High Court
Case Details
Crl.A. 32/2005 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGMENT & ORDER(ORAL) The judgment and order dated 04.02.2005 passed by the learned Sessions Judge, Ka rimganj in Sessions Case No. 45 of 2003 whereby the appellants have been convict ed under Sections 143/436 IPC. They have been sentenced to undergo R.I. for 10 ( Ten) years each and fine of Rs. 5000/- each i/d to S.I. for 3 (three) months eac h for commission of offence u/s 436 IPC, the accused appellants were sentenced t o suffer R.I. for 2(two) months each for the offence u/s 143 IPC with stipulatio n that both the sentences shall run concurrently.
Legal Reasoning
2. Heard Mr. A.C. Biswas, learned Amicus Curiae appearing on behalf of t he appellants as well as Ms. A. Begum, learned Addl. P.P. representing the State . 3. The prosecution case in brief is that on 20.03.2001 at midnight the accu sed appellants set fire to the house of Abdulla Mia, the informant. It was furth er alleged that they threatened the informant with dire consequences. He, then, along with his children took shelter in the house of Rajendra Kurmi (PW5). Next day he lodged an FIR. On the basis of his FIR, Ratabari P.S. Case No. 26 of 2005 under Section 143 & 436 was registered. On completion of the investigation poli ce laid chargesheet under Section 143 & 436 IPC. 4. During the trial the accused-persons pleaded not guilty of the charges f ramed against them under Section 143 & 436 IPC and claimed to be tried. Altogeth er 8 witnesses were examined on behalf of the prosecution. The accused-persons i n their statement recorded under Section 313 Cr.P.C. denied all the allegations leveled against them and pleaded that they are innocent. On completion of trial, learned trial Court held the accused guilty under Section 143/436 IPC, convicte d and sentenced them as stated above. 5. It appears from the statement of the accused Nozrul Haque @ Nozrul Islam that one dacoit Sunahar Ali married the sister of PW1 and is the husband of PW2 and brother-in-law of PW1. That the accused persons took active part in apprehe nding the dacoit Sunahar Ali who was ultimately handed over to the police and af ter that the accused persons have been falsely implicated. One witness was exami ned on behalf of the accused persons. 6. PW1, the informant deposed that he originally came from Sagikhauri villa ge and settled at Khilorbandh. On the day of occurrence in the midnight while he was sleeping inside the house with his family members he woke up hearing commot ion and came outside the house and saw the accused Abdus Subor, Moin Uddin, Ali Akbor Saukat Ali, Nozrul Hoque standing in front of the burning house. Armed wit h dao they threatened him and out of fear he somehow managed to take shelter in the house of Rajendra Kurmi (PW5) with his two children. Next day he lodged the FIR. He, further, alleged that the accused persons asked him to leave the place alleging him to be a man of dacoit Sunahar Ali. In his cross-examination he admitted that Sunahar Ali married his sister (PW2) a nd now he is in jail. He also admitted that several cases of dacoity and murder were pending against Sunahar Ali. 7. PW2, sister of PW1 and the wife of Sunahar Ali deposed that on the day o f occurrence hearing the commotion she came out of house and saw the house of in formant under fire. She saw the accused Ali Akbar and Abdul Sabir, while others were visible at a little distance. Her brother told her the names of Ali Akbar, Abdul Sabur, Moin Uddin, Sakat Ali and Nazrul. She admitted the fact that her hu sband was in jail in connection with dacoity and murder cases. She further admit ted that her husband was handed over to police by the villagers. While PW1 has s tated that he took shelter in the house of Rajendra Kurmi alongwith children, PW 2 stated that PW1 went to the house of Rajendra Kurmi and it was she who took th e children of PW1 in her custody. 8. PW5 Rajendra Kurmi came to the place of occurrence and saw the house of PW1 burning. However, he did not find PW1 on the spot. When he came back he saw PW1 in his house. According to him, PW1 did not tell anything as to who set fire to his house. PW3 is father of PW1. He claimed that when he came to the place of occur 9. rence hearing hue & cry of PW1, he saw the accused Akbar, Sabur Ali, Moinuddin t here. He also stated that when PW1 took shelter in the house of PW5 he and his f amily members brought out the children from the house. It also appears from the evidence of the PW3 that his family members were socially ostracized and he was asked not to attend mosque without any reason. PW3 further stated that his daugh ter (PW2) was kidnapped by Sunahar Ali but he cannot say whether any dacoity cas e was pending against Sunahar Ali. He expressed his ignorance about his daughter ’s relation with Sunahar Ali. He further stated that he cannot say whether Sunah ar Ali was handed over to police by the villagers. 10. PW4 is another sister of PW1. She also claimed that she saw the accused persons when the house of PW1 was burning. She alleged that the accused were arm ed with sharp weapons and they threatened them. 11. PW6 did not see how the incident happened. She is a seizure witness. PW7 is a relative of the accused person. He stated that when he came of 12. the site of occurrence the accused Hasim told him that Haris Ali, Abzal Ali and Atar Ali should be asked to deport from the place. PW8 is the Investigating Officer. To rebut the evidence of the prosecuti 13. on, defence produced one D.W. who stated that he is the President of V.D.P. He d eposed that the accused persons are members of the VDP party of which accused Ha sim was Secretary. He stated that the dacoit Sunahar married the sister of PW1 a nd the accused persons took active part in apprehending the dacoit Sunahar. That was the reason for which they were implicated in this case. 14. It is admitted fact that relationship of PW1 and his family members with the accused persons was not good since the accused persons took part in arrest of his brother-in-law. The evidence adduced herein by PW1, PW2, PW3 and PW4 has not been corroborated by the independent witness i.e. PW5. That apart, the evide nce of PW2 is contradictory to her statement recorded under Section 161 Cr.P.C. wherein deposed before the Investigating Officer that she saw two persons runnin g away from the place of occurrence. She did not mention the name of any of the accused persons. Similarly PW3 in his statement before the Investigating Officer stated that he saw some unknown persons going away, he also did not mention the name of accused-persons present at the place of occurrence. He stated in the st atement under Section 161 Cr.P.C. that although he cannot say who set fire to th e house but he suspected the two persons. PW4 also did not mention the name of t he accused persons before the investigating officer. These contradictions were c onfirmed by the Investigating Officer, during his cross-examination. 15. The discrepancies were not meticulously discussed by the trial Court. In vie w of above discussions, the judgment and order passed by the learned Sessions J udge convicting the accused-appellants and sentencing them to undergo rigorous i mprisonment are set aside. 16. Appeal is allowed. The accused appellants are set at liberty forthwith. Their bail bonds stand discharged. Send down the LCR.