Allowed

Sivanandan v. State of Kerala

Kerala HC6 Jan 2021Crl.Rev.Pet/2278/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal revision petition and acquitted the second accused under Section 435 r/w Section 34 IPC. The court held that the evidence regarding the accused's dishonest intention and the prosecutrix's possession of the disputed property was insufficient, leading to acquittal.

What did the court decide?

Cancelling bail bond and directing revision petitioner be set at liberty.

Sivanandan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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

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Crl.Rev.Pet.No.2278 OF 2013

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CRA 403/2007 OF ADDITIONAL SESSIONS COURT, THALASSERY

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

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REVISION PETITIONER/S:

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

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

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RESPONDENT/S:

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

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OTHER PRESENT:

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SR.PP.M.S.BREEZ

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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

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O R D E R

The revision petitioner is the 2^nd accused in

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

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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

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Section 34 of the Indian Penal Code (hereinafter referred to as, “the IPC”).

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The prosecution case, in brief, is that PW2 -

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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 1^st and 2^nd 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

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CRRP No.2278/2013

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..3..

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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

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punishable under Section 435 r/w Section 34 of the IPC.

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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.

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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)

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(b) of the Code of Criminal Procedure. They denied all the incriminating circumstances appearing in the evidence against them. When

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they were called upon to enter on their

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..4..

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CRRP No.2278/2013

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defence, no evidence was adduced.

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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.

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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 2^nd accused in part. While maintaining the conviction under Section 435 r/w Section 34 of the IPC, the substantive sentence of imprisonment of two

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..5..

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CRRP No.2278/2013

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years was modified and reduced to six months. The fine imposed by the trial court was made intact. Feeling aggrieved, the 2^nd accused is before this Court in revision.

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During the pendency of Crl. Appeal No. 410 of 2007, the 1^st accused passed away. Hence, the

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learned Additional Sessions Judge closed Crl.

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Appeal No. 410 of 2007, stating that the charge against the 1^st accused stood abated. As

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against the 1^st 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 1^st 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

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the State in accordance with law. Hence, it is not just and proper to reopen the same in this revision.

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Heard Smt.V.A.Mini, the learned counsel for

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CRRP No.2278/2013

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

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the learned Senior Public Prosecutor for the respondent-State.

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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.

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10.On going through the oral evidence of PWs 1 to 4, it is clear that the accused and PW2 were

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at loggerheads in connection with a boundary

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..7..

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CRRP No.2278/2013

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dispute. When examined before the trial court,

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PWs 1 and 2 clearly admitted that the accused

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and PW2 were not on good terms in connection

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with a boundary dispute. It goes without

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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

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mischief, is no more. Although he was convicted and sentenced by the trial court, the appellate court, on erroneous

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consideration of the legal position, entered a finding that the charge against him stood

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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

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was convicted and sentenced to pay the fine amount. The said order is not challenged by the State in accordance with law.

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11.The 2^nd accused, who preferred this revision

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CRRP No.2278/2013

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..8..

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before this Court, was only a worker working

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under the 1^st accused on the date of occurrence. PWs 1 and 2, when examined before the court, categorically admitted that the 2^nd accused was only an employee working under the 1^st accused. Then, the question before this Court is as to whether the 2^nd accused had any dishonest intention to cause mischief by fire with intent to cause damage to the property

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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

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..9..

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CRRP No.2278/2013

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Certificate, stated that PW2 was the owner of

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the disputed property on the date of occurrence. Ext.P3 Ownership Certificate issued by the Village Officer itself is not an

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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

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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.

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

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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

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produce necessary documents to substantiate

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..10..

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CRRP No.2278/2013

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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

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PW2 and the accused relating to the property.

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13.Both the trial court and the appellate court appreciated the evidence erroneously without considering the above legal aspects. The

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evidence adduced is not sufficient to show

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that the 2^nd 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

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CRRP No.2278/2013

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..11..

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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.

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In the result, the criminal revision petition is allowed. The revision petitioner/2^nd accused is found not guilty of the offence punishable under Section 435 r/w Section 34 of the IPC

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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/2^nd accused in accordance with law. Pending applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR

JUDGE

Bka/06.01.2021

Sivanandan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sivanandan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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