JUDGMENT : (Prayer: The Criminal Appeal is filed under Section 374 of Cr.P.C, to call for the records pertaining to the judgment passed by the Principal District and Sessions Court, Tiruvarur, on 11.02.2021 in Sessions Case No.44 of 2019 and to set aside the order of conviction passed against the appellants and acquit the appellants by allowing the Criminal Appeal.) (The case has been heard through Video Conferencing) 1. Challenging the order of conviction and sentence passed by the Principal District and Sessions Court, Tiruvarur, on 11.02.2021 in Sessions Case No.44 of 2019, the present Criminal Appeal has been filed by the accused. 2. Both the accused stand convicted under Section 436 IPC read with Section 4(1) of Tamil Nadu Prevention of Property (Damage and Loss) Act, 1992 and were sentenced to undergo Rigorous Imprisonment for five years and to pay fine of Rs.5000/- each, in default, each to undergo Simple Imprisonment for three months. 3. Brief facts of the case are as under:- (i) PW1, the de facto complainant by name Dhanapal, a resident of Karnavoor, by joining with his brother, the second accused Saravanan, had sold his share of the ancestral landed property to the first accused Ashok Kumar, however, since he was not settled with a sum of Rs.1,00,000/- which was due to him, he had objected the first accused when he attempted to plough his land on 15.8.2018 at about 9.00 pm. As a counterblast, A1 had brought A2 the brother of PW1/de facto complainant and assaulted him and pushed him down. By then, PW2 had intervened and pacified them. (ii) Thereafter, PW1 left for Mannargudi and on his return at about 11.30 pm, he found both the accused standing behind his house. The second accused Saravanan, said to the first accused Ashok Kumar that PW1 should not be in his house any more and asked him to set fire to the house for which he would pay an additional amount of Rs.1,00,000/-. Thereafter, both the accused had poured kerosene on the rear side of the house of PW1 and set fire. Though PW1 had shouted seeking for help, that being an odd hour, none was there to help him. On seeing PW1, both the accused ran away from the place. Thereafter, both the accused had poured kerosene on the rear side of the house of PW1 and set fire. Though PW1 had shouted seeking for help, that being an odd hour, none was there to help him. On seeing PW1, both the accused ran away from the place. Due to lack of water to put off the fire, the house of PW1 was totally engulfed in flames and the total damage to the property was around Rs.5,00,000/- and the value of the articles in the house was around Rs.1,00,000/-. Aggrieved by the same, PW1 had lodged the police complaint, Ex.P1. (iii) On 16.8.2018, the Inspector of Police, PW7 took up the investigation on the complaint, which had been registered as Ex.P6 by the Sub Inspector of Police and visited the scene of occurrence and prepared observation mahazar, Ex.P7 and rough sketch, Ex.P8 in the presence of P.Ws.5 and 6 and also recovered M.O.s1 and 2 Bamboo stick and R.S.Pathy (Eucalyptus) log in the presence of the same witnesses under seizure mahazar Ex.P9. He had also recovered M.O.3, half burnt fan and sent all the M.Os. to the Court under Form 95. On the same, day, PW7, the Inspector of Police had enquired P.Ws.1 to 6 and recorded their statements and thereafter, he had arrested the accused at 2.00 pm near Vaanchiyur Bus Stand and remanded them to judicial custody. Since PW7 was transferred, he had submitted the case file to his successor, viz., Mr.Kannan, Inspector of Police, and PW7 had identified the scribbling of his successor, who had filed the final report under Section 436 IPC and Section 4(1) of Tamil Nadu Prevention of Property (Damage and Loss) Act, 1992. PW7 had deposed that during his enquiry, P.Ws.2 to 6 had spoken about the genuineness of the occurrence. (iv) The learned Judicial Magistrate I, Mannargudi, who took up the case on file in P.R.C.No.9 of 2019, after complying with the procedure under Section 207 Cr.P.C., had committed the case for trial to the Principal Sessions Judge, Thiruvarur since the offences punishable are exclusively triable by Sessions Court. (v) The Principal District and Sessions Judge, Thiruvarur, who took the case on file in Sessions Case No.44 of 2019, had framed charges against the accused for the offences punishable under Section 436 IPC read with Section 4(1) of Tamil Nadu Prevention of Property (Damage and Loss) Act, 1992. (v) The Principal District and Sessions Judge, Thiruvarur, who took the case on file in Sessions Case No.44 of 2019, had framed charges against the accused for the offences punishable under Section 436 IPC read with Section 4(1) of Tamil Nadu Prevention of Property (Damage and Loss) Act, 1992. When questioned, the accused had denied the charges, pleaded not guilty and sought to be tried. (vi) During trial, the prosecution has examined P.Ws.1 to 7 and marked Exs.P1 to P9 and M.Os.1 to 3. No oral or documentary evidence has been adduced on the side of the accused. (vii) On analysing the entire materials available on record, the Trial Court found both the accused guilty, convicted and sentenced them thereon as stated above. (viii) Aggrieved against the judgment of conviction and sentence, the accused have filed the present Criminal Appeal. 4. Assailing the judgment of conviction and sentence, the learned counsel appearing for the appellants has putforth his case as under:- (i) Though the prosecution sought to prove its case by examining many a witness, except the self-interested witness viz., PW1, the other witnesses viz., P.Ws.2 to 6 have turned hostile. (ii) Admittedly, there was previous enmity between the de facto complainant/PW1 and the accused with regard to sale of a land and appropriation of the sale price and therefore, there is every possibility of PW1 giving a false complaint against the accused by he himself setting fire to his house with the intention of extracting money from the accused, which has been totally ignored by the Trial Court. (iii) The probability of false complaint is more strengthened by the fact that the other witnesses of the prosecution viz., P.Ws.2 to 6 have turned hostile and only three M.Os., which have very less value and the specific evidence of PW2 that when he and his wife went and saw the house of PW1 was in fire, all the articles were kept outside the house, probabilising the theory that the valuable articles were secured by PW1 and thereafter setting fire to the empty hut. (iv) The non-examination of the wife of PW1 creates a doubt in the prosecution case. (iv) The non-examination of the wife of PW1 creates a doubt in the prosecution case. (v) There complaint was lodged by PW1 on 16.8.2016 at about 11.00 am when the occurrence had taken place on 15.8.2016 at about 11.30 pm and such a long delay has not been properly explained by the de facto complainant which vitiates the entire case of prosecution, however, it has been ignored by the Trial Court. (vi) The investigating officer had failed to enquire and record the statement of the Special Sub Inspector, who is alleged to have received the complaint, Ex.P1. (vii) The Trial Court, having miserably failed to consider the above aspects, had relied on the uninspiring self-interested evidence of PW1 alone to convict the appellants and therefore, the conviction and sentence rendered by the Trial Court is liable to be set aside. 5. Per contra, learned Additional Public Prosecutor, while fairly submitting that except the evidence of PW1, no other witness has been examined to support his case and the witnesses examined viz., P.Ws.2 to 6 had also turned hostile, would contend that the occurrence having had taken place at the odd hours, there cannot be any surprise in dearth of independent witnesses to speak about the occurrence and the cogent evidence of PW1, the victim, who had suffered in the occurrence would be sufficient to conclude and convict the accused. He would further submit that it is quite natural for a common man to try to protect his belongings by bringing them out of his house when it got fire and such an act cannot be attributed as intention on the part of the de facto complainant. He would also submit that the de facto complainant had properly explained the delay in lodging the complaint to the effect that he does not possess any vehicle to reach the police station in the odd hours to lodge the police complaint and thereby, he would submit that the prosecution has proved its case beyond reasonable doubts and would seek to sustain the conviction and sentence rendered by the Trial Court. 6. 6. Having heard the learned counsel appearing for the parties and perused the materials available on record, this court is able to find that there was some enmity and tussle between the de facto complainant and the first accused, who is his own brother, with regard to appropriation of sale price of a land sold by the de facto complainant to the second accused and on the date of occurrence, at about 9.00 pm, the de facto complainant has restrained the second accused from ploughing the land. 7. No doubt, the house of PW1 caught fire at the odd hours on the same day of the wordy altercation that took place between the de facto complainant and the second accused. But, who set it is the million dollar question that needs to be answered. To unravel the golden knot, the prosecution has got only one independent witness viz., PW1 as the other independent witnesses viz., P.Ws.2 to 6 have turned hostile. 8. The previous enmity between himself and the accused has been taken by the de facto complainant to attribute motive to the accused for indulging in such an act of setting fire to his house. But, the relevant aspect to be considered is that the previous enmity between the parties is a double-edged weapon. When one of the rival parties claims that some mischief has been played by the other party due to a previous enmity, the probability of false implication cannot also be totally brushed aside, especially when no other independent witness is available to speak about the mischief said to have been played by the rival party and that too when the loss suffered by the complainant appears to be very negligeable one. 9. Further, in the case on hand, the complaint has been lodged by PW1 after a delay of nearly 12 hours after the occurrence. The explanation offered by the de facto complainant/PW1 that he does not possess any vehicle to reach the police station, which is only 7 kms away from the place of occurrence, does not inspire any confidence. The defence had elicited in the cross-examination of PW1 that he has got a relative, a lawyer by profession and after consulting with him, the complaint had been lodged, which cannot be simply ignored. The defence had elicited in the cross-examination of PW1 that he has got a relative, a lawyer by profession and after consulting with him, the complaint had been lodged, which cannot be simply ignored. A prudent man, who had some dispute on the same day with the accused party and had seen them in setting fire to his house in the night, would not prolong any more to lodge his complaint with the police and the reason adduced by him for the delay in lodging the complaint seems to be highly unbelievable. 10. Further, the police officer, who received the complaint has not been examined by the prosecution. When independent witnesses turn hostile, the evidence of the investigating officer assumes much importance to prove the case of the prosecution. When the witnesses take a different stand from that of taken in Section 161 Statement, examination of the investigating officer becomes vital to the case of the prosecution. 11. The Apex Court in State of Karnataka vs. Bhaskar Kushali Kotharkar and others ( (2004) 7 SCC 487 ), has held that “If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 CrPC or if there is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 CrPC.” 12. In the case on hand, except the interested witness of PW1, there is none to speak about the genuineness of the occurrence. All the other witnesses viz., P.Ws.2 to 6 were treated hostile. They are either hearsay witnesses or speak about their witnessing the fire engulfing the house of PW1 and nothing more that. Moreso, when PW2 is none other than the brother-in-law of the de facto complainant. The evidence of PW3 reveals that he has knowledge about the dispute between PW1 and the accused with regard to sale of land, but, his evidence is in piecemeal and it does not connect such dispute with the occurrence. 13. Therefore, as rightly pointed out by the learned counsel for the appellants, the prosecution has also not taken any steps to examine the police official, who received the complaint from PW1 and thereby a suspicion is left to surround the case of the prosecution. 13. Therefore, as rightly pointed out by the learned counsel for the appellants, the prosecution has also not taken any steps to examine the police official, who received the complaint from PW1 and thereby a suspicion is left to surround the case of the prosecution. The Trial Court, without going into the above aspects, simply relying on the evidence of PW1 had erred in finding the appellants guilty and convicting and sentencing them. 14. When the Court relies on solitary evidence, the Court should be cautious that the witness inspires confidence and appears to absolutely trustworthy, unblemished and should be of sterling quality. In this case, the evidence of PW1 does not inspire confidence and it is not in tune with the case of prosecution. The evidence of PW2, though turned hostile, reveals that all the things were kept outside the house of PW1 when the house was in fire. The explanation offered by PW1 for the delay in lodging the complaint against the accused having seen them setting fire to his house, appears to be artificial and highly suspicious. The prosecution has also failed to examine the investigating officer especially when the other independent witnesses apart from the self-interested one of PW1 have turned hostile which goes to the root of the prosecution case. 15. Considering the totality of the circumstances, this court, left with no other option, has to come to the conclusion that the prosecution has not proved the case beyond reasonable doubt and the Trial Court has erred in finding the appellants guilty and convicting and sentencing them. Accordingly, the Criminal Appeal stands allowed and the judgment of conviction and sentence rendered by the Principal District and Sessions Court, Tiruvarur, on 11.02.2021 in Sessions Case No.44 of 2019 is set aside. The Appellants are stated to be in jail. Therefore, they are set at liberty forthwith, if their presence is not required in any other case. Fine amounts, if any paid, shall be returned to the appellants. The connected Criminal Miscellaneous Petition is closed.