Pandiswamy vs The State

A.K. Banerjee, J.

FACTS:

Appellant Pandiswamy was married to Krishna, daughter of Shri Harikrishna, PW-1. Marriage took place on May 15, 2005. Soon after the marriage, the relationship became strained. Krishna came back to her paternal house and started living there. On the fateful day, i.e. on February 22, 2006, at about 1.00 O''clock in the night, the accused suddenly attacked the house of Harikrishna and tried to set it on fire. The fire was soon put off with the help of neighbours. Pandiswamy was arrested and proceeded under sections 436 and 506 of the Indian Penal Code. Pandiswamy pleaded not guilty hence, faced trial.

EVIDENCE:

The prosecution produced eleven witnesses whereas the defence produced none.

PW-1, Harikrishna deposed, soon after the marriage, Krishna had to come back as she had been tortured for dowry. She was pregnant at the time when she left matrimonial home. The accused used to come to his house and always threatened his daughter in different ways. On the fateful day, accused attacked the house with ballam and set the house on fire by pouring inflammable oil. He saw the accused setting fire, out of fear, he could not resist him. He raised alarm when Rajendran, being PW-3, a neighbour came out of his house. Rajendran also saw the accused setting the house on fire. PW-4, Ramaswamy also came to the spot and reported the incident to the police. Police came around 2.30 O'' Clock in the night. The accused was still showing vengeance and expressing his pleasure for success. However, when he found the policemen, he left the spot. On the following day, he saw the accused in Court. Police seized burnt articles and took photographs of the house. During the cross-examination, he described the topography of his house and informed the Court about the inmates. He also informed the Court that his youngest daughter had committed suicide on November 24, 2010 by burning herself. He denied the fact that the accused had not come and not involved in the incident.

PW-2, Shri S. Om Prakash was the son of Harikrishna. He also corroborated his father. He deposed, curtains in their house and the adjoining shop caught fire. He also found the accused standing on the road with a ballam and a container with oil in hand. Rajendran came to the spot. Om Prakash reported the incident to his maternal uncle Arjun. In cross-examination, he admitted, he was an accused in one pending criminal case u/s 376 of the Indian Penal Code. He also admitted to have been in judicial custody for some days. He admitted, house hold articles were not damaged. Fire was extinguished before arrival of the police.

PW-3, Shri M. Rajendran, was a neighbor. He was an eye witness. He corroborated Harikrishna. He was also a signatory to the seizure list. In Cross-examination, he deposed, he did not see the accused on the spot. He further deposed, the front portion was burnt and then modified his answer to the extent, curtain in the front portion was burnt. He denied the suggestion, he did not see any fire in the house of Harikrishna or that no article had been seized in his presence.

PW-4, Shri M. Ramaswamy was also a neighbor. Hearing noise, he came out of the house and found Harikrishna engaged in altercation with the accused. He went back to his house and reported the incident to the police. He also found curtain of the door in burnt condition. He also saw Rajendran, his brother, present there. He denied the suggestion, he did not see the accused involved in altercation with Harikrishna or that he had not visited the house of Harikrishna or that no article had been seized in his presence. He was a signatory to the seizure list.

PW-5, Shri V. Arjun, was the brother-in-law of Harikrishna. Upon receipt of a telephone call from Harikrishna, he rushed to the spot. He tried to pacify the accused. He also found fire in the house of Harikrishna. The front door and some chattai were found burnt up. He denied the suggestion that he had not found the accused on the spot or that he had not seen the fire or the burnt up articles.

PW-6, Shri R. Krishnamurthy, was the Head Constable. He recorded the FIR.

PW-7, Roopa was the photographer.

PW-8, Smt. Lakshmi Devi, was the wife of Harikrishna. She also corroborated her husband. She deposed, one Sahadevan was her brother holding very high post. She denied the suggestion, she did not tell the police about the burnt up articles or the accused having ballam in his hand or that the neighbours had not tried to pacify the accused or that the accused had not set their house in fire or that they had initiated false case against the accused.

PW-9 was the Station House Officer, Pahargaon. He entrusted the investigation on Shri Rameshwar Singh, Sub Inspector attached to the Police Station. He identified the signature of Shri Rameshwar Singh.

PW-10 Shri Lakhram Singh was also a Sub Inspector. He was also present on the spot and recorded the statement of Shri Harikrishna.

PW-11, Shri M. Pandian was an Auto Driver at the relevant time. He knew the accused and identified him in Court. He found some one running away but could not identify him. He went to the shop of Harikrishna and saw, cloth was burnt and the front door of the shop was also burnt to some extent. He saw Ramaswamy and Rajdendran present on the sport. He was examined by the police. The witness was declared hostile by the prosecution. In cross-examination, he denied the suggestion that hearing the barking of dog, he came out of the house and found, Pandiswamy was running or that the police had been chasing him or that he had found the smell of kerosene and empty bottle on the spot.

The accused was examined u/s 313 of the Code of Criminal Procedure. He denied the charges. He deposed, his father-in-law tried to separate him from his wife and that was why a false case was made against him. After he was taken to jail, his wife was burnt to death. He was not aware whether it was a case of suicide or homicide. He was falsely implicated. His child was kept with his father-in-law.

JUDGMENT AND SENTENCE OF THE LEARNGED SESSIONS JUDGE:

Learned Sessions Judge considered the evidence, briefly discussed the same. The learned Sessions Judge interpreted Section 436 by observing, the essential element was, committing or intending to commit mischief by fire and thereby causing destruction. Learned Judge possibly wanted to hint, the extent of damage could not have the dominant role while trying the offence u/s 436 of IPC. The learned Judge ignored the insignificant mistake and/or error in mentioning the date of incident.

The learned Judge, while examining the evidence, considered the decision rendered in the case of A.E.G. Carapiet Vs. A.Y. Derderian, to support his view, when the opponent declined to avail himself of the opportunity to put his essential and material case cross-examination, it must follow that he believed that the testimony given could not be disputed. Failure to cross-examine on the date of occurrence would leave the accused with no chance to deny the same. The learned Judge, however, observed, sufficient evidence was there to show that the incident had occurred on February 22, 2006.

On discrepancy of date, the learned Judge was also considered the decision in case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, wherein the Apex Court observed, by and large, the witness would not be expected to possess the photographic memory and recall the details of an incident. The discrepancy which would not come to the root of the matter and shake the basic version of the witnesses should be ignored more so, when all "important probabilities-factor" echoed in favour of the version narrated by the witnesses.

Applying the ratio decided therein, the learned Judge held, there was no material discrepancy to shake the basis of the prosecution story that would have corroboration from each other. The accused was confronted with such evidence that he could not brush aside with plausible reason.

The learned Judge observed, the fact that the fire was extinguished, could not be a mitigating factor. The fire could have caused great damage to the building that the witnesses could successfully stop. Use of inflammable oil would support the prosecution story on that score. The act of demonstration of pleasure by the accused after the house was set on fire, would unmistakably show, he had the intention to set the house on fire that would come within the mischief of section 436 of IPC. Learned Judge considered the other Apex Court decisions that would support his interpretation of law that I have discussed hereinbefore. He also rejected the contention of the defence counsel to the extent, non examination of the investigating officer was fatal.

He lastly held as follows:

Considering, the materials on record and on appreciation of the evidences, I have come to the conclusion that the prosecution is able to establish it''s case. I am considered opinion that it is established beyond reasonable doubt that the accused person is guilty of offence U/s. 436 of the Indian Penal Code. It is my conclusion that the accused person committed mischief by fire with intention and knowledge that he would cause the destruction of the building of the complainant.

I am of considered opinion that charge U/s. 436 of the I.P.C. is established and the accused person is liable to be convicted for commission of the offence U/s. 436 of the I.P.C.

He held the accused guilty of the offence and punished him by imposing sentence of three years imprisonment coupled with a fine of Rs. 2000/- and in default to suffer imprisonment for two months. Hence, this appeal by the accused.

CONTENTIONS:

Mr. Krishna Rao, learned counsel appearing for the accused in support of the appeal would highlight the discrepancy that I have discussed hereinbefore. According to him, the damage was so minimal that would not suggest, the accused had the intention to cause fire. According to him, the fire might have caused accidentally. PW-1, PW-2 and PW-8, being the father, son and the mother of Krishna, did not have appropriate corroboration from the other accused.

Commenting on the neighbour witnesses, he would contend, there had been material discrepancies that would demolish the prosecution case. He prayed for setting aside the judgment and sentence of the learned Sessions Judge.

Per contra, Mr. Santosh Kumar Mandal, learned Public Prosecutor would support the judgment and sentence by contending, minor discrepancy should not come in the way of punishing the accused. The accused not only set the house on fire but also was determined to do so that would have support from his conduct that came out in evidence. He was also throughout present on the spot, till the police came, then he fled away. He would pray for dismissal of the appeal.

MY VIEW:

I have considered the rival contentions. I have carefully perused the evidence. I agree with the defence, there had been discrepancy on the date. However, taking sum total of the evidence, such discrepancy would be immaterial. Harikrishna and his son Om Prakash said, the incident occurred on July 22, 2006 whereas others unmistakably described the incident to have happened on February, 22, 2004. The police record would also support such evidence. Hence, this mistake was inadvertent and could not have any dominant role in demolishing the prosecution story. The record would show, the accused was arrested in connection with the case on February 23, 2006 and he was in jail. Hence, I ignore such mistake. In any event that could not be fatal so as to demolish the case of the prosecution. The fardbayan and the panchnama were both dated February 22, 2006 as I find from the paper book.

Proposition of law that the learned Sessions Judge discussed, after truly interpreting section 436, is accurate. The intention to cause fire was proved to the hilt through more than one eye witness. I do not find any scope to interfere.

SENTENCE:

The learned Judge sentenced him for three years. The section would suggest, the imprisonment should be for life or for a term that may extend to ten years. The learned Judge sentenced him for three years. He is in jail suffering the sentence.

Mr. Krishna Rao would inform, the accused was also implicated in Pahargaon P.S. Case No. 75 of 2000 u/s 307 of the Indian Penal Code. In that case, the accused attacked one Pyarelal with the complain, Pyarelal had informed the police about his illegal liquor business and threatened, he would not spare him. He assaulted Pyarelal aiming at his head and then fled away. Pyarelal received injury and was admitted in G.B. Pant Hospital for about 14 days when he was discharged after being cured. Pandiswamy suffered rigorous imprisonment for seven years with a fine of Rs. 15,000/- and in default further two year rigorous imprisonment.

Mr. Krishna Rao, would contend, Pandiswamy is suffering the sentence in respect of both the cases. His mother applied for remission by making an application to the Lieutenant Governor on March 11, 2014. The authority, however, is yet to consider the same.

From the letter, I find, both the parents are alive. The father of the accused was about 70 years old, there was nobody to look after them. The mother was suffering from various ailments. She had undergone surgery thrice in G.B. Pant Hospital. She could not move freely. Her son was in judicial custody since 2008 and completed sentence in one case and suffering the other sentence.

Mr. Rao would also produce a certificate from the District Jail authority to the effect, the accused deposited the fine amount. He already suffered sentence that expired on August 15, 2013 after setting off the period that he had undergone during the trial. Since then, he was suffering the sentence in the present case. Mr. Roy would contend, in case, this Court would dismiss the appeal, it should make appropriate observation so that the authorities may consider his mother''s application sympathetically.

As I have held earlier, I do not find any scope to interfere with the judgment of the learned Sessions Judge, I also do not find any scope to reduce the sentence. However, considering the plight of the ailing parents and their advance age and considering the fact that the sole child was being deprived of her parental care, the appropriate authority may consider the application dated March 11, 2014 in accordance with law. I hope and trust, the authorities would certainly consider his past conduct in jail custody.

I wish to observe so as I am told, the wife of the accused also committed suicide leaving the child as orphan.

RESULT:

The appeal fails and is hereby dismissed subject to the observation made as above.

A copy of the judgment and order be sent to the Correctional Home at Prothrapur for onward transmission to the accused.

The lower court records be sent down at once.