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Judgment
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.