IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.531 OF 2011 C/W CRIMINAL APPEAL NO.248 OF 2011 CRL.A.NO.531 OF 2011:
BETWEEN:
STATE BY CHAMARAJANAGAR RURAL POLICE. ... APPELLANT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) AND:
1. SHANTHAMALLESHAPPA S/O LATE B.C.NAGAPPA, AGED ABOUT 46 YEARS, ASSISTANT DIRECTOR OF SERICULTURE, NO.885, 10TH CROSS, 13TH MAIN, BEHIND AKSHAYA BHANDAR, SARASVATHIPURAM, MYSURU.
2. G.NANJUNDASWAMY S/O LATE GURUMALLAPPA, AGED ABOUT 53 YEARS, AGRICULTURIST, R/O BADANAGUPPE VILLAGE, CHAMARAJANAGAR TALUK.
3. SHIVAKUMAR @ MAJJINAKUMARA S/O LATE SHIVANANJAPPA, AGED ABOUT 39 YEARS, AGRICULTURIST, BADANAGUPPE VILLAGE, CHAMARAJANAGAR TALUK.
4. RAJENDRA S/O MAHADEVAPPA, AGED ABOUT 35 YEARS, AGRICULTURIST, BADANAGUPPE VILLAGE, CHAMARAJANAGAR TALUK. ... RESPONDENTS (BY SRI H.S.CHANDRAMOULI, ADVOCATE) ***** THIS CRL.A IS FILED UNDER SECTION 377 CR.P.C., PRAYING TO MODIFY THE SENTENCE AND ORDER DATED 17.1.2011 / 8.2.2011 PASSED BY THE DISTRICT, S.J., CHAMARAJANAGAR IN S.C.NO.59 OF 2009 – AND TO IMPOSE MAXIMUM SENTENCE ON THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 436 R/W SECTION 34 OF IPC.
CRL.A.NO.248 OF 2011: BETWEEN:
1. SHANTHAMALLESHAPPA S/O LATE B.C.NAGAPPA, AGED ABOUT 48 YEARS, ASSISTANT DIRECTOR OF SERICULTURE, NO.885, 10TH CROSS, 13TH MAIN, BEHIND AKSHAYA BHANDAR, SARASVATHIPURAM, MYSURU.
2. G.NANJUNDASWAMY S/O LATE GURUMALLAPPA, AGED ABOUT 55 YEARS, 3. SHIVAKUMAR @ MAJJINAKUMARA S/O LATE SHIVANANJAPPA, AGED ABOUT 41 YEARS, 4. RAJENDRA S/O MAHADEVAPPA, AGED ABOUT 37 YEARS, APPELLANTS NOS.2 TO 4 ARE AGRICULTURISTS, & R/O BADANAGUPPE VILLAGE, CHAMARAJANAGAR –TALUK, CHAMARAJANAGAR –DISTRICT. ... APPELLANTS (BY SRI H.S.CHANDRAMOULI, ADVOCATE) AND:
THE STATE OF KARNATAKA BY THE POLICE OF CHAMARAJANAGAR RURAL POLICE STATION, CHAMARAJANAGAR DISTRICT. …RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP SRI Y.S.SHIVAPRASAD, ADVOCATE FOR ORIGINAL COMPLAINANT) ***** THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 17.1.2011/8.2.2011 PASSED BY THE DISTRICT, S.J., CHAMARAJANAGAR IN S.C.NO.59 OF 2009 – CONVICTING THE APPELLANTS NOS.1 TO 4/ACCUSED NOS.1 TO 4 FOR THE OFFENCE PUNISHABLE UNDER SECTION 436 R/W 34 OF IPC AND THE APPELLANT NO.1/ACCUSED NO.1 IS SENTENCED TO PAY A FINE OF RS.10,000/- IN DEFAULT, TO UNDERGO S.I. FOR TWO MONTHS AND THE APPELLANTS NOS.2 TO 4/ACCUSED NOS.2 TO 4 ARE SENTENCED TO PAY A FINE OF RS.5,000/- EACH, IN DEFAULT, TO UNDERGO S.I. FOR A PERIOD OF ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION 436 R/W SECTION 34 OF IPC.
THESE CRL.As COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the judgment dated 17.01.2011, in S.C.No.59 of 2009, passed by the District and Sessions Judge of Chamarajanagar.
2. By the impugned judgment, the court below has convicted the appellants / accused nos.1 to 4 for the offence punishable under Sections – 436 of IPC, read with Section – 34 of IPC and has sentenced Accused no.1 to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only), in default to undergo simple imprisonment for two months and Accused nos.2 to 4 are sentenced to pay a fine of Rs.5,000/- (Rupees Five Thousand) each, in default, to undergo simple imprisonment for a period of one month.
3. The appellants, hereinafter, for convenience will be referred to as accused nos.1 to 4.
4. Accused Nos.1 to 4 have filed an appeal in Criminal Appeal No.248 of 2011, challenging the conviction recorded against them. Whereas the State has preferred an appeal in Criminal Appeal No.531 of 2011, seeking enhancement of the sentence.
5. The case of the prosecution is that accused no.1 is the elder brother of the husband of PW-1, Smt.Manjula Devi. There were civil disputes between accused no.1 and his brothers with regard to the family property. On 23.02.2009, on the Shivarathri festival day, at about 8.30 p.m., the husband of PW-1 had gone to Ishwar temple. PW-1 with her mother and her children were in house. At about 9 - 9.30 p.m, PW-1 heard the sound of dog barking and when she went out along with her son Abhijith, PW-2, they saw accused no.1 holding kerosene can and the remaining accused were with him. The accused no.1 threw the kerosene oil on the thatched shed situated in front of the house of PW-1 and set it on fire. As a result, the books and clothes of the children of PW-1 and the entire shed was burnt to ashes. Thereafter, accused nos.1 to 4 went away in the motor cycles.
6. On receiving the information of the incident, PW-7 the ASI, Chamarajanagara Rural Police Station, Chamarajanagara District, rushed to the spot, received the written complaint from PW-1 and on its basis, registered a case against accused nos.1 to 4 and another unknown person.
7. On completing the investigation, a charge- sheet was laid against accused nos.1 and 4 for the offence punishable under Section – 436 of IPC, read with Section 34 of IPC. The accused persons denied the charges and claimed trial.
8. In proof of the charges, the prosecution examined seven witnesses and produced in evidence three documents marked as Exhibit-P1 to Exhibit-P3. The accused denied the incriminating circumstances brought out in the evidence of the prosecution witnesses and took up a defence of total denial.
9. Upon hearing the learned Public Prosecutor and the learned counsel for the accused, the learned Sessions Judge, found all the accused guilty of the offence punishable under Section-436, read with Section–34 of IPC. The trial court also recorded a finding that accused nos.1 to 4 intentionally set fire to the thatched shed, which was used as place of dwelling. However, while imposing the sentence, the court below having noted that Accused no.1 is a Government servant, who has put in more than 25 years of service and also considering the fact that Accused nos.2 to 4 are agriculturists, found it appropriate to impose fine, without sentencing them to imprisonment.
10. At the stage of hearing, the learned counsel for the appellants, has filed an application under Section – 391 of Cr.P.C., seeking to produce four documents by way of additional evidence, namely, FIR, complaint, charge-sheet in Crime No.36 of 2009 and Crime No.37 of 2009 on the file of Chamarajanagar Rural Police Station and the deposition of one Manjunathasamy who is examined as PW-1 in C.C.No.485 of 2009 on the file of Civil Judge and JMFC, Chamarajanagar. On hearing the learned Additional SPP, by the order dated 27.06.2017, the said application was allowed and with the consent of the parties, these documents have been marked as Exhibits-D1 to D4, respectively.
11. We have heard the learned counsel for the appellants and the learned Addl. SPP.
12. The main thrust of the arguments of the learned counsel for the appellants is that the witnesses relied on by the prosecution namely, PW-1 and PW-2 are interested witnesses. There was enmity between the family of the complainant and accused no.1. The additional documents produced before this Court namely, Exhibits D1 to D4 supports the view that two days prior to the incident in question, there was a complaint lodged by PW-1 against accused no.1 and a counter case was also registered against the husband of PW-1 in Crime No.36 of 2009 and Crime No.37 of 2009, which itself is sufficient to show that the complaint in the instant case is a counterblast to the criminal case already initiated against the husband of PW-1. Hence, in view of the previous enmity between the parties, it was incumbent on the trial court to seek corroboration to the testimony of PW-1 and PW-2. Instead the trial court has blindly accepted the testimony of PW-1 and PW-2 without there being any corroboration thereto which has vitiated the findings recorded by the court below.
13. Further, the learned counsel submitted that in order to record a conviction under Section – 436 of IPC, the prosecution was required to establish that the alleged shed was a dwelling place, but the prosecution has utterly failed to produce any convincing evidence to show that the shed in question was used for dwelling purposes. In support of this submission, the learned counsel has referred to the panchanama prepared in Crime No.36 of 2009 and in Crime No.37 of 2009, and has built up an argument that existence of the said shed does not find place in any of these panchanamas, which lends support to the contention of the accused, that the alleged shed was not at all used for dwelling purposes. Hence, the conviction recorded under Section-436 of IPC cannot be sustained.
14. The learned counsel further submitted that apart from the interested testimony of PW-1 and PW-2, there is no worthwhile evidence to prove the ingredients of Section 436 of IPC. The sketch of the scene of the offence has not been drawn up and no material has been seized from the spot of occurrence to establish that there was any damage caused by fire to the property of PW-1 or her husband and therefore the conviction of the appellants is liable to be set aside.
15. With regard to the quantum of punishment, the learned counsel has placed reliance on the decision of Allahabad High Court, reported in 1990 CRI.L.J. 1665, SMT.PERBATA VS. STATE and the judgment of Punjab And Haryana High Court reported in (2006) 3 RCR (Cri) 328, in the case of MANOJ VS. STATE OF HARYANA and submitted that in the light of the facts established in evidence, the sentence of fine levied by the court below is just and appropriate and therefore there is no ground to enhance the sentence as sought for by the State.
16. Refuting the above argument, the learned Addl. SPP submitted that in the face of the direct evidence of PW-1 and PW-2, who have graphically narrated the overt-acts committed by accused nos.1 to 4, which is duly corroborated by the contents of the panchanama and other surrounding circumstances, which clearly establish that the shed which was used for dwelling purpose has been set on fire by the accused, the finding recorded by the court below cannot be said to be either perverse or contrary to the evidence on record. However with regard to the sentence, the learned Addl. SPP submitted that Section – 436 of IPC prescribes a punishment of imprisonment for life or for a term which may extend upto 10 years and also fine. Whereas in the instant case, the trial court has awarded only fine. Where the offence is punishable with imprisonment and fine, the court has no discretion to award only fine. Hence, this is a fit case to enhance the sentence as sought for by the State.
17. We have considered the submission made at the Bar and have carefully scrutinized the evidence and the material on record.
18. As already stated above, the case of the prosecution is that accused nos.1 to 4 committed mischief by setting fire to the thatched shed belonging to the husband of PW-1. PW-1 has categorically stated in her evidence that on the date of incident she along with her children and mother were in the house. At about 9-9.30 p.m., she heard their dog barking and hence went out along with her son Abhijith, PW-2. They saw accused no.1 holding kerosene can and the remaining accused were with him. She has specifically stated that accused no.1 threw the kerosene oil on the thatched shed situated in front of the house of PW-1 and set fire to the said shed. Further, she has stated that the villagers came to the spot and put off the fire and telephoned to the Police and the Police came to the spot at 11.30 p.m. and took her complaint as per Exhibit-P1. With regard to the damage caused on account of the fire, she has specifically stated in her evidence that the books and clothes of her children were burnt. In the cross-examination she has maintained that the accused no.1 came to the spot along with accused nos.2 to 4 and set fire to the thatched shed. She has maintained all throughout that the said shed was used for dwelling purpose and for reading by her children and has further stated that the said shed was also used for the stay of swami ji, whenever he used to visit the house of PW-1.
19. The above testimony of PW-1 is not discredited in the cross-examination. On the other hand, we find that the testimony of PW-1 is substantially corroborated by PW-
2. PW-2 is none other than the son of PW-1. The presence of PW-1 and PW-2 during the occurrence is natural. The testimony of these witnesses cannot be dubbed as interested one. There is no proposition in law that relatives are to be treated as untruthful witnesses. The pendency of civil and criminal disputes between the relatives may be a motive for the commission of the offence. Therefore merely on that ground, the evidence of PW-1 and PW-2 cannot be discarded. On overall consideration of the evidences of PW-1 and PW-2, we find their evidence trustworthy and believable.
20. The evidence of PW-7, ASI, lends further corroboration to the testimony of the above witnesses, inasmuch as, this witness has clearly stated that on receiving the information of the incident, he rushed to the spot and recorded the statement of PW-1. This lends intrinsic corroboration to the evidences of PW-1 and PW-2. Therefore, there is absolutely no reason to doubt the occurrence or to disbelieve the testimony of PW-1 and PW-2. From the evidence of PW-1 and PW-2, it is established by the prosecution that accused nos.1 to 4 had been to the spot of occurrence. From their evidence it stands established without any tint of doubt that accused no.1 set fire to the thatched shed belonging to the husband of PW-1.
21. Though it is argued by the learned counsel for the defence that the shed in question was not used for dwelling purposes, there is overwhelming evidence to show that the said shed was used for dwelling purposes. Apart from the evidence of PW-1 and PW-2, the contents of the spot mahazar, Exhibit-P2, which clearly reveal that the shed was built with cement walls and was roofed with thatched leaves. In the spot mahazar, at Exhibit-P2 the dimension of the said shed is detailed and it is specifically mentioned that there was a double cot, godrej cupboard, khetan fan, etc., in the said shed which were all burnt.
22. The panch-witness, PW-5, has unequivocally stated in his evidence that PW-1 showed the shed, burnt shirt, burnt fan, table and other burnt articles at the time of spot mahazar at Exhibit – P2. Even this fact has not been falsified in the cross-examination. Though it is elicited in the cross-examination that PW-5 did not know the contents of the mahazar, merely on that count, the testimony of PW-5 cannot be doubted. In the wake of this evidence, we have no hesitation to hold that the prosecution has convincingly proved that the shed in question was used for dwelling purposes.
23. Thus, what emerges from the evidence of above witnesses is that accused no.1 set fire to the thatched shed in question by splashing kerosene oil thereon. But insofar as accused No.2 to 4 are concerned, except the evidence that they were present near the spot during the occurrence, there is absolutely no evidence whatsoever to show that accused nos.2 to 4 either abetted the commission of the offence or committed any overt-acts in achieving the object intended by accused no.1. On going through the impugned judgment, we do not find any finding by the trial court to the effect that accused nos.2 to 4 were also instrumental in setting fire to the shed in question. Yet the learned Session Judge has convicted accused nos.2 to 4 with the aid of Section-34 of IPC. In our view, the finding recorded by the lower court insofar as holding accused nos.2 to 4 guilty of the offence with the aid of Section-34 of IPC cannot be sustained.
24. It is trite law that in order to convict the accused persons with the aid of Section – 34 of IPC, the prosecution is required to prove that all the accused shared the common intention. The inference of common intention can be drawn from the established facts. Such an inference cannot be drawn from the mere fact that accused nos.2 to 4 accompanied accused no.1 to the spot. The above evidence adduced by the prosecution at the most suggests that accused nos.2 to 4 accompanied accused no.1 in their motor cycles, but there is nothing on record to show that accused nos.2 to 4 committed any overt-act in furtherance of the alleged common intention. Merely by being present at the spot of occurrence it cannot be said that, accused nos.2 to 4 knew the intention of the accused that he was going to set fire to the shed. To attract Section-34 of IPC, active participation and overt-acts are necessary, which are totally lacking in the instant case.
Therefore, we are of the opinion that the conviction recorded by the Sessions Court against accused nos.2 to 4, with the aid of Section – 34 of IPC cannot be sustained. To this extent, the appeal filed by accused Nos. 2 to 4 deserves to be allowed.
25. Accordingly, the appeal filed by accused nos.1 to 4 in Crl.A.No.248 of 2011, is partly allowed. The conviction recorded against accused no.1 for the offence punishable under Section – 436 of IPC is confirmed. The conviction of accused nos.2 to 4 for the offence punishable under Section - 436 read with Section – 34 of IPC is set- aside.
26. Coming to the quantum of sentence, it may be relevant to refer to Section – 436 of IPC, which reads as follows:
“436. Mischief by fire or explosive substance with intent to destroy house, etc. – whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
27. As could be seen from the above section, the legislature has imposed a punishment of imprisonment for life or for a term which may extend upto ten years and also fine. But the trial court has imposed only a sentence of fine, which is contrary to the mandate prescribed in Section – 436 of IPC. Hence, the appeal filed by the State deserves to be allowed.
28. The trial court appears to have taken a lenient view in awarding the sentence apparently for the reason that Accused no.1 was a Government servant, and that he had put in nearly 25 years of blemishless service. This consideration in our view cannot be a mitigating factor for awarding lesser sentence. Undoubtedly, the fire mischief is perse deliberate, which is intended to cause either loss to the person or to the property or to create fear in the mind of the victim. Though there is no evidence to show that accused no.1 had any criminal antecedents, yet there is clear evidence to show that he was motivated to commit the offence because of the civil dispute that were pending between the parties. In that view of the matter and having regard to the fact that the alleged offence has been committed by setting fire to a dwelling house, the offence would call for a sentence of imprisonment for a manimum period of one year. But, in the facts and circumstances of this case, having regard to the fact that the loss caused is only to the tune of Rs.2,000/- (Rupees Two Thousand Only) and accused No.1 being a person of advanced age, we find it appropriate to sentence accused no.1 to undergo simple imprisonment for a period of six months and a fine of Rs.50,000/- (Rupees Fifty Thousand Only), which amount on deposit or recovery shall be made over to PW-1 by way of compensation. In default, of payment of the fine amount of Rs.50,000/-, accused no.1 shall undergo simple imprisonment for a further terms of 1 ½ months.
29. The fine amount said to have been deposited by accused nos.2 to 4, if any, shall be returned to accused Nos.2 to 4.
Appeals stand disposed of accordingly in terms of the above order.
SD/- SD/-
JUDGE JUDGE JJ