1. Judgment dated 08.06.2007 in S.C.No.1030/2003 on the files of the Additional Sessions Court-IV, Thiruvananthapuram, is under challenge in this appeal, at the instance of accused Nos.1 to 3 in the above case. The State of Kerala, represented by the Public Prosecutor is the respondent.

2. Heard the learned counsel for the appellants/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the trial court.

3. It is submitted by both sides that, during the pendency of this appeal, the first accused died. In fact, the second accused is none other than the son of the first accused. Therefore, this appeal at the instance of the first accused also heard treating the 2nd accused as the legal heir of the 1st accused.

4. The prosecution allegation herein is that, at about 3.30 am on 16.01.2001, accused Nos.1 to 3, in furtherance of their common intention, set fire to the thatched house of PW1 and PW2, bearing No.V.P.XVII/7 of Dalumughom, Vellarada Village and thereby committed offence punishable under Section 436 r/w. 34 of the Indian Penal Code. (hereinafter referred to as ‘IPC’ for short).

5. The learned Sessions Judge ventured the matter. PW1 to PW8 were examined, Exts.P1 to P8 and MO1 to MO6 were marked on the side of the prosecution. Ext.D1 series photos got marked on the side of the defence.

6. On evaluation of the evidence, the learned Additional Sessions Judge found that the appellants/accused Nos.1 to 3 committed the offence punishable under Section 436 r/w. 34 of IPC and accordingly, they were convicted and sentenced as under:

                     “In the result, the accused 1 to 3 are convicted u/s. 235(2) of Cr.P.C. for the offence u/s.436 r/w. 34 of I.P.C. and the accused No.1 is sentenced to undergo simple imprisonment for 3 (Three) years and accused Nos.2 and 3 are sentenced to undergo rigorous imprisonment for 3 (Three) years. The accused 1 to 3 are also sentenced to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine to undergo simple imprisonment for further period of 6 (Six) months each. If the fine amount is realized Rs.5,000/- (Rupees Five Thousand only) will be paid to Pw1 as compensation u/s.357(1) of Cr.P.C. The bail bond of the accused are cancelled. The accused are entitled to set off u/s.428 of Cr.P.C. for the period of imprisonment they had already undergone as remand prisoner in this case”.

7. While assailing the verdict impugned, the learned counsel for the appellants/accused Nos.1 to 3 submitted that PW3, the independent occurrence witness examined by the prosecution to prove the occurrence, turned hostile to the prosecution and he did not support the prosecution in any manner. Apart from the evidence of PW3, the learned Sessions Judge relied on the evidence of PW1, PW2 as well as PW4. According to the learned counsel for the appellants/accused Nos.1 to 3, PW1 and PW2 are wife and husband, who allegedly resided in the hut that was alleged to be put to fire. PW4 is none other than the sister of PW2. Thus, the contention raised by the learned counsel for the appellants/accused Nos.1 to 3 is that, apart from the versions of the interested witnesses, no independent evidence forthcoming to find commission of the said offence by the appellants. It is submitted further that the prosecution has a case that the appellants set fire to the dwelling house of PW1 and PW2, due to previous animosity, but no evidence adduced to show any such previous animosity. According to her, the evidence of PW1 and PW2 are contrary insofar as the participation of the third accused in this occurrence and PW2 turned hostile to the prosecution regarding the role of the third accused in the alleged occurrence. Thus, the prosecution case failed to be proved beyond reasonable doubts and in such a case, benefit of doubt should be given to the appellants. It is also submitted that the second accused/second appellant met with a motor accident recently and he is in a pathetic situation now and therefore, his case may be considered sympathetically.

8. Whereas it is submitted by the learned Public Prosecutor that on going through the evidence of PW1, the overt acts at the instance of the appellants/accused Nos.1 to 3 could be seen, though PW2 did not support the presence of the third accused in the occurrence. According to the learned Public Prosecutor, in fact, the first person who came out of the house on seeing the fire was PW1 and thereafter PW2 came out. This may be the reason why PW2 could not have seen the third accused, even though they categorically given evidence that accused persons ran away from the place of occurrence. Ext.P4 mahazar was prepared by PW7 on 17.01.2001, i.e., on the next day after the occurrence. The condition of the house after the fire to be evident from the remnants found at the place of occurrence, got marked as MO1 to MO6 recovered therefrom to corroborate the versions of PW1, PW2 and PW4. Therefore, the prosecution case is proved beyond reasonable doubts and the conviction and sentence do not require any interference.

9. Having considered the rival submissions, points arise for consideration are,

                     1. Whether the Additional Sessions Court is right in holding that appellants/accused Nos.1 to 3 committed the offence punishable under Section 436 r/w. 34 of IPC?

                     2. Whether the impugned judgment to be interfered by this Court.

                     3. The order to be passed.

10. Point Nos.1 to 3

Here, the prosecution case is that, at about 3.30 am on 16.01.2001, accused Nos.1 to 3, due to previous animosity towards PW2, in furtherance of their common intention, set fire to the thatched house where PW1 and PW2 had been residing, and thereby they sustained a loss of ₹10,000/- (Rupees ten thousand only). The crucial evidence as to the occurrence to be gathered from the evidence of PW1, PW2 - the husband of PW1, and PW4 - the sister of PW2.

11. PW1 deposed that she was a coolie worker and was residing along with her husband and three children in the house where the incident had occurred. She stated that on the date of the incident, herself, her husband and, husband's sister were sleeping in the house and their children were sleeping in the nearby house of their relative. She further stated that at about 3.30 a.m., she saw that the roof of the house had caught fire and herself, her husband and her husband's sister rushed out of the house and then she saw the accused, Johnson Nadar (A1), Lawrence (A2) and Njanamuthan (A3), running towards the east, where their house was situated. She stated that when she asked who was running then Lawrence told that “it is your father Oothy Thomson”.She further stated that they made hue and cry and attempted to put off the fire but the entire house was destroyed. She deposed that the household articles kept in the house were also destroyed. According to PW1, she had sustained a loss of Rs.46,800/- (Forty six thousand and eight hundred only) in the occurrence. She identified accused 1 to 3, who were residing near to her house where the incident had occurred. According to PW1, the house which was destroyed was a thatched house with mud walls. She also gave evidence that the construction of a house which had been allotted to her from the panchayath was going on near the place of occurrence during the relevant time. PW1 deposed that at the time of preparing the scene mahazar, the remnants of the burnt articles were seized by the Sub Inspector from the place of occurrence. She identified MO1 to MO6 as the remnants of the burnt articles produced before Court. PW1 testified that before the occurrence, the accused had picked up quarrel with one Baby John who was her relative. When the accused inflicted blows on Baby John, her husband-PW2 intervened and sustained injuries, and was admitted to the hospital. According to PW1, due to animosity towards her husband, the accused had set fire to the house. She had identified accused Nos.1 to 3 as the persons who had ran away from the place of occurrence after the house was put to fire.

12. PW2 examined in this case is none other than the husband of PW1. He deposed that he had been residing with his family in the house wherein the incident had taken place. According to him, on the date of the incident, himself, his wife and his sister were sleeping in that house. On seeing the roof of the house ablaze, they rushed out of the house and then saw the accused Nos.1 and 2, Lawrence and his father Johnson, running towards the east. He deposed further that he had seen only accused Nos.1 and 2 at the time of the incident. He deposed that the entire house had been destroyed by fire and thereby sustained a loss to the tune of Rs.10,000/- in that occurrence. He deposed further that prior to this occurrence, the accused inflicted blows on one Baby John and at that time, he had intervened and then accused No.2, Lawrence had also inflicted blows on him. PW2 stated that he had not seen the third accused - Njanamuthan. He stated further that he had seen accused Nos.1 and 2, Lawrence and Johnson, running away from the place of occurrence. Since PW2 stated that he had not seen the third accused and he had not given any statement to the police that he had seen the third accused, Njanamuthan, running away from the place of occurrence, he was declared hostile to the prosecution. PW2 deposed further that he had seen only accused Nos. 1 and 2 running away from the place of incident towards the east.

13. The other occurrence witness examined as PW4 on the side of prosecution is the sister of PW2. She deposed that the incident had taken place at about 3 a.m. on 16.01.2001. The PW4 gave evidence that she had come to the house of her brother, PW2, knowing about his illness and she had been sleeping in his house at the time of the incident. She further deposed that on hearing the hue and cry made by PW1, she woke up and then saw the house ablaze and then they rushed out of the house and at that time, she saw three persons running away towards the east. She deposed that she could not identify the persons who had run away from the place, as she was not a native of that place. She further stated that she did not know the neighbours residing there. In cross examination, she stated that her brother, PW2, was admitted to the hospital on 28.12.2000 and she had come there to see her brother. She further deposed that she came to know that on 28.12.2000, the accused had picked up quarrel with one Baby John and in that incident, her brother had also sustained injuries. According to PW4, she was residing at a distance of 25 kms from the house of her brother wherein the incident took place. She had come to the house of her brother on knowing about his illness, and she was inside the house at the time of occurrence.

14. It is true that PW3, the independent witness, did not support the prosecution case and accordingly, he was declared hostile. Apart from this evidence, PW5, who recorded Ext.P1 statement given by PW1 and registered the FIR, marked as Ext.P3, deposed in support of the prosecution case. PW7 also supported the prosecution case. PW7 deposed that, Ext.P6 arrest memo was prepared by him, while he was working as the Sub Inspector, Vellarada Police Station and in the mahazar, he had described the condition of the thatched house after the occurrence and he gave evidence supporting the same. PW8, who was the Investigating Officer, also supported the prosecution case.

15. On tracing the ingredients to find commission of offence under Section 436 of IPC, it is relevant to refer Section 436 of IPC and the same is extracted hereunder:

                     “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.”

16. On reading Section 436 of IPC, it could be gathered that Section 436 IPC deals with mischief by fire or explosive substance, with intent to destroy the house etc. The ingredients for the offence are, (1) committing mischief by fire or any explosive substance, (2) with intention to cause, or knowing it to be likely that he will thereby cause, and (3) 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. In the instant case, the evidence of PW1 and PW2, supported by the evidence of PW4, would show that the thatched hut which was set on fire by the appellants/accused Nos.1 to 3 was a building ordinarily used as a dwelling house. It is true that, PW2, the husband of PW1, turned hostile to the prosecution insofar as the involvement of the third accused is concerned, as he stated that he saw only accused Nos.1 and 2 running away from the scene of occurrence. At the same time, PW1 categorically deposed that she had identified accused Nos.1 to 3 as the persons who had run away after putting fire to their thatched house. Though PW4 supported the prosecution regarding the occurrence, she could not identify the accused persons, as she was not a permanent resident of the locality.

17. Coming to the contention raised by the learned counsel for the appellants/accused Nos.1 to 3 that animosity in between PW2 and the accused persons has not been proved by the prosecution, it could be see that, during chief examination, it was deposed by PW1 and PW2 that there was a quarrel in between one Baby John and the accused, and the accused persons had beaten Baby John and when PW2 intervened and told them that Baby John should not be beaten, then the accused persons beat PW2 also. It could be seen that, prior to the occurrence, the accused persons had beaten PW2 and the same is a reason by which the prosecution alleges previous animosity in between PW2 and the accused persons. In this matter, PW1 had identified accused Nos.1 to 3 while they were running away. Further the evidence of PW1 and PW2 would show that the accused persons were residing on the eastern side of their house. Be it so, the contention raised by the learned counsel for the appellants/accused Nos.1 to 3 that the prosecution failed to prove any animosity could not be found.

18. Coming to the contention raised by the learned counsel for the appellants/accused Nos.1 to 3 that all the witnesses in this case are relatives, the said submission appears to be correct as PW1, PW2 and PW4 are close relatives. It is pertinent to note that PW3, an independent witness, also cited by the prosecution but he turned hostile to the prosecution. It is in this context, the time of occurrence assumes significance. That is to say, the time of occurrence is at 3.30 am on 16.01.2001. The presence of independent witnesses at the odd hour is normally impossible though in this case the prosecution cited PW3 as an independent witness, a nearby resident of PW1, PW2 as well as the accused. It is pointed out by the learned counsel for the appellants/accused Nos.1 to 3 that one Elizabeth and Baby John were the neighbours of PW1 and PW2 but the prosecution neither recorded their statement nor examined Elizabeth and Baby John. In fact, PW1 gave evidence that Elizabeth was not in her house at the time of occurrence and PW7 deposed that even though he attempted to record the statement of the Elizabeth, she could not be found. As regards Baby John, the prosecution case is that there was animosity between Baby John and the accused. Thus, this contention is of no avail to the appellants. Since law does not prohibit, placing reliance on the testimony of interested witnesses as the sole basis for conviction once the same found to be wholly reliable, particularly when the availability of other witnesses becomes remote, taking note of the particular time of occurrence, absence of independent witnesses to the occurrence or the hostility of PW3, the sole independent witness cited by the prosecution would not make the prosecution case feeble or unacceptable. Here, the evidence of PW1, supported by the evidence of PW2 and PW4 found to be wholly reliable to be acted upon so as to rely on the same as the sole basis of conviction. Thus the contentions raised by the learned counsel for the appellants/accused Nos.1 to 3 are not sufficient to find fault in the finding rendered by the Sessions Judge. Therefore, the finding of the learned Additional Sessions Judge that accused Nos.1 to 3 committed offence punishable under Section 436 r/w. 34 of IPC is only to be confirmed.

19. Now, the 1st accused is no more. Taking note of the present condition of the 2nd accused and the third accused, as submitted by the learned counsel for the appellants, some leniency can be shown in the matter of sentence, for the offence punishable under Section 436 IPC. The offence under Section 436 IPC is punishable 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. Therefore, no minimum sentence is prescribed.

20. Therefore, this criminal appeal stands allowed in part. Accordingly, while confirming the conviction, the sentence imposed against accused Nos.1 to 3 is modified. Consequently, appellants 2 and 3/ accused Nos.2 and 3 are sentenced to undergo simple imprisonment for a period of two years each, and to pay a fine of Rs.2,000/- (Rupees two thousand only) each. In default of payment of fine, they shall undergo simple imprisonment for a period of two weeks. Since the conviction and the substantive sentence as against the 1st accused shall stand abated, the sentence of fine imposed upon him is confirmed. The default sentence shall run separately.

21. The order suspending the sentence and granting bail to accused Nos.2 and 3 shall stand vacated and the bail bond executed by accused Nos.2 and 3 shall stand cancelled. Accused Nos.2 and 3 are directed to surrender before the Additional Sessions Court to undergo the modified sentence within a period of two weeks from today, failing which, the Additional Sessions Court shall execute the modified sentence without fail, including realisation of the fine amount imposed against the first accused from the property left by him in accordance with law. Registry is directed to forward a copy of this judgment to the trial court concerned for information and compliance.