IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 642 of 2001() 1. VELLERI MOOSA ... Petitioner Vs 1. NOTTANVEEDAN AYISHA BEEVI ... Respondent For Petitioner :SRI.K.M.SATHYANATHA MENON For Respondent :SRI.K.P.MUJEEB The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :29/09/2008 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.642 of 2001 -------------------------------------- Dated this the 29th day of September, 2008. ORDER
Respondents 1 to 3 and counsel remained absent. Heard counsel
for revision petitioner and the Public Prosecutor.
2. Case of revision petitioner is that he owned 4.85 acres of plantation
in R.S.No.6/1 of Vettilappara Village. Adjacent property on the south belonged
to first respondent. Second respondent is the husband of first respondent. Third
respondent is their worker. It is alleged that as per instruction of respondents 1
and 2, third respondent set fire to the plantation in the property of revision
petitioner on 2.2.1996 at about 11 a.m. causing loss of about Rs.7 lakhs to the
revision petitioner. Police registered a case as Crime No.33 of 1996 in respect of
the incident but referred it. Aggrieved, revision petitioner filed a private complaint
in the court below against respondents 1 to 3 alleging offences punishable under
Sections 435 and 109 read with Section 34 of Indian Penal Code. Case was
taken on file as C.C.No.140 of 1998. Court below recorded the sworn statement
of revision petitioner and his witnesses but found that no prima facie case is
made out against respondents 1 to 3 and discharged them under Section 245(1)
of Code of Criminal Procedure which is called in question in this proceedings.
Learned counsel submitted that revision petitioner has made out a case which if
unrebutted would warrant conviction and therefore court below was not justified
in discharging respondents 1 to 3.
4. PWs 1 and 2, apart from stating about the incident in the property
of revision petitioner did not say anything regarding the alleged involvement of
respondents 1 to 3. According to PW2, second respondent had given him
Rs.2,000/- since fire had spread into his property as well. PWs 3 and 4 claimed
that they witnessed the alleged incident. According to PW3, third respondent set
fire on the eastern portion of the plantation belonging to first respondent, fire
spread into the plantation of revision petitioner also and caused loss. He stated
that fire was carried into the plantation of revision petitioner in the wind. PW4
however, stated that respondent 1 and 3 trespassed into the plantation of
revision petitioner and set fire at 11 a.m. on the day of incident.
5. Though PW3 has no case that third respondent was present at the
spot and it is also not his case that respondents 1 and 3 trespassed into the
plantation of revision petitioner and set fire, PW4 stated that respondents 1 and
3 trespassed into the plantation of revision petitioner and set fire. This material
discrepancy was taken note of by the court below. Learned Chief Judicial
Magistrate also observed from Ext.D1, copy of plaint preferred by revision
petitioner for recovery of damages consequent to the loss caused to him that in
Ext.D1 what is stated is that respondents 1 to 3 set fire in the plantation of first
respondent, left the place, fire spread into the plantation of revision petitioner
and caused damage. So, going by Ext.D1 it is not a case of any of
respondents trespassing into the plantation of revision petitioner and instead,
their allegedly setting fire in the plantation belonging to first respondent which
spread to the plantation of revision petitioner also. Learned Chief Judicial
Magistrate observed that materials on record are not sufficient to say that it was
with any intention or with knowledge that the act is likely to cause damage to
revision petitioner that respondents 1 to 3 allegedly set fire in the plantation
belonging to the first respondent.
6. Even going by Ext.D1, copy of plaint preferred by revision petitioner
it is difficult to say that respondents 1 to 3 intended to cause damage to revision
petitioner. It is unlikely that they thought of setting fire to their own plantation
and inviting loss, with the intention or even knowledge of fire spreading into the
plantation of revision petitioner and causing loss. Assuming that the act of
respondents 1 to 3 was negligent, that did not attract the offence punishable
under Section 435 of Indian Penal Code. For the loss if any caused to revision
petitioner, he has already gone before the civil court. In the facts and
circumstances I do not consider it necessary to disturb the finding of learned
Chief Judicial Magistrate that no prima facie case was made out against
respondents 1 to 3.
Revision Petition is therefore, dismissed.
Thomas P.Joseph, J.
Crl.R.P.No.642 of 2001
29th September, 2008