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2004 DIGILAW 264 (GAU)

Dipak Das v. State of Assam

2004-04-07

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order dated 22.11.95, passed by the learned Sessions Judge, Cachar, Silchar in Criminal Appeal No. 3(3) of 1995, whereby the learned Appellate Court, while upholding the conviction of the accused Petitioners under Section 435 IPC, modified the sentence by reducing the period of rigorous imprisonment for 6 months to 4 months with a fine of Rs. 300/- each and, in default, to suffer rigorous imprisonment for a further period of one month each. 2. The case against the accused Petitioners may be briefly stated as follows: On 6.9.90 at about 9 AM while the informant, Gogen Roy, and his son, Subal Roy, were present at their paddy field and the wife of informant and his daughter-in-law were present at the house of informant, the accused Abhinash Dutta, accompanied by accused Dipak Das and some other persons numbering as much as 22/23, forcibly entered into the homestead of the informant and set fire to the cow-shed of the informant and while the informant's wife, Smt. Aragya Roy and daughter-in-law, Smt. Shibani Roy, raised protests against the alleged act of burning of their cowshed, the accused persons assaulted Smt. Aragya Roy and Smt. Shibani Roy and caused injuries on their persons. Seeing the smoke rising from their cowshed, the informant and his son, Subal Roy, rushed to the place of occurrence and they saw both the accused Petitioners present at the place of occurrence, accused Abhinash being armed with a mashal (i.e. lifted torch) in his hand. Immediately after the occurrence, the informant went to the Police Station and lodged there an FIR. The police accordingly registered Borkhola P.S. Case No. 194/90 under Sections 147 / 436/ 323 of IPC. In course of the investigation, police visited the place of occurrence, seized some half burnt materials lying there and sent the injured persons to doctor for treatment. On completion of investigation, police submitted chargesheet against the accused persons under Sections 147 / 436 /323 IPC. 3. During trial, the learned Trial Court framed charges under Sections 147 / 436 and 323 IPC. The accused Petitioners pleaded not guilty to the charges so framed. In support of their case, the prosecution examined as many as 7 witnesses. On completion of investigation, police submitted chargesheet against the accused persons under Sections 147 / 436 /323 IPC. 3. During trial, the learned Trial Court framed charges under Sections 147 / 436 and 323 IPC. The accused Petitioners pleaded not guilty to the charges so framed. In support of their case, the prosecution examined as many as 7 witnesses. The accused Petitioners were, then, examined under Section 313 Code of Criminal Procedure and in their examinations aforementioned, the accused Petitioners denied that they had committed the offences alleged to have been committed by them, the further case of the defence being that it was the informant, namely, Gagon Roy, who had caused injuries on the persons of the accused Petitioners by throwing arrows, etc. The defence also adduced evidence and examined two witnesses. On conclusion of the trial, the learned trial Court found the accused- Petitioners guilty of the offences under Sections 435 and 323 IPC read with Section 34thereof and sentenced each of them to suffer rigorous imprisonment for 6 months and to pay a fine of Rs. 400 and, in default, to undergo rigorous imprisonment for a further period of 1 month each. Being aggrieved by their conviction and the sentence so passed, the accused-Petitioners preferred an appeal, which was disposed of as indicated hereinabove. The accused-Petitioners have, now, approached this Court with the present revision application. 4. I have heard Mr. MH Rajbarbhuiya, learned counsel for the accused Petitioners and Mr. F.H. Laskar, learned Additional Public Prosecutor. 5. At the time of hearing of this revision application, the conviction of the accused Petitioners has been challenged on two grounds. Firstly, that though charge under Section 436 IPC was framed, the conviction of the Petitioner was under Section 435 IPC and, hence, the omission to frame a charge under Section 435 IPC was contrary to the provisions of Section 211 Code of Criminal Procedure and as a result thereof, the conviction of the accused Petitioners under Section 435 IPC is not maintainable. The second ground alleged is that the eye witnesses to the occurrence are all members of the same family and their relationship with the accused Petitioners was enimical and, hence, in the absence of any independent witnesses corroborating the evidence of the interested witnesses, no conviction of the accused-Petitioners could have been legally founded. The second ground alleged is that the eye witnesses to the occurrence are all members of the same family and their relationship with the accused Petitioners was enimical and, hence, in the absence of any independent witnesses corroborating the evidence of the interested witnesses, no conviction of the accused-Petitioners could have been legally founded. Both these aspects of the matter have been, I find, dealt with by the learned Appellate Court and rejected. 6. While considering the question as to whether the omission to frame a charge under Section 435IPC has made the conviction of the accused Petitioners illegal, it is of utmost importance to note that mere omission to frame a charge may not be fatal unless the omission, as indicated by Section 464Code of Criminal Procedure, has caused miscarriage and failure of justice. Section 436 IPC is merely an aggravated form of the offence of mischief by fire covered by Section 435 IPC, hence, the offence under Section 436 IPC will include all the ingredients of Section 435 IPC, the difference between the two penal sections being that while Section 435 IPC penalizes commission of mischief by fire with intent to cause damage to the amount of one hundred rupees or in the case of agricultural produce ten rupees, Section 436 IPC penalizes offence of mischief if the mischief is caused 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. 7. It is, thus, clear that the offence under Section 435 IPC, broadly speaking, forms part of the offence under Section 436 IPC. Since, in the present case, the accused Petitioners were charged under Section 436 IPC, there was no impediment under the law to convict them under Section 435IPC, if the evidence so justified. That apart, nothing could be submitted, on behalf of the accused Petitioners, to show that any miscarriage of justice has taken place as a result of the omission to frame a specific charge under Section 435 IPC. 8. That apart, nothing could be submitted, on behalf of the accused Petitioners, to show that any miscarriage of justice has taken place as a result of the omission to frame a specific charge under Section 435 IPC. 8. Turning to the plea of the accused-Petitioners that the prosecution witnesses were all interested witnesses, it may be noted that P.W. 3, who is the wife of the informant, namely, P.W. 1 and P.W. 4, who is the daughter-in-law of P.W. 3, were, according to the evidence on record, the only ones present at the house, when the occurrence took place, and when these two witnesses, on witnessing the act of setting fire to their house by the accused-Petitioners, raised hue and cry, the informant, namely, P.W. 1 and, P.W. 2, son of the informant, who were working in a nearby field, rushed to their house and saw the accused setting fire to their cowshed. Undoubtedly, all these four witnesses i.e. 1, 2, 3 and 4 are members of the same family and they were interested witnesses; but their interestedness was not in itself sufficient to discard their evidence as concocted unreliable. What was required under the law was to scrutinize their evidence on record more cautiously and carefully than what is ordinarily done, but if, on such scrutiny, their evidence was found reliable and trustworthy, there was no legal impediment in founding the conviction of the accused-Petitioners on such evidence. Apart from the fact that the learned Trial Court had scrutinized the evidence on record and, after a threadbare discussion of the evidence on record, came to the conclusion that the evidence given by these witnesses was reliable, even the learned Appellate Court did, I notice, carefully examine the evidence on record, but found no reasons to reject the evidence of the witnesses. At the time of hearing of this revision application too, nothing substantial could be pointed out in the evidence of the witnesses aforementioned to indicate that the accused Petitioners were being falsely alleged to have been seen setting fire to the cowshed. Viewed from this angle, there was no justifiable reason for the learned Courts below not to place reliance on the evidence of these witnesses, particularly, when P.W. 3 and P.W. 4 were injured in the same occurrence. 9. Viewed from this angle, there was no justifiable reason for the learned Courts below not to place reliance on the evidence of these witnesses, particularly, when P.W. 3 and P.W. 4 were injured in the same occurrence. 9. On consideration of the matter in its entirety, I find no good and sufficient reason to interfere with the finding of guilt arrived at by the learned courts below against the accused Petitioners. That apart, the sentence imposed by the learned Appellate Court on the accused Petitioners is not harsh and/or unjustified. 10. In view of the above, I see no merit in this revision application and the same needs to be dismissed. 11. In the result and for the foregoing reasons, this revision application fails and the same is accordingly dismissed. 12. The accused Petitioners are hereby directed to surrender forthwith in the Court of learned Chief Judicial Magistrate, Cachar, Silchar, to serve out the sentence of rigorous imprisonment passed against them. 13. Send back the Lower Court Records. Petition dismissed.