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Judgment
P.D. Dinakaran, J.—The above revision is directed against the order of conviction dated 22.3.1994 in C.A. No. 16 of 1991 on the file of the learned District Sessions Judge confirming the conviction and sentence of the learned Judicial Magistrate No. 1 in C.C. No. 1925 of 1987 dated 13.12.1990 imposing a sentence of six months rigorous imprisonment punishable u/s 435 of I.P.C.
The revision petitioner was facing a trial before the learned Judicial Magistrate-I Nagercoil in C.C. No. 1925 of 1987 for an offence punishable u/s 435 of I.P.C. with regard to an alleged occurrence said to have taken place at 2:00 P.M. on 18.7.1987, while it is alleged that the petitioner entered into the land of PW1 in Survey No. 875/67 of Neendakarai Village and set fire to the coconut fibres and thus caused damage to the tune of Rs. 1,000/- to PW1.
On behalf of the prosecution, 7 witnesses were examined namely PWs. I to 7, Exhibits PI to P5 and material objects 1 and 2 were filed. On behalf of the defence, two witnesses DWs 1 & 2 were examined and Exhibits Dl to D5 were filed. PW1 is a retired Village Administrative Officer who claims the possession of the said land which is admittedly a poramboke land. PWs 2 and 3 are the eye witnesses, PW4 is the mahazar witness, PW5 is Revenue Inspector, PW5 is a Head Constable and PW7 is the investigating Officer, whereas DW1 is a Village Administrative Officer at the time of occurrence and DW2 is the revision petitioner.
The trial court by his order dated 13.12.1990, after considering the evidences of PWs 1 to 7 and Exhibits PI to P5 as well as DWs 1 & 2 and D1 to D5, convicted the revision petitioner u/s 435 of I.P.C. and imposed a sentence of 6 months rigorous imprisonment and the same was confirmed by the learned District Sessions Judge, Nagercoil, by his judgment dated 22.3.1994 in C.A. No. 16 of 1991. Aggrieved by which, the petitioner has filed the above revision petition.
Mr. K. Pasupathy, Learned Counsel for the petitioner, challenges the above order of conviction on the following grounds.
(1) There is a delay of 37 hours in sending the FIR to the Court of Magistrate and such delay will rise to suspicion and therefore the trial court is expected to get proper explanation for the delay. Failure to explain the delay on the part of compliance or failure to examine the delay by the learned trial court Judge vitiates the order of conviction.
(2) The court below failed to take into consideration the previous enmity between
the revision petitioner and PW1 as admittedly there are civil suits pending.
(3) The pendency of criminal case between the revision petitioner and PW2 was not properly appreciated by the Courts below.
(4)Even though PW2 & PW3 were examined as eye witnesses, the version of PW3 would show that he is not an eye witness but only an hearsay.
(5) Assuming there were other independent witnesses namely Thangappan and Sivaraman who have seen the occurrence as claimed by PW2 himself, there is no proper explanation by the prosecution for non-examining those two independent witnesses Thangappan and Sivaraman.
Per contra. Mr. N.R. Ilango, learned Government Advocate contends that the evidence of PW1 that he has seen the petitioner setting fire to the coconut fibres is sufficient to establish an offence u/s 435 of I.P.C. Therefore, non-examination of the independent witnesses namely Thangappan and Sivaraman do not itself vitiate the case of the prosecution and the delay in sending the FIR to Court cannot be seriously viewed when the incident took place in a remote village which is 7 1/2 Kilometers away from the trial court.
I have given careful consideration to the submissions of both the sides.
With regard to the contention of the Learned Counsel for the petitioner regarding the delay in sending the FIR to the Magistrate vitiates the proceeding. I am obliged to refer to the decision of the Division Bench of this Hon''ble Court in Johny and five others v. State reported in 1990 L.W.(Crl.) 175 which reads as follows:
Delayed F.I.R. will give rise to suspicion, and will put the court on guard to look for possible and acceptable explanation for delay possibility of false implication may loom large.
In this regard, Learned Counsel for the petitioner invited my attention to the decision of the Apex Court in Thuliak Ali v. State of Tamil Nadu which reads as follows:
on account of delay the report not only gets bereft of advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a result of deliberation and consideration. It is therefore, essential that the delay in the lodging of the first informal ion report should be satisfactorily explained
Even though there was an alleged delay of 37 hours in sending the F.I.R. to the Magistrates Court. I find there is only 6 hours delay in lodging the complaint before the police station by PW1. Therefore, I do not think that such 6 hours delay in lodging the complaint will vitiate the prosecution case particularly when the occurrence is said to have taken place in a coconut those. But, however, I find that the prosecution has not proved the case beyond all reasonable doubts as there are lot of discrepancies and contradictions in the evidence of PW1 itself when the same is tested with the evidence of PW2 and PW3. PW2 states that he had seen the petitioner setting fire to the coconut fibre along with PW3 and independent witnesses namely Thangappan and Sivaraman. PW2 states that he was informed about the occurrence only by Kesavapillai. On the other hand, the two independent witnesses namely Thangappan and Sivaraman were not at all examined by the prosecution nor the non-examination was properly explained. As a result, only eye witness talks about the occurrence is PW2 against whom a criminal trial is pending prosecuting the complaint preferred by the petitioner himself.
That apart, there are civil suits pending between the petitioner and PW1 all would give rise to suspect the evidence of PW2. But for the evidence of PW2, I do not find any other evidence to convict the petitioner u/s 435 of I.P.C.
In the result, the order of conviction of the courts below dated 13.12.1990 made in C.C. No. 1925 of 1987 on the file of the learned Judicial Magistrate No. 1, Nagercoil and confirming the conviction and sentence by his order dated 22.3.1994 in C.A. No. 16 of 1991 on the file of the learned District Sessions Judge are set aside and the revision petition is allowed. No costs.