MARUTHAMUTHU Vs. STATE

JUDGEMENT

(1.) THE revision is by the first accused against the judgment of the learned First Additional Sessions Judge, Salem in Crl. App. 143 of 1982, confirming his conviction under S. 436, I.P.C., and the sentence of rigorous imprisonment for a period of three years and six months imposed by the learned Assistant Sessions Judge, Namakkal in S.C.J. 18 of 1982.

(2.) THE revision petitioner, who was first accused in the trial court, along with another (second accused, who was acquitted by the trial court; was charged under S. 436, I.P.C., road with S. 34, I.P.C., on the allegation that on 6th May, 1982 at about 3 a.m., in Andikuttai village, both the accused set fire to the house of Ponnuswami (P.W. 1) and caused damage to his properties worth Rs. 6,300. The first accused was also charged under S. 506, Part II, I.P.C. in that, while setting fire to the house of Ponnuswami, (P.W. 1) the first accused threatened to throw him into the said fire. On the evidence, the learned trial Judge held that the charge against the first accused under S. 436, I.P.C., alone has been proved by the prosecution and convicted and sentenced him as set out supra. He found the first accused not guilty under S. 506, Part II, I.P.C, as also the second accused under S. 436, I.P.C., read with S. 34, I.P.C, and acquitted them of those charges.

(3.) IN the revision, Learned Counsel for the petitioner -first accused submitted that the entire prosecution case rests mainly on circumstantial evidence. He further submitted that on the same set of evidence, when both the accused were charged under S. 436, I.P.C. read with S. 34, I.P.C., and one is acquitted, the conviction of the other accused is not sustainable. In this connection, he relied on the decision reported in Ponalya Motya Valvi v. State of Maharashtra : A.I.R. 1979 S.C. 1949. In that case, two persons were charged under S. 302, I.P.C., read with S. 34, I.P.C. The evidence is circumstantial in nature. Both the accused were last seen in the company of the deceased and the accused failed to satisfactorily account for the disappearance of the deceased. On that evidence, the Sessions Court acquitted both the accused. But on appeal by the State against the acquittal of one of accused alone, the Bombay High Court allowed the appeal and convicted the accused. The Supreme Court, on appeal by that accused, held that when two persons were last seen in the company of the deceased, it is the responsibility of both of them for the disappearance of the deceased and when one of them is acquittal of the charge of murder and no appeal is filed against his acquittal, the very circumstance that the deceased was last seen with them ceases to be of an incriminating character and the other accused also cannot be convicted solely on that basis. In the instant case, also there is no eye witness to the occurrence of setting fire to the house of P.W. 1.