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2004 DIGILAW 1044 (AP)

Puranam Madhusudhana Rao v. State Of A. P.

2004-09-21

P.S.NARAYANA

body2004
( 1 ) THE sole accused in S. C. No. 56 of 2001 who stands convicted under Section 436 I. P. C. was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine Rs. 500/-, in default, to undergo simple imprisonment for a period of three months. Smt. A. Padma, learned counsel representing the appellant/accused provided by legal aid would submit that P. W. 1 is none other than the father-in-law of the accused and P. W. 2 is the wife of the accused. The learned counsel would contend that except the statements of P. Ws. 1 and 3, deposing that they had seen the accused running away, there is no other evidence available on record, and no doubt, P. W. 2 also deposed that she had seen the accused running away. Learned counsel would submit that P. W. 2 deposed that after handing over the accused to the police, she came back to her house and on the same day at about 2. 00 a. m. , the accused came to the house and knocked the door. The learned counsel also had drawn the attention of this Court to the evidence of P. W. 6, who had deposed that on the same day at about 17. 00 hours, he arrested the accused at Ayyappa Swamy Temple at Gallapudi and taken him to the police station and sent him for remand. Learned counsel would submit that in the light of the evidence of P. Ws. 2 and 6, virtually it is impossible for the accused to be present at the scene of the offence at 2. 00 a. m. on the same day and hence, due to misunderstandings, definitely, this case should have been foisted as against the appellant/accused. ( 2 ) PER contra, learned Additional Public Prosecutor had drawn the attention of this Court to the evidence of P. W. 5, Assistant Sub-Inspector of Police and also P. W. 6, Sub-Inspector of Police and would submit that in cross-examination. P. W. 6 specifically deposed that the accused was sent away with a warning since it was a family dispute and hence, the possibility of the accused being present at the scene of offence at the relevant point of time on the fateful day cannot be doubted in any way. Learned Counsel also placed reliance on the evidence of P. Ws. Learned Counsel also placed reliance on the evidence of P. Ws. 1, 2 and 3 in this regard. ( 3 ) THE appellant/accused was charged with Section 436 I. P. C. in Crime No. 75 of 2001 of L and O, I Town Police Station, Vijayawada, which was registered as P. R. C. No. 6 of 2001 on the file of the II Metropolitan Magistrate Court, which was committed to the Court of Session and the learned Sessions Judge after recording the evidence of P. Ws. 1 to 6 and marking Exs. P. 1 to P. 5 and also M. O. 1 convicted the accused under Section 436 I. P. C. and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for a period of three months. ( 4 ) THE case of the prosecution is that the accused is a resident of Hyderabad and now at Gollapudi. One Bandela Simhadri examined as P. W. 1, is a resident of Gollapudi, the father-in-law of the accused. Puranam Yesumani examined as P. W. 2 is the wife of the accused. It is also the case of the prosecution that the accused and his wife lived together for about 13 years after their marriage and they begot two sons. Since the accused had been continuously harassing P. W. 2, she came down from Hyderabad and had been staying with her parents for about one year at Gollapudi. The further version of the prosecution is that on 07-02-2001, the accused came to the house of P. W. 1 and raised some controversy with P. W. 2 and attempted to beat her and his children in drunken state. Thereby, she gave report to the police and the police warned the accused and let off. Hence the accused bore grudge for what had happened and on 08-02-2001 at about 3. 00 hours, set fire to the thatched house of P. W. 1, due to which some palm leaves and bamboos were gutted and thereby, caused damage to a tune of Rs. 500/ -. Hence the accused bore grudge for what had happened and on 08-02-2001 at about 3. 00 hours, set fire to the thatched house of P. W. 1, due to which some palm leaves and bamboos were gutted and thereby, caused damage to a tune of Rs. 500/ -. Later P. W. 1 presented a report to the police and the police registered the crime and the same was registered as P. R. C. No. 6 of 2001, which was committed to the Court of Session and ultimately tried by the learned Metropolitan Sessions Judge, Vijayawada as S. C. No. 56 of 2001. ( 5 ) P. W. 1, the father-in-law of the accused deposed that on the date of the incident, he went to the coolie work and on that day, P. W. 2 and the accused quarreled with each other and that P. W. 2 went to the police station and gave a complaint and thereafter, the police called the accused and P. W. 2 and chastised them and sent them. He further deposed that after his return from coolie work, P. W. 2 informed the incident and police report and after dinner they all slept in their house and at about 1-30 in the mid night, the accused came and knocked the door and he informed the accused that it is not proper to come at that odd hour and asked him to sleep and that they can talk in the morning and that the accused kept silent and that they thought that he slept and after fifteen minutes, his son informed him that there was fire and then he woke up and observed that his house was burning and that the accused set fire and went away and then he brought out all his family members and later put off the fire with the help of neighbours and that it was 4-00 a. m. by the time fire was put off and then, he went to the police station at about 8. 00 a. m. and made a complaint. Ex. P. 1 is the complaint. Ex. P. 2 is the photograph of the scene of offence with negative. This witness deposed in cross examination that he stated before the police that the incident took place at about 2. 00 a. m. and made a complaint. Ex. P. 1 is the complaint. Ex. P. 2 is the photograph of the scene of offence with negative. This witness deposed in cross examination that he stated before the police that the incident took place at about 2. 00 a. m. and on the date of incident, the accused was not present in their house and no doubt, he denied the suggestion that he did not see who set the fire. It is pertinent to note that it was not suggested to P. W. 1 that the accused was detained by the police and was sent to remand and hence, the accused could not have been present at the relevant point of time. ( 6 ) P. W. 2 deposed about the disputes and no doubt she also specifically deposed that when the accused was harassing her family members, her brother called the police and the accused was handed over to the police and after handing over the accused to the police, she came back to her house and on the same day at about 2. 00 a. m. , the accused came to her house and knocked the door and P. W. 1 refused to open the door and asked the accused to come in the morning to have any talk and they thought that the accused slept outside as he was in the habit of doing so and after some time, they noticed fire and when they came out of the house, found the accused running away. ( 7 ) SUBMISSIONS at length were made by the counsel representing the appellant/accused placing strong reliance on the evidence of P. W. 2. P. W. 3, no doubt, deposed that he found the accused running away towards Gandhi Statute centre. P. W. 4 is the mediator, who deposed about the seizure of M. O. 1 and also signing of Ex. P. 3. P. W. 5 is the Assistant Sub-Inspector of Police, who deposed about the registering of the crime and also sending the F. I. R. to the court and examination of P. Ws. 1, 2 and 3 and two others at the scene of offence and also preparing a rough sketch of the scene of offence, Ex. P. 5 and Sub-Inspector of Police filing charge sheet. 1, 2 and 3 and two others at the scene of offence and also preparing a rough sketch of the scene of offence, Ex. P. 5 and Sub-Inspector of Police filing charge sheet. This witness also deposed that there was an earlier complaint against the accused prior to the incident and he was not remanded on earlier complaint. This witness also deposed that it is not true to suggest that the accused is falsely implicated. ( 8 ) THE evidence of P. W. 6 is that he verified the investigation made by the Assistant Sub-Inspector of Police and found it on correct lines and the same day at about 17. 00 hours, he arrested the accused at Ayyappa Swamy Temple at Gollapudi and brought him to the police station and sent him for remand and after completion of the investigation, he filed charge sheet. ( 9 ) THE evidence of P. W. 6 sending the accused for the remand is in relation to taking up investigation in Crime No. 75 of 2001 under Section 436 I. P. C. Submissions at length were made by the learned counsel that inasmuch as this investigating officer deposed about sending the accused for remand and it is highly improbable or impossible for the accused to be present at the scene of the offence. It is pertinent to note that P. W. 6 deposed in cross examination that prior to the incident, complaint was given and on that, P. W. 2 and the accused were called to the police station and that the accused was sent away with a warning as it was a family dispute. So from he evidence of P. Ws. 5 and 6, it is clear that as deposed by P. W. 2, there was some problem and thus they were called to the police station and on the self-same day with a warning the accused was let off. So from he evidence of P. Ws. 5 and 6, it is clear that as deposed by P. W. 2, there was some problem and thus they were called to the police station and on the self-same day with a warning the accused was let off. In fact, this version of the prosecution would strengthen the case of the prosecution that this would have been the reason why in the odd hours, the accused had knocked the door of P. W. 1 on the fateful day and subsequent thereto, had involved himself in the commission of the offence under Section 436 I. P. C. ( 10 ) SECTION 436 I. P. C. dealing with mischief by fire or explosive substance with intent to destroy house, etc, reads as hereunder: whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as human dwelling or as a place for the custody of property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. ( 11 ) IN Udat Singh v. State of U. P. (1995 ALL. L. J. 564), wherein the complaint was lodged and FIR was filed without loss of time including the names of the accused and FIR proved to be the valuable piece of corroborative evidence and minor contradictions would not be material. Complainant closely related to accused and though their relations strained, he had no animus or motive to falsely implicate accused and evidence of independent witness corroborating the complaint found to be reliable witness and on his solitary statement, accused can be convicted under Section 436 I. P. C. and hence, such conviction and sentence can be sustained. ( 12 ) IN the present case P. W. 1 is none other than the father-in-law of the accused who had deposed in clear and categorical terms that the accused knocked the door and subsequently, saw the accused running away when his house was in flames. P. W. 3 had well corroborated the evidence of P. W. 1. ( 12 ) IN the present case P. W. 1 is none other than the father-in-law of the accused who had deposed in clear and categorical terms that the accused knocked the door and subsequently, saw the accused running away when his house was in flames. P. W. 3 had well corroborated the evidence of P. W. 1. P. W. 2, the wife of the accused, also deposed what had happened prior to the fateful day and the actual incident which had happened. In the light of the events which had been well explained by the prosecution, there cannot be any doubt that the appellant/accused bore grudge for what had happened at least on the day when the police called both the husband and wife and chastised them and let off the accused with a warning. As a consequence thereof, the accused thought of perpetrating the present crime. ( 13 ) TAKING the overall facts and circumstances into consideration and also the evidence of P. Ws. 1 to 3 and also the evidence of investigating officers, P. Ws. 5 and 6, and Exs. P. 1 to P. 5 and also M. O. 1, the findings recorded by the learned Judge cannot be found fault with in any way. But however, in the facts and circumstances of the case, the sentence to undergo rigorous imprisonment for five years with a fine of Rs. 500/-, in default, to undergo simple imprisonment for three months is hereby set aside by modifying the same by imposing rigorous imprisonment for a period of three and half years under Section 436 I. P. C. Except the modification of the sentence to the extent referred to supra, in all other particulars, the findings recorded by the learned Judge are hereby confirmed. Accordingly the appellant is convicted under Section 436 I. P. C. imposing rigorous imprisonment for a period of three and half years. ( 14 ) IT is represented that the modified period of imprisonment imposed by this Court already had been served by the appellant/accused. It is needless to say that on calculating the period, if the appellant/accused already had served the sentence imposed by this Court, the appellant/accused to be let off. The Criminal Appeal shall stand dismissed subject to the modification.