IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 CRL.A.No. 2590 of 2008 ------------------------ SC.413/2007 OF THE ADDL. DISTRICT & SESSIONS (ADHOC)III, NORTH PARAVOOR CP.33/2007 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... APPELLANT: ACCUSED --------------------------------- VENU @ POTHUKAL VENU, S/O.THANKAPPAN PILLAI, C.NO.7100, CENTRAL PRISON, VIYYUR. BY ADV. SRI G.G.MANOJ [STATE BRIEF] RESPONDENT: COMPLAINANT ------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 2590 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~~ 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, Crl. Appeal No 2590 of 2008 : 2 : 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 Crl. Appeal No 2590 of 2008 : 3 : 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 Crl. Appeal No 2590 of 2008 : 4 : 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 Crl. Appeal No 2590 of 2008 : 5 : 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 Crl. Appeal No 2590 of 2008 : 6 : 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 Crl. Appeal No 2590 of 2008 : 7 : 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 Crl. Appeal No 2590 of 2008 : 8 : 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 Crl. Appeal No 2590 of 2008 : 9 : 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. Crl. Appeal No 2590 of 2008 : 10 : 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 ½ 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 1½ 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 Crl. Appeal No 2590 of 2008 : 11 : 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