SANTHAMMA Vs. RAHMATH

JUDGEMENT

(1.) The revision petitioners challenge the legality and propriety of the order passed by the learned Judicial First Class Magistrate - II, Kollam under S.319 of the Cr.P.C. directed them to be arraigned as accused persons in a case being tried before him for offences punishable under S.451, 427 read with S.34 IPC (S.T. No. 1830 of 1997). On the basis of the statement of PW.1 recorded by the Sub Inspector of Police, Kollam East, a case has been registered in Crime No. 351 of 1997 on 16.4.1997 under S.427 and 451 read with S.34 IPC against two persons (accused Nos. 1 and 2). The allegation made in the first information statement was to the effect that PW. 1 and her family members have been residing in the house rented out to her by the 1st accused and the owner of the house, on several occasions, asked them to vacate that house. No house was available on rent to shift her residence. First accused in whose favour an agreement was executed made a complaint to the police for getting them evicted and they agreed to vacate the house immediately on getting another house on rent for shifting their residence. On the fateful day, ie., on 16.4.1997, she and her family members went to the family house of her husband at Jonakappuram. When they returned in the evening at about 7 p.m. they found lock of the house broken open and furniture and household articles kept in the house were thrown out and lying scattered outside the house. Accused persons were seen inside the house. As a result of throwing out of the furniture and other household articles she suffered damages (loss of Rs. 2000/-). The incident took place at about 6 p.m. on that day and was witnessed by neighbours.

(2.) After investigation, police laid challan, Annexure - 1, against the accused persons (A1 and A2) before the Judicial First Class Magistrate - II, Kollam. Prosecution cited two neighbours of PW.1 as witnesses to the occurrence and Annexure - II is the statements of them recorded under S.161 Cr.P.C. during the course of investigation. The husband of the de facto complainant (PW 1) filed a suit before the Munsiff Court, Quilon as O.S. No. 618 of 1977. Annexure - III is the copy of the plaint and no allegation is made against the revision petitioners ascribing any role to them in the commission of the alleged crime. In the plaint also it was alleged that the offences alleged to have been committed were committed by two named persons arraigned as accused of in the challan laid after conducting investigation. Annexure - IV is the copy of the deposition of PW. 1 recorded during the course of trial by the learned Magistrate wherein she has stated that enquiries made by her revealed that the revision petitioners were also involved in the alleged commission of crime and solely based on that evidence learned Magistrate passed the impugned order impleading them as accused persons holding that revision petitioners appear to have been involved in the commission of crime along with those already sent up for trial by the prosecution.

(3.) Learned Additional Director General of Prosecutions in his characteristic fairness submitted that the evidence given by PW.1 is not sufficient to implicate the revision petitioners and her evidence does not stand on a better footing than hearsay evidence. He fairly conceded that no evidence surfaced during the course of trial disclosing the complicity of the revision petitioners. There is considerable force in the submission made by learned counsel for the revision petitioners that without any legally acceptable evidence the learned Magistrate impleaded revision petitioners as accused persons.