SHIBU, S/O.SUNDARASAN vs STATE OF KERALA

The revision petitioners herein are the two accused in

S.C 289/1996 of the Court of Session, Thiruvananthapuram.

They faced prosecution before the learned Assistant

Sessions Judge, Attingal under Sections 452, 323 and 436

read with 34 of the Indian Penal Code, on the allegation that

at about 8 p.m 24.10.1995, they trespassed into the house

of one Kochupennu and Vasudevan (wife and husband),

assaulted the said Vasudevan due to some previous enmity,

and they also set fire to their house, thereby causing a loss

of 300/- to them. The Police registered the crime on the

complaint of the said Kochupennu, made on the next day,

and after investigation, the Police submitted final report in

court. The two accused entered appearance before the

learned trial Judge and pleaded not guilty to the charge

framed against them under Sections 452, 323 and 436

read with 34 I.P.C .

The prosecution examined 11 witnesses in the

trial court and proved Exts.P1 to P6 documents. The MO1

property was also identified during trial. This is the

remnants of the burnt articles. When examined under

Section 313 Cr.P.C, the accused denied the incriminating

circumstances, and projected a defence of total denial. In

defence, they examined a neighbour of the victims as DW1.

On an appreciation of the evidence, the trial court

found both the accused guilty. On conviction, they were

sentenced to undergo rigorous imprisonment for three

months each and to pay a fine of 500/- each under Section

452 r/w 34 I.P.C, to pay a fine of 1000/- each under Section

323 I.P.C, and to undergo rigorous imprisonment for one

year each, and to pay a fine of 500/- each under Section

436 read with 34 I.P.C by judgment dated 18.11.1998.

Aggrieved by the judgment of conviction, the two accused

approached the Court of session, Thiruvananthapuram with

Crl.A 489/1998. In appeal, the learned II Additional Sessions

Judge found the accused not guilty under Section 323 I.P.C,

and accordingly set aside the conviction thereunder. But

the conviction under Sections 452 and 436 I.P.C read with

34 I.P.C was confirmed. However, the sentence under  Section 436 I.P.C was modified and reduced to rigorous

imprisonment for six months. The said judgment of the

appellate court dated 9.9.2005 is under challenge in this

revision.

The short point for consideration in this revision is

whether there is any illegality or irregularity or infirmity in

the findings concurrently made by the courts below or the

sentence. PW3 and PW4 are wife and husband, and

according to the prosecution, their house was set ablaze by

these revision petitioners at about 8 p.m on 24.10.1995.

PW5 and PW6 are their children. PW7 is a neighbour and

DW1 examined on the defence side is another neighbour.

The evidence given by DW1 is negative in nature that no

incident as alleged by the prosecution had occurred at the

house of PW3 and PW4. This evidence is really worthless in

view of the evidence given by the another neighbour

examined as PW7, that there was such an incident, but he

could not see and identify the persons who ran off and

escaped from the scene of incident. PW7 was declared

hostile. When cross-examined by the learned Public

Prosecutor, he maintained and affirmed his stand that the

house of PW3 and PW4 was set ablaze by somebody in the

night ,and by the time he and others reached there, the

persons who did it, ran off and escaped. He could not see

and identify them.

PW3 to PW6 are the material witnesses in this

case. They have given definite and consistent evidence

proving the alleged incident of arson and trespass. Of

course, the conviction under Section 323 I.P.C stands set

aside by the appellate court. A clear case of house trespass

and arson is well proved by the evidence of PW3 to PW6.

Though PW7 did not identify the accused, he gave evidence

that somebody had set fire to the house of PW3 and PW4.

MO1 remnants of the articles burnt was identified by the

witnesses during trial. Of course, it is true that heavy loss

was not caused to the victims. The loss claimed by them is

only 300/- in 1995, because only some cadjans were burnt

in the incident. Anyway, the evidence given by the material

witnesses is consistent that it was done by these two

revision petitioners. It is pertinent to note that practically

the whole cross-examination of the material witnesses was

on assault, identification of accused etc. Much was not

asked about the incident of arson as to who did it, and how

they did it. Anyway, evidence well satisfies the court that

the factual allegations are well proved, that a portion of the

house of PW3 and PW4 was set ablaze by these two revision

petitioners after trespassing into their house. The defence

has not projected any infirmity or illegality for consideration

by this Court. I find that the conviction is liable to be

confirmed in revision also. I find no reason or ground for

interference in revision.

Now the question of sentence. Though the trial

court imposed a sentence of rigorous imprisonment for one

year under Section 436 I.P.C, the learned trial Judge

reduced it to simple imprisonment for six months. Of

course, arson is a heinous crime. Anyway, in deciding the

quantum of sentence, the nature and measure of loss and

also the circumstance of the offence can be considered by

the Court. It is submitted that the revision petitioners are

very young persons and promising too. On a consideration

of all the relevant aspects including the long lapse of years

since 1995, I feel it appropriate to modify and reduce the

sentence further in the interest of justice. I feel that simple

imprisonment for three months can be imposed under

Section 436 I.P.C,and the sentence imposed under Section

452 I.P.C also can be modified as simple imprisonment.

In the result, the conviction against the revision

petitioners under Sections 452 and 436 read with 34 I.P.C is

confirmed and the revision petition is disposed of

accordingly. However, the sentence imposed under Section

436 I.P.C will stand further modified and reduced to simple

imprisonment for three months and the sentence under

Section 452 I.P.C will stand altered to simple imprisonment

for three months. The substantive sentences will run

concurrently, and the revision petitioners will get the benefit

of set off as already ordered by the trial court.