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Judgment
Offences,Description
Section
436 IPC","Mischief by fire or explosive substance with intent to destroy house, etc.-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 a human dwelling or as a place for the custody of property, shall be punished with 1[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.
Section
3(1) of
TNPPDl
Act","3. Punishment for committing mischief in respect of property.
Whoever,
(i) Commits mischief by doing any act in respect of any property and thereby causes damage or loss to such property to the amount of
one hundred rupees or upwards;
matter of preferring an appeal against any order of a criminal Court acquitting the accused or convicting for a lesser offence or imposing inadequate,
compensation.,
(ii) Unqualified right to victim - The proviso gives an unqualified right to a victim to prefer an appeal in its terms as against the enabling provisions in,
S.377 and S.378 which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant. No ''leave",
to appeal'' or ''Special leave'' is required to be obtained by the victim.,
(iii) No period of limitation provided - For filing appeal by victim, no period of limitation is provided. In the facts and circumstances of each case,",
the Court has to determine as to whether the appeal was entertainable or not.,
(iv) Same yardsticks to apply as in S.378 - The yardsticks laid down by judicial pronouncements for consideration of appeals under S.378 of the,
Code would also apply to appeals filed by victim under the proviso.,
(v) Accrual of rights to victim - The rights of the victim to file appeal accrues to him/her in all cases in which judgment and order of the Court is,
passed after the enforcement of the proviso irrespective of the date of occurrence and any subsequent event in the case prior to such judgment /,
order.,
(vi) Where victim is dead or in capacitated - Where the victim is dead or incapacitated to file appeal, his/her next of kin can file appeal on proof of",
''loss'' or ''injury'' caused to him/her by the crime.,
(vii) Appeal as ''guardian'' or ''legal heir'' - Where an appeal is filed solely on the basis of his status as ''guardian'' or ''legal heir'', he/she has to",
establish the legal status of his/her such status.,
(viii) No second appeal under the proviso - Once an appeal is filed in terms of the proviso and is entertained by an Appellate Court, no second",
appeal should be entertained.,
(ix) No distinction between police case and complaint case - No distinction can be made between a case instituted by informant with police and by,
a complainant before the Court directly, and an absolute right of a victim to file an appeal under the proviso does not get fettered by any other",
section of the Code continued in Chapter 29, which includes S.378.""",
The grievance of the appellant is that the action of the accused in setting fire to the building of him and that of one Natarajan has not been,
considered by the Trial Court. The appellant claims that he is a Doctor and there is no necessity for him to give false evidence against the accused.,
The appellant claims to be a person interested in the Trust created and his right as a Trustee got affected on account of the damage caused. May,
be it is true that the appellant is a Doctor and that he is interested in the Trust created and the property involved in the occurrence. But, the",
question is, whether it is proved by the prosecution that it is only the accused who set fire to the property of the appellant and that the appellant",
suffered damage?,
When it is claimed that the shed belonging to one Natarajan was also set on fire, but Natarajan has not been examined before the Court. It is",
for him to come and say that in what way, he suffered damages? No explanation has been given as to why he was not examined before the Trial",
Court. He ought to have been examined especially in the light of the fact that there is a link between the first incident, where the property belonging",
to the P.Ws.1 and 2 are stated to have been set on fire and the second incident (follow up incident) in which the property belonging to Natarajan is,
allegedly set on fire. In the evidence, it is stated that A1 and A2 gave a previous threat before setting fire to the shed of Natarajan and this was",
intimated to Natarajan over phone even though the cell phone was in a switch off mode. The manner in which the evidence has been let in does not,
create confidence that what is stated must be true.,
In a case like setting fire, which involves life sentence, the Court will expect the evidence to be cogent, convincing and authentic. Here is a case",
where there is an allegation that the damage caused to the property is worth Rs.40,000/-, which includes the articles found inside the shed. The",
sketch drawn does not show the existence of any burnt articles / objects. Excepting the word ""SOC"" in all other respects, it is equivalent to a",
sketch drawn by a learning school student. None of the article has been recovered also.,
The best evidence would be the photograph of the place of occurrence. It is not explained why not even a photograph has been taken or filed?,
It is in evidence that P.Ws.1 & 2 were trying to put out fire by exerting themselves and also using the services of the entire villagers and still, it",
could not be put out. Even then, they have not chosen to inform the Fire Rescue Officials. Under normal circumstances, one would think of seeking",
the services of the Fire Ambulance to put off the fire. In this case, it is stated that the Fire services were not sought even after, but no reason has",
been stated as to why it was so. This circumstance coupled with other facts and circumstances create a doubt as to whether there could have been,
a fire incident at all.,
When the incident was at about 8.30 in the night and when the villagers participated in putting up the fire, then why nobody has been examined",
excepting P.Ws.1 and 2, who claimed to have interest in the property fired, has not been explained by the prosecution.",
Then, the only consideration left out is the complaint preferred by P.W.2 and the evidence of P.Ws.1 and 2. The appellant expresses the",
grievance that the Trial Court did not consider the reasons given for the delay involved in preferring the complaint. There is a vital contradiction,
between the evidence of P.Ws.1 and 2 and unbelievable contradictions in the evidence adduced during chief and cross examinations. Both of them,
have stated that they have seen the property on fire and they did not see when the property was actually set on fire. There may be circumstances,
where if there is no previous warning, they would have the opportunity of seeing the fire and not how the property is set on fire. This factor",
assumes importance in the light of the delay involved. The witness Mohamed Rafi would state that after the incident, he went to Madurai along with",
P.W.1 out of fear and there was a discussion on 14th along with others, who are in the helm of administration and thereafter, the complaint was",
preferred on 15th. This explanation is not acceptable. The Inspector of Police would state that there was a delay in preferring the complaint,",
because the defacto complainant was out of station. The implication is that, the defacto complainant could not have been an eyewitness to the",
occurrence and only because the assailants were not known, there had been a delay in the complaint.",
There are no details as to how the damages were worked out as Rs.40,000/-. The details of articles burnt have also not been furnished. The",
cumulative circumstances do not establish the offence under Section 436 IPC or Section 3(1) of TNPPDL Act.,
The yet another contention is that charges should have been framed under Section 4 of TNPPDL Act and not under Section 3(1) of the Act.,
The framing of charge under Section 4 of TNPPDL Act could not make a difference, as the ingredients to be proved with regard to fire is also",
covered under Section 436 IPC.,
In the result, the Criminal Appeal is dismissed, thereby the judgment dated 29.03.2016 passed in S.C.No.252 of 2015 by the learned VI",
Additional District and Sessions Judge, Madurai is confirmed, though for different and additional reasons.",