Sivanandan vs State Of Kerala
2021 Latest Caselaw 298 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

 WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA,
                          1942

                 Crl.Rev.Pet.No.2278 OF 2013

 CRA 403/2007 OF ADDITIONAL SESSIONS COURT, THALASSERY

   CC 497/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
                       MATTANNUR


REVISION PETITIONER/S:

           SIVANANDAN
           AGED 59 YEARS
           S/O.SREEDHARAN, AYYANKUNNU AMSOM DESOM,
           RANDAMKADAVU, KANNUR DISTRICT.

           BY ADVS.
           SRI.C.P.PEETHAMBARAN
           SMT.MINI.V.A.

RESPONDENT/S:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
           COURT OF KERALA, ERNAKULAM.


OTHER PRESENT:

           SR.PP.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 06.01.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 CRRP No.2278/2013
                                ..2..

                              O R D E R

The revision petitioner is the 2nd accused in

CC No. 497 of 2003 on the file of the Judicial

First Class Magistrate Court, Mattanur and the

appellant in Crl. Appeal No. 403 of 2007 on

the file of the Additional Sessions Court,

Thalassery. The offence alleged against the

accused is punishable under Section 435 r/w

Section 34 of the Indian Penal Code

(hereinafter referred to as, "the IPC").

2. The prosecution case, in brief, is that PW2 -

the wife of PW1, and CW5 - the mother-in-law

of PW1, are in joint possession of 2.20 acres

of land comprised in Re.Sy.No. 508 of

Ayyankunnu Village. Due to a boundary dispute

between the 1st and 2nd accused and CW5, the

accused 1 and 2 in furtherance of their common

intention to commit mischief by fire, set fire

and destroyed 150 rubber trees and 15 cashew

trees knowing it to be likely that they would CRRP No.2278/2013 ..3..

thereby cause damage to the property, and

thereby sustained loss to the tune of

Rs.50,000/-. Thus, the accused 1 and 2 are

alleged to have committed an offence

punishable under Section 435 r/w Section 34 of

the IPC.

3. On the appearance of the accused, after having

heard both sides, the trial court framed

charge against the accused for the offence

punishable under Section 435 r/w Section 34 of

the IPC. The charge was read over, to which

the accused pleaded not guilty.

4. During the trial, PWs 1 to 7 were examined and

marked Exts.P1 to P4 on prosecution side. On

closing the evidence of the prosecution, the

accused were questioned under Section 313(1)

(b) of the Code of Criminal Procedure. They

denied all the incriminating circumstances

appearing in the evidence against them. When

they were called upon to enter on their CRRP No.2278/2013 ..4..

defence, no evidence was adduced.

5. On appreciation of the evidence, by its

judgment dated 30.08.2007, the trial court

convicted the accused under Section 435 r/w

Section 34 of the IPC and sentenced them to

undergo simple imprisonment for two years each

and to pay a fine of Rs.5,000/- each and in

default of payment fine to undergo simple

imprisonment for three months each more.

6. Challenging the conviction and sentence

imposed by the trial court, the accused 1 and

2 preferred separate criminal appeals as Crl.

Appeal Nos. 403 and 410 of 2007 before the

Sessions Court, Thalasserry. By its common

judgment dated 26.08.2013, the learned

Additional Sessions Judge allowed Crl. Appeal

No. 403 of 2007 filed by the 2nd accused in

part. While maintaining the conviction under

Section 435 r/w Section 34 of the IPC, the

substantive sentence of imprisonment of two CRRP No.2278/2013 ..5..

years was modified and reduced to six months.

The fine imposed by the trial court was made

intact. Feeling aggrieved, the 2nd accused is

before this Court in revision.

7. During the pendency of Crl. Appeal No. 410 of

2007, the 1st accused passed away. Hence, the

learned Additional Sessions Judge closed Crl.

Appeal No. 410 of 2007, stating that the

charge against the 1st accused stood abated. As

against the 1st accused, composite sentence of

imprisonment and fine was awarded by the trial

court. The sentence of imprisonment alone

stood abated consequent to the death of the 1st

accused. So far as the fine is concerned, it

does not abate. However, the finding in Crl.

Appeal No. 410 of 2007 is not challenged by

the State in accordance with law. Hence, it is

not just and proper to reopen the same in this

revision.

8. Heard Smt.V.A.Mini, the learned counsel for CRRP No.2278/2013 ..6..

the revision petitioner; and Sri.M.S.Breez,

the learned Senior Public Prosecutor for the

respondent-State.

9. PW1, is the defacto complainant, who lodged

Ext.P1 First Information Statement before the

police. PW2, who is the wife of PW1, is the

joint owner of the property, whereas PWs 3 and

4 are the owners of the neighbouring property.

PW5 is the attesting witness in Ext.P2 scene

mahazar. PW6 is the Village Officer attached

to Ayyankunnu Village and issued Ext.P3

Ownership Certificate. On the strength of

Ext.P1 First Information Statement lodged by

PW1, PW7 registered Ext.P4 First Information

Report, questioned the witnesses, conducted

investigation and filed final report before

the court.

10.On going through the oral evidence of PWs 1 to

4, it is clear that the accused and PW2 were

at loggerheads in connection with a boundary CRRP No.2278/2013 ..7..

dispute. When examined before the trial court,

PWs 1 and 2 clearly admitted that the accused

and PW2 were not on good terms in connection

with a boundary dispute. It goes without

saying that the parties had been disputing

title and possession over the disputed

property on the date of occurrence. The 1 st

accused, who was instrumental in causing

mischief, is no more. Although he was

convicted and sentenced by the trial court,

the appellate court, on erroneous

consideration of the legal position, entered a

finding that the charge against him stood

abated. So far as the sentence of fine is

concerned, as indicated earlier, it does not

abate even after the death of the person, who

was convicted and sentenced to pay the fine

amount. The said order is not challenged by

the State in accordance with law.

11.The 2nd accused, who preferred this revision CRRP No.2278/2013 ..8..

before this Court, was only a worker working

under the 1st accused on the date of

occurrence. PWs 1 and 2, when examined before

the court, categorically admitted that the 2nd

accused was only an employee working under the

1st accused. Then, the question before this

Court is as to whether the 2nd accused had any

dishonest intention to cause mischief by fire

with intent to cause damage to the property

owned by PW2 as alleged by the prosecution.

When the parties were in dispute in connection

with a boundary, it would not be possible to

enter a finding that PW2 had been in

possession of the disputed property on the

date of occurrence unless and until positive

evidence was adduced by the prosecution to

substantiate the factum of possession over the

disputed property. Going by the evidence, PW6,

the Village Officer attached to Ayyankunnu

Village Office, who issued Ext.P3 Ownership CRRP No.2278/2013 ..9..

Certificate, stated that PW2 was the owner of

the disputed property on the date of

occurrence. Ext.P3 Ownership Certificate

issued by the Village Officer itself is not an

evidence to prove the factum of title and

possession over the disputed property. No

other documents including tax receipt, title

deed etc. were produced before the trial court

to prove that PW2 had been in possession of

the disputed property on the date of

occurrence. PW2's mother, CW5, was not

examined to prove her title and possession

over the disputed property.

12.In the case on hand, admittedly, there existed

a boundary dispute between the parties. The

prosecution case itself would show that the

boundary dispute was the reason for the

occurrence. When such a case was set up by the

prosecution, the prosecution was obliged to

produce necessary documents to substantiate CRRP No.2278/2013 ..10..

the factum of possession over the disputed

property. It is incorrect to enter a finding

that PW2 was in possession of the disputed

property on the date of occurrence based on

Ext.P3 Ownership Certificate issued by the

Village Officer. Ext.P3 Ownership Certificate

itself is not an indication to prove that PW2

was the owner of the property, particularly

when there existed a boundary dispute between

PW2 and the accused relating to the property.

13.Both the trial court and the appellate court

appreciated the evidence erroneously without

considering the above legal aspects. The

evidence adduced is not sufficient to show

that the 2nd accused, who is the revision

petitioner herein, committed mischief by fire

intending to cause or knowing it to be likely

that he would thereby cause damage to the

property of PW2 to the tune of Rs.50,000/- as

alleged by the prosecution. The amount arrived CRRP No.2278/2013 ..11..

at by the prosecution is also without any

basis. There is no evidence before this Court

to come to a conclusion that PW2 sustained

loss of Rs.50,000/- as alleged by the

prosecution.

In the result, the criminal revision petition

is allowed. The revision petitioner/2nd accused

is found not guilty of the offence punishable

under Section 435 r/w Section 34 of the IPC

and he is acquitted thereunder. Cancelling his

bail bond, this Court directs that he be set

at liberty. If any amount is deposited

pursuant to an interim order passed by this

Court, the same shall be released to the

revision petitioner/2nd accused in accordance

with law. Pending applications, if any, stand

disposed of.

Sd/-

N.ANIL KUMAR

JUDGE Bka/06.01.2021