Kerala High Court
Antony D'Silva Jose Das vs State Represented By The A.S.I.Of ... on 28 November, 2012
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
WEDNESDAY, THE 28TH DAY OF NOVEMBER 2012/7TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 135 of 2004 (B)
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CRA.719/2002 of VI ADDL.DISTRICT COURT, ERNAKULAM
CC.832/1996 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
REVISION PETITIONER/APPELLANT/ACCUSED :
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ANTONY D'SILVA JOSE DAS
S/O. JOSEPH, KALIPARAMBIL VEEDU, PONNURUNNTHI KARA
POONITHURA VILLAGE.
BY ADVS.SRI.JAIJI ITTEN
SRI.PRAMOD JAIJI
RESPONDENT/RESPONDENT/COMPLAINANT & STATE :
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STATE REPRESENTED BY THE A.S.I.OF POLICE
PANANGAD POLICE STATION, THROUGH PUBLIC, PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 28-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BP
S. SIRI JAGAN, J.
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Crl. Rev. Petition No.135 of 2004
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Dated this the 28th day of November, 2012
O R D E R
The petitioner is the accused in C.C. No.832/1996 before the Additional Chief Judicial Magistrate's Court, Ernakulam. He was prosecuted for an offence punishable under Section 435 of the Indian Penal Code. The prosecution case was that the petitioner, on 5.3.1996, at 10 p.m., set fire to the furniture shop of PW1 situated in premises No.C.C.30/87A at Convent Junction, Vyttila and thereby caused loss to the tune of Rs.5,000/-, thus committing the offence charged.
2. The prosecution examined PWs 1 to 7 and marked Exhibits P1 to P3. The petitioner examined himself as DW1 in defence. After considering the evidence adduced, relying on the oral evidence of an eye witness, PW2, the Magistrate convicted the petitioner and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Crl. Rev. Petition No.135 of 2004 -2- Rs.10,000/-, with a default sentence of rigorous imprisonment for three months. An amount of Rs.5,000/- out of the fine amount was directed to be paid to PW1. In Crl. Appeal No.719/2002, the VI Additional Sessions Judge, Ernakulam, while confirming the conviction, modified the sentence to simple imprisonment for three months and a fine of Rs.5,000/-, with a default sentence of simple imprisonment for one month. Out of the fine amount, Rs.4,000/- was directed to be paid to the defacto complainant under Section 357 Cr.P.C. The petitioner is challenging the judgments of the courts below.
3. The challenge by the petitioner, against the judgments of the courts below, is only on the question of correctness of appreciation of evidence. According to him, the evidence of the witnesses are not believable and are riddled with material contradictions. Therefore, the lower courts ought not to have accepted the evidence of the prosecution witness and ought to have acquitted the petitioner.
Crl. Rev. Petition No.135 of 2004 -3-
4. I have considered the matter after hearing the learned Public Prosecutor.
5. The independent eye witness had given evidence to the effect that he saw the petitioner setting fire to the furniture shop of PW1. It is evident that the shop belonged to the petitioner and PW-1 was a tenant in that shop. The accused was trying to evict PW1 from the shop and a civil case was pending in respect of the same. PW2 has given evidence that he actually saw the petitioner setting fire to the furniture shop after pouring kerosene. The petitioner could not shake the evidence of PW2 in cross-examination. Of course, the petitioner tried to set up a case that PW2 is inimical towards the petitioner insofar as PW2 was also a tenant, against whom, the petitioner had filed a suit for eviction. But as held by the appellate court, even before the occurrence of the incident constituting the offence, PW2 had vacated the premises and therefore he cannot be said to have continued enmity towards the accused, when he tendered evidence before the court. I do not find any Crl. Rev. Petition No.135 of 2004 -4- perversity in the appreciation of evidence made by the courts below. Without finding any perversity, I cannot interfere with the judgments of the courts below also. As such, I do not find any reason to interfere with the conviction entered by the courts below.
6. But I am inclined to interfere with the punishment of imprisonment. The imprisonment is reduced to one month's simple imprisonment. But the fine amount is enhanced to Rs.25,000/- (Rupees twenty five thousand only) with a default sentence of simple imprisonment for two months. Out of the fine amount, an amount of Rs.20,000/- (Rupees twenty thousand only) shall be paid to PW1.
The Criminal Revision Petition is disposed of as above.
Sd/-
S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/