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2010 DIGILAW 321 (GAU)

Saleha Khatun v. State of Assam

2010-05-06

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. None appears for the accused appellants when the matter was called upon for hearing today. I have heard Mr. K. Munir, learned Additional Public Prosecutor; Assam, for respondent No. 1, There is also no representation for respondent No. 2 (Complainant). 2. All the appellants, having been convicted Under Section 323, IPC and sentenced to suffer rigorous imprisonment for 6 (six) months and the appellant No. 1, Mustt. Saleha Khatun, Under Section 436 IPC, alone, sentenced to suffer rigorous imprisonment for 3(three) years and to pay fine of Rs. 1,000/-, in default, simple imprisonment for further 15 days and her imprisonment being directed to run concurrently vide judgment & Order dated 2-2-2002 in Sessions Case No. 93(N)/98 passed by the learned Additional Sessions Judge, Nagaon, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 3. The prosecution story is founded on the complaint filed by the respondent No. 2 Siraj Uddin Ahmed, before the Court of learned CJM, Nagaon, alleging, inter alia, that the accused appellants forming an unlawful assembly and being armed with deadly weapons like lathi, jathi, etc. came to house of complainant on 1-12-1995, at about 11 a.m. and set fire on his dwelling house and caused damage to the properties to the extent of Rs. 20,000/-. On hearing the alarm, Motin Sarkar, Aziz Hazarika, Jalaluddin, Siraj Ali and Ors. arrived at the place of occurrence. In this connection, an FIR was also lodged with the concerned police station on the same day but the police did not register any case and therefore, the aforesaid complaint was made before the Court of learned CJM, Nagaon. The case endorsed to the Court of SDJM, Nagaon, who recorded the statements of the complainant and called for the report from the Officer-in-Charge of Dhing Police Station. On receipt of the report from the police, the learned SDJM re-corded the statements of the witnesses and finding prima facie materials under Sections 147/447/436/379/34, IPC, issued summons to the accused appellants for appearance. They accordingly appeared and the case was committed to the Court of Session for trial which was later on transferred to the Court of Additional Sessions Judge, Nagaon. The learned trial Court framed charges against the present accused appellants Under Sections 436/323, IPC to which they pleaded not guilty and demanded trial. They accordingly appeared and the case was committed to the Court of Session for trial which was later on transferred to the Court of Additional Sessions Judge, Nagaon. The learned trial Court framed charges against the present accused appellants Under Sections 436/323, IPC to which they pleaded not guilty and demanded trial. The prosecution in order to bring home the aforesaid charges examined as many as 6 (six) witnesses including the complainant. The defence also examined one witness namely Mustt. Saleha Khatun. After closing the evidence of the prosecution, the statements of the accused appellants were recorded under Section 313, Cr. P. C, 1973. The defence examined only l(one) witness. The learned trial Court on consideration of the materials and evidence on record as well as the submissions made by the learned Counsel appearing for the parties, convicted and sentenced the accused appellants as already noted above. 4. Out of 6(six) witnesses examined by the prosecution, there were altogether 5 (five) eye-witnesses, namely, PW-1 Siraj Uddin Ahmed (complainant himself), PW-2 Abdul Motin Sarkar, PW-3 Sirajuddin, S/o Saraf Ali, PW-4 Haijuddin and PW-6 Jalaluddin. As per their depositions, they were present at the time of occurrence and they saw the incident with their own eyes. All of them had stated in unison that Mustt. Saleha Khatun set fire on the dwelling house of the complainant by using a match stick and the said dwelling house was completely burnt down to ashes thereby causing damage to the properties. PWs-3 and 6 further stated that they saw accused Saleha Khatun taking the match box from accused Hazrat and using the said match box, she set fire on the dwelling house of the informant. PW-4 Haijuddin, a co-villager, is an independent witness. He deposed that his house is adjacent to the place of occurrence and he had the occasion to witness the entire occurrence that took place on 1-12-1995. 5. Apart from the clear and categorical statements of the aforesaid prosecution witnesses regarding the incident with required details as to who and how the dwelling house was burnt down and properties were damaged, I find corroboration in the evidence of the aforesaid witnesses. The defence counsel although cross-examined the witnesses, could not destroy the aforesaid corroborated evidence. 5. Apart from the clear and categorical statements of the aforesaid prosecution witnesses regarding the incident with required details as to who and how the dwelling house was burnt down and properties were damaged, I find corroboration in the evidence of the aforesaid witnesses. The defence counsel although cross-examined the witnesses, could not destroy the aforesaid corroborated evidence. In my considered view, the prosecution has been able to adduce sufficient, evidence and it has been able to prove the charge beyond reasonable doubt against the accused appellants. DW-1 Mustt. Saleha Khatun, took a stand that the house on which she set fire, belonged to her and the land on which it stood, also belonged to her. The aforesaid land and the house, according to DW-1, were forcibly occupied by the complainant party for which she had filed a suit in the Civil Court. According to her, the complainant's party assaulted her and they tried to take the possession of the said house forcibly by driving her out, for which, she lodged an FIR before the police but no action was taken by the police in that regard. Although DW-1 staked claim on the aforesaid land and house, in her cross-examination, she could not give the Patta No. and Dag No. of the land, in question. From her deposition, it has become clear that she set fire on the said house as because the complainant and his party assaulted her and tried to dispossess and drive her out therefrom. The question of ownership, right and title with regard to the said land and house, are required to be proved/established in the Civil Court and as per her evidence, the suit filed for that purpose, is pending before the Civil Court concerned. It appears that before any outcome in respect of that suit has been received, DW-1 has resorted to alleged action of setting fire on the dwelling house of the informant which amounts to taking the law in her own hands in her bid to resist the alleged forceful occupation and tried to drive the complainant and his party out by setting fire on the dwelling house. 6. The claim of DW-1 Mustt. Saleha Khatun, who is the main accused, is not supported by the evidence of any other witness. She did not take any step to adduce any other person as her defence witness to support her aforesaid claim. 6. The claim of DW-1 Mustt. Saleha Khatun, who is the main accused, is not supported by the evidence of any other witness. She did not take any step to adduce any other person as her defence witness to support her aforesaid claim. The DW-1 might have rightful claim over the aforesaid plot of land and the dwelling house but it must be established before the appropriate Court and before doing so, she cannot take any action against the other party by setting fire on the dwelling house. The evidence of DW-1 herself amounts to admission of the fact that it was none else but she herself who set fire on the dwelling house of the informant. The corroborated evidence of PWs-1, 2, 3, 4 and 6, who are eye-witnesses to the incident, could not be destroyed/impeached by the defence while cross-examining them and the same are found to be cogent, reliable and trustworthy. The conviction and sentence can be inflicted on the accused appellants on such evidence on record and in my considered view, the learned trial Court has rightly convicted and sentenced the accused appellants which needs no interference by this Court. Consequently, I uphold the impugned judgment and order convicting and sentencing the accused appellants. 6A. In the result, the instant appeal fails. Accordingly, the present accused appellants are hereby directed to surrender themselves before the Court of learned CJM, Nagaon, for serving the sentence forthwith failing which the Magistrate concerned shall take appropriate action for apprehending them for serving the sentence, as stated above. The bail bonds stand cancelled. 7. Send down the LCRs to the Court below forthwith.