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2012 DIGILAW 781 (GAU)

Aftab Uddin Borbhuiya v. State of Assam

2012-06-25

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. I have heard Mr. L.R. Mazumdar, learned Amicus Curiae for the convict/appellant and also Mr. K. Munir, learned Addl. P.P. Assam, for the respondent. By the judgment and order dated 12.2.04 rendered by the learned Sessions Judge, Hailakandi in Sessions Case No. 34/ 2003, the appellant being convicted u/s 436 IPC and sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 10,000/-, in default to undergo 6 months imprisonment, has preferred this appeal under Section 374(2) of the Code of Criminal Procedure. 2. Briefly stated, the prosecution case is that on 5.7.2000, an ejahar was lodged by one Nurul Haque Laskar with the O.C., Hailakandi P.S. alleging that in the previous night at about 9.30 P.M., the accused Aftab Uddin, out of previous grudge and enmity, set fire on their dwelling house. The accused was seen and identified by some witnesses through the focus of torch light while he was leaving the place of occurrence after committing the crime. There were two other persons with the present accused who committed the alleged offence. A crime being Hailakandi P.S. Case No. 176/2000 was registered u/s 436 IPC and on completion of investigation the I.O. submitted the charge-sheet against the accused. The offence being triable exclusively by the court of Sessions, it was committed under the existing provisions of law and a case being Sessions Case No. 34/2003 was registered. On perusal of the materials collected by the prosecution, the learned Sessions Judge, Hailakandi framed charge against the accused under the aforesaid Section of law. On being read over and explained, the accused pleaded not guilty and demanded trial. The prosecution examined 5 witnesses including the informant and the I.O. The accused examined no witness for his defence. The learned trial court having found the accused appellant guilty convicted and sentenced him as mentioned earlier. 3. The learned Amicus Curiae submits that the conviction and sentence was awarded by the learned trial court on the basis of evidence of PW 2, 3 and 4 who deposed before the trial that they saw the appellant along with two other persons running away from the place of occurrence and all the said witnesses could identify the appellant through the flash of the torch light. He submits that the aforesaid prosecution witnesses are not eye witnesses. He submits that the aforesaid prosecution witnesses are not eye witnesses. The prosecution failed to examine any eye witness who actually saw the act of setting fire on the house of the informant. Moreover, as submitted by him, PW 2 and 3 are related and interested witnesses and no reliance could be put on their evidence. According to him, PW 2 is also distantly related to the informant. The ejahar was lodged by the informant due to old grudge and dispute over a cultivable plot of land. The sum and substance of the submission is that there is no cogent and reliable evidence, not to speak of evidence of eye witness, to convict the appellant and the prosecution failed to prove the charge beyond reasonable doubt and as such he is entitled to get the benefit of doubt and an order of acquittal. 4. Mr. L.R. Mazumdar, learned Amicus Curiae relied on the decision of a Division Bench of this Court in State of Assam Vs. Sonahar Ali @ Sunur Ali reported in (2009) 1 GLT 739, wherein it has been held in paragraph 41 that if the evidence of eye witness is not cogent, trustworthy and reliable, conviction with the aid of Section 149 IPC is not sustainable and the accused is entitled to get the benefit of doubt. 5. Mr. Munir, learned Addl. P.P. opposing the said submission, argued that although there is no eye witness to the actual act of setting fire on the house of the informant, the circumstantial evidence found on record are sufficient to convict and sentence the appellant and there is no ground for interference with the impugned judgment of the learned trial court. 6. I have gone through the evidence on record. Let me appreciate the evidence of PW 1, 2, 3, 4 and 5. PW 1 is the informant. He was present at the time of occurrence. As per his evidence he did not see who actually set fire on the house. He also did not see the accused appellant at the place of occurrence. PW 2 is one Badula Mia, a co-villager and a neighbour of the informant. PW 1 is the informant. He was present at the time of occurrence. As per his evidence he did not see who actually set fire on the house. He also did not see the accused appellant at the place of occurrence. PW 2 is one Badula Mia, a co-villager and a neighbour of the informant. He stated that a marriage between Kamal Uddin, brother of the informant and Jahanara Begum, sister of PW 4, was arranged and the accused Aftab Uddin asked the informant not to solemnize the marriage of Jahanara with his brother as he was interested to marry her. This witness also stated that after hearing the commotion he came to the house of the informant and saw the accused along with two other persons, running away through the paddy field. The faces of two persons were covered by cloth but the face of accused Aftab Uddin was not covered and therefore he could identify him. Similar evidence was given by PW 3, Siddek Ali Barbhuiya, who also stated categorically that he could identity the accused through the focus of the torch light. So also PW 4, Nurul Haque Barbhuiya, who deposed in the same way before the learned trial court. This PW 4 is the father of Jahanara whose marriage was being arranged with Kamal Uddin and it was opposed by the accused Aftab Uddin. The evidence of PW 2, 3 and 4 are corroborated in material particular, particularly the fact that the accused/ appellant was running away from the scene. The important aspect of their evidence is that the accused Aftab Uddin Borbhuiya became inimical to the informant's family as he wanted to marry Jahanara and opposed the arrangement of her marriage with the informant's brother. 7. There is no doubt that the evidence of PW 2, 3 and 4 are corroborated in so far as it relates to the fact that the appellant, along with two other persons, were running away from a place nearby the dwelling house of the informant. It is also an admitted fact that the accused is a co-villager and as such his presence at the time of alleged incident was not unnatural. It is also an admitted fact that the accused is a co-villager and as such his presence at the time of alleged incident was not unnatural. He might have been present at the place of occurrence or near the place of occurrence for the purpose of extending helping hand in putting out the fire or he might have been present there to set fire on the house of the informant. There is nothing in the evidence that the accused came to the house or near the house of the informant to render any help when the house was burning. Similarly, there is no direct evidence that the accused came to the house or near the house of the informant to set fire on his house but the fact that the accused was found present near the house of the informant and running away along with two other persons has been proved by corroborated evidence of at least three prosecution witnesses. No direct evidence against the accused is available. In such circumstances, the Court is bound to consider the circumstantial evidence. The circumstantial evidence in this case is that the accused was seen by some witnesses and they have categorically stated before the trial court that they have identified him in the flash of the torch light. The defence, while cross examining the said witnesses (PW 2, 3 and 4), made no attempt to dislodge the evidence that they have been carrying the torch light with them when they were coming to the house of the informant on the date and time of occurrence and thereby there was no chance of identifying him through the flash light of the torch. The defence did not even put any suggestion that they were not carrying any torch light with them. Surprisingly, there is also no suggestion put by the defence counsel that PW 2, 3 and 4, out of grudge and objection to the arrangement of marriage between Jahanara Begum and Kamal Uddin (informant's brother), gave false evidence against the accused. 8. Along with the aforesaid circumstantial evidence, the Court can take into consideration the conduct and behaviour of the accused appellant, who, being a co-villager, instead of rendering help in putting out the fire, fled away. The accused has acted in a manner which is not expected from any co-villager or neighbour at a time when a co-villager's house was burning. Along with the aforesaid circumstantial evidence, the Court can take into consideration the conduct and behaviour of the accused appellant, who, being a co-villager, instead of rendering help in putting out the fire, fled away. The accused has acted in a manner which is not expected from any co-villager or neighbour at a time when a co-villager's house was burning. The conduct of the appellant speaks volumes and he has given no explanation for such conduct while he was answering the questions put to him by the learned trial court under Section 313 CrPC. In my considered view, although no direct/ocular evidence is found, the above circumstantial evidence with the aid of corroborated evidence of PW 2, 3 and 4, are enough to hold the accused guilty of the alleged offence. 9. I have carefully perused the case law relied upon by the learned Amicus Curiae. It was a case where, in the course of commission of dacoity, the accused/appellant was found present at the place of occurrence but there was evidence to the effect that although he was present at the place of occurrence, he did not participate in the commission of offence and in such circumstances, he was acquitted. In my considered view, the facts and circumstances of the present case are quite different from the above cited case and the law laid down therein has no relevance and applicability. On the face of the evidence on record, I do not find any valid ground to take a view different from the one taken by the learned trial court in convicting the appellant. I agree with the finding of the learned trial court and hold the appellant guilty of the offence and accordingly uphold the conviction. 10. In regard to sentence it is found that the appellant, who was about 25 years at the time of commission of offence, was engaging himself in a petty business and feeding his family from the income he used to derive therefrom. It appears from record that he has no criminal record and thus a lenient view could be taken in imposing the sentence. In my considered view, a sentence of simple imprisonment for 2 years would meet the ends of justice and it is accordingly directed that the convict/appellant is sentenced to undergo simple imprisonment for 2 (two) years and pay fine of Rs. In my considered view, a sentence of simple imprisonment for 2 years would meet the ends of justice and it is accordingly directed that the convict/appellant is sentenced to undergo simple imprisonment for 2 (two) years and pay fine of Rs. 1,000/-, in default simple imprisonment of 1(one) month. 11. The appeal stands disposed of with modification in the conviction and sentence as indicated above. The bail bond stands cancelled. 12. The convict shall surrender before the learned CJM, Hailakandi within a period of 30 days from to-day to serve out the sentence. 13. Acknowledging and appreciating the legal service rendered by Mr. L.R. Mazumdar, learned counsel, as Amicus Curiae for the convict/appellant, I direct the State Legal Services Authority to pay him an amount of Rs. 5,000/- (five thousand) only as legal fee. The LCR be returned forthwith.