Madras High Court
Palanisamy vs State Represented By on 11 September, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 11.09.2014 Coram THE HONOURABLE MR. JUSTICE M.VENUGOPAL CRIMINAL APPEAL No.797 of 2007 Palanisamy ... Appellant -Vs.- State represented by Inspector of Police Steel Plant Circle (Crime No.93/2005 on the file of Veeranam Police Station) Salem District. ...Respondent Appeal against the judgment dated 13.08.2007 made in S.C.No. 72 0f 2006 on the file of the learned Sessions Judge, Mahila Court, Salem. For Appellant : M/s.B.Vasudevan For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor ------- J U D G M E N T
The conviction and sentence dated 13.08.2007 made in S.C.No. 72 0f 2006 on the file of the learned Sessions Judge, Mahila Court, Salem, are now under challenge in the present Appeal filed by the Appellant/Accused.
2. The Appellant/Accused was found guilty by the trial Court in respect of an offence under Section 436 of Indian Penal Code and he was awarded with a punishment of Rigorous Imprisonment for a period of three years and was also directed to pay a fine of Rs.500/-. Further, in default of payment of fine, he was directed to undergo additional sentence of three months Rigorous Imprisonment. Insofar as the offence under Section 323 of Indian Penal Code was concerned, he was found guilty and was sentenced to undergo Rigorous Imprisonment for a period of three months.
3. The case of the Prosecution is that the Complainant, prior to ten months, in the common 0.8 cents land belonging to her husband Govindasamy and his relative, put up a hut and was residing there. The Appellant/Accused demanded that the Complainant's husband should vacate from that place and because of the said dispute, there was motive/prior animosity between them and on 24.04.2005 at about 3.45 PM, the Complainant and her daughter Maheswari were in front of their house. At that time the Appellant/Accused, out of prior animosity, informed the Complainant that 'in their land why the house was constructed and if the house was not vacated, the house would be set on fire by him' and by so saying, the Appellant/Accused took a match box and when he endevour to set fire to the house, the Complainant prevented the same. But the Appellant/Accused beat the Complainant with his hand on her face and also pushed her down as a result of which, she sustained simple injury. Since the Appellant/Accused set fire to the upper roof of the house of the Complainant, the sum of Rs.2,000/- (which was inside the house), clothes, rice, Dhal items were destroyed by fire and thereby caused a loss of Rs.15,000/- to the Complainant. As such the Inspector of Police, Veeranam Police Station laid a charge sheet against the Appellant/Accused under Sections 436 and 323 of Indian Penal Code.
4. On the basis of accusation levelled against the Appellant/ Accused, the trial Court framed necessary charges against the Appellant/ Accused in respect of the offences under Sections 436 and 323 of Indian Penal Code and the same were read over and explained to him. The Appellant/Accused denied the charges framed against him.
5. Before the trial Court, on the side of the Prosecution, witnesses PW.1 to PW.8 were examined and Exs.P1 to P7 were marked and M.O.1 was marked. On the side of the Appellant/Accused, no witness was examined and no document was marked.
6. When the Appellant/Accused was questioned under Section 313 of Cr.P.C, in regard to the incriminating circumstances appearing against him, he denied his complicity in the crime.
7. According to the Learned Counsel for the Appellant/Accused, the trial Court had failed to take into account the contradictions elicited by the defence side from the Prosecution witnesses.
8. The Learned Counsel for the Appellant urges before this Court that the trial Court should have disbelieved the evidence of PW.1 and acquitted the Appellant/Accused.
9. According to the Learned Counsel for the Appellant, the offence under Section 323 of Indian Penal Code was not made out in respect of the Appellant inasmuch as PW.4, who treated the injured PW.1 Mariammal and issued Ex.P2 had deposed that no external injury on the body of PW.1 was found and that the trial Court had failed to notice the same, which had resulted in serious miscarriage of justice.
10. Advancing his arguments, the Learned Counsel for the Appellant proceeds to submit that no independent witness was examined by the Prosecution to corroborate the evidence of PW.1, PW.2 and PW.3.
11. The Learned Counsel for the Appellant projects an argument that PW.2 is the daughter of PW.1 and PW.3 is the son of PW.1 and in fact, the name of PW.3 was not found in Ex.P1 Report.
12. That apart, it is the contention of the Learned Counsel for the Appellant that PW.2 come to the house of PW.1 at the time of occurrence and hence, PW.2 was only a chance witness introduced for the purpose of the present case.
13. The Learned Counsel for the Appellant brings it to the notice of this Court that PW.1 had deposed that the Appellant with the match stick set fire to the Hut of PW.1 and that, the match box was not recovered by the Prosecution.
14. Added further, the Appellant is the blood relative of PW.1's husband and due to enmity, false complaint was lodged against the Appellant.
15. Yet another submission of the Learned Counsel for the Appellant is that the First Information Report was received by the Court on 25.04.2005, the very next day of the occurrence and there was no proper explanation on the side of the Complainant for the delay in this regard.
16. Lastly, it is the stand of the Appellant that there was no proof to establish that the house is the dwelling house of PW.1 through Village Administrative Officer and also that no photograph was taken and produced before the trial Court.
17. Per Contra, Learned Additional Public Prosecutor submits that PW.1-Complainant had deposed in her evidence categorically that the Appellant set fire to her house and since in their house, there was no water, the fire was not to be extinguished. Furthermore, PW.1 in her evidence had went on to add that the roof of the house was burnt and a sum of Rs.2,000/- kept in the house, clothes were also burnt in the said fire and PW.1 had sustained a loss of Rs.15,000/-.
18. The Learned Additional Public Prosecutor contends that PW.2 (daughter of PW.1) had also in her evidence deposed that the Appellant/Accused had set fire to their house and at that time, her brother came there and since there was no water facility, the fire was not to be extinguished and a sum of Rs.2,000/- kept in the house, clothes etc., were also burnt and they had sustained a loss of Rs.15,000/- and subsequently, PW.1 (her mother) had given a complaint before the Police.
19. The Learned Additional Public Prosecutor brings it to the notice of this Court that PW.3 (son of PW.1) had also spoken about the Appellant/Accused went on the back side of their house and set fire to the house and since there was no water facility, they could not extinguish the fire and the entire roof of the house was burnt etc.
20. The Learned Additional Public Prosecutor contends that PW.4 Doctor had treated PW.1 and admitted her in F.S.Ward and also furnished Ex.P2 Accident Register Copy. Furthermore, PW.4 had deposed (in his cross examination) that there were no external injuries on PW.1 and since the injured PW.1 complained of chest pain, he took X-ray and it revealed that there was no bone fracture and went on to add that the chest pain could occur due to shock also and that PW.1 informed him of her chest pain to him.
21. The Learned Additional Public Prosecutor brings it to the notice of this Court that PW.5 (Village Administrative Officer of Veeranam Village) in his evidence had deposed that he and his Assistant had signed in Observation Mahazar (Ex.P3) and from the place of occurrence, burnt three wooden logs (M.O.1 series) were seized and the Recovery Mahazar was Ex.P4. Further, it is the evidence of PW.5 that on 25.04.2005, he was called by the Inspector of Police to the Police Station at 2.45 PM and the Appellant/Accused in his presence gave a statement, in which he had signed.
22. The Learned Additional Public Prosecutor contends that the Appellant/Accused gave a statement before PW.6 (Village Administrative Officer of Vazhapadi Village) that he was surrendering and the said statement (Ex.P5) was recorded by him and he handed over the said statement and the Accused to the Police.
23. Apart from the above, the Learned Additional Public Prosecutor submits that PW.7 (then in-charge Officer of Veeranam Police Station) had deposed in his evidence that he received the statement of PW.1 in the Police Station when she appeared before him, and in Crime No.93 of 2005 under Sections 323 and 436 of Indian Penal Code registered First Information Report and the printed FIR was Ex.P6.
24. PW.8 (then Inspector of Police of Veeranam Police Station) had stated in his evidence that after receipt of First Information Report (which was registered by Sub-Inspector of Police, Gunasekaran) in Crime No.93 of 2005, he preferred Ex.P3 Observation Mahazar in the presence of Village Administrative Officer and his Assistant Raja and prepared the Rough Sketch Ex.P7 and also examined witnesses Maheswari, Ramesh, Jaya, Boopathy, Megala and recorded their statements. Later, he went to the hospital and made enquiry with Mariammal (PW.1). On 25.04.2005, he went to the Vazhapadi Police Station and arrested Appellant/Accused, who was in custody and brought him to the Police Station and also recorded the Confession Statement of the Appellant and at that time, Village Administrative Officer was present. Further, on 10.07.2005, he examined PW.4 (Doctor) and recorded his statement and after completion of his investigation, filed a Charge Sheet under Section 436 and 323 of Indian Penal Code against the Appellant/Accused.
25. In fact, the substratum of the argument advanced on behalf of the Respondent/Complainant is that the trial Court had analysed the entire oral and documentary evidence available on record and had found the Appellant/Accused guilty in respect of the offences under Sections 436 and 323 of Indian Penal Code and imposed necessary punishments together with a fine of Rs.500/- and also imposed the default sentence thereto.
26. It is to be borne in mind that the ingredients of Section 436 of Indian Penal Code are attracted and they come into operative play, when the mischief caused results in destruction of a building. In reality, the term 'Building' does not relate to the fact that it must be either brick built or mud built or a building of some/such durable material.
27. It is to be remembered that Section 436 of Indian Penal Code has the following salient features:-
(i) that the Accused committed mischief;
(ii) that the Accused did so by fire or any explosive substance;
(iii) that the Accused did so with an intention to cause (it is likely to cause) the destruction of any building;
(iv) that such building was ordinarily used as place of worship or as dwelling or as the place for custody of the property.
28. As far as the present case is concerned, through the evidence of P.Ws.1 to 3, it is latently and patently quite clear that the charges levelled against the Appellant/Accused under Sections 323 and 436 of Indian Penal Code were proved by the Prosecution beyond all reasonable doubt. In fact, P.Ws.1 to 3 had candidly stated in their evidence that the Appellant/Accused, on 24.04.2005, the day of occurrence had set fire to their house. The evidence tendered by P.Ws.1 to 3 in regard to the mischief committed by the Appellant/Accused in setting fire to the house of PW.1 were natural, cogent and coherent and quite convincing. As such, this Court without any hesitation whatsoever, accepts their evidence as worthy of credence. That apart, even PW.4 (Doctor) had stated in his evidence that he gave Ex.P4 Certificate to PW.1 and she complained of chest pain and that the injury was simple in nature.
29. At this state, the Learned Counsel for the Appellant submits that PW.4 (Doctor) in his evidence had stated that he only gave a simple injury certificate to PW.1 as per Accident Register Copy (Ex.P2) and further the Doctor had stated in his cross examination that on his examination, he found that there were no external injuries and that the injured (PW.1) informed him that she had chest pain.
30. The Learned Counsel for the Appellant contends that the trial Court had wrongly convicted the Appellant/Accused in respect of an offence under Section 323 of IPC and on an erroneous basis had convicted and sentenced the Appellant/Accused to three months Rigorous Imprisonment in respect of an offence under Section 323 of IPC, when PW.4 (Doctor) himself had stated in his evidence before the trial Court (in cross examination) that there were no external injuries on PW.1.
31. The Learned Counsel for the Appellant submits that the Appellant has four female children and one son and in any event prays for leniency being showered by this Court on the Appellant, in case, if the Court comes to a conclusion that the Appellant/Accused is guilty of the offences under Sections 436 and 323 of Indian Penal Code.
32. In regard to the plea of the Appellant/Accused that in Ex.P.1 Report the name of P.W.3 was not found, the same is not fatal, because of the fact that the Complaint/Report is not an Encyclopaedia but it is enough, in the considered opinion, if Ex.P.1 Complaint contains basic necessary details to set the Law in Motion.
33. Further, just because P.W.2 is the daughter of P.W.1 and P.W.3 is the son of P.W.1 and interested witnesses and their evidence should be scanned carefully, it is to be pointed out that because of their relationship with P.W.1, it cannot be said that their evidence are to be rejected by this Court. In fact, the relative witness may not lie and they would speak about the incident which they had seen. Moreover, there is no bar for a Court of Law to accept the evidence of relative witnesses based on their credibility. Of course, their evidence must be viewed carefully by a Court of Law nor see about the trustworthiness of their deposition. If their depositions are natural, convincing, cogent and coherent and reliable, a Court of Law can readily accept the same, in the interest of Justice.
34. On a careful consideration of respective contentions and this Court taking note of the fact that PW.1 to PW.3 had clearly, in their evidence, spoken about the involvement of the Appellant/Accused in setting fire to their house on the day of occurrence on 24.04.2005 and also this Court on the basis of evidence of PW.4 (Doctor) comes to an irresistable, consequent conclusion that the charges in respect of the Appellant/Accused under Sections 436 and 323 of IPC were proved by the Respondent/Prosecution beyond all reasonable doubt. In this regard, this Court upholds the Judgment of conviction passed by the trial Court in respect of the Appellant/Accused.
35. Coming to the aspect of quantum of sentence to be awarded by a Court of Law, it is to be pointed out by this Court that it is the judicial discretion of a Court to pass necessary sentence in respect of a proved offence/offences. But passing of necessary sentence or imposing of punishment to an Accused, when the charge against him is proved by the Prosecution beyond reasonable doubt, must be done by the concerned competent Court with great care and circumspection, of course, by exercising its judicial discretion based on sound, legal principles. In fact, the punishment to be imposed by a Court of Law in respect of an offence in a given case ought not to be an excessive or arbitrary one. However, the punishment so imposed/to be imposed by a Court of Law in a given case must secure the ends of justice. As far as the present case is concerned, this Court is in complete agreement with the view taken by the trial Court that the Appellant/Accused is guilty in respect of the offences under Sections 436 and 323 of IPC. But in regard to the quantum of sentence of three years Rigorous Imprisonment imposed by the trial Court in respect of an offence under Section 436 of IPC and as regards the quantum of sentence of three years Rigorous Imprisonment imposed by the trial Court in respect of simple injury caused to P.W.1/injured, this Court opines that imposition of punishment of two years Rigorous Imprisonment and one month Rigorous Imprisonment are just, fair and sufficient in respect of the proved offences under Sections 436 and 323 of IPC, which would meet the ends of justice, insofar as the Appellant/Accused is concerned. Viewed in that perspective, this Court imposes a punishment of Rigorous Imprisonment of two years in respect of an offence under Section 436 of IPC and imposes a punishment of one month Rigorous Imprisonment in respect of offence under Section 323 of IPC, thereby modifies the sentence of three years Rigorous Imprisonment for the offence under Section 436 of IPC and three months Rigorous Imprisonment in respect of an offence under Section 323 of IPC awarded by the trial Court. However, the imposition of fine of Rs.500/- in respect of offence under Section 436 of IPC is left undisturbed by this Court. Consequently, the Criminal Appeal succeeds in part.
36. In the result, the Appeal is allowed in part in the above terms. If the Appellant/Accused is not in duress, the trial Court is directed to take necessary steps to immure the Appellant/Accused in prison so as to serve the remaining period of sentence.
11.09.2014 Index :Yes/No Internet : Yes/No mra To
1. The Sessions Judge, Mahila Court, Salem.
2. The Inspector of Police Steel Plant Circle, Salem District.
3. The Public Prosecutor High Court, Madras.
M.VENUGOPAL,J mra Crl.A.No.797 of 2007 11.09.2014