CRL.A.No.1439 of 2005

CRL.A.No.1439 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.1439 OF 2005** **AGAINST THE JUDGMENT IN SC 361/1997 DATED 25-07-2005 OF I ADDITIONAL SESSIONS JUDGE, THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED:** - **1 SUNILKUMAR @ MAKKU S/O.SISUPALAN, MURUKAVILASAM VEEDU, HOUSE NO.M.VIII/25, VALIYARATHALA, MARUKIL VILLAGE.** - **2 ANIL KUMAR, S/O.KRISHNAN, KOORACHANVILA PUTHENVEEDU, H.NO.PPVI/449, PALLICHAL VILLAGE, PALLICHAL DESOM.** - **3 BABURAJ, S/O.RANEES, KOORACHANVILA KIZHAKKUMKARA MELEPUTHENVEEDU, HOUSE NO.PP VI/418, PALLICHAL VILLAGE AND DESOM.** - **4 VENU S/O.GOPY PANDARAMGOPI ARAVILAKATH VEEDU, HOUSE NO. PP IV/294,, PALLICHAL VILLAGE AND DESOM.** - **5 MURALI S/O.SHANMUGHAM ASARY SHANMUGHAM VILASAM VEEDU, HOUSE NO. M.P.IV/332,, OLIPPUNADA, MARUKIL VILLAGE AND DESOM.** - **6 VINOD VINU, S/O.MADHAVA PANICKER, `ANITHA BHAVAN', VENNIYOTTUKONAM, H.NO.PP IV/522, PALLICHAL VILLAGE AND DESOM.** - **7 SURESH, S/O.VIGNESWARAN, KRISHNA BHAVAN, HOUSE NO.M.P.IV/325, OLIPPUNADA, VEDANOORKONAM, MARUKIL VILLAGE, AND DESOM.** CRL.A.No.1439 OF 2005 2 **8 ANILKUMAR @ ANIL, S/O.SUGUNA PANICKER, AAYAKODE PUTHEN VEEDU, HOUSE NO.P.P.III/25, PALLICHAL VILLAGE AND DESOM.** **BY ADVS. SRI.J. JOSE SRI.S.RAJEEV** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE, MALAYINKIL POLICE STATION.** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-122020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1439 OF 2005 3 ## **JUDGMENT** ## **Dated this the 9th day of December 2020** Appellants are 1 to 4, 6 to 8 and 12 in Crime No.163/1992 of Malaynkeezhu Police Station. The Sub Inspector of Police, Malaynkeezhu filed the final report against 13 accused alleging offences punishable under Sections 143, 147, 436 and 427 r/w 149 IPC. Accused Nos. 1 to 12 are accused in S.C. No. 361/1997, accused No. 13 is the accused in S.C.No.425/2003. Originally the accused No. 13 was not available for trial. Subsequently, he appeared and both cases were tried together by the lower court. Accused No. 5 died during the trial stage. 2. The prosecution case is that, the accused persons are RSS activists. Charge Witness No. 1 and Prosecution Witness No. 1 were CPI(M) workers. Accused were entertaining enmity and hatred towards CW1 and PW1. On account of their political rivalry and animosity towards CW1 and PW1, they formed themselves into an unlawful assembly on 22.07.1992 at about 10.45 p.m., and in prosecution of their common object of destroying the house of CW1 and the shop of PW1 set fire to the said buildings and as a result, the house of CW1 and the shop of CRL.A.No.1439 OF 2005 4 PW1 were totally destroyed by fire and thereby incurring a loss of about Rs. 18,000/- to CW1 and Rs. 5000/- to PW1. Thus it is alleged that the accused committed the offences under Sections 143, 147, 436, and 427 read with 149 IPC. 3. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P3 are the exhibits marked on the side of the prosecution. MO1 to MO8 are the material objects. 4. After going through the evidence and documents, the trial court found that, the accused Nos. 1 to 4, 6 to 8 and 12 were guilty under Sections 143, 147, 436 read with 149 IPC. The case against the 5[th] accused is abated. The accused were found not guilty under Section 427 IPC. Accused Nos. 9, 10, 11 and 13 were found not guilty and they were acquitted. Separate sentence were also imposed. Aggrieved by conviction and sentence accused Nos. 1 to 4, 6 to 8 and 12 filed this appeal. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that, there is only the evidence of PW1 and PW2 in this case to prove the occurrence. According to the learned counsel, even if the evidence of PW1 and PW2 is accepted, the prosecution is not able to prove the guilty of the accused in this case. The learned CRL.A.No.1439 OF 2005 5 counsel says that, the incident happened during night. The prosecution case is that, the witnesses identified the accused, while they were inside the house and they identified the accused through a glass alamirah, which was placed in front of their shop. According to the learned counsel the identification of the witnesses through the glass alamirah cannot be believed at all. The learned counsel also submitted that, except against accused Nos. 1, 2 and 12, no specific overtacts is alleged by the prosecution witnesses. There is no evidence to show that, there is any conspiracy or meeting of mind or common intention in between the other accused and accused Nos. 1, 2 and 12. According to the learned counsel, simply because the other accused were present at the place of occurrence they cannot be convicted for the offences alleged. The learned counsel submitted that some of accused were given benefit of doubt by the trial court, because, there is no evidence to connect those accused with the incident. According to the learned counsel, the same benefit is entitled to the other accused also. Moreover, the learned counsel vehemently argued that, the ownership of the building is not proved by the prosecution. It is also the case of the counsel that, the evidence of PW1 and PW2 can not be believed for several reasons. The learned counsel also submitted CRL.A.No.1439 OF 2005 6 that, their evidence is highly improbable. The learned counsel also submitted that, there is a correction in the FIR in this case. The learned counsel submitted that, three cases were simultaneously tried by the lower court which includes the present case also. The incident happened in that case is about 3 km from the place of occurrence in this case. Therefore, the time of occurrence is corrected in the Ext. P1 (a) FIR as 10.45 pm. The learned counsel also submitted that, if the time is wrongly mentioned by the maker of the FIR, it is the duty of the Investigating Officer to record a further statement. Without recording a further statements he manipulated the FIR. The learned counsel submitted that, that will go to the root of the case. Therefore, the entire prosecution case is collapsed, for the simple reason that, the FIR in this case is concocted. The learned counsel also submitted that, there is a delay in reaching the FIR before the court. The learned counsel submitted that, the appellants in this case are entitled the benefit of doubt. The learned counsel also submitted that, the wife of the PW1, who is one of the witness to the incident is not examined. Brother of PW2, who is also alleged witness is not examined by the prosecution. 7. The learned Public Prosecutor submitted that, there is CRL.A.No.1439 OF 2005 7 adequate oral and documentary evidence to prove the case. The learned Public Prosecutor submitted that, the allegations against the appellants are that, they set fire to the shop and residential building of PW1 at mid night. It is proved by the evidence of PW1 and PW2. According to the learned Public Prosecutor, there is nothing to interfere with the conviction and sentence imposed by the lower court. 8. The point to be considered in this case is whether the conviction and sentence imposed on the appellants by the lower court is justified or not. 9. Altogether 6 witnesses were examined in this case. PW1 and PW2 are the occurrence witnesses. PW3 is the witness to Ext.P2 scene mahazar. PW4 is the Assistant Sub Inspector, who recorded the FI statement and registered the FIR. PW5 is the Circle Inspector, who conducted investigation in this case. PW6 is another Circle Inspector, who verified the charge and submitted the final report. This is the evidence available in this case. 10. I perused the evidence of PW1 and PW2. PW1 deposed that, during 1992 he was conducting a tea shop and pan shop in his building of which the ground floor portion was used for their residence. PW1 and his wife used to sleep in the shop CRL.A.No.1439 OF 2005 8 itself during night and their two children aged 9 and 8 respectively used to sleep in the ground floor portion of that shop. The above building which is used for the residence and conducting shop is situated on the side of the NaruvamooduOoroottambalam road and the shop is in same level with the said road and the residential area is like a cellar portion. The roof of the ground floor portion is the floor of the shop which is in level with the road and there is direct access from the road to the shop. The shop had mainly thatched roof. According to him, on 22.07.1992 between 10.45 p.m and 11.00 p.m. while PW1 was sleeping in the shop along with his wife, he heard the sound of stamping on the door of the shop and both of them woke up and switch on the light and looked through the glass almirah and then found 1st accused moving from the area from where the sound was produced and he was then seen going towards the house of CW1 which is situated just on the opposite side of the shop of PW1. Then he found the house of CW1 set on fire and along with the 1st accused he found other 12 persons also. All the above 13 person were identified by him as accused Nos. 1 to 13 and out of them accused Nos. 1 to 4, 6 to 13 have been identified from the court also. All the accused were found coming towards his shop. According to him, a cannas containing kerosene was CRL.A.No.1439 OF 2005 9 found held by 2nd accused. It is the further case of the prosecution that, the 1st accused told others to pour the kerosene on the roof of PW1. Immediately 12th accused took a stick from there and after tying a piece of cloth on its tip the same was dipped in the kerosene and 12th accused granted a match stick and lit fire on the same and it was thrown on the thatched roof of the shop of PW1. Along with it, the kerosene with the cannas also was thrown on to the roof of the shop. All the others were also encouraging and proclaiming to set fire to the shop. The wife of PW1 went to the ground floor where the children were sleeping and PW1 also ran to the ground floor. The sound of a whistle was then heard and all the accused were seen going towards Naruvamoodu. After they left the place, PW1 came back and he threw some of the items from the shop to the road. PW1 and CW1 are workers of Marxist party and the accused persons are RSS-BJP activists. It is alleged that the accused committed the offence because of political rivalry. PW2 also corroborate the evidence of PW1. PW2 is the son of the 1 st informant. He is also an occurrence witness. He also narrated the facts in detail. From the evidence of PW1 and PW2 it is clear that, the house cum shop of PW1 set fire on 22.07.1992 in between 10.45 pm and 11.00. pm. There is nothing to disbelieve CRL.A.No.1439 OF 2005 10 the evidence of PW1 and PW2 regarding the fact that the house cum shop of PW1 was set fire on 22.07.1992. 11. The next question is who set fire to the house of PW1. PW1 and PW2 identified all the accused from the court. Simply because PW1 and PW2 identified all the accused from the court, this Court cannot convict the appellants. I perused the evidence of PW1. The specific overtacts attributed by PW1 is only against A1, A2 and A12. According to PW1 and PW2, the kerosene was with A2. The kerosene was poured by the 1st accused. Specific overtacts is attributed to the 12th accused also. When he was cross examined, he specifically stated like this: "പ്രതതികളതിൽ നതിങ്ങൾ പപേരുപേറഞ്ഞ 3 പപേരലല്ലാതത മറ്റുള്ളവർ എതന്തെലല് ഈ പ്രവർതതികൾ തചെയ് ല്ലായതി കണതിലപലല്ലാ(Q). സലഗതതികൾകക എലല്ലാവരുല കൂടതി നതിനക പപ്രല്ലാതല്ലാഹനല തകല്ലാടുതതിരുന(A). അങ്ങതിതന മറ്റുള്ളവർ പപ്രല്ലാതല്ലാഹതിപതിചതിരുനതല്ലായതി police ൽ പേറഞ്ഞതിരുനതിലപലല്ലാ(Q) പേറഞ്ഞതിരുന(A)" The same version was given by PW2 also. As far as the involvement of the other accused except A1, A2 and A12, the only allegation is that they also supported these three accused to commit the offence. But this portion of the evidence given by PW1 and PW2 was missing in their earlier statement given to the police under Section 161 Cr.P.C. In such circumstances, according to me, it is improper to conclude that accused Nos.3, 4, CRL.A.No.1439 OF 2005 11 6, 7 and 8 are also participated in this incident. As I said earlier, the allegation against these accused is only to the effect that they supported accused Nos.1, 2 and 12 while committing the mischief. But that portion of the evidence of PW1 and PW2 are omission in their statement given before the police. Moreover, simply because the other accused were present at the place of occurrence without any specific overtact, it is very difficult to convict them in the facts and circumstances of the case. The incident happened at about 10.45 pm. It is a public road. The people may be there in a public road for different purposes. Without any specific overtact, simply because they were present at the place of occurrence is not a reason to convict them in a serious case like this. Therefore, according to me, accused Nos.3, 4, 6, 7 and 8, who are appellants Nos.3 to 7 are entitled the benefit of doubt. 12. Then the learned counsel for the appellants argued that the entire prosecution case is collapsed for the simple reason that there is correction in the FIR. I perused Ext.P1(a) FIR. PW4 and PW5 also admit that there is a correction in the time mentioned in Ext.P1(a) FIR. The contention of the counsel is that another incident happened on the same day night at 10.15 pm in which some of the accused in this case are also the accused. CRL.A.No.1439 OF 2005 12 That was a double murder case. According to the prosecution, that incident happened at 10.15 pm. at a place which is situated about 3 km away from the place of occurrence in this case. The counsel submitted that the time in Exts.P1(a) FIR is corrected just to adjust the time with the other case which is a double murder case in which some of the accused in this case were also involved. I cannot accept the same. PW1 is a petty shop owner and PW2 is a labourer of PW1. When their house is set fire, they may not be checking the time. Probably they might have stated that it was at 10.30 pm. and subsequently it was corrected at 10.45 pm. I don't think that, that is fatal to the prosecution in the facts and circumstances of the case. It is a fact that the house is set fire and that is proved by Ext.P2 mahazar. A perusal of Ext.P2 mahazar will show that the building is set to fire. The evidence of PW1 and PW2 will show that the accused Nos.1, 2 and 12 committed the mischief. Therefore, according to me, it is not fatal about the correction in Ext.P1(a) FIR. Moreover, the maker of the FIR is not examined and he is no more. In such circumstances, according to me, the contents of the FIR cannot be looked into for any other purpose except for the purpose that the case is registered on that day. Therefore, according to me, the contention of the appellants alleging that there is correction CRL.A.No.1439 OF 2005 13 in the FIR is to be rejected. 13. There is yet another contention raised by the appellants about the identity of the accused No.12. According to the witnesses, the culprit was one Ani, S/o.Suku. But the 12[th] accused is Anil Kumar @Ani, S/o.Suguna Panicker. The counsel submitted that a suggestion is given to the witness that there is another person by name Ani, S/o.Suku. I don't think that this is a fatal thing which will doubt the identity of the 12[th] accused. The 12[th] accused is Anil Kumar @ Ani, S/o.Suguna Panicker. There is no dispute regarding the address of the 12[th] accused. According to the counsel, actually the culprit is one Ani, S/o.Suku and not Anil Kumar @ Ani, S/o.Suguna Panicker. I see there is no serious change in the name. There will be short name or pet name for all persons. In such circumstances, that is not fatal to the prosecution. Moreover PW1 and PW2 clearly identified accused No.12 from the court. Therefore, according to me, the offences are proved against accused Nos.1, 2 and 12, who are appellants No.1, 2 and 8. The other appellants are entitled the benefit of doubt. 14. The next question to be decided is what is the sentence to be imposed. The learned counsel for the appellants submitted that the alleged incident happened in 22.7.1992 and now 28 years CRL.A.No.1439 OF 2005 14 elapsed. At this distance of time, the counsel submitted that the convicted appellants may not be sent to jail. The counsel submitted that the alleged loss is less than Rs.20,000/-. I perused the scene mahazar in this case. There is no serious damage to the house. Even according to PW1, the loss sustained to him is Rs.5,000/- and according to PW2 the loss sustained to him is Rs.18,000/-. Now as stated by the learned counsel for the appellants 28 years elapsed after the alleged incident. It is true that the accused committed a serious offence. But at this distance of time whether the appellants should be sent to jail is a question to be decided in this case. 15. The counsel relied the judgment of the Apex Court in **Suryakant Baburao @ Ramrao Phad v. State of Maharashtra & another (AIR 2019 SC 3629).** The Apex Court observed in the above case like this: “13. The question of awarding sentence is a matter of discretion for the courts and has to be exercised on consideration of facts and circumstances of the case. Though the court has discretion in awarding the sentence, it should be commensurate with the gravity of the offence. The court has to record brief reasons to explain the choice of sentence.” ## 16. Similarly in **Maqsood and others v. State of U.P (2016(15)SCC 748)** the Apex Court observed like this: “11. For the purpose of deciding the above contention advanced on behalf of the State it is not necessary for us to enter into a detailed discussion on the CRL.A.No.1439 OF 2005 15 nature of the sentencing power and the principles governing its exercise as also the parameters for interference in the case of inappropriate sentencing. All that would be required to be noticed is that, though not specifically mentioned in the order of the High Court, the incident had occurred in the year 1997 and that death had occurred in the course of a mutual fight. The party of the complainant had also been tried for injuries caused to some of the present accused and have been found guilty and convicted under S.325 IPC which conviction and the sentence imposed (One year RI) has been challenged in the connected appeal (Criminal Appeal No.207 of 2011). Taking into account all the said facts and the long efflux of time that has occurred, we are of the view that no interference with the sentence imposed by the High Court would be justified. Accordingly, we dismiss this appeal and affirm the order of the High Court.” 17. In **Ravinder Singh and Others v. State of Haryana and Others (2015(11) SCC 588)** , the Apex Court reduced the sentence because the incident happened about 22 years back in that case. In **Birdha @ Birdhi Lal v. State of Rajasthan (2016 KHC 3114)** , the Rajasthan High Court also reduced the sentence to the period already undergone because 26 years elapsed after the incident. 18. Bearing in mind the above principle, I considered this case. Admittedly, 28 years elapsed after the incident. No physical hurt sustained to anybody in this case. The charge is that, the accused set fire to the house. That can be adequately compensated by imposing fine. No minimum sentence prescribed for the offence under Section 436 IPC. 19. According to the counsel for the appellants, the CRL.A.No.1439 OF 2005 16 appellants were in custody during the crime stage for a period of 40 days. If that is the case, considering the entire facts and circumstances of the case and also considering the fact that the alleged incident happened about 28 years back, I think, the sentence can be reduced to the period already undergone and with a direction to pay a fine and a consequential direction to pay compensation to PW1 and PW2. Therefore, this Criminal Appeal is allowed in part. i) The conviction and sentence imposed on the appellants 3 to 7, who are accused Nos.3,4, 6, 7 and 8 under Section 143, 147 and 436 r/w 149 IPC are set aside. Their bail bond is cancelled and they are set at liberty. ii) The conviction imposed under Sections 143, 147 and 436 r/w 149 IPC on appellants Nos.1, 2 and 8 who are accused Nos.1, 2 and 12 in the case are confirmed. iii) The sentence imposed on them by the lower court is set aside. iv) The appellants Nos.1, 2 and 8 are sentenced to undergo simple imprisonment for 40 days under Sections 436 r/w 149 IPC and to pay a fine of Rs.50,000/-. In default of payment of fine, the accused are directed to undergo simple imprisonment for one year. CRL.A.No.1439 OF 2005 17 v) The appellants 1, 2 and 8 are sentenced to pay a fine of Rs.5,000/- each under Section 143 IPC. In default of payment of fine, the accused are directed to undergo simple imprisonment for one month. vi) The appellants 1, 2 and 8 are sentenced to pay a fine of Rs.5,000/- each under Section 147 IPC. In default of payment of fine, the accused are directed to undergo simple imprisonment for one month. vii) If the fine amount is realized, the entire amount will be paid to PW1 and PW2 equally under Section 357(1) Cr.P.C. viii) Set off is allowed. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** ## **LU/ab**