Rs.50,000/-,

and in default of payment of fine, accused no.1 has been

ordered to undergo simple imprisonment for a further period

of 1½ months.

5. The case of the prosecution was that accused no.1 is

the elder brother of husband of PW-1 Smt. Manjula Devi.  It

is alleged that there were civil disputes among the brothers

with regard to the family property.  On the day of Shivratri

festival on 23.02.2009 at about 08:30 p.m., when the husband

of PW-1 had gone to temple, when PW-1 along with her mother

and children were in house, at about 09:30 p.m., accused

no.1 along with accused nos.2 to 4 threw kerosene oil on the

thatched shed situated in front of the house of PW-1 and set

it on fire.  It was alleged in the complaint lodged before

the police under Ex.P1 that all the accused have committed

the  offence,  as  such,  all  were  charged  for  offence

punishable under Section 436 read with Section 34 IPC.  It

was alleged that after setting the thatched shed on fire,

all the accused fled away from the scene of occurrence on

motor cycles.

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6. It is the case of the prosecution that on receiving

the information, PW-7 the ASI, Chamarajanagar Rural Police

Station,  rushed  to  the  spot  and  received  the  written

complaint from PW-1 and on its basis registered the case

against accused nos.1 to 4.  On completion of investigation,

chargesheet was filed against accused nos.1 to 4 for the

offence punishable under Section 436 IPC read with Section

34 IPC.  The accused denied the charges and claimed trial.

7. To prove the charges framed against the accused, the

prosecution examined seven witnesses and marked Ex.P1 to P3.

Upon hearing learned Public Prosecutor and counsel for the

accused, learned Sessions Judge found all the accused guilty

of the alleged crime and recorded conviction and imposed

sentence of fine.

8. Pleading that the fine imposed on the accused is not

in conformity with Section 436 of IPC, for the enhancment of

punishment,  State  filed  appeal  and  questioning  the

conviction recorded and fine imposed, accused nos.1 to 4

have  also  preferred  appeal.  Before  the  appellate  court,

additional documents were filed along with application under

Section 391, Cr.P.C.  The said application was allowed and

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documents were marked as Ex.D1 to D4.  The High Court, by

referring to the oral and documentary evidence on record,

has partly allowed the appeal of the accused and set aside

the conviction recorded against accused nos.2 to 4 and also

allowed  the  appeal  of  State  and  enhanced  the  sentence

imposed  on  accused  no.1  to  simple  imprisonment  for  six

months and a fine of Rs.50,000/-, in default to undergo

simple imprisonment for a further period of  1½ months.

9. In these appeals, we have heard Mr. Anand Sanjay M.

Nuli, learned counsel appearing for the appellant-accused

and  Mr.  V.N.  Raghupathy,  learned  counsel  appearing  for

respondent-State.  It is contended by learned counsel for

the appellant that though there is no acceptable evidence on

record,  the  trial  court  and  the  appellate  court  have

erroneously recorded conviction and imposed the sentence.

It is submitted that except the interested testimony of PWs-

1 to 3 no other independent eye witnesses have been examined

to prove the charge.  It is further submitted that though

there were material contradictions in the oral evidence of

PWs-1 to 5 said evidence was not properly considered by the

trial court as well as the High Court.  It is submitted that

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even before the appellate court though additional evidence

is filed along with application under Section 391 of the

Cr.P.C., such documentary evidence is not considered by the

High  Court.   It  is  contended  that  though  the  State  has

failed to prove the guilt of the accused beyond reasonable

doubt, the conviction is recorded and sentence is imposed on

the appellant-accused no.1.  On the other hand, it is the

case of the State that the oral evidence of PWs-1 to 5 is

consistent and same is sufficient to record the conviction

against the appellant.  It is submitted that in view of the

property disputes  among the  brothers, accused  no.1 along

with accused nos.2 to 4 have intentionally set fire to the

dwelling house, as such, the trial court as well as the High

Court  rightly  recorded  the  conviction  and  imposed  the

sentence.  It is submitted that the Sessions Judge, even

after recording conviction of the accused under Section 436

read with Section 34 IPC, has simply imposed only fine on

the accused and the same is contrary to Section 436 IPC.  As

such,  State  has  preferred  the  appeal  which  is  rightly

allowed by the High Court by imposing the sentence of six

months and fine of Rs.50,000/-.  It is submitted that there

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are  no  grounds  to  interfere  with  the  said  conviction

recorded and sentence imposed.

10. Having heard learned counsel on both sides, we have

perused the material on record and also oral evidence which

is placed on record in the paper book.

11. PW-1 Smt. Manjula Devi, who was the complainant is the

sister-in-law of accused no.1.  It was her case that on

23.02.2009 on  Shivratri festival day when her husband has

gone to temple, she was in the house along with her mother

and children.  The son of PW-1 Abhijith was examined as PW-2

and mother of the accused was examined as PW-3.  PW-1, in

her evidence, has stated that on the date of incident, on

hearing the sound of dog barking, when she went out along

with her son, PW-2, they saw accused no.1 holding kerosene

can and remaining accused were with him and the accused no.1

threw kerosene oil on the thatched shed and set it on fire.

PW-1, in her deposition, has not said about the presence of

PW-3 at all.  In the complaint filed before the police it is

alleged  that  five  persons  including  the  accused  have

committed the offence but coming to the chargesheet only

accused nos.1 to 4 were chargesheeted.  PW-1 stated in her

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complaint under Ex.P1 that she became alert on hearing the

sound of motor cycles but coming to her deposition she has

stated that on hearing the dog barking she has come out of

the  house  and  witnessed  the  incident.   Admittedly,  the

incident occurred at about 09:30 p.m. on the fateful day.

Unless sufficient light was there it was not possible to

identify  the  accused.   It  was  not  the  case  of  the

prosecution that witness had seen the accused persons in the

light emanated from fire.  There are material contradictions

in the evidence of PW-1 and PW-2 and the contents of the

mahazar.  In the deposition, PWs-1 and 2 have stated that

books  and  cloths  were  burnt,  contrary  to  the  statement

recorded in the mahazar in which only partial burning of the

pedestal  fan  and  the  roof  is  stated.   In  the  mahazar

drafted, there is not a whisper about burning of books and

cloths, and the burning of fan is conspicuously absent in

the  evidence  of  witnesses.   It  is  the  case  of  the

prosecution that accused after setting on fire the thatched

shed,  fled  away  on  the  motor  cycles  but  there  was  no

identity of any of the motor cycles by registration number

etc.  PW-2 is also silent regarding the presence of PW-3 at

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the time of incident. Even according to the case of the

prosecution there were civil disputes pending between the

brothers in respect of family properties and also it is

evident from the evidence on record that 2-3 days prior to

the  date  of  incident  both  the  brothers  have  lodged

complaints against each other, basing on which crimes were

registered being Crime Nos.36 of 2009 and 37 of 2009 on

20.02.2009 for the offences punishable under Sections 323,

324, 341, 504, 506 read with 34 IPC.  In view of such

disputes and complaints registered against each other, there

is a possibility of implicating accused by making a false

complaint.  It is also to be noticed that PW-1, in her

deposition, has not stated at all that P.W.-3 has come out

of the house at the time of occurrence of the incident.  In

the cross-examination, she has also admitted that accused

no.1 is working in Sericulture department and residing in

the places where he was posted.  A suggestion was also put

to her stating that accused no.1 is a Joint Director of

Sericulture working and residing at Mysore and he is not

residing in the village of Badanaguppe.  PWs-2 and 3 in

their depositions have stated that they were staying in the

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outhouse.  It is the case of the accused that the said

outhouse is situated in the farm house and the distance

between the farm house and Badanaguppe village is about 1

Kilometer.   PW-2,  in  the  cross-examination,  has

categorically admitted that the  Kuteera was put up in the

farmhouse  and  the  distance  between  the  farmhouse  and

Badanaguppe village is about 1 Kilometer.  Contrary to the

evidence  of  PWs-1  and  2  who  have  not  spoken  about  the

presence of PW-3, PW-3 in the oral evidence has stated that

she has also come out on hearing cries of PWs-1 and 2 on the

date of incident and witnessed the incident.  PW-4, who

claims to be resident of the village, was also examined on

behalf of the prosecution.  In his evidence, he has stated

that PW-1 and her husband were residing in the farm house

since last 3-4 years but at the same time in the cross-

examination  he  has  stated  that  he  is  a  good  friend  of

husband of PW-1 and both are Bhartiya Janata Party workers.

PW-5 is the panch witness to the mahazar.  In the cross-

examination he has clearly admitted that even by the time he

went  to  the  scene  of  occurrence  police  were  preparing

mahazar.  A suggestion was put to PW-5 that himself and

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husband of PW-1 are in cordial terms.  PW-7, the Assistant

Sub-Inspector  in  his  deposition  has  categorically  stated

that on receiving the call from the Badanaguppe village that

shed situated in the garden of Manjunatha, husband of PW-1

has caught fire, he went to the spot and by that time shed

was burnt.   In  the cross-examination,  PW-7 categorically

admitted  that  nobody  was  residing  in  the  shed  and  the

residential house is separate but the children were using

the shed for studies. Said evidence of PW-7 runs contrary to

the evidence of PWs-2 and 3 wherein they have stated that

PW-1, her husband and children were staying in the shed.  To

prove that, PWs-1 to 3 were residing in the village and

whereas the shed in question is situated in the farm house

of  PW-1’s  husband,  in  the  appeal  before  the  High  Court

documentary  evidence  was  filed  and  said  documents  were

marked  as  Ex.D1  to  D4.   Though  the  said  documents  were

received and referred to but such documentary evidence is

not considered at all by the High Court.

12. There are material contradictions in the oral evidence

adduced on behalf of the prosecution and further, except the

interested testimony of PWs-1 to 3, no other independent

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person is examined as a direct witness to the incident.  In

view of the material contradictions in the evidence of PWs-1

to  7  and  the  documentary  evidence,  filed  before  the

appellate court, which is not considered at all, we are of

the view that the trial court as well as the appellate court

has committed serious error in arriving at the conclusion

that accused no.1 has committed the offence punishable under

Section 436 IPC.  The material contradictions as referred to

above were not noticed by the trial court as well as the

High Court which resulted in perverse findings against the

accused for recording conviction against him and to impose

the sentence.  Considering the entire evidence on record,

and having regard to peculiar facts of the case, we are of

the view that if the impugned judgments are allowed to stand

it will lead to miscarriage of justice, as such, impugned

judgments are liabale to be set aside.

13. For  the  aforesaid  reasons,  we  find  merit  in  these

appeals.  Accordingly, these criminal appeals are allowed by

setting aside the conviction recorded and sentence imposed

in the judgment dated 17.01.2011 in Sessions Case No.59 of

2009  on  the  file  of  District  &  Sessions  Judge,

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Chamarajanagar  and  the  judgment  of  the  High  Court  dated

28.06.2017 in Criminal Appeal Nos.531 of 2011 and 248 of

2011. Resultantly, the appellant-accused is acquitted of the

charge  and  the  bail  bonds,  if  any,  furnished  by  the

appellant-accused stand discharged.  The appellant-accused

is entitled for refund of the fine amount deposited by him.

.................... J. [Uday Umesh Lalit]

.................... J. [R. Subhash Reddy]

New Delhi December 10, 2018

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