The prosecution must prove unlawful entry and intent for trespass charges; insufficient evidence led to acquittal on arson and criminal trespass charges.

JUDGMENT :

Johnson John, J.

Accused Nos. 2 to 4 in S.C. No. 240 of 2005 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha filed this appeal challenging the conviction and sentence imposed under Sections 448 and 436 r/w 34 IPC as per judgment dated 19.09.2007.

2. As per the prosecution case, on 03.02.2000, at about 1 p.m., accused Nos. 2 to 4 along with accused Nos. 1 and 5, in furtherance of their common intention, trespassed into the courtyard of the house of the de facto complainant in Vattappara and the first accused set fire to the house thereby causing loss of Rs.25,000/- to the de facto complainant and it is alleged that accused Nos. 2 to 4 helped the first accused to set fire to the house. 

3. Accused Nos. 1 and 5 were absconding and hence, charge was framed for the offences under Sections 448 and 436 r/w 34 IPC against accused Nos. 2 to 4 and when they pleaded not guilty to the charge, the prosecution examined PWs 1 to 6 and marked Exhibits P1 to P5 and MOs 1 and 2. From the side of the defence, Exhibits D1 to D3 were marked.

4. After trial and hearing both sides, the trial court found accused Nos. 2 to 4 guilty of the offences under Sections 448 and 436 r/w 34 IPC and sentenced to undergo rigorous imprisonment for 5 years each and to pay a fine of Rs.5,000/- each for offence under Section 436 r/w 34 IPC and in default of payment of fine, to undergo rigorous imprisonment for six months and they are also sentenced to undergo rigorous imprisonment for one year each for offence under Section 448 r/w 34 IPC.

5. Heard Sri. Sarath K.P., the learned counsel for the appellants and Smt. Hasnamol N.S., the learned Public Prosecutor for the State.

6. The learned counsel for the appellants argued that PWs 2 and 3, the occurrence witnesses examined by the prosecution, have no case that they witnessed any overtact from the side of the appellants and the circumstantial evidence relied on by the prosecution is not of a conclusive nature and tendency to fully establish the guilt of the appellants. It is argued that the prosecution has not adduced any evidence to prove the ownership or possession of the property to bring home the charge of trespass and there was no proper dock identification of accused Nos. 2 to 4 by PWs 2 and 3 and therefore, the accused/appellants are entitled for the benefit of reasonable doubt.

7. The learned Public Prosecutor argued that the evidence of PWs 1 to 3 would clearly show that PWs 1 and 2 were residing in the house and there is no reason to disbelieve the evidence of PWs 2 and 3 that they saw the accused persons trespassing into the property and subsequently running away from there after the incident. It is argued that the prosecution has adduced reliable evidence consistent only with the hypothesis of the guilt of the appellants and therefore, there is no reason to interfere with the findings in the impugned judgment.

8. The evidence of PW1 shows that he came to know about the incident from his wife and when he reached the place of occurrence, the house was completely burned in fire. He would say that he sustained a loss of Rs.25,000/- and that there was a dispute with the accused persons regarding the boundary of his property. He would say that the said case was between the mother of his wife and the accused persons.

9. PW2 is the wife of PW1 and her evidence shows that at about 1 p.m., on 03.02.2000, her younger sister, Lissy, informed her about the incident, while she was working in the house of one Janaky and thereafter, when she reac