Kerala High Court
Jalalu @ Jalal vs State Of Kerala on 11 June, 2025
2025:KER:41038
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
CRL.A NO. 1835 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 12.09.2006 IN SC NO.562 OF
2003 OF ADDITIONAL DISTRICT COURT (ADHOC), MANJERI ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP NO.14 OF 2003 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -I, PONNANI
APPELLANT/S:
JALALU @ JALAL
VALLUVAN THARAYIL, MUSLIYAM VEETTIL, VELIYAMCODE.
BY ADVS.
SRI.H.NUJUMUDEEN
SRI.ANTONY SHYJU
SMT.SIMI M JACOB
SMT.SHERIN ACHU NINAN
SMT.ARYA S.
SMT.ADHIRA SALIHA N.P.
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
SR PP RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.06.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:41038
Crl.A. No. 1835 of 2006
2
JUDGMENT
Dated this the 11th day of June, 2025
The accused in S.C. No.562/2003 on the files of
the Additional Sessions Court (Adhoc-I), Manjeri, has filed
this appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, challenging the conviction and sentence
imposed against him by the Sessions Judge as per the
judgment dated 12.09.2009. The State of Kerala,
represented by the Public Prosecutor is arrayed as the sole
respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as
'accused' and 'prosecution', hereafter.
4. The prosecution case is that, at about 2.30 a.m.
on 24.07.2002, the accused committed mischief by setting
fire to the house, where the defacto complainant was
residing along with family and caused damages to the tune
2025:KER:41038
of Rs.5,000/-. Accordingly, the prosecution alleged
commission of the offence punishable under Section 436 of
the IPC by the accused.
5. On committal of the case before the Sessions
Court, the same was made over to the Additional Sessions
Court, Manjeri and the learned Additional Sessions Judge
framed charge for the offence punishable under Section
436 of the IPC and tried the case. During trial, PWs 1 to 8
were examined, Exts.P1 to P9 and MO1 were marked on the
side of the prosecution. During prosecution evidence,
Exts.D1 and D2 contradictions were marked as that of CW1
and CW2. Even though, the accused was given opportunity
to adduce defence evidence after questioning him under
Section 313(1)(b) of Cr.P.C, he did not opt to adduce any
defence evidence.
6. On analysis of the evidence, the learned Sessions
Judge found that the accused committed the offence
punishable under Section 436 of the IPC. Accordingly, the
accused was convicted and sentenced to undergo rigorous
imprisonment for a period of three years and to pay fine of
2025:KER:41038
Rs.5,000/-. In default of payment of fine, he was sentenced
to undergo rigorous imprisonment for a period of six
months more.
7. While assailing the conviction and sentence
imposed by the trial court, it is pointed out by the learned
counsel for the appellant/accused that, no independent
witnesses either cited or examined by the prosecution to
prove the overt acts at the instance of the accused, apart
from the interested witnesses. Therefore, the prosecution
miserably failed to prove the case against the accused,
with the aid of reliable evidence. It is argued further that,
even though, at the time of preparation of Ext.P2 scene
mahazar the presence of MO1 was noted, the same was
recovered only when the Scientific Assistant examined the
spot. The learned counsel for the appellant/accused argued
further that, on the basis of the evidence given by the PW1,
even PW1 did not witness the accused setting fire on the
house. Similarly, PW2 also did not witness, who set fire on
the house. According to the learned counsel for the
appellant/accused, the house number as alleged by the
2025:KER:41038
prosecution and proved through Ext.P4 Ownership
Certificate are different and therefore, the prosecution case
is in the midst of doubt and all these doubts shall go in
favour of the accused to reverse the conviction imposed by
the trial court into acquittal.
8. Repelling this contention, the learned Public
Prosecutor argued that, since the occurrence was at 02.30
a.m., it is improbable to have independent witnesses to see
the occurrence. Therefore, the prosecution could not cite
any independent witness. It is pointed out by the learned
Public Prosecutor further that, PW3 deposed about a quarrel
in between him and the accused and the attempt on the
part of the accused to attack him prior to the occurrence.
Therefore, the presence of the accused during odd hours at
the place of occurrence and escape of the accused after
setting fire to the house, would lead to the conclusion that
the house was put on fire by the accused. Therefore, the
conviction and sentence imposed by the trial court against
the accused are only to be confirmed.
9. In view of the rival submissions, the questions
2025:KER:41038
arise for consideration are:
1. Whether the trial court went wrong in
holding that the accused committed the
offence punishable under Section 436 of the
IPC?
2. Whether the verdict of the trial court
would require interference?
3. Order to be passed?
10. In this matter, the criminal law set in motion is on
the basis of Ext.P1 FIS recorded as that of PW1 at about
8.30 a.m. on 24.07.2002 in relation to an occurrence
happened at about 2.30 a.m. on the same day. While giving
evidence before the trial court, PW1 deposed that, she
along with her husband, son and other family members
were residing at a thatched house, where the alleged
occurrence took place. It is deposed by PW1 that, while her
husband was having food after returning from his job, two
persons reached their house and informed that PW3 and
the accused are involved in some issues and her husband
and son rushed to the said place. Thereafter, while PW1
along with PW4 were standing outside the house, awaiting
her husband and son to return, she heard a noise on the
2025:KER:41038
top of the house and when looked there, she found that the
house was burning. There was electric light also
surrounding the house. On seeing the fire, PWs 1 and 4
cried aloud and they saw that the accused was going
through southern side of the property after jumping the
compound wall. Later, the fire was put out. Apart from PW1,
PW4 is the person, who was available outside the house at
the time of occurrence and PW4 given evidence supporting
the evidence given by PW1. According to PW2, he heard
PW1 crying aloud and asking the inmates of the house to
be out, since Jalal (accused herein) put fire on the house.
11. Regarding the occurrence stated by PW1 and
PW4, they were cross-examined and the evidence of PW1,
who witnessed the accused escaping after jumping the wall
not shaken during cross-examination, which is supported by
the evidence of PW4 also. PW5 recorded Ext.P1 FIS given by
PW1 and he registered Ext.P1(a) FIR, alleging commission
of the offence punishable under Section 436 of the IPC, by
the accused.
12. The brother of PW1 was examined as PW3, who
2025:KER:41038
was also resident in the house, alleged to be put on fire by
the accused. His evidence is that, at about 12.00 a.m. on
the day of occurrence, while he was returning to the house,
the accused came in his M80 motorcycle with speed and
turned the same and he repeated the same for three times.
Later, the accused stopped the vehicle and brandished a
knife against PW3 on uttering that he would do away him.
But the same was restrained by PW3 using a plantain.
Later, the accused ran away from there leaving behind his
motorcycle. During cross-examination, PW3 deposed that,
he waited at the spot for one hour for the accused to
return, since the accused left his motorcycle there. During
that time, the husband and son of PW1 reached there along
with other people and on hearing the roaring sound from
the side of the house, they rushed to the house. Ext.P3 is
the site sketch prepared by PW5, the Village Officer,
Veliyamcode Village and the same is not disputed. PW8 is
the Investigating Officer, who conducted the investigation
and filed Final Report.
13. In this matter, it is relevant to refer Section 436
2025:KER:41038
of IPC. The same reads as under:
436. 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
[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.
14. Thus, the ingredients to attract an offence
punishable under Section 436 of IPC are as follows:
(i) There must be commission of mischief
by fire or any explosive substance.
(ii) It should have been committed
intending to cause, or knowing it to be likely
that the accused will thereby cause the
destruction of any building.
(iii) The building should be one which is
ordinarily used as a place of worship or as a
human dwelling or as a place for custody of
property.
2025:KER:41038
15. In the instant case, as deposed by PW3, at 12.00
hours on 24.07.2002, there was attempt on the part of the
accused to assault him and later at about 02.30 a.m, the
accused put fire on the house, where PW3 also was residing
along with PWs 1 and 4 and other family members. It is true
that, PW1 did not depose that she saw the accused put fire
on the house and what she deposed is that she saw the
accused escaping from the place of occurrence towards the
southern side of the property after jumping the wall.
Similarly, MO1 a black cannas, was also not recovered,
while preparing Ext.P2 mahazar, though the presence of
the same was noted in the mahazar and it was taken into
custody only when the Scientific Assistant visited the place
of occurrence for examination.
16. PW8, the Circle Inspector of Police, who
conducted the major part of investigation deposed that, on
25.07.2002, Dr.Sumi Mithra, the District Scientific Assistant,
Malappuram, inspected the scene of occurrence and took a
black plastic can and remnants of burnt articles as well as a
pillow cover for the purpose of scientific investigation and
2025:KER:41038
those items were sent for scientific examination through
Ext.P8 forwarding note prepared by PW8. Ext.P9 is the
chemical analysis examination report relating to the said
items and traces of mineral oil was detected therein.
17. The trial court found that, mineral oil includes
petroleum also to justify the prosecution case as to
presence of smell of petrol to MO1. The trial court, while
addressing the meaning of the term 'mineral oil', stated
that the same includes "any of the various oils, derive from
inorganic matter, especially petroleum and its products". It
is thus clear that mineral oil includes petroleum also.
18. In this case, the prosecution case is that, while
PW1 and PW4 were standing outside their house for the
reasons stated by them, with probabilities, the house was
put on fire by the accused. Later, PW1 saw that the
accused escaped from the scene of occurrence. PW3
deposed about a quarrel in between him and the accused
and the attempt on the part of the accused to attack PW3
using a knife at 12.00 hours on the same day. Therefore, in
this case, the presence of accused immediately after
2025:KER:41038
putting fire on the house, as deposed by PW1 would show
that it was the accused, who put fire on the house, even
though putting fire by the accused was not witnessed either
by PW1 or PW4.
19. As regards to the challenge raised by the learned
counsel for the appellant/accused that, no independent
witnesses either cited or examined to prove the case
advanced by the prosecution is concerned, in fact, the time
of occurrence would suggest that the presence of
independent witnesses to see the occurrence, normally
would not be available, since the alleged incident happened
at odd hours after mid night, as rightly pointed out by the
learned Public Prosecutor. Therefore, the said contention
would not yield.
20. It is true that in Ext.P3 mahazar, the house
number is shown as XI/349. But, in Ext.P4 the ownership
certificate, the house number is shown as III/145. So,
evidently the house numbers in the scene mahazar and in
the Ownership Certificate are different. It is also relevant to
note that, during cross-examination of PW6, who authored
2025:KER:41038
Ext.P4, nothing suggested regarding this anomaly.
Whereas, Ext.P5 the site sketch would show the place of
occurrence as the house, where PW1 along with others are
living, as stated by PW1.
21. In the instant case, a prior occurrence was
deposed by PW3, who is the brother of PW1 and it was
deposed by him that, at about 12.00 a.m. on the day of
occurrence, while he was returning to the house, the
accused came in his M80 motorcycle with speed and turned
the same. Further, he repeated the same for three times.
Later, the accused stopped the vehicle and brandished a
knife against PW3 on uttering that he would do away him,
but the said attempt was restrained by PW3 using a
plantain. Later, the accused ran away from there leaving
behind his motorcycle. Thus, the accused, who had made
attempt to attack PW3 ran away from the said place, when
there was resistance on the part of PW3. Later, at about
02.30 a.m, the accused put fire to the house, where PW1
had been residing along with PW3 and others. Further, PW1
categorically identified the accused escaping from the
2025:KER:41038
place of occurrence. PW4, who was standing outside the
house along with PW1 also given evidence supporting PW1.
If the evidence of PWs 1, 3 and 4 are taken together, the
same would suggest that the accused herein done mischief
by setting fire to the house, with intention to destruct the
house or knowing it to be likely that the same would
thereby cause, the destruction of the said house, which had
been ordinarily used as a place of human dwelling. Thus,
the trial court rightly found that the accused committed the
offence punishable under Section 436 of the IPC by
appreciating the evidence and the said finding is only to be
justified on re-appreciation of evidence also. Thus, the
conviction imposed by the trial court does not require any
interference.
22. Considering the facts and circumstances of this
case, I am of the view that some leniency in the matter of
sentence can be considered. Section 436 of IPC provides
punishment 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.
23. In the result, this appeal is allowed in part. The
2025:KER:41038
conviction stands confirmed and sentence stands modified,
whereby the accused is sentenced to undergo rigorous
imprisonment for a period of two years and to pay fine of
Rs.5,000/- (Rupees Five Thousand Only). In default of
payment of fine, the accused shall undergo rigorous
imprisonment/default imprisonment for a period of one
month. The accused is directed to appear before the trial
court on 10.07.2025 to undergo the modified sentence. In
default to do so, the trial court is directed to execute the
sentence, as per law, without fail.
Registry is directed to forward a copy of this judgment
to the trial court for information and compliance, forthwith.
Sd/-
A. BADHARUDEEN
SK
JUDGE
