IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE Nos.1218 & 1220 OF 2004 CRIMINAL REVISION CASE No.1218 OF 2004: Between: G. Kasaiah and others ..... PETITIONERS AND The State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT CRIMINAL REVISION CASE No.1220 OF 2004: Between: Kasu Madhavareddy ..... PETITIONER AND The State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE Nos.1218 & 1220 OF 2004 COMMON ORDER: These Criminal Revision Cases, filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), are directed against the common judgment, dated 22.07.2004, in Criminal Appeal Nos.156 and 183 of 2002, on the file of I Additional Sessions Judge, Guntur. 2. The brief facts that are necessary for disposal of the present Criminal Revision Cases may be stated as follows: On 23.10.1998 at about 08:00 A.M., while PWs.1 and 2 were present in the hotel of PW.1, all the accused came there, abused PWs.1 and 2 in filthy language and threatened them with dire consequences. As a result, there was altercation between injured - PWs.1 and 2, on one hand, and A1 to A4, on the other. In that altercation, A1 broke a cool drink bottle, abused PW.1 in filthy language and instigated A1 to set fire to the hotel. Then A2 poured kerosene, which was brought by him in a white plastic tin, and A1 allegedly set fire to the hut - cum - hotel of PW.1. As a result, the hut - cum - hotel of PW.1 was burnt to ashes causing loss to PW.1 to a tune of Rs.70,000/-. On receipt of information, PW.4 - Fire Brigadier came to the scene of occurrence and extinguished the fire. PW.3, who is no other than the husband of PW.1, after coming to know about the incident, lodged Ex.P-1 - report. Police registered the crime and during the course of investigation, observed the scene of occurrence under Ex.P-5, prepared rough sketch of scene of occurrence and after completion of investigation, filed charge sheet. 3. When the charges under Sections 506 and 436 I.P.C. against A1 and A2 and charges under Sections 506 and 436 read with 34 I.P.C. against A3 and A4, were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined PWs.1 to 5 and got marked Exs.P-1 to P-6, besides case property MO.1. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence of prosecution witnesses. They denied the same and reported no oral evidence and got marked Ex.D-1 on behalf of the defence. 6. The Principal Assistant Sessions Judge, Guntur, accepting the evidence of PWs.1 and 2 with regard to setting fire to the hut - cum - hotel of PW.1, vide judgment, dated 27.03.2002 in Sessions Case No.230 of 1999, convicted and sentenced A1 to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 436 I.P.C., and further convicted and sentenced A1 to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 506 I.P.C.; and convicted and sentenced A2 to A4 to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 436 read with 34 I.P.C. and further convicted and sentenced A2 to A4 to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence punishable under Section 506 I.P.C. Challenging the same, A1 preferred Criminal Appeal No.183 of 2002 and A2 to A4 filed Criminal Appeal No.156 of 2002. The appellate Court, vide the impugned common judgment, confirmed the convictions and sentences recorded by the trial Court. Challenging the same, Criminal Revision Case No.1220 of 2004 is filed by A1 and Criminal Revision Case No.1218 of 2004 is filed by A2 to A4. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. Learned senior counsel appearing for the petitioners in both the revisions contended that admittedly, there were several disputes existing between PW.1 and A1; that when husband of PW.1 filed a suit, it was dismissed; that A1 is claiming a right and title in respect of the site in which PWs.1 and 3 erected a hut and running the hotel therein; that for the reasons best known to them, PWs.1 to 3 set fire to the hut to claim insurance; that no specific overt acts are attributed against A2 and A3; that in the absence of any evidence with regard to their sharing common intention with A1 and A4, they cannot be convicted under Section 436 read with 34 I.P.C.; that PW.1 has not stated either in the statement recorded earlier or in the statement recorded by police during the course of investigation under Section 161 Cr.P.C. that A4 poured kerosene on the hut; that there is no evidence so as to base a conviction and hence, he prays to set aside the impugned judgments. 9. On the other hand, learned counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 and 2 is very clear that they were present at the time of offence; that mere pendency of a civil dispute between PW.1 and A1 with regard to the site in question cannot be a ground to implicate the accused falsely; that there is no evidence to show that the hut was insured with insurance company, so as to claim the insurance amount; that both the Courts below on proper appreciation of evidence on record rightly found the petitioners guilty and hence, there are no grounds to interfere with the impugned judgments. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be perverse or contrary to law or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record. 11. Admittedly, PW.1 is no other than the wife of PW.3. PW.2 is the adopted son of PWs.1 and 3. They occupied the roadside site, erected hut and was running a hotel in the hut. A1 is said to be claiming right and title over the disputed site in which PWs.1 and 3 erected the hut. In respect of the site, PW.3 filed a suit against A1 and the said suit was dismissed. Therefore, there were civil disputes pending between PWs.1 and 3 on one hand, and A1 on the other hand. 12. It is not in dispute that the hut of PWs.1 and 3 is burnt to ashes. PW.4, who was in-charge of Fire Brigade, rushed to the scene of occurrence and extinguished the fire. Thereafter, police, after receipt of information of the fire incident, rushed to the scene of occurrence and observed the scene of occurrence. Recitals in Ex.P-5 coupled with the evidence of PW.5 would clearly go to show that the hut of PWs.1 and 3 was burnt to ashes. Even the accused did not deny or dispute about the burning of the hut on the date of incident. The question is whether the accused are present at the time of the incident and set fire to the hut of PWs.1 and 3? 13. The evidence of PWs.1 and 2 would go to show that on 23.10.1998 at 08:00 A.M., when they were present in the hotel, A1 to A4 came to the hotel and picked up quarrel with them and in that quarrel A4 allegedly poured kerosene on the hut and A1 set fire to the hut of PWs.1 and 3. The entire case rests upon the evidence of PWs.1 and 2. Admittedly, PW.3, who is the husband of PW.1, was not present at the time of the incident. The contention of the learned counsel for the petitioners is that PW.1 has not stated in the earliest point of time to PW.4 with regard to A4 pouring kerosene on the hut and similarly, she has not stated about the said fact, when she was examined under Section 161 (3) Cr.P.C., it is clearly an improvement and the evidence of PW.1 on that aspect cannot be relied upon. But the evidence of PW.2 would go to show that A2 poured kerosene and A1 set fire to the hut. Though it is contended by the accused that in order to claim insurance from the insurance company, as the hut is insured with the insurance company, PWs.1 and 3 set fire to their hut themselves and they received compensation of Rs.14,000/- from the insurance company, but there is absolutely no evidence on record to infer about the same. There is no material filed by the accused to show that PWs.1 and 3 claimed insurance for the burning of the hut. Therefore, the said contention of the accused cannot be accepted in the absence of any evidence. 14. No doubt, PW.1 has not specifically stated about A4 pouring kerosene on the hut, but at the same time, it is in the first report, which was given to PW.5, that all the accused came there and set fire to the hut. In view of the fact that no specific overt acts are attributed against A2 and A3, the trial Court as well as the appellate Court found them not guilty of offences with which they were charged. Similarly, there were no circumstances to indicate sharing common intention with A1 and A4 in setting fire to the hut. The common intention principle pre- supposes a prior consent of minds, but at the same time, it can also develop at the time of occurrence. In view of the fact that common intention is locked up in the minds of the accused, it is difficult for the prosecution to prove the same. Therefore, the law permits that it can be inferred or gathered from the circumstances of the case. There were no circumstances to indicate that A2 and A3 shared the common intention with A1 and A4 so as to set fire to hut of PWs.1 and 3. They have not instigated A1 and A4 to set fire to the hut. They have also not carried any inflammable liquid to the scene of occurrence. They are not related to A1 and A4. Therefore, mere presence of A2 and A3 at the time of incident cannot be said to infer that they shared the common intention with A1 and A4, so as to set fire to the hut of PWs.1 and 3. This aspect of the case has been completely over looked by both the Courts below. Similarly, no finding is given as to how they can be punished under Section 436 read with 34 I.P.C. Hence, the convictions and sentences recorded against A2 and A3 for the offences under Sections 436 read with 34 and 506 I.P.C. are liable to be set aside and are accordingly, set aside. 15. Insofar as ingredients of arson, specific overt acts are attributed against A1 and A4. In view of the fact that the presence of PWs.1 and 2 at the time of incident has been believed by the Courts below as quite natural and proper and that the incident had taken place at about 08:00 A.M., they can be in a position to identify the assailants. The trial Court as well as appellate Court rightly found A1 guilty of the offences under Sections 436 and 506 I.P.C. and A4 guilty of the offences under Sections 436 read with 34 and 506 I.P.C. The findings are based upon proper appreciation of evidence on record. Hence, the conviction recorded by both the Courts below against A1 and A4 needs no interference by this Court. 16. With regard to the sentence, the incident had taken place 12 years back. A1 and A4 are aged about 67 years and 55 years respectively, as on today. Therefore, it is not desirable to send them to jail. Hence, a lenient view can be taken with regard to sentence against A1 and A4. 17. In the result, the convictions against A1 recorded by the trial Court as confirmed by the appellate Court, for the offences punishable under Section 436 and 506 I.P.C., and as against A4 for the offences punishable under Sections 436 read with 34 and 506 I.P.C. are confirmed. But, the sentence of imprisonment imposed against A1 for the offence punishable under Section 436 I.P.C. is reduced from rigorous imprisonment for three years to the sentence already underwent by him, while enhancing the fine amount from Rs.1,000/- to Rs.5,000/-, in default to undergo simple imprisonment for three months. Similarly, the sentence of imprisonment imposed against A4 for the offence punishable under Section 436 read with 34 I.P.C. is reduced from rigorous imprisonment for one year to the sentence already underwent by him, while enhancing the fine amount from Rs.1,000/- to Rs.5,000/-, in default to undergo simple imprisonment for three months. Further, A1 and A4 are sentenced to pay a fine of Rs.3,000/- each for the offence punishable under Section 506 I.P.C., in default to undergo simple imprisonment for one month. Out of the fine amount paid, an amount of Rs.15,000/- shall be paid to PW.3 towards compensation. 18. The convictions and sentences recorded against A2 and A3 for the offences punishable under Sections 436 read with 34 and 506 I.P.C. are set aside, and they are acquitted of the said charges. 19. With the above modification of sentence, Crl.R.C.No.1220 of 2004 is dismissed; Crl.R.C.No.1218 of 2004 is partly allowed to the extent indicated above. _______________ K.C. BHANU, J July 15, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE Nos.1218 & 1220 OF 2004 July 15, 2010