Karnataka High Court
Shri M P Joyee vs State By N.R. Pura Police Station on 25 October, 2024
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NC: 2024:KHC:43224
CRL.A No. 403 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.403 OF 2013
BETWEEN:
SHRI M. P. JOYEE
S/O. POULOSE
AGED ABOUT 42 YEARS
RESIDING AT MENASURE VILLAGE
N.R. PURA
CHIKMAGALUR DISTRICT-577 113.
...APPELLANT
(BY SRI M. C. RAVI KUMAR, ADVOCATE)
AND:
STATE BY N. R. PURA
POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560 001.
...RESPONDENT
(BY SRI M. DIVAKAR MADDUR, H.C.G.P.)
Digitally signed by
MOUNESHWARAPPA ***
NAGARATHNA
Location: HIGH
COURT OF
KARNATAKA THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE
THE JUDGMENT DATED 21.03.2013 PASSED BY THE PRINCIPAL
SESSIONS JUDGE, CHIKMAGALUR, IN S.C. NO.31/2012,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 436 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 28-8-2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE VENKATESH NAIK T
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NC: 2024:KHC:43224
CRL.A No. 403 of 2013
CAV JUDGMENT
The appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.') challenging the judgment of conviction dated 21-3-2013 and order on sentence dated 22-3-2013 passed by the Principal Sessions Judge, Chikmagalur (hereinafter for brevity referred to as 'Sessions Court') in Sessions Case No.31 of 2012, wherein, he has been convicted and sentenced to undergo simple imprisonment for a period of three years with fine of Rs.1,25,000/- and in default, to undergo simple imprisonment for a period of one year for the offence punishable under Section 436 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC').
2. For the sake of convenience, the parties are referred to as per their rankings before the Sessions Court. The appellant is the accused and the respondent- State is the complainant.
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3. The factual matrix of the prosecution case is that PW1/complainant was cultivating Bagar Hukum land at Katagalale Village, N.R. Pura Taluk, and he was residing there along with his family by constructing a house and at a distance, he had also put up a shed. The accused used to quarrel with him stating that the land and the shed belongs to him. On 17-5-2011 at about 11:00 a.m., the accused came to the land, where PW1 was cultivating and started quarrelling and informed that he will not allow him to cultivate and went back. Again at about 3:00 p.m., the accused came and quarrelled with PW1 and while quarrelling, the accused informed PW1 that he would set fire to his property and destroy them. On the same night, at about 10:30 p.m., when PW1, CW6 (wife of PW1), and CW7 (coolie working under PW1) were in the house, at that time, CWs.6 and 7 heard some sound and went outside the house, they saw the burning shed. They, too, saw the accused standing by the side of burning shed, by holding petrol can and by seeing PW1, the accused thrown the petrol can and matchbox, and ran away from the spot. -4-
NC: 2024:KHC:43224 CRL.A No. 403 of 2013 Immediately, PW1 called CWs.8 to 10 and all of them tried to extinguish the fire and at the same time, he informed the Police as well as the Fire Brigade. After 20 to 30 minutes of the incident, the Fire Brigade came and extinguished the fire. According to PW1, his shed was completely burnt. Due to that, his belongings, i.e. four quintals of ginger, twenty-eight quintals of elephant foot (suvarna gadde), 184 PVC plastic pipes of 20 feet length and a motorcycle, bearing Registration No.KA-18 S-5434, were burnt. On the following day, a panchayat was convened and matter could not be settled, therefore, PW1 went to N.R. Pura Police Station and filed a complaint- Ex.P1. On the basis of complaint, N.R. Pura Police registered an F.I.R.-Ex.P4 and the Investigating Officer took up the investigation.
4. After receipt of the charge-sheet, the trial Court committed the case to the Sessions Court. The Sessions Court framed a charge against the accused for the offence -5- NC: 2024:KHC:43224 CRL.A No. 403 of 2013 punishable under Section 436 of IPC. He pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, examined in all six witnesses as PW1 to PW6, got marked four documents as per Exs.P1 to P4 and marked three material objects as per MOs.1 to 3. After the closure of evidence on the prosecution side, the accused was examined under Section 313 of Cr.P.C., he denied the incriminating circumstances and submitted that he would not lead defence evidence. The Sessions Court, after hearing the arguments, proceeded to convict the accused for the offence punishable under Section 436 of IPC.
6. Being aggrieved by the judgment of conviction and order on sentence passed by the Sessions Court, the accused has preferred this appeal.
7. Learned counsel for the appellant/accused has contended that the judgment of conviction and order on sentence passed by the Sessions Court is contrary to law, -6- NC: 2024:KHC:43224 CRL.A No. 403 of 2013 evidence and probabilities; the prosecution has not produced any documents to show that PW1 is the owner of the property or he has produced any tax assessment receipts to show that the shed belongs to PW1; the Sessions Court committed serious error in convicting the accused on the basis of interested witnesses and no credibility to the evidence of PWs.1, 4 and 5 can be attached since they are interested witnesses and they are also related with each other; as per the evidence of PWs.4 and 5, there are about ten houses around the place of incident and many persons are residing, but no independent witness has been examined to show that the alleged incident has taken place; there is delay in lodging the complaint; if the alleged incident has taken place and the Fire Brigade had come and extinguished the fire, they would have drawn mahazar and they would have also registered a case, but the prosecution has not produced any material in that behalf and the Investigating Officer has not properly investigated the matter and the -7- NC: 2024:KHC:43224 CRL.A No. 403 of 2013 Investigating Officer has not collected the documents pertaining to the motorcycle produced by PW1.
Learned counsel further contended that the Sessions Court convicted the accused for a period of three years. The accused is a first time offender, Agriculturist by profession, and the accused and PW1 are neighbours. Hence, the Court may reduce the sentence and to give set off under Section 428 of Cr.P.C. for the period already undergone by him. On all these grounds, he prayed to allow the appeal.
8. Per contra, the Learned High Court Government Pleader for the respondent-State has contended that the Sessions Court, on appreciation of the evidence on record, has rightly convicted the accused. He supported the reasoning assigned by the Sessions Court. The evidence of PWs.1, 4 and 5 are sufficient to convict the accused for the offence punishable under Section 436 of IPC. On all these grounds, he sought for dismissal of the appeal. -8-
NC: 2024:KHC:43224 CRL.A No. 403 of 2013
9. After hearing the learned counsel for both side, the following points that would arise for Court consideration in the appeal is:
i. Whether the prosecution proved beyond reasonable doubt that on 17-5-2011 at about 10:30 p.m. at Katagalale Village of N.R. Pura Taluk, the accused committed mischief by setting fire to the shed belonging to the complainant with intention to cause the destruction of the shed which was ordinarily used as a place for custody of property and caused loss to the complainant and thereby, committed the offence punishable under Section 436 of IPC?
ii. Whether the judgment of conviction and order on sentence passed by the Sessions Court calls for interference?
10. The prosecution, in order to establish its case, relied upon the evidence of:
a. PW1-V.P. Shibi, complainant, in his evidence, has stated that he is cultivating Bagar Hukum land given by the Government. He owns a house at Katagalale, -9- NC: 2024:KHC:43224 CRL.A No. 403 of 2013 Badagabylu Village and in front of his house, there is a shed. In the said shed, he used to keep all agricultural implements, grains, seeds and a motorcycle. The accused was having ill will with him and thus, he used to quarrel stating that the said land and shed belongs to him. On 17-5-2011 at about 11:00 a.m. and again at 3:00 p.m., the accused picked up quarrelling and informed him that he will set fire to all his property. On the same day, at about 10:30 p.m., when he, his wife and coolie was in the house, at that time, his wife and coolie heard some sound and went outside the side and they saw the burning shed. Hence, his wife called him and he saw the accused standing by the side of the burning shed by holding a petrol can and matchbox, and by seeing them, the accused fled away from the spot. Therefore, himself, his wife, his labour and other neighbours tried to extinguish the fire, but went in vain. Hence, he called the Police and the Fire Brigade. After 20 to 30 minutes, the Fire Brigade came and extinguished the fire. By that time, the entire shed, and its contents, i.e. twenty-eight quintals of
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 beetroot, 4 quintals of ginger, 184 P.V.C. pipes of 20 feet length, and a motorcycle were burnt. Therefore, he lodged complaint as per Ex.P1. Later, the Police visited the spot, where they conducted spot-cum-seizure mahazar as per Exs.P2 and P3.
PW1 was cross-examined. In the cross-examination, he admits that he did not lodge complaint on the same day of the incident. He also admits that three months prior to the alleged incident, the accused lodged a complaint against his wife for having burnt the clothes of the accused. Except these aspects, no worthwhile has been elicited from him.
b. PW2-Suresh is a witness to spot-cum-seizure mahazar-Ex.P2. He has stated about conducting mahazar in his presence on 18-5-2011 and seizure of MO1-burnt PVC pipe piece and MO2-burnt bamboo piece. In the cross-examination, he admits that he does not know the contents of Ex.P2. He admits that on the right side of the
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 shed, there is house of the accused. Apart from these admissions, nothing has been elicited from him.
c. PW3-Anil is a witness to seizure mahazar-Ex.P3, wherein burnt motorcycle produced by PW1 was seized by the Police in the Police Station. In the cross-examination, he admits that the motorcycle was not having number plate. He does not know the contents of Ex.P3, but he affixed his signature at the instance of the Police.
d. PW4-Anthoni, labour working under PW1, is an eyewitness to the incident. He has stated that he was working under PW1 in his land and he used to stay in the house of PW1. He has stated in line with PW1 about the incident that occurred on 17-5-2011. In the cross- examination, nothing worthwhile has been elicited to discredit his testimony and therefore, he corroborates the oral testimony of PW1.
e. PW5-Jose is elder brother of PW1. He has stated that on 17-5-2011 at 10:30 p.m., when he was in his
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 house, PW1 called him saying that his shed has been set to fire. Hence, he and CWs.8 and 10 went there. All of them tried to extinguish the fire by pouring water on it, but they could not. Hence, PW1 informed the Fire Brigade and they extinguished the fire. After the incident, he came to know that the accused had set fire to the shed in connection with ill will between PW1 and the accused in connection to the land. In the cross-examination, nothing worthwhile has been elicited from him.
f. PW6-Smt. Swarna G.S., Sub-Inspector of Police, who registered the complaint, investigated the matter and filed charge-sheet against the accused.
11. From perusal of oral evidence of PWs.1, 2, 4 and 5, they have categorically deposed that the shed, where PW1 had kept beetroot, ginger, PVC Pipes and motorcycle, have been burnt due to fire.
12. The oral evidence of PW2 establishes that on 18-5-2011, N.R. Pura Police conducted spot-cum-seizure
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 mahazar as per Ex.P2 in the land of PW1, where the shed, PVC pipes and motorcycle of PW1 were burnt. Hence, the Police drew mahazar and seized MO1-burnt PVC pipe piece, and MO2-burnt bamboo piece. From perusal of Ex.P2-spot mahazar, the roof of shed, plastic pipes and motorcycle were burnt. In the mahazar, the Investigating Officer has described that the plastic cover, covered on elephant foot and ginger were burnt and not the elephant foot and ginger. Moreover, elephant foot and ginger were not seized in this case.
13. It is admitted fact that PW1 was cultivating Bagar Hukum land, where he constructed a shed for storing his agricultural implements and the accused himself disputing that the said land and the shed belonged to him. Hence, the fact remains that PW1 has been cultivating Bagar Hukum land and one cannot insist its ownership or documents to show that the said land and shed belonged to PW1 or not.
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14. Section 436 of IPC provides that whoever commits mischief by fire, intending to cause, or knowing it to be likely that he will thereby cause the destruction of any building which is used for the purpose of human dwelling or for keeping the custody of property, should be belonging to the complainant or that, he should be the owner thereof. What has been contemplated in the said Section is that, it must be a place of human dwelling or a place for custody of property.
15. If the entire evidence placed on record is looked into, it clearly goes to show that the shed of PW1, which was set on fire, was used to keep the custody of property. Even though it is tried to bring on record that the said area is not belonging to PW1, but that issue is not going to be considered for the purpose of this case and it is a matter of civil dispute. Further, the oral evidence of PWs.1 and 4 clearly reveal that on 17-5-2011, in the morning at about 11:00 a.m. and in the afternoon at about 3:00 p.m., the accused had come and quarrelled with the complainant
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 in connection with the said land and at that time, he had expressed that he will set fire to his property. If that aspect is taken into consideration, it clearly discloses that the accused was having ill will towards PW1 for having constructed the shed and for storing the property and that, the accused wanted to grab the same. From the said act of the accused, it can be presumed that the accused knew that the fire would cause destruction of property and shed.
16. During the course of arguments, the learned counsel for the accused, relying on the evidence of PW4 during his cross-examination at page No.2, last line, contended that there is no chance of PW4 seeing the face and identifying a person, who has committed the alleged offence and it cannot be said that it is the accused who has done the said act. It is an admitted fact that the accused was not a stranger and he was well acquainted with the witnesses by his physical and facial appearances. Then, under such circumstances, that too, when he was
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 standing close towards the burning shed, it cannot be said that it was not possible for a witness to identify the person who was standing there. If the further evidence of PW4 is taken into consideration, he has categorically deposed that at the time of the incident, the accused was wearing a lungi and the same was white in colour. Thus, it makes it clear that the witnesses, PWs.1 and 4, have identified the accused that he was present at the spot on the incident date. Thus, the presence of the accused at the burning shed cannot be disputed. If at all, the accused had come after somebody had set fire, then what was the necessity for the accused to run away from that place when PWs.1 and 4 witnessed the accused and the accused has also not explained the reason as to why he ran away from there and for what reason, he was present at the spot. In the absence of any explanation, it can be presumed that the act of the accused clearly indicates that the accused set fire with intention to cause destruction of the property along with the shed belonging to PW1.
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17. Learned counsel for the accused has contended that the prosecution has not produced any documents to show that PW1 is the owner of the property or he has produced any tax assessment receipts to show that the shed belongs to PW1. But, under Section 436 of IPC, no where it contemplates that the property which has been set on fire must be belonging to the complainant and that his property must be damaged. In this behalf, the contention taken up by the learned counsel for the accused does not hold any water.
18. Learned counsel for the accused has contended that no credibility to the evidence of PWs.1, 4 and 5 can be attached since they are interested witnesses and they are also related with each other. No doubt, it is true that PWs.1 and 5 are relatives and PW4 is working under PW1. Merely because they are related and interested witnesses, only on that count, their testimonies or evidence cannot be brushed aside and their evidence have to be scrutinised carefully.
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19. There is no bar in law on examining family members, or any other persons as witnesses when their evidence is found credible, reliable, trustworthy, and admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution. The Court cannot reject such evidence merely on ground that witness was family member or interested witness or person known to the affected party. There can be cases where it would be, but inevitable to examine such witnesses, because as the events occurred, they are the natural or the only eyewitnesses available to give complete version of the incident. In the case on hand, PW4 was working under PW1 as Coolie and at the time of incident, his presence at the spot was natural. So far as PW5, the brother of PW1 is concerned, his house is situated within a distance of 250 meters from the house of PW1. Hence, his presence at the spot was natural. Nothing has been elicited from the evidence of PWs.1, 4 and 5 as to why their evidence have to be disbelieved.
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20. Learned counsel for the accused has contended that as per the evidence of PWs.4 and 5, there are about ten houses around the place of incident and many persons are residing, but no independent witnesses have been examined to show that the alleged incident has taken place. Merely because those witnesses have not been examined before the Court, on that count alone, the evidence of the witnesses who are examined before the Court, cannot be brushed aside. It is the discretion of the prosecution to examine the witnesses and it has been said that the prosecutor is having the discretion to choose which horse, he can ride. Further, quantity of witness is not a criteria, it is only quality of evidence which has to be taken into consideration.
21. So far as delay in lodging the complaint is concerned, the learned counsel for the accused has contended that the alleged incident has taken place on 17- 5-2011 at about 10:30 p.m. and the complaint came to be filed on 18-5-2011 at 1:30 p.m. and this delay itself will
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 create a doubt of falsely implicating the accused in the case. In relating to this, PWs.1, 4 and 5 have stated that immediately after the incident, PW1 did not file the complaint as the elderly persons of there Village, proposed to hold panchayat to settle the matter and since the matter was not settled in the panchayat, next day, the complainant filed the complaint. As per the case of the prosecution, the incident took place in Village. Naturally in Villages, initially the elders would settle the issue and if it fails, then they would proceed to knock the door of the Police Station. Even in this case, as the matter was not settled, PW1 lodged the complaint belatedly with valid reasons.
22. Learned counsel for the accused has further contended that if really the alleged incident has taken place and the Fire Brigade had come and extinguished the fire, they would have drawn mahazar and they would have also registered a case, but the prosecution has not produced any material in that behalf. It is true that the
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 prosecution has not produced any material to show that the Fire Brigade had come and extinguished the fire. When the accused himself contends that the Fire Brigade will also draw Mahazar about the damages and other aspects, under such circumstances, when it was within the knowledge of the accused, definitely, he could have secured the said documents from the concerned Authority and could have produced the same before the Court. PW1 has deposed that no mahazar was drawn by the Fire Brigade, but they have taken his signature. He has also deposed that he informed the Fire Brigade that the accused has set fire. When the accused claims that the Fire Brigade will also draw mahazar, non-production of the same will also create a doubt in the case of the accused, more particularly, when PW1 has deposed that he informed the Fire Brigade that the accused has set fire. In this behalf, the contention taken up by the learned counsel for the accused is not acceptable in law.
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23. Another contention which is taken up by the learned counsel for the accused is that the Investigating Officer has not properly investigated the matter and she has also deposed in her evidence that she has not collected the documents pertaining to the motorcycle of PW1 and the motorcycle which is before the Court is not having any number plate.
24. It is well established principles of law that if there are any lapses on the part of the investigating agency, the same will not enure to the benefit of the accused and even if this aspect of the argument is taken into consideration, merely because the number plate is not found on the burnt motorcycle, only on that ground, it cannot be held that no such incident has taken place at all. When there are eyewitnesses to the alleged incident and merely because the Investigating Officer has not properly investigated the matter and has deposed before the Court, under such circumstances, the evidence of eyewitnesses
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 cannot be thrown to the winds and the accused cannot be acquitted only on the basis of a faulty investigation.
25. Admittedly, PWs.1, 4 and 5 have consistently stated that soon after the incident, the Fire Brigade visited the spot and extinguished the fire. But, PW6-Investigating Officer has not placed any material to show that she visited the spot and extinguished the fire. No mahazar or piece of paper has been produced in this regard by the Investigating Officer. On the face of the record, it appears to be some lapse, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative, obviously, it will have a serious impact on to the trial, but if in the event, it is on the negative, no prejudice can be said to have been caused and correspondingly, question of the trial being vitiated would not arise. The eyewitnesses' account, as available on record, terms to be trustworthy and by reason therefore,
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 the lapses stand overshadowed by the testimony of the eyewitnesses.
26. In the light of the above analysis, the prosecution proved its case beyond reasonable doubt that on the alleged date, time and place, the accused committed fire mischief and caused loss to PW1. Hence, he is held guilty of the offence punishable under Section 436 of IPC.
27. The Sessions Court imposed simple imprisonment for a period of three years and to pay fine of Rs.1,25,000/- for the offence punishable under Section 436 of IPC.
28. Admittedly, PW1-complainant or PW6- Investigating Officer has not assessed the loss caused to PW1. As per the oral evidence of PW2, spot mahazar witness, and contents of Ex.P2, it appears that only roof of shed, bamboo and top portion of the motorcycle were burnt. Though PWs.1, 4 and 5 have stated that twenty-
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 eight quintals of beetroot, four quintals of ginger and 184 PVC pipes of 20 feet each were burnt, however, no document is placed on record and in the mahazar also, there is no reference as to burning of beetroot, ginger and 184 PVC pipes. Further, if the motorcycle was insured with Insurance Company at the time of incident, definitely, PW1 can claim compensation from the Insurance Company. Hence, imposing compensation of Rs.1,25,000/-, that too, without any material on record is high and exorbitant one and thus, it has to be reduced to Rs.1,00,000/-.
29. Learned counsel for the accused has contended that the appellant is a first time offender, Agriculturist by profession, the accused and PW1 are neighbours and in a fit of anger, the offence has been committed. Hence, he prayed the Court to reduce the sentence.
30. Considering the fact that the incident is of the year 2011, the accused and PW1 hails from the same locality, moreover, they are neighbours, it is just and
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 necessary to reduce the sentence of simple imprisonment from three years to two years.
31. Accordingly, I proceed to pass the following ORDER i. The appeal is partly allowed;
ii. The judgment of conviction dated 21-3-2013 passed by the Principal Sessions Judge, Chikmagalur, in Sessions Case No.31 of 2012 is hereby affirmed. However, the order on sentence dated 22-3-2013 for the offence punishable under Section 436 of IPC for a period of three years is modified and the appellant/accused is sentenced to undergo simple imprisonment for a period of two years with fine of Rs.1,00,000/- (Rupees one lakh only) and in default to pay the fine, he shall undergo simple imprisonment for a period of three months;
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NC: 2024:KHC:43224 CRL.A No. 403 of 2013 iii. The sentence already undergone by the appellant is given set off under Section 428 of the Code of Criminal Procedure, 1973, and iv. The fine amount deposited by the appellant shall be paid to PW1/complainant within a period of six weeks from the date of receipt of a copy of this judgment.
The Registry to send back the Sessions Court records, forthwith, with a copy of this judgment.
Sd/-
(VENKATESH NAIK T) JUDGE KVK List No.: 19 Sl No.: 1