JUDGMENT 1. Heard Mr. S. Sarkar, learned counsel appearing for the petitioners as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the State. 2. This is an appeal by the accused persons against the judgment of conviction dated 26.08.2014 delivered in Sessions Trial No.150/2013 by the Addl. Sessions Judge, Court No.2, West Tripura, Agartala. 3. Pursuant to the said judgment dated 26.08.2014, each of the accused persons has been sentenced to suffer rigorous imprisonment for four years with fine of Rs. 1,000, in default, to suffer further rigorous imprisonment for six months for commission of lurking house-trespass or house-breaking by night in order to commit offence, punishable under Section 457 of the IPC, rigorous imprisonment for one year for commission of mischief causing damage or loss under Section 427 of the IPC and rigorous imprisonment for four years for commission of attempting mischief by fire punishable under Section 436 of the IPC. 4. The genesis of the prosecution case is rooted in the information lodged by one Narayan Chandra Deb (PW.1) on 01.03.2013, whereas the occurrence took place on 28.02.2013 at about 2200 hours disclosing that the accused persons, the appellants herein who were known CPIM activists in the area, alongwith some other workers broken the door of his grocery shop, looted articles and set fire to his shop. 5. Based on the said information, Airport P.S. Case No.27/2013 under Sections 457/380/436/511/34 of the IPC was registered and taken up for investigation. After investigation the final police report, chargesheeting the appellants was filed under Section 436 read with Section 511 of the IPC and Sections 457, 427 of the IPC, to which the appellants pleaded total innocence and claimed to face the trial. 6. In order to substantiate the charge, the prosecution adduced seven witnesses and introduced four documents including the written ejahar (Exbt.3), seizure list and some burnt materials etc. Thereafter, the appellants were examined under Section 313 of the Cr.P.C. to have their response on the incriminating materials those appeared in the evidence as led by the prosecution. The appellants clearly denied those materials and reiterated their innocence. 7. On appreciating the evidence, the trial court convicted and sentenced them as stated. By filing this appeal, the said order of conviction has been challenged by the appellants. 8. Mr. The appellants clearly denied those materials and reiterated their innocence. 7. On appreciating the evidence, the trial court convicted and sentenced them as stated. By filing this appeal, the said order of conviction has been challenged by the appellants. 8. Mr. S. Sarkar, learned counsel appearing for the appellants, has submitted that except Narayan Chandra Deb (PW.1) the other witnesses did not corroborate the occurrence on the material points as it would be apparent from the appreciation of the evidence that they have improved their version to lend some credence to the evidence of PW.1. Apart that, it was a consolidated design by PW.1 and PW.7 to frame the appellants. Mr. Sarkar, learned counsel has further submitted that on the face of the evidence, no charge under Section 457 of the IPC can be sustained. He has proceeded to submit further that there is no material seized by the police and it cannot be established that the shop of PW.1 was at all set on fire. Some gunny bags in burnt condition were seized by the Investigating Officer on the following day. Apart that, Mr. Sarkar, learned counsel has submitted that PW.1 himself has stated that he belonged to the rival party and on that day election results were declared. As such, the enmity between the appellants who are the close door neighbours of PW.1 has floated on the surface. 9. Mr. Ghosh, learned Public Prosecutor appearing for the state has stated that the materials are not adequate enough to hold the charge established beyond reasonable doubt. However, he has submitted that the charge under Section 427 of the IPC has been successfully established. 10. Having regard to the contentions as advanced by the learned counsel for the parties, this court is of the view that a short survey of the evidence would be beneficial. 11. PW.1, Narayan Chandra Deb, who was not examined under Section 161 of the Cr.P.C. by the Investigating Officer, has stated beyond what he had disclosed in the written ejahar (Exbt.1/Exbt.3). However, that aspect of the matter was not brought on record by the defence. He has stated in the trial that on 28.02.2013 at about 10:00 pm he was in the courtyard of his house. At that time, Kartik Nandi, Kartik Deb alongwith some other persons entered in his shop situated in front of his house. However, that aspect of the matter was not brought on record by the defence. He has stated in the trial that on 28.02.2013 at about 10:00 pm he was in the courtyard of his house. At that time, Kartik Nandi, Kartik Deb alongwith some other persons entered in his shop situated in front of his house. When he attempted to come forward the appellants and others started pelting brickbats. Thereafter, the accused persons had broken the door and the showcase of his shop and looted some articles from his shop. He immediately informed the matter to the Airport police station over phone. The police visited the shop premise, but none of the accused persons could be located in that place. Again the appellants attacked his shop and set fire his shop premise at about 10:30 pm. Then he raised alarm and informed the matter to the local police. Again the police visited the place of occurrence and with the help of the police they managed to extinguish the fire. According to him, he had suffered a huge loss due to damage and breakage of the goods in his shop premise. As such, he filed the written ejahar which was written by Ashit Paul (PW.6) in the Airport police station. According to him, the police officer seized some broken glass of his showcase, some glass made bottles which were used as container for selling of goods and half burnt jute bags. Those were identified by him as Exbt.M.O.1 series. However, he denied the suggestion projected to him at the time of cross-examination. He has admitted that there are some houses surrounding his house and the shop of one Ganesh Nandi situated opposite to his shop premise. But, surprisingly except Ashit Paul (PW.6) none has been examined from the neighbourhood by the prosecution. 12. PW.2, Smt. Sampa Deb is the wife of PW.1. She almost replicated what PW.1 has stated. But, in the cross-examination she has admitted that she had not stated to the police that three times the accused persons attacked the shop of her husband. According to her, the shop was roofed by the GCI sheet, floor was made of concrete and in the front there was wooden door. She has further stated that on the fourth occasion the accused persons set fire on their shop premises. According to her, the shop was roofed by the GCI sheet, floor was made of concrete and in the front there was wooden door. She has further stated that on the fourth occasion the accused persons set fire on their shop premises. When attention was drawn to such statement, she could not locate such statement in her previous statement. 13. PW.3, Anup Deb is the son of PW.1. He has stated in tune with what PW.1 has stated in the examination-in-chief. But, in the cross-examination he failed to find out his statement that the appellants set fire in their shop premise. He has further submitted that their dwelling hut is in the back side of their shop premises. He and his mother (PW.2) noticed the incident from the varandah of their dwelling hut. But, he has admitted that from the varandah, the front side of the shop is not visible. He has failed to explain how he could see the appellants whom he accused of breaking the door or destroying the materials in the shop. 14. PW.4, Satya Goplal Biswas, a Sub-Inspector of Police who was posted at Airport P.S. on 01.03.2013, has stated how he had received the written ejahar and registered the case, being Airport P.S. Case No.27/2013. He has identified the FIR form etc. But, he has categorically stated in the cross-examination as under : “There was no information in our PS related to the incident of this complaint prior to registration of this case. No explanation regarding delay was informed to you by the informant and therefore, I have not filed up the requisite column of the printed FIR form.” 15. PW.5, Suman Das did not state anything, but hearing hue and cry on the road, he came out and informed the local police about the hue and cry. 16. PW.6, Ashit Paul has stated that on 28.02.2013 at about 10:00 pm in the night he was at his house. At that time, the appellants and others came in front of his house and started chopping on the boundary fencing and gate made by the tin and caused damage to them. On hearing the sound of causing destruction of his fencing and gate, he came out from his room and from the corridor he could identify the accused persons. He informed the matter to the police station over phone. On hearing the sound of causing destruction of his fencing and gate, he came out from his room and from the corridor he could identify the accused persons. He informed the matter to the police station over phone. Thereafter, he has stated that they started breaking the shop of Narayan Deb (PW.1) and both the accused persons alongwith others set fire on some articles of the shop. He with the help of the police extinguished the fire. Though the police chased accused Kartik Deb, but ultimately failed to catch him. He wrote a complaint on behalf of Narayan Chandra Deb (PW.1) as per his statement. He has also identified the complaint as Exbt.1. In the cross-examination he denied the suggestion as projected to him. 17. PW.7, Nanda Dulal Das, a Sub-Inspector of Police, who was posted at the relevant time at Airport police station, carried out the investigation. He has stated briefly how he completed the investigation on seizing the material objects regarding the statements of the witnesses and prepared the site map. In the cross-examination what he has stated is really startling and that has destroyed the very basis of the prosecution case. For that reason, that part is extracted hereunder : “During investigation it was not revealed from the statement of the witnesses that any information was given to the P.S. regarding the incident prior to the registration of the case. I did not record the statement of the complainant under Section 161 of Cr.P.C. on 01.03.2013. I did not examine any witness. W.V.- “It took time upto 2400 hours on 01.03.2013 to visit the P.O. and so, I could not examine witnesses on that date.” Nothing was revealed from the statement of the witnesses regarding explanation of delay in lodging the case. W.V.- “So far delay is concerned it is in the C.D. that S.I. Soleman Reang along with staff were performing mobile duty and on getting telephonic information they went to the P.O. when the complainant Narayan Deb and one Asit Paul stated to him that they will lodge case after consultation with their Congress(I) leadership.” S.I. Soleman Reang is not cited as witness in this case. It is not a fact that the explanation noted in the C.D., as stated above, is not correct. The complainant did not inform to the P.S. over telephone. It is not a fact that the explanation noted in the C.D., as stated above, is not correct. The complainant did not inform to the P.S. over telephone. P.W.3 Sri Anup Deb did not state to me that the accused persons set fire on his shop. P.W.2 Smt. Shampa Deb did not state to me that on hearing sound of crackers she came out of the room. Shampa Deb did not state to me that they informed the incident to the Police over telephone, that three times the accused persons attacked the shop premises or that on fourth times accused persons set fire in the shop premises. The P.O. is thickly populated area. I did not examine any other witness, besides the witnesses of C.S.” Much is left to be said about his conduct. But, this court would now only remain confined to the evaluation of his statement. 18. PW.7 has admitted that he did not examine any other witnesses from the neighbourhood though the neighbourhood is thickly populated. As succinctly as that can be, he has stated that PW.3, Anup Deb did not state to him that the accused persons set fire in their shop. Similarly, PW.2, Smt. Sampa Deb did not state to him that on hearing the sound of crackers she came out of the room. Even he has stated that PW.2 did not state that she informed the police over telephone. He has categorically stated that there was no information lodged in the police station on the night of the occurrence as regards the incident. 19. On overall assessment of the evidence, if the evidence of PW.6 is read with the other evidence, it would appear that there was no material to establish the charge under Section 436 of the IPC. Even there is no element in the evidence to establish the charge under Section 457 of the IPC as there was no lurking house-trespass which is a sine qua non for establishing the charge under Section 457 of the IPC couched with the attempt to commit an offence. The remaining charge under Section 427 of the IPC shall fall through because nobody has stated that the materials so destroyed or seized by the police would amount more than Rs.50.00. Unless that is categorically established by evidence no charge under Section 427 of the IPC can be established. 20. The remaining charge under Section 427 of the IPC shall fall through because nobody has stated that the materials so destroyed or seized by the police would amount more than Rs.50.00. Unless that is categorically established by evidence no charge under Section 427 of the IPC can be established. 20. Having observed thus, this court is of the considered opinion that the appellants are entitled to the benefit of doubt and accordingly they are acquitted from the charge. 21. In the result, the appeal stands allowed. The impugned judgment and order is set aside. Since the appellants are on bail, their sureties stand discharged. Send down the LCRs forthwith.