{"id":165628,"date":"2009-01-09T00:00:00","date_gmt":"2009-01-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/venu-pothukal-venu-vs-state-of-kerala-on-9-january-2009"},"modified":"2018-03-16T07:01:58","modified_gmt":"2018-03-16T01:31:58","slug":"venu-pothukal-venu-vs-state-of-kerala-on-9-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/venu-pothukal-venu-vs-state-of-kerala-on-9-january-2009","title":{"rendered":"Venu @ Pothukal Venu vs State Of Kerala on 9 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Venu @ Pothukal Venu vs State Of Kerala on 9 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2590 of 2008()\n\n\n1. VENU @ POTHUKAL VENU,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :G.G.MANOJ[STATE BRIEF]\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :09\/01\/2009\n\n O R D E R\n                        V. K. MOHANAN, J.<\/a>\n\n                 ~~~~~~~~~~~~~~~~~~~~~~~~\n                 Crl. Appeal No. 2590 OF 2008\n                 ~~~~~~~~~~~~~~~~~~~~~~~~\n\n            Dated this the 9th day of January, 2009\n\n                           JUDGMENT\n<\/pre>\n
           The sole accused in S.C. No. 413 of 2007 is the<\/p>\n
appellant herein.    He challenges his conviction and sentence<\/p>\n
under Section 436 of Cr.P.C.\n<\/p>\n
           2. Prosecution case is that the accused set fire to the<\/p>\n
residential house of PW1 by pouring kerosene and thereby<\/p>\n
committed mischief and also intimidated PW1 and her children.<\/p>\n
As a result of the mischief committed by the accused the furniture<\/p>\n
and other articles like cot, table, bench, almirah, books, dresses<\/p>\n
etc were burnt and thereby caused a loss of Rs.15,000\/- to PW1.<\/p>\n
On the basis of the above allegation crime No. 374\/07 was<\/p>\n
registered in the North Paravoor police station for the offences<\/p>\n
punishable under Sections 436 and 506(i) of IPC. On completing<\/p>\n
the investigation, final report filed before the Judicial First Class<\/p>\n
Magistrate’s Court, North Paravoor wherein C.P. 33\/2007 was<\/p>\n
instituted and by order dated 28.9.2007 in the above proceedings<\/p>\n
the learned Magistrate committed the case to the Sessions Court,<\/p>\n
Crl. Appeal No 2590 of 2008     : 2 :\n<\/p>\n
\nErnakulam wherein the above Sessions Case was instituted,<\/p>\n
subsequently, Sessions Court made over the case to the trial court<\/p>\n
for disposal.\n<\/p>\n
             3. The accused was in custody and on his production,<\/p>\n
a counsel was appointed by Taluk Service committee to defend<\/p>\n
the case. After hearing both the defence as well prosecution, a<\/p>\n
formal charge under Section 436 of IPC was framed against the<\/p>\n
accused and the same was explained and read over to him to<\/p>\n
which he pleaded not guilty.         Subsequently the prosecution<\/p>\n
adduced evidence consists of the oral evidence of PW1 to PW9<\/p>\n
and the documentary evidence such as Ext.P1 to Ext.P10. M.O.1<\/p>\n
to M.O.6 were identified and marked as material objects during the<\/p>\n
trial. The incriminating circumstances, which emerged during the<\/p>\n
prosecution evidence, were put to the accused Under section 313<\/p>\n
of Cr.P.C. and he denied the same. It is the further case of the<\/p>\n
accused that the property belonging to him and it was given to him<\/p>\n
by his father and the de facto complainant, PW1 who is none other<\/p>\n
than his wife has no property there.        According to him, he<\/p>\n
constructed house by spending a sum of Rs.10,000\/- received<\/p>\n
from the panchayath. It is also the case of the accused that his<\/p>\n
Crl. Appeal No 2590 of 2008        : 3 :\n<\/p>\n
\nyounger brother had died and thereafter he was looking after the<\/p>\n
wife of his younger brother and family.   According to the accused,<\/p>\n
his wife PW1did not like this and she used to take quarrel with<\/p>\n
them. However, the trial court finally found that accused is guilty<\/p>\n
of the offence charged against him under Section 436 of IPC.<\/p>\n
Accordingly, he is sentenced to under Rigorous Imprisonment for<\/p>\n
five years and to pay a fine of Rs.10,000\/- (Rupees Ten thousand<\/p>\n
only) and in default of payment of fine to undergo Rigorous<\/p>\n
Imprisonment for a further term of one year. It is also ordered that<\/p>\n
if the fine amount is realised to be given to PW1 as compensation<\/p>\n
under Section 357 (1) (b) of Cr.P.C.      Set off was allowed under<\/p>\n
Section 428 of Cr.P.C.      It is the above conviction and sentence<\/p>\n
challenged in this appeal.\n<\/p>\n
             4.   As the appellant is undergoing imprisonment in<\/p>\n
pursuance to the impugned judgment, Adv. Giji Manoj is appointed<\/p>\n
as state brief to prosecute the appeal. I heard the learned counsel<\/p>\n
for the appellant and also the learned Public Prosecutor. The<\/p>\n
prosecution case is that on 4.5.2007 around 9.15 P.M., the<\/p>\n
accused committed mischief by setting fire to residential house of<\/p>\n
PW1, who is none other than the wife of the accused wherein she<\/p>\n
Crl. Appeal No 2590 of 2008     : 4 :\n<\/p>\n
\nand her children were residing earlier and their furniture like cot,<\/p>\n
table, bench and other household articles, books etc were<\/p>\n
destroyed and thereby caused a loss of Rs.15,000\/ to PW1. The<\/p>\n
main case of the prosecution reveals through the deposition of<\/p>\n
PW1 and PW6. They have deposed in terms of the prosecution<\/p>\n
case. As stated earlier, PW1 is the de facto complainant who is<\/p>\n
none other than the wife of the accused. PW6 is the son of PW1<\/p>\n
and the accused. PW1 has stated before the court that about 20<\/p>\n
years are over after the marriage between herself and the accused<\/p>\n
and they have got 2 sons in the wedlock. They are residing at<\/p>\n
Athani Kizhakkepram in Kottuvally village, Thathapillikara in her<\/p>\n
house.      The house was constructed by using concrete pillars,<\/p>\n
tarpaulin sheets and tar sheets on the four sides. The accused<\/p>\n
was also residing in that house. According to PW1 before the<\/p>\n
incident the accused assaulted them by using force and they were<\/p>\n
forcibly evicted from their house and they were residing in a house<\/p>\n
belonging to PW2. It is the specific case of PW1 that while they<\/p>\n
were residing in the said house accused used to come and<\/p>\n
threaten them uttering that they would be killed, by holding sickle.<\/p>\n
According to PW1on 4.5.2007 after 9.00 P.M. the accused raised<\/p>\n
Crl. Appeal No 2590 of 2008      : 5 :\n<\/p>\n
\nhis voice by uttering obscene words that he would set fire to the<\/p>\n
house and PW1 came out of the house on hearing voice then she<\/p>\n
saw the accused taking kerosene bottle from a bag and pouring it<\/p>\n
at house and then lit a match stick and put it on the house and the<\/p>\n
house caught fire. Thereafter the accused went away from there<\/p>\n
on his bicycle. According to PW1 their dresses, cot, books, table<\/p>\n
almirah etc were burnt and lost.      On hearing their hue and cry<\/p>\n
people of the locality gathered and tried to put off the fire. Thus<\/p>\n
according to PW1 from the occurrence she sustained a loss of<\/p>\n
Rs.15,000\/.     PW1 stated that PW6, her son has also witnessed<\/p>\n
the incident and other son was sleeping. PW1 had stated that<\/p>\n
accused was often put in jail and before they were sent out from<\/p>\n
the house accused was in jail. It is also the case of PW1 that<\/p>\n
accused was in enemical terms with PW1 as she was not<\/p>\n
prepared to take accused on bail in connection with a theft case.<\/p>\n
It is also the case of PW1 that the accused has involved in certain<\/p>\n
other cases also. Ext.P1 F.I. Statement was proved her. She had<\/p>\n
explained the delay in intimating the police about occurrence.<\/p>\n
PW1 had identified M.O.1 to M.O.6.        According to PW1, the<\/p>\n
accused is her husband and first of all she thought this and she<\/p>\n
Crl. Appeal No 2590 of 2008      : 6 :\n<\/p>\n
\nwas reluctant to file the complaint. But as she lost her homestead<\/p>\n
which is an electrified one she went to the police station and<\/p>\n
lodged Ext.P1. PW6 also deposed in tune of the deposition of<\/p>\n
PW1.        PW2 who is a neighbour turned hostile.        PW3 the<\/p>\n
Secretary of Panchayath who issued Ext.P3 certificate deposed<\/p>\n
before the court that hut in question belonging to PW1 as well as<\/p>\n
the accused. PW4 is the Village Officer through whom Ext.P4 site<\/p>\n
plan proved. PW5 who is the daughter of accused’s bother also<\/p>\n
supported the prosecution.      PW7 is      the another neighbour<\/p>\n
through whom Ext.P5 scene mahazar was proved. PW8 is the S.I.<\/p>\n
Of Police, who recorded Ext.P1 F.I.S. of PW1 and registered<\/p>\n
Ext.P6 F.I.R. in crime 374 of 2007 of North Paravoor Police<\/p>\n
Station. The investigation was undertaken by PW8, the C.I. of<\/p>\n
Police who laid the charge. The trial court on the basis of the<\/p>\n
above evidence found that accused is guilty.\n<\/p>\n
             5. The learned counsel appearing for the appellant<\/p>\n
vehementally argued that the property in question belongs to the<\/p>\n
accused and not belongs to PW1. Therefore, according to the<\/p>\n
learned counsel, the offence under Section 436 IPC is not<\/p>\n
attracted. It is also the case of the learned counsel that going by<\/p>\n
Crl. Appeal No 2590 of 2008         : 7 :\n<\/p>\n
\nthe evidence of prosecution, it can be seen that PW1 was hostile<\/p>\n
to the accused and she was on enemical terms and therefore<\/p>\n
Ext.P1 F.I. Statement was preferred as an after thought that is the<\/p>\n
reason for the delay occurred in lodging the same. The learned<\/p>\n
counsel pointed out that though the alleged incident was taken<\/p>\n
place at 9.15 P.M. On 4.5.2007, F.I.R. was registered only at 6.30<\/p>\n
P.M. on 5.5.2007. According to the learned counsel the delay is<\/p>\n
not properly explained which will go against the prosecution. Thus<\/p>\n
according to the learned counsel conviction and sentence passed<\/p>\n
by the trial court is liable to be set aside.\n<\/p>\n
             6. Per contra learned Public Prosecutor submitted that<\/p>\n
trial court after having considered the entire facts and<\/p>\n
circumstances and evidence on record, came into a clear finding<\/p>\n
regarding the guilt of the accused and accordingly proper<\/p>\n
sentence was imposed against him.                The learned Public<\/p>\n
Prosecutor pointed out that in order to attract penal liability against<\/p>\n
the accused property destroyed by setting fire need not be<\/p>\n
belonged to the victim. In support of the above contention, the<\/p>\n
learned Public Prosecutor invited my attention to explanation 2<\/p>\n
given to Section 425 of IPC.            The learned Public Prosecutor<\/p>\n
Crl. Appeal No 2590 of 2008     : 8 :\n<\/p>\n
\npointed out that the evidence adduced by the prosecution<\/p>\n
especially the testimony of PW1 and PW6 who are respectively<\/p>\n
the wife and son of accused clearly shows the role of accused in<\/p>\n
the commission of offence. It is also pointed out by the learned<\/p>\n
Public Prosecutor that delay though which is not culpable has<\/p>\n
explained by PW1 herself. Thus the learned Public Prosecutor<\/p>\n
submitted that no interference is warranted.\n<\/p>\n
             7.     I have carefully considered the contentions<\/p>\n
advanced by the learned counsel for the appellant as well as the<\/p>\n
Public Prosecutor . The first point raised by the counsel for the<\/p>\n
appellant is to the effect that property in question belongs to the<\/p>\n
accused and therefore in the light of definition given to Section<\/p>\n
425 IPC no offence will be attracted against the accused as he is<\/p>\n
the owner of the property in question. The above contention is<\/p>\n
unsustainable in view of the explanation 1 and 2 given to Section<\/p>\n
425 IPC.       In the present case by producing Ext.P3 certificate<\/p>\n
which proved through PW3, the prosecution has adduced<\/p>\n
evidence to the effect that the house which destroyed by the<\/p>\n
accused by setting fire was belonging to both accused as well as<\/p>\n
PW1. It is came out in evidence that accused as well as PW1 and<\/p>\n
Crl. Appeal No 2590 of 2008     : 9 :\n<\/p>\n
\ntheir two children were residing in the said house and prior to the<\/p>\n
incident PW1 and his 2 sons were forcefully driven out from the<\/p>\n
house by the accused. Thus it can be seen that PW1 and her<\/p>\n
children was using the house as their homestead. Ext.P3 would<\/p>\n
further show that house belong to them also. In view of the above<\/p>\n
factual as well as legal position explained above, the contention<\/p>\n
advanced by the learned counsel will not sustain. When PW1 was<\/p>\n
examined she had deposed before the court that initially she was<\/p>\n
not prepared to lodge complaint before the police as the accused<\/p>\n
is her husband. On a second thought because of the entire house<\/p>\n
holdings were destroyed and hut itself was destroyed by setting<\/p>\n
fire, she along with her son went to the police station and lodged<\/p>\n
Ext.P1 F.I. Statement. The above explanation appears to me very<\/p>\n
reasonable and I find no reason to reject the same. Thus the<\/p>\n
arguments advanced for and on behalf of the appellant regarding<\/p>\n
the delay are also liable to be rejected. No other point raised for<\/p>\n
consideration. Thus on appreciation of evidence and the materials<\/p>\n
on record, I find no reason to interfere with the findings arrived by<\/p>\n
the court below and consequently conviction is confirmed.<\/p>\n
Crl. Appeal No 2590 of 2008      : 10 :\n<\/p>\n<\/p>\n
             8. Regarding the sentence, the learned counsel<\/p>\n
submitted that a lenient view may be taken. From the facts and<\/p>\n
circumstances involved in this case, it appears to me that<\/p>\n
appellant was in custody right from his date of arrest i.e. 8.5.2007<\/p>\n
and after the judgment he is continuing in jail and undergoing<\/p>\n
imprisonment. Now, he has already undergone imprisonment for<\/p>\n
a total period of 20 months and at the time of the judgment<\/p>\n
accused was at the age of 50 years. Considering totality of the<\/p>\n
circumstances involved in this case I am of the view that certain<\/p>\n
modification can be made with respect to the sentence.<\/p>\n
Accordingly, the substantial sentence is reduced from 5 years and<\/p>\n
re fixed the same as 1 = years. Similarly the fine amount is<\/p>\n
reduced from Rs.10,000\/- (Rupees Ten thousand only) to<\/p>\n
Rs.5,000\/- (Rupees Five thousand only). The default sentence is<\/p>\n
re fixed as 2 months. Set off is allowed under Section 428 of<\/p>\n
Cr.P.C. As the appellant had already undergone a total period 20<\/p>\n
months imprisonment and the substantial sentence is re fixed as<\/p>\n
1= years and the default sentence is also re fixed as 2 months<\/p>\n
and set off is allowed, he is entitled to get released from the jail.<\/p>\n
Therefore there will be a direction to release the appellant\/accused<\/p>\n
Crl. Appeal No 2590 of 2008       : 11 :\n<\/p>\n
\nforthwith, if he is not required in any other case.<\/p>\n
             Thus the above criminal appeal is disposed of<\/p>\n
confirming conviction but subject to the above modification with<\/p>\n
respect to the sentence.\n<\/p>\n<\/p>\n
                                           (V.K. MOHANAN, JUDGE)<\/p>\n
KMD<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Venu @ Pothukal Venu vs State Of Kerala on 9 January, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-165628","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVenu @ Pothukal Venu vs State Of Kerala on 9 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/venu-pothukal-venu-vs-state-of-kerala-on-9-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Venu @ Pothukal Venu vs State Of Kerala on 9 January, 2009 - 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