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2012 DIGILAW 908 (GAU)

Sujit Dey @ Sibit v. State of Assam

2012-07-31

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 13.12.2002, passed, in Session Case No. 66 of 1998, the learned Assistant Session Judge, Karimganj, convicted two persons, namely, Suj it Dey alias Sibit, and Narayan Kapali, under Section 436 read with Section 34 IPC, and sentenced each of them to suffer rigorous imprisonment for a period of 5 (five) years and pay fine of Rs.1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 6 (six) months. Aggrieved by their conviction and the sentence, passed against them, both the convicted persons preferred an appeal in the Court of the learned Session Judge, Karimganj, which gave rise to Criminal Appeal No. 41(4)of 2002. 2. By judgment and order, dated 17.05.2004, the learned Session Judge, while maintaining the conviction of the accused petitioners, under Section 436 read with Section 34 IPC, modified the sentence by reducing the same from rigorous imprisonment for a period of 5 (five) years to a period of 2 (two) years, but maintained the fine of Rs.1,000/- each. As the appeal has not yielded the desired outcome, the appellants have come to this Court with the present revision. 3. I have heard Mr. D. Senapati, learned counsel, who has appeared as amicus curiae, and Mr. M. Dey, learned counsel, appearing for the accused-petitioners. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. 4. While considering the present revision, it needs to be noted that the accused, Sujit Dey, was a relative of Golapi Das (PW1), whose daughters (PW3 and PW4) have been examined as witnesses to the alleged occurrence. It is also not in dispute that there were several litigations between the two parties. 5. There was, thus, grudge and animosity between the two groups of people, namely, the informant (PW1) and her family members, on the one hand, and the accused, Sunit Dey, on the other. Animosity is a double-edged weapon, for, animosity may not only lead a person to implicate another person, though innocent, in an offence, it may also provide motive to a person to commit an offence. When there is animosity between the prosecution's witnesses and the accused, the evidence, on record, needs to be carefully appreciated so as to exclude all possibilities of an innocent being roped in as an accused. 6. When there is animosity between the prosecution's witnesses and the accused, the evidence, on record, needs to be carefully appreciated so as to exclude all possibilities of an innocent being roped in as an accused. 6. Bearing the above position of law in mind, when I turn to the evidence of PW1, I find that, according to her evidence, during the day time, on the day of the occurrence, a quarrel had taken place between Sebarani (step-sister of PW1 's husband) and others, on the one hand, and PW1 and her family members, on the other, because, Sebarani had claimed the house of the PW1, where PW1 had been residing on the ground that she (PW1) had no male issue. At that time, according to PW1, accused Sujit Dey and accused Narahan Kapali had warned PW1 that they would damage the house of PW1. 7. It is in the evidence of PW1 that, at night, when she, suddenly, woke up, she realized that some people were walking outside her house and, on opening the eastern window of her house, she saw a 'mashal' (torch) in the hands of accused Sujit Dey. She also saw Suresh Malakar, Sebarai Das, Narayan Kapalik and Dilip Das, who were standing in the courtyard of her house, along with accused Suj it Dey. It is in the evidence of PW1 that accused Sujit Dey and Narayan Kapalik were carrying 'mashal' (torch) in their hands. Out of fear, according to the evidence of P W1, she did not make any noise, but she noticed that after some time, accused Sujit and Narayan went towards backside of her house with 'mashals' in their hands and, on opening the backside window of her house, she (PW 1) saw accused Sujit striking a match and setting the two 'mashals', on fire, whereupon P W1 shouted and, on hearing her shout, her daughters and her husband got up from their sleep. PW1 has further deposed that although she tried to get out of her house, she found that the doors had been closed from outside. It is also in the evidence of PW1 that a part of her house was burnt down. 8. PW1 has further deposed that although she tried to get out of her house, she found that the doors had been closed from outside. It is also in the evidence of PW1 that a part of her house was burnt down. 8. Though P W1 denied, the Investigating Officer (PW8) has confirmed that PW1 did not tell him (PW8) that she had herself seen accused Narayan and Sujit setting fire to their house by striking match to the 'mashals', which they had been carrying. From her previous statement, it, however, transpires that that she (PW1) woke up on realizing that some people were walking outside her house and that she had seen 'masha' in the hands of the two accused persons. In her cross-examination by the defence, nothing could be elicited from P W1 to show that her evidence, that she woke up on realizing that some people were walking outside her house and that she had seen 'mashals' in the hands of the two accused persons, was untrue or false. The core of the evidence of PW1 has, thus, remained unshaken. 9. Close on the heels of the evidence of PW1, PW1's daughter (PW3) has spoken about the incident to the effect that, during day time, on the day of the occurrence, the accused persons had claimed the property, which had been in occupation of PW1. 10. As regards the occurrence, PW3 has deposed that, on the night of the occurrence, at about 3-00/3-30 a.m., on opening the window of their house, she saw a few persons going towards western side of their house, she saw 'mashals' (torch) in the hands of accused Narayan, Kapali and Sujit. PW3 has also deposed that she saw matchstick being struck and the 'mashals' being lit and, then, the two accused setting fire to the roof of their house, which was made of straw. It is also in the evidence of PW3 that, on the day of the occurrence, she, her husband (Gopal Sutradhar), her mother and her younger sister were in the house and, on raising hue and cry, people from the neighbourhood came and the fire was extinguished, but half of their house had already been burnt down. 11. It is also in the evidence of PW3 that, on the day of the occurrence, she, her husband (Gopal Sutradhar), her mother and her younger sister were in the house and, on raising hue and cry, people from the neighbourhood came and the fire was extinguished, but half of their house had already been burnt down. 11. In her cross-examination, PW3 has clarified that she had heard the sound of movement outside their house, she recognised the accused persons, when she saw the accused persons in the light of the 'mashals'. The Investigating Officer (PW8) has confirmed that PW3 had stated, in her previous statement, that her house had been burnt down by setting fire with the help of 'mashal'. Though PW3 was cross-examined by the defence, nothing significant could be elicited from her cross-examination to show that what she had deposed was untrue or false. 12. Broadly in tune with the evidence of PW3, her younger sister, PW4, has deposed that, on the night of the occurrence, they heard the sound of people moving outside their house and when her mother opened the back side window of their house, she (PW4) saw people trying to set fire to her house. It is in the evidence of PW4 that she saw accused Sujit and Narayan setting fire to her house with two 'mashals' separately and that when she shouted for help, people from outside asked them not to go out and that they would burn them (PW4 and her family members) inside the house. 13. So far as PW4 is concerned, the Investigating Officer has confirmed that PW4 had told him that she (PW4) had seen 'mashals' in the hands of the accused persons, but she had not seen the accused-persons setting fire to her house. However, it is pertinent to mention here that the omission, on the part of PW4, to state before the police that she had not seen the accused persons setting fire to their house, will not take away the value of the evidence, which PW4 has, otherwise, given to the effect that she had seen the accused persons, at the place of the occurrence, and that the accused persons had been carrying 'mashals' in their hands. In such circumstances, the evidence of PW4 to the effect that the two accused persons had been found outside the house of PW4 during dead of the night and that, at that time, the accused persons had been carrying 'mashals' in their hands cannot be discarded in the face of the evidence of PW4. The only reasonable inference has to be that the house, in question, which was, admittedly got substantially burnt, was due to the act of the accused persons and that it was the accused persons aforementioned, who had set fire to the said house. 14. Coupled with the above, PW2 has deposed that his house is about 100 feet away from the house of PW1 and, on the day of the occurrence, he, on hearing nulla being raised, woke up, came out of his house and, though his neighbours asked him not to go, he proceeded towards the house of PW1 and, in fact, requested his neighbours to extinguish the fire, but they did not do so and, then, he, with the help of some other neighbours, cut banana tree and tried to extinguish the fire and, thereafter, many people from the village came, but, in the meantime, half of the house had been burnt down. 15. The evidence of PW2 clearly proves that the house of PW1 was, indeed, set on fire and this fact has not been disputed by the defence at the trial. 16. Apart from the witnesses aforementioned, PW5 has also been examined as a neighbour and his evidence is that, on the night of the occurrence, his elder brother called him and asked him to find out as to why noise were coming from the western direction, whereupon he went out of his house and proceeded, through the road, towards west of the house of Golapi (PW1) and saw the house of PW1 on fire and that people were shouting that the house had been set on fire. 17. 17. What is significant to note, in the evidence of PW5, is that it is in his evidence that, on his arrival at me courtyard of the house of PW1, he found accused Sujit standing with a 'Dao' in his hand and accused Narayan had a 'mashal' in his hand, accused Sujit asked PW5 not to come and said that he (Sujit) would cut him (PW5) if he (PW5) did so, whereupon PW5 stood there for some time and, then, went back to his house. It is also in the evidence of PW5 that it is only after some part of the house had been burnt that the fire could be extinguished. 18. Though the Investigating Officer (PW8) has confirmed that PW5 had not stated before him that the accused persons had obstructed him with Dao, as stated hereinbefore, the fact remains that nothing could be elicited by the defence to show that in his previous statement, which PW5 had made to the police, there was no mention about the presence of the two accused at the place of occurrence, when he (PW5) arrived there, nor was there any mention of the fact that accused Narayan had a 'mashal' in his hand. Thus, the evidence of PW5 lends substantial support and corroboration, though indirect, to the evidence of PW1, PW3 and P W4 that both the accused aforementioned were found at the scene of occurrence and that one of the accused, namely, Narayan, was seen holding 'mashal' in his hand, when the house of PW1 was on fire. 19. Coupled with the above, even the Investigating Officer does not dispute that a part of the house of PW1 was burnt down. 20. In the backdrop of the evidence, which have been discussed above, the learned trial Court was not incorrect in arriving at the conclusion that the two accused aforementioned had set fire to the house of PW1 and, as a result thereof, a part of the house was burnt down. On the basis of this conclusion, the conviction of the accused-petitioners could not have been said to be bad in law. 21. Neither, therefore, the learned trial Court nor the appellate Court committed any error in holding the accused-petitioners guilty of the offence, which they were charged with, under Section 436 read with Section 34 IPC. On the basis of this conclusion, the conviction of the accused-petitioners could not have been said to be bad in law. 21. Neither, therefore, the learned trial Court nor the appellate Court committed any error in holding the accused-petitioners guilty of the offence, which they were charged with, under Section 436 read with Section 34 IPC. So far as the sentence is concerned, the learned appellate Court has, as indicated above, reduced the sentence from rigorous imprisonment for 5 (five) years to 2 (two) years rigorous imprisonment, maintaining, however, the fine of Rs.1,000/- each, which had been imposed by the learned trial Court. This Court does not find that the conviction of the accused petitioners suffers from any infirmity, legal or factual, nor does this Court find that the sentence, passed against the accused petitioners call for any interference. 22. Situated thus, this Court is of the firm view that neither the conviction of the accused-petitioners nor the sentence, passed against them, calls for any interference in exercise of this Court's revisional jurisdiction. 23. Because of what have been discussed and pointed out above, this Court does not find any merit in this revision. The revision, therefore, fails and the same shall accordingly stand dismissed. 24. Let Mr. D. Senapati, learned amicus curiae, who has ably assisted the Court along with Mr. M. Dey, learned counsel, be paid a sum of Rs.3,500/-, as fees, by the High Court's Legal Aid Cell. 25. With the above observations and directions, this revision stands disposed of. Send back the LCR.