IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2590 of 2008()
1. VENU @ POTHUKAL VENU,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :G.G.MANOJ[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :09/01/2009
O R D E R
V. K. MOHANAN, J.
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Crl. Appeal No. 2590 OF 2008
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Dated this the 9th day of January, 2009
JUDGMENT
The sole accused in S.C. No. 413 of 2007 is the
appellant herein. He challenges his conviction and sentence
under Section 436 of Cr.P.C.
2. Prosecution case is that the accused set fire to the
residential house of PW1 by pouring kerosene and thereby
committed mischief and also intimidated PW1 and her children.
As a result of the mischief committed by the accused the furniture
and other articles like cot, table, bench, almirah, books, dresses
etc were burnt and thereby caused a loss of Rs.15,000/- to PW1.
On the basis of the above allegation crime No. 374/07 was
registered in the North Paravoor police station for the offences
punishable under Sections 436 and 506(i) of IPC. On completing
the investigation, final report filed before the Judicial First Class
Magistrate’s Court, North Paravoor wherein C.P. 33/2007 was
instituted and by order dated 28.9.2007 in the above proceedings
the learned Magistrate committed the case to the Sessions Court,
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Ernakulam wherein the above Sessions Case was instituted,
subsequently, Sessions Court made over the case to the trial court
for disposal.
3. The accused was in custody and on his production,
a counsel was appointed by Taluk Service committee to defend
the case. After hearing both the defence as well prosecution, a
formal charge under Section 436 of IPC was framed against the
accused and the same was explained and read over to him to
which he pleaded not guilty. Subsequently the prosecution
adduced evidence consists of the oral evidence of PW1 to PW9
and the documentary evidence such as Ext.P1 to Ext.P10. M.O.1
to M.O.6 were identified and marked as material objects during the
trial. The incriminating circumstances, which emerged during the
prosecution evidence, were put to the accused Under section 313
of Cr.P.C. and he denied the same. It is the further case of the
accused that the property belonging to him and it was given to him
by his father and the de facto complainant, PW1 who is none other
than his wife has no property there. According to him, he
constructed house by spending a sum of Rs.10,000/- received
from the panchayath. It is also the case of the accused that his
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younger brother had died and thereafter he was looking after the
wife of his younger brother and family. According to the accused,
his wife PW1did not like this and she used to take quarrel with
them. However, the trial court finally found that accused is guilty
of the offence charged against him under Section 436 of IPC.
Accordingly, he is sentenced to under Rigorous Imprisonment for
five years and to pay a fine of Rs.10,000/- (Rupees Ten thousand
only) and in default of payment of fine to undergo Rigorous
Imprisonment for a further term of one year. It is also ordered that
if the fine amount is realised to be given to PW1 as compensation
under Section 357 (1) (b) of Cr.P.C. Set off was allowed under
Section 428 of Cr.P.C. It is the above conviction and sentence
challenged in this appeal.
4. As the appellant is undergoing imprisonment in
pursuance to the impugned judgment, Adv. Giji Manoj is appointed
as state brief to prosecute the appeal. I heard the learned counsel
for the appellant and also the learned Public Prosecutor. The
prosecution case is that on 4.5.2007 around 9.15 P.M., the
accused committed mischief by setting fire to residential house of
PW1, who is none other than the wife of the accused wherein she
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and her children were residing earlier and their furniture like cot,
table, bench and other household articles, books etc were
destroyed and thereby caused a loss of Rs.15,000/ to PW1. The
main case of the prosecution reveals through the deposition of
PW1 and PW6. They have deposed in terms of the prosecution
case. As stated earlier, PW1 is the de facto complainant who is
none other than the wife of the accused. PW6 is the son of PW1
and the accused. PW1 has stated before the court that about 20
years are over after the marriage between herself and the accused
and they have got 2 sons in the wedlock. They are residing at
Athani Kizhakkepram in Kottuvally village, Thathapillikara in her
house. The house was constructed by using concrete pillars,
tarpaulin sheets and tar sheets on the four sides. The accused
was also residing in that house. According to PW1 before the
incident the accused assaulted them by using force and they were
forcibly evicted from their house and they were residing in a house
belonging to PW2. It is the specific case of PW1 that while they
were residing in the said house accused used to come and
threaten them uttering that they would be killed, by holding sickle.
According to PW1on 4.5.2007 after 9.00 P.M. the accused raised
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his voice by uttering obscene words that he would set fire to the
house and PW1 came out of the house on hearing voice then she
saw the accused taking kerosene bottle from a bag and pouring it
at house and then lit a match stick and put it on the house and the
house caught fire. Thereafter the accused went away from there
on his bicycle. According to PW1 their dresses, cot, books, table
almirah etc were burnt and lost. On hearing their hue and cry
people of the locality gathered and tried to put off the fire. Thus
according to PW1 from the occurrence she sustained a loss of
Rs.15,000/. PW1 stated that PW6, her son has also witnessed
the incident and other son was sleeping. PW1 had stated that
accused was often put in jail and before they were sent out from
the house accused was in jail. It is also the case of PW1 that
accused was in enemical terms with PW1 as she was not
prepared to take accused on bail in connection with a theft case.
It is also the case of PW1 that the accused has involved in certain
other cases also. Ext.P1 F.I. Statement was proved her. She had
explained the delay in intimating the police about occurrence.
PW1 had identified M.O.1 to M.O.6. According to PW1, the
accused is her husband and first of all she thought this and she
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was reluctant to file the complaint. But as she lost her homestead
which is an electrified one she went to the police station and
lodged Ext.P1. PW6 also deposed in tune of the deposition of
PW1. PW2 who is a neighbour turned hostile. PW3 the
Secretary of Panchayath who issued Ext.P3 certificate deposed
before the court that hut in question belonging to PW1 as well as
the accused. PW4 is the Village Officer through whom Ext.P4 site
plan proved. PW5 who is the daughter of accused’s bother also
supported the prosecution. PW7 is the another neighbour
through whom Ext.P5 scene mahazar was proved. PW8 is the S.I.
Of Police, who recorded Ext.P1 F.I.S. of PW1 and registered
Ext.P6 F.I.R. in crime 374 of 2007 of North Paravoor Police
Station. The investigation was undertaken by PW8, the C.I. of
Police who laid the charge. The trial court on the basis of the
above evidence found that accused is guilty.
5. The learned counsel appearing for the appellant
vehementally argued that the property in question belongs to the
accused and not belongs to PW1. Therefore, according to the
learned counsel, the offence under Section 436 IPC is not
attracted. It is also the case of the learned counsel that going by
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the evidence of prosecution, it can be seen that PW1 was hostile
to the accused and she was on enemical terms and therefore
Ext.P1 F.I. Statement was preferred as an after thought that is the
reason for the delay occurred in lodging the same. The learned
counsel pointed out that though the alleged incident was taken
place at 9.15 P.M. On 4.5.2007, F.I.R. was registered only at 6.30
P.M. on 5.5.2007. According to the learned counsel the delay is
not properly explained which will go against the prosecution. Thus
according to the learned counsel conviction and sentence passed
by the trial court is liable to be set aside.
6. Per contra learned Public Prosecutor submitted that
trial court after having considered the entire facts and
circumstances and evidence on record, came into a clear finding
regarding the guilt of the accused and accordingly proper
sentence was imposed against him. The learned Public
Prosecutor pointed out that in order to attract penal liability against
the accused property destroyed by setting fire need not be
belonged to the victim. In support of the above contention, the
learned Public Prosecutor invited my attention to explanation 2
given to Section 425 of IPC. The learned Public Prosecutor
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pointed out that the evidence adduced by the prosecution
especially the testimony of PW1 and PW6 who are respectively
the wife and son of accused clearly shows the role of accused in
the commission of offence. It is also pointed out by the learned
Public Prosecutor that delay though which is not culpable has
explained by PW1 herself. Thus the learned Public Prosecutor
submitted that no interference is warranted.
7. I have carefully considered the contentions
advanced by the learned counsel for the appellant as well as the
Public Prosecutor . The first point raised by the counsel for the
appellant is to the effect that property in question belongs to the
accused and therefore in the light of definition given to Section
425 IPC no offence will be attracted against the accused as he is
the owner of the property in question. The above contention is
unsustainable in view of the explanation 1 and 2 given to Section
425 IPC. In the present case by producing Ext.P3 certificate
which proved through PW3, the prosecution has adduced
evidence to the effect that the house which destroyed by the
accused by setting fire was belonging to both accused as well as
PW1. It is came out in evidence that accused as well as PW1 and
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their two children were residing in the said house and prior to the
incident PW1 and his 2 sons were forcefully driven out from the
house by the accused. Thus it can be seen that PW1 and her
children was using the house as their homestead. Ext.P3 would
further show that house belong to them also. In view of the above
factual as well as legal position explained above, the contention
advanced by the learned counsel will not sustain. When PW1 was
examined she had deposed before the court that initially she was
not prepared to lodge complaint before the police as the accused
is her husband. On a second thought because of the entire house
holdings were destroyed and hut itself was destroyed by setting
fire, she along with her son went to the police station and lodged
Ext.P1 F.I. Statement. The above explanation appears to me very
reasonable and I find no reason to reject the same. Thus the
arguments advanced for and on behalf of the appellant regarding
the delay are also liable to be rejected. No other point raised for
consideration. Thus on appreciation of evidence and the materials
on record, I find no reason to interfere with the findings arrived by
the court below and consequently conviction is confirmed.
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8. Regarding the sentence, the learned counsel
submitted that a lenient view may be taken. From the facts and
circumstances involved in this case, it appears to me that
appellant was in custody right from his date of arrest i.e. 8.5.2007
and after the judgment he is continuing in jail and undergoing
imprisonment. Now, he has already undergone imprisonment for
a total period of 20 months and at the time of the judgment
accused was at the age of 50 years. Considering totality of the
circumstances involved in this case I am of the view that certain
modification can be made with respect to the sentence.
Accordingly, the substantial sentence is reduced from 5 years and
re fixed the same as 1 = years. Similarly the fine amount is
reduced from Rs.10,000/- (Rupees Ten thousand only) to
Rs.5,000/- (Rupees Five thousand only). The default sentence is
re fixed as 2 months. Set off is allowed under Section 428 of
Cr.P.C. As the appellant had already undergone a total period 20
months imprisonment and the substantial sentence is re fixed as
1= years and the default sentence is also re fixed as 2 months
and set off is allowed, he is entitled to get released from the jail.
Therefore there will be a direction to release the appellant/accused
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forthwith, if he is not required in any other case.
Thus the above criminal appeal is disposed of
confirming conviction but subject to the above modification with
respect to the sentence.
(V.K. MOHANAN, JUDGE)
KMD