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2020 DIGILAW 366 (GAU)

Md. rahim Uddin Laskar v. Md. rahim Uddin Laskar

2020-03-11

HITESH KUMAR SARMA

body2020
JUDGMENT 1. This is an appeal against the judgment and order, dated 10.03.2010, in Sessions Case No. 25/2008 passed by the learned Additional Sessions Judge, FTC, Cachar, Silchar acquitting the respondents from charge under Sections 149/427/436 of the IPC. 2. I have heard Mr. SC Biswas, learned counsel for the appellant as well as Mr. P Mahanta, learned Amicus Curiae, appearing also for the appellant, who was appointed by this court, vide order, dated 25.02.2020. I have also heard Mr. T. Sk., learned counsel appearing for the respondent Nos. 1 to 15 as well as Mr. BJ Dutta, learned Additional Public prosecutor, appearing for the respondent No. 16. 3. I have also perused the records of the learned trial court and the impugned judgment. 4. The fact of the case is that on 17.05.2002, at about 4 p.m., the accused persons, namely, 1. Zakir Hussain (Badsha), 2. Altabur Rahman, 3. Amir Hussain, 4. Safique Uddin, 5. Rofique Uddin, 6. Lal Mia, 7. Nurul Haque, 8. Rahim Uddin, 9. Mossabbir Ali @ Sona Mia, 10. Kaladhan Mia, 11. Iskandar Ali, 12. Siraj uddin, 13. Nizam Uddin and 14. Ainul Haque forming an unlawful assembly and armed with deadly weapons, trespassed into the house of the informant/PW1. The accused persons, Rahim Uddin, Zakir Hussain, Mossabbir Ali and Kaladhan Mia had set fire in the dwelling houses of PW1 (informant) and his brother Kutub Uddin/PW2 and as a result both the dwelling houses were completely gutted. The accused persons were also alleged to have damaged the plants belonging to the informant/PW1 causing loss of about Rs. 40,000 to him. 5. On receipt of the FIR about the above occurrence, through Kachudaram Police Out Post, the Sonai Police Station registered a case, being No. 112/2002, investigated into it and finally, submitted charge-sheet against the accused persons under Sections 147/149/447/323/427/436 of the IPC. 6. After exhausting all required legal formalities, the learned court below framed a formal charge against the accused persons under Sections 149/427/436 of the IPC to which the accused persons pleaded innocence, and therefore, the trial commenced. 7. During the course of the trial, the prosecution examined as many as 9 (nine) witnesses, who were subjected to cross-examination by the defence. The statements of the accused persons were recorded under Section 313 of the Cr.PC. In their such statements, the accused persons denied the incriminating evidence put to them. 7. During the course of the trial, the prosecution examined as many as 9 (nine) witnesses, who were subjected to cross-examination by the defence. The statements of the accused persons were recorded under Section 313 of the Cr.PC. In their such statements, the accused persons denied the incriminating evidence put to them. The defence did not examine any witnesses. The defence plea is of denial. 8. The evidence of PW1/informant is to the effect that the occurrence had taken place at about 4 p.m. He had seen a huge gathering of people coming from the house of accused Zakir Hussain with deadly weapons like dao, arrow, dagger, etc and accused Zakir Hussain, Rahim Uddin, Massabbir Ali and Kaladhan Mia came to his house and set his house on fire by match stick. He also named the other accused persons, namely, Atabur Rahman, Amoi, Nurul Haque, Ainul, Lal Mia, Nizam Uddin, Siraj and Sikandar Ali to have damaged his plants of his homestead. The further evidence of this witness is that his brother/PW2 had rushed to his residence and protested the criminal acts of the accused persons for which he was also assaulted by accused Sikandar Ali. His evidence is specific to the effect that the accused persons, namely, Massabbir Ali, Zakir Hussain, Kaladhan Mia and Rahim Uddin had set fire in the dwelling house of PW2. During his cross-examination, he had admitted that there are criminal as well as civil litigations pending between him and the accused persons being instituted by the accused persons. 9. The PW2, is the brother of PW1. He was in his house at the relevant time of occurrence and he had rushed to the place of occurrence after hearing hue and cry. He had seen all the accused persons, armed with deadly weapons, coming to the house of PW1 and causing damage to his plants. On being protested by him, accused Iskandar had dealt a lathi blow on him. His further evidence is to the effect that accused Musabbir, Zakir Hussain, Rahim Uddin and Kaladhan Mia had set fire in the dwelling house of PW1 and thereafter they had chased him and set fire in his dwelling house also. During his cross-examination, he had admitted about the civil and criminal litigations between the parties being instituted by the accused persons. 10. The PW3 is the wife of the PW1. During his cross-examination, he had admitted about the civil and criminal litigations between the parties being instituted by the accused persons. 10. The PW3 is the wife of the PW1. She deposed that accused Zakir Hussain alongwith his companions had come to their house, armed with deadly weapons, and then accused persons Zakir Hussain, Rahim Uddin, Mussabbir Ali and Kaladhan Mia had set fire in their dwelling house and other accused persons destroyed the plants and trees. She also stated that on being protested by PW2, he was also chased and assaulted apart from setting his house on fire. This witness had informed about the occurrence to the nearest Motinagar Battalion Camp and thereafter the Battalion personnel had came over and tried to extinguish the fire. In her cross-examination, she is heard saying that about 30-35 villagers have witnesses the occurrence. 11. The PW4 also heard about the occurrence. His evidence remains hearsay having no evidentiary value. 12. The PW5 is the doctor, who had examined the PW2 and found abrasion on his left knee and chin. 13. The PW6 is the father-in-law of PW1, who at the time of occurrence was grazing his cattles nearby the place of occurrence. He had seen the accused persons Zakir Hussain, Kaladhan Mia and Rahim Uddin and others were proceeding towards the house of PW1 and out of them four were in police uniform. He also deposed that Kaladhan Mia, Zakir Hussain, Iskandar Ali and Rahim Uddin had set fire in the house of PW1. 14. The PW7, is the Battalion Constable at Motinagar. On that day, a lady had informed him that somebody has set her dwelling house on fire, in turn, this witness had informed the matter to the Kachudaram Police Out Post over phone. Such evidence of PW7 is supported by the evidence of PW3 that she had informed about the occurrence to the Motinagar Battalion Camp with the deviation that while she had informed the Motinagar Battalion her version was to the effect that 'somebody' has set fire in her house whereas in her evidence, she has stated that four persons have set her house on fire and named them also. 15. The PW8 is one of the Investigating Police Officers, who had submitted the charge-sheet in this case. 16. 15. The PW8 is one of the Investigating Police Officers, who had submitted the charge-sheet in this case. 16. The PW9 is another Investigating Police Officer, who was posted as In-charge of Kachudaram Police Out Post on the relevant date of occurrence. On receipt of the information, he had informed the Officer-in-Charge of Sonai Police Station and had proceeded to the place of occurrence and had examined witnesses. 17. From the evidence of the witnesses, it appears that the mob involved in the offence consisted of about 12-14 persons and out of them, four persons, namely, Zakir Hussain, Rahim Uddin, Mussabbir Ali and Kaladhan Mia were named by PW1 to have set his as well as his brother/PW2 house ablaze. The evidence of PWs 1 and 2, who have claimed themselves to be the eye-witnesses to the occurrence, are same on one aspect, that the dwelling houses of both PWs 1 and 2 were set ablaze by the aforesaid four accused persons out of the mob. However, the evidence of PW2 also shows that he had come over to the place of occurrence after hearing hue and cry of the wife of PW1, i.e., the PW3. Such evidence is indicative of the fact that the occurrence might have taken place by that time, otherwise, there would not have been any reason for the PW3, i.e., wife of PW1 to raise alarm, had nothing happened by then. The evidence of PWs 1, 2 and 3, taken together, also shows that while they ascribed definite role to accused persons, namely, Zakir Hussain, Rahim Uddin, Mussabbir Ali and Kaladhan Mia, no specific role is ascribed to the remaining accused persons and they are alleged to have damaged their plantation only. 18.In the absence of specific evidence, this court is unable to persuade itself to how match stick to set ablaze the houses were lighted by four persons together. This court is mindful of the fact that four persons have been named by PWs 1, 2 and 3 to have lighted the match stick to burn the houses. 18.In the absence of specific evidence, this court is unable to persuade itself to how match stick to set ablaze the houses were lighted by four persons together. This court is mindful of the fact that four persons have been named by PWs 1, 2 and 3 to have lighted the match stick to burn the houses. What is most interesting in this case is that the PW6, who appears to be the father-in-law of PW1, is in an attempt to rope in the accused persons with the commission of the alleged offences inspite of the fact that he was most unlikely to witness the occurrence due to the fact that, admittedly, he was grazing his cattles at the relevant time of occurrence. Although he has stated that the place of occurrence is nearby the place where he was grazing his cattles, yet in the absence of specific evidence as to the distance it is difficult to guess that he had seen the occurrence from the place he was grazing cattles. 19. Above all, there is clear and admitted evidence that there are civil as well as criminal litigations pending between both the parties instituted by the accused persons and it cannot be ruled out that there is old grudge to pay off between the parties. 20. In view of the evidence above, and the discussions made thereon, in the considered view of this court, the view adopted by the learned court below is a possible view and does not appear to be peverse to the evidence on record. Another view, of course, may be possible, but the law is settled that when two views are possible, this court is not to interfere with the view adopted by the learned court below, and accordingly, in the light of the evidence discussed above and the findings recorded during the discussions, this court is not inclined to interfere with the view adopted by the learned trial court. 21. Therefore, the order of acquittal recorded by the learned trial court needs no interference in exercise of its appellate jurisdiction. Accordingly, the appeal is dismissed. 22. Send down the LCR along with a copy of this judgment. 23. This Court appreciates the assistance rendered by the learned Amicus Curiae, Mr. P Mahanta and directs that an amount of Rs 7,500/- be paid to him as honorarium for his assistance.