High Court · 2012

Heard Mr. P Kataki, learned counsel for the appellants and Mr. K Munir, 3 learned Addl.P.P. for the State. I have also gone through the impugned judgment and the evidence proffered by the prosecution as well as the defence witnesses g iving in the trial court.

4. The prosecution case in a nutshell is that on 24.12.2000, PW-1 had spray ed paddy under the sun in the courtyard at noon. The cattle of accused Sashidar ate some quantity of paddy. Hence, PW-1 asked the daughter of Sashidar to keep t heir cattles confined and away from the witness’s courtyard. Daughter of accused Sashidhar went home and reported the incidence to her family members. Thereafte r, the appellants and their spouses came to the house of the informant and assau lted them and also directed the informant and his wife to leave the village else their dwelling house will be set on fire. It is the further case of the prosecu tion that at late night, the accused persons set afire their dwelling house. The FIR was lodged on the next morning. The informant’s wife (PW-1) was 5. also examined by the doctor and found multiple injuries in the nature of lacerat ed wound, abrasion and swelling on different parts of the body. In the opinion o f the doctor (PW-7) , the injuries were fresh and simple in nature. The same doc tor had also examined the informant’s husband (PW-2) namely, Pona Gohain and no ticed pain and tenderness of his illiac joint and the said injury was also simpl e in nature. 6. Simultaneously, PW-6 took up the investigation. He visited the site of offence and seized half burnt paddy stuff as well as split bamboos of the roof o f the house (vide Exhibit-1). After recording the statement of witnesses, prepar ing the sketch map of the place of occurrence and collecting the injury reports. Charge sheet was submitted and trial proceeded accordingly.

7. In order to establish the offence, prosecution examined as many as 7 wit nessess. PW-1 is the informant; PW-2 is her husband, PWs 3 is the village headma n, PWs- 4 and 5 are co-villagers, PW-6 is the I.O. and PW-7 is the doctor. 8. In the cross-examination of the informant, she was given a suggestion th at her house caught fire accidently while preparing country made liquor. However , one of the appellants took a plea in his statement given under Section 313 C r.P.C. that the informant and her husband had set their house on fire themselves . Besides this, two witnesses were examined by the accused persons to prove that the informant had already removed their household articles prior to the inciden t of house burning in order to establish that the house was burned by PWs-1 and 2 themselves. However, learned Sessions Judge rejected the defense theory and he ld that the accused persons had set afire the house of the informant with an int ention to destroy the dwelling house. 9. Mr. P Kataky, learned counsel for the appellants strenuously argued that the testimony of PWs- 1 and 2 are contradictory and not supported by other witn esses and as such, it was not proper for the learned Sessions Judge to record th e conviction. Mr. Kataky however submitted that it is unbelievable that at about midnight PWs 1 and 2 could have seen the appellants for committing the offence of mischief by fire. First of all, I would like to examine the offence under Section 143/323 10. IPC. In this regard, there is no witness, except the informant and her husband ( PWs- 1 and 2). These witnesses have deposed that all the appellants and female m embers of their house came and physically manhandled them at random. Since the i njuries were noticed by doctor, there remains little to doubt about the injured version. In fact, co-accused persons have not challenged their conviction under Section 143 and 323 IPC. Hence, I find no difficulty to affirm the conviction of the appellants as well under Section 432 and 323 IPC and the only sentence of f ine has been imposed for the aforesaid offence. Hence, I do not find any scope t o interfere in the conviction and sentence. 11. Coming to the offence of mischief by fire, PW-1 has deposed that the acc used Sashi (Sachidhar), Suren, Ghanakanta, Chenu and Konbhai had damaged their d welling house and had also asked them to leave the place. The witness has furthe r deposed that the accused persons set their house on fire causing damage of pr operty worth Rs. 10,000/- to Rs.12,000/-. From the cross-examination, it appears to me that the house was set afire in the night while the informant was sleepin g with her husband. Despite that, PW-1 claims to have seen the accused persons. PW-2 is the husband of PW-1. Apart from the story of physical assault du 12. ring day hours, this witness has implicated the accused Bhaikon, Chenoo, Sarukan ta, Suren and Ghanakanta for the offence of mischief by fire. In the cross-exami ned the PW-2 has also admitted that the aforesaid offence was committed at aroun d 2 am. PW-2 has reiterated that he had seen accused Suren lighting a match stic k. 13. It is true that names of three accused persons namely, Suren, Ghanakanta and Chenoo Buragohain are common in both the depositions. Since both the husban d and wife have implicated two more persons, which do not tally with each other, an inference can be drawn PWs-1 and 2 had no occasion to see the persons who ha d actually committed the offence of mischief by fire. I draw this adverse infer ence because PW-3 has also deposed that informant’s husband had disclosed only t wo names before him for the aforesaid offence. However, PW-3 (village headman) h as stated before the I.O. that he was told by Pona Boragohain that other family members of Ghanakanta and Sashi Gohain were also involved in the same offence. 14. In my considered opinion, to establish an offence of mischief by fire, i t may not be necessary for the prosecution to give eye-witness account, more par ticularly when the offence is committed at about midnight. In very rare cases, t he inmates of the house may be able to see the offender and by the time, fire sp reads and engulfs the entire house, the offender will be in a position to run aw ay from the scene. Hence, the offence of mischief by fire and complicity of the accused persons can be established by circumstantial evidence. In the present ca se, there was an altercation regarding eating of paddy by cattle of the accused persons followed by a ’marpit’ during the day hours. 15. The above apart, sketch map of the scene shows that house of the accused Sashi Buragohain was very close to the house of the informant and other accused persons are closely related to the said person. At the same time, prosecution w itnesses were not given any suggestion that the informant and her husband had en mity with any other persons to take a view that any third person may also be inv olved in the offence. On the other hand, a quarrel took place on the same day in between the accused person and PWs-1 and 2. All these circumstances definitely points the needle of suspicion against the accuse persons. 16. The learned counsel for the appellants also drew my attention to the tes timony of PW-4 to submit that the said witness was also not told by the informan t as to who had committed the offence of mischief by fire. PW-4 had stated befor e the Court that while returning home from Tezpur town at about 3 am, he met PWs - 1 and 2 on the road and on being enquired, they told him that they were going to Bordani police station since (cid:28)someone (cid:29) had burnt their house. PW-4 further st ated that PWs-1 and 2 did not disclose the name of any accused. On the basis of this testimony, the learned counsel for the appellant submitted that the appella nts were subsequently implicated for the offence on suspicion. 17. To ascertain the veracity of PW-4 I also consulted the statement given b efore the I.O. under Section 161 of the Cr.P.C. wherein he had stated that he he ard on the next day that the informant’s house was burned down by Ghana Kanta an d Sashidhar and their family members. In other words, PW-4 did not say before th e I.O. that the informant and her husband had stated before him (cid:28)someone (cid:29) had set afire their dwelling house. Hence, his statement before the Court that he wa s told by the informant that (cid:28)someone (cid:29) had burned down their thatched house may be due to slip of tongue or fade of memory since oral evidence was given after m ore than 3 years or intentionally with oblique motive. It also appears to me tha t PW-4 has improved his version in the Court to favour the accused persons. Be t hat as it may, from the testimony of PW-4, the prosecution story regarding dama ge of dwelling house of the informant at midnight stands corroborated. 18. The other corroborative evidence against the appellants is that the FIR was lodged promptly wherein also the names of the appellants were incorporated. In fact, the learned counsel for the appellant also did not challenge the prosec ution case that house of the informant was destroyed by fire. The learned counse l argued that the house was not used for the dwelling purpose. Even for a moment , it is presumed that the damaged house was not used for dwelling purpose, it wi ll not take out of the offence from the rigour of Section 436 IPC which includes destruction of any builing which ordinarily used as a place of worship or for d welling purpose or for custody of property. In seizure list, the I.O. had seize d half burnt paddy, which shows that at least the house was used for keeping pro perty. 19. For the foregoing reasons, I hold that there are sufficient evidences to affirm the impugned judgment. I would also like to add here that the appellants have been convicted under Section 436 with the aid of Section 149 IPC. Hence, l ittle variation in the names of the appellants by PWs 1, 2 and 3 would not affe ct the prosecution case. 20. Coming to the quantum of sentence, I am not persuaded to interfere with the sentence of fine imposed upon the appellant under Section 143 and 323 IPC. F or the offence under Section 436 IPC, the appellants have been sentenced to unde rgo RI for 4 years with fine of Rs.500/- each. The learned counsel submitted tha t from the sketch map, it appears that the main dwelling house of informant was not set on fire. Hence, the sentence should be reduced. 21. I accept the request of the learned counsel for the appellant to reduce the sentence to one year for their offence under Section 436 IPC. However, the a mount of fine is enhanced to Rs.5000/-( Five Thousand) each. In default of payme nt of fine, the appellants shall undergo further RI for 3 months. Needless to me ntion here that the period of custody, already undergone by the appellants durin g investigation and during the pendency of the appeal, shall be set off under Se ction 428 of the Code of Criminal Procedure. The appellants are directed to surr ender in the Court immediately to serve out the remaining part of the sentence. 22. The appellants are given two months time to deposit the amount of fine i n the Court of learned Sessions Judge, Dhemaji. If the fine amount is paid , a s um of Rs.20,000/- shall be paid to the informant after obtaining receipt and res t amount of fine shall be deposited in the Treasury With the above modifications in the sentence, the appeal stands dismissed