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2002 DIGILAW 503 (KER)

Thampi v. State of Kerala

2002-07-25

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The appellant in aggrieved that the Additional sessions court, Mavelikkara convinced him for the offence under sec. 436 of the I.P.C. and imposed the sentence of R.I. for two years. 2. The allegation was that at about 3 a.m. on 3.12.1992 the accused set fire to the dwelling house of PW1, a widow of which the only other occupant was CW2, who is her daughter Lailamony. It is also alleged that as PW1 apprehended that the accused who had warned her three days before the occurrence, might do some wanton act, she, along with her daughter, started sleeping in the house of a neighbour-PW2 and that it was after calling out whether there is no one in the house that the accused actually set fire to it. 3. Sri.B.Raman Pillai, who argued the case of the appellant submitted that there is no adequate evidence to find the accused guilty. The difficulty for identification of the offender at night and the absence of adequate light in the area were also highlighted. Yet another aspect pointed out is that the date of occurrence being in the winter and nights of that season being misty, it was not easy for anyone to set fire to a house. The failure to examine investigating officer as a witness is also pointed out as a major defect in the prosecution proceedings. 4. On the arguments advanced in the case, the points that arise for decision are: Whether there is sufficient evidence to conclude that the accused was the person responsible for setting fire to the house of PW1 as alleged? 2. Whether the conviction and sentence entered against the accused are justified? 5. Point No. 1:- The evidence of PW1 shows that the accused lives only two or three houses away from her residence and that on two or three occasion the accused had approached her with a request that her daughter Lailamony (she is now doing domestic work in the Gulf) might be married to him and that considering the fact that these parties were of different religious she (PW1) had expressed her inability to accede to the said request. It would appear from Ext.P2 that there was, in fact, execution of a marriage deed between the accused and daughter of PW1 on 4-2-1992 and that on 7.10.1992 the said document was cancelled by Lailamony. It would appear from Ext.P2 that there was, in fact, execution of a marriage deed between the accused and daughter of PW1 on 4-2-1992 and that on 7.10.1992 the said document was cancelled by Lailamony. This naturally gave rise to heartburn for the accused. It is deposed to by PW1 that three days before the occurrence in this case; that is, on or about the first of December, 1992, the accused went over to her house and wanted Lailamony to join him forthwith. At the time the accused also threatened that if the said request was not compiled with, they would see what would happen. Naturally PW1 was afraid of what was going to happen and from that day onwards she was spending her nights with Lailamony in the house of PW2 who is the paternal aunt of PW1. The said house is marked in Ext.P4 plan as situated only 75 meters north east of the house of PW1. 6. PW1 further deposed that about 3 a.m. on the fateful night the accused knocked at the door of her house and called Lailamony by her pet name that is ‘Mony’. He made a commotion there on hearing which PW2 also rose up. When PW1 looked up after getting out of the house, she saw the accused standing at the courtyard of her house, stating ‘if there is no one to answer, I will show you what will happen’. The accused then struck a matchstick and set fire to the north western corner of the house of PW1. The fire spread very rapidly. PW1 cried out on hearing which the neighbours also reached the spot. At that time the accused ran away from the spot. Though attempts were made to extinguish the fire that did not succeed and the house was gutted completely. 7. The evidence of PW1 as above finds corroboration from PW2 also. It is true that they are relatives between each other; but it has to be remembered that it was in the house of PW2 that PW1 spent the particular night and the best person to corroborate PW1 with regard to whatever happened on that night was PW2 herself. 7. The evidence of PW1 as above finds corroboration from PW2 also. It is true that they are relatives between each other; but it has to be remembered that it was in the house of PW2 that PW1 spent the particular night and the best person to corroborate PW1 with regard to whatever happened on that night was PW2 herself. She has categorically stated that when she heard the voice of the accused, it was about 3 a.m. and that when she got out of the house along with PW1, she saw the first accused standing at the northern courtyard of the house of PW1. With regard to availability of light which enabled her to identify the accused, she stated that electric light was available outside the house of PW3 which is actually situated 11 meters west of the western wall of the gutted house of PW1. 8. The fact that there is a light outside the house is admitted by PW3 also though he turned hostile and did not support the prosecution with regard to the specifics of the occurrence. His version that though he was living only 11 metres away, he came to know of the fact that the building of PW1 was gutted completely only in the morning shows that he was not prepared to state the truth before the court. According to me, there is strong motive proved by the prosecution. The accused was frustrated in consequence of the refusal of Lailamony to join him and also because the marriage contract was repudiated two months before the occurrence. 9. Even assuming that there was no sufficient light enabling identification of the accused by sight at the time of occurrence the fact that the accused was well known to PWs. 1 and 2 and that both had heard the voice of the accused outside the house of PW2 just before the occurrence clearly shows that the identification spoken to by PWs.1 and 2 is possible and believable. 10. The contention that being a misty night it was not possible for the house to be set fire to is well answered by the fate of the house itself. The accused has no case that the building of PW1 was in existence after 3.12.1992. The mahazar prepared in the case shows that the building was completely gutted on 3.12.1992. 10. The contention that being a misty night it was not possible for the house to be set fire to is well answered by the fate of the house itself. The accused has no case that the building of PW1 was in existence after 3.12.1992. The mahazar prepared in the case shows that the building was completely gutted on 3.12.1992. That the building was completely gone by day break on 4-12-1992 is not a disputed fact at all. Hence the question whether there was mist or not on 8.12.1992 is not at all a relevant aspect. 11. Reliance was placed by the learned counsel for the appellant on the decision in Kunjayyappakutty v. State of Kerala (1993(2) KLT 64) to contend that in moon light a person would not be visible enough for identification beyond a distance of 20 to 25 meters. The said decision has no application here because it is the version of PW2 that identification was possible because of the electric light available outside the house of PW3. That apart, as already mentioned, identification by voice was also possible here. 12. The fact that the PW3 turned hostile and that there is no other neighbour examined in the case is also of little consequence. As long as the evidence of PW1 and PW2 stands unshaken and their version is fully in agreement with other proved circumstances including the strong motive on the part of the accused. I am of the view that the trial court was justified in accepting the version of PWs1 and 2 to conclude that it was none other than the accused, who set fire to the house of PW1. 13. The learned counsel for the appellant placed reliance on Exts. D1 to D3 show that in Ext.D2 complaint filed on 20-3-1993 alleging kidnapping and forceful execution of a document of marriage on the part of them accused, she had mentioned of 5 persons as the accused and it was also mentioned in Ext.D2 that pursuant to execution of cancellation deed relating to the material agreement. Accused Nos. 2 to 5 in Ext. D3 case(crime No. 126/1993) had set fire to her house. It is mentioned therein that a separate case has been registered in respect of the occurrence. The fact that the possible complicity of accused Nos. Accused Nos. 2 to 5 in Ext. D3 case(crime No. 126/1993) had set fire to her house. It is mentioned therein that a separate case has been registered in respect of the occurrence. The fact that the possible complicity of accused Nos. 2 to 4 in the said case along with the 5th accused therein who is the present appellant, was mentioned in Ext.D2 does not appear to be sufficient to create a doubt in the mind of the court justifying grant of benefit of doubt to the accused. 14. As regards the non-examination of the investigating officer (Circle Inspector) the answer of the Government Pleader is that as stated by PW6-Sub Inspector, he was away in the United States at the time of trial in the present case and there was practical difficulty to bring him. The only prejudice that the appellant can claim, if at all any arising from the non examination of the investigating officer is the inability to properly prove the contradictions brought out through PW3 viz.a.vis. the case diary statements with which he was confronted. Even assuming that these contradictions are proved at the most what can stated is that PW3 is an unbelievable witness. Here is a case where even the evidence of PWs. 1 and 2 are sufficient to bring home the guilt of the accused and hence the non-examination of the investigating officer does not appear to be of much significance on the facts of this case. 15. During hearing the learned counsel for the appellant placed reliance on State of Kerala v. Retnakaran (2001(1) KLT 144) to show that non-examination of the investigating officer could be fatal. That was not a case of similar facts. There the investigating officer was very much available in the country; but the court did not pursue the matter of his non appearance. The failure of the court to take coercive steps was deprecated and based on the importance of examination of investigating officer with reference to the facts involved therein. It was mentioned that the lapse was grave. In the present case the position is entirely different. In the circumstances, I am of the view that the trial court was right in finding that the responsibility for the destruction by fire of the house of PW1 lay entirely with the appellant. 16. It was mentioned that the lapse was grave. In the present case the position is entirely different. In the circumstances, I am of the view that the trial court was right in finding that the responsibility for the destruction by fire of the house of PW1 lay entirely with the appellant. 16. Point No.3:- The offence under Sec. 436 of I.P.C. is punishable with imprisonment for life or imprisonment which may to 10 years besides fine. When the gravity of the offence and the fact that the offending act of the accused has deprived PW1 a hapless widow, of her place of abode are taken into account, I am of the view that the court has erred, if at all it did only in the ,matter of giving a punishment of imprisonment for just two years. There is absolutely no scope for reducing the sentence any further. The appeal, in the circumstances, is found to be without merit and is dismissed.