*A CASE OF ARSON

IN THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,

1ST COURT, DISTRICT: BIRBHUM, SURI

Present:- Harjinder Singh, Additional District and Sessions Judge,

Dated, Suri the 29th day of January , 2008.

Sessions Case No.9/2001 (ST NO.01(2)2002), [GR Case No.229/98, Bolpur]

Arising out of Labpur P.S. case No. 59/98 dated 22.6.1998

( u/Secs.147/148/448/427/323/379/436IPC)

State v. 1).Sk. Asraf s/o Surhab Sk. and 8 others.

J U D G E M E N T

The complainant Mst. Rakeba Bibi w/o late Abu Tahar r/o village: Dhandanga, P.S. Labpur, Sub-Division: Bolpur, Disstrict: Birbhum on 22.6.1998 (Monday) at about 11.15 hours lodged a complainant (two hours and 45 minutes after the incident as per the FIR) with the P.S. Labpur in respect of an incident of the same date that took place at about 08.30 hours at her house No.18 Anchal No. 1, which house is 10 ¼ km away from the P.S. as per the formal FIR, against nine accused persons namely, 1) Sk. Asraf s/o Surhab Sk. 2) Mojadat Sk. s/o Surhab Sk., 3) Mojammul s/o Suhrab Sk.,4) Bodadat s/o Surhab Sk., 5) Hukum Ali s/o Mujammul, 6) Sk. Kajal, 7)Sk. Bhulu s/o Mujjamal, 8) Sk. Jakai s/o Mujjamal and 9) Reajuddin s/o Barik all of the same village: Dhandanga. The complainant, now dead, in her FIR alleged that she is a resident of village: Dhandanga under P.S. Labpur and that on 22.6.1998 at about 8.30 hours Sk. Asraf, Sk.Mojadat, Mojammul, Khodadat, Hukum Ali, Sk. Kajal, Sk. Bhullu, Sk. Jakai and Reajuddin and many others came to her house, assaulted her and set fire to her house and when she fell down unconscious, her life was saved by many villagers. She alleged that the accused persons fled away after taking her household goods and they also broke her household goods. She prayed for taking necessary action against the aforesaid nine FIR named accused persons. On the basis of the aforesaid FIR, the Police started Labpur PS Case No.59/98 dated 22.6.98 u/Secs.147/148/448/427//323/379/436IPC against the nine FIR named accused persons at about 11.15 hours. After investigation, the I.O. submitted a Charge-sheet No.50/98 dated 25.8.98 against the accused persons.

After commitment and transfer of this case to this Court, this Court on 08-02-2002 framed a Charge u/Secs.147/436/323/427/149 of the IPC. The accused persons pleaded not guilty to the aforesaid charges and claimed to be tried. The accused persons neither filed any WS as envisaged u/Sec.233(2) of the Cr.P.C. nor adduced any evidence in support of their defence case that they have been falsely implicated in this case.

POINTS FOR DETERMINATION

DECISION WITH REASONS

Points Nos.1 to 5:- All these points are taken up together for adjudication for the sake of convenience, continuity and brevity of discussions. The prosecution examined 12 witnesses and proved 5 documents in support of their case. The complainant Rakeba Bibi, as per the report dated 24.9.05 of the ASI in compliance to the Summons issued vide Process No. S 1735 dated 26.8.05, expired on 26.11.98 and as such, the complainant in this case could not be examined.

This is basically a case of assault and arson. Therefore, it would be pertinent first to find out whether the house of the Complainant got burnt in fire or nor on the date the incident allegedly took place. In this case, even some of the witnesses who were declared hostile by the prosecution and who by implication are favourable to the accused persons by trying to shield the accused persons, did not deny that they saw the house of the Complainant Rakeba Bibi on fire on that date and these hostile witnesses are PW1(Samsujola Sk), PW5(Nasiruddin Mallick), PW6(Ali Ahasan Mallick). PW1(Samsujola Sk.) in his evidence stated, “ I was at my house. Hearing halla I went to the house of Rakeba. I saw that the house caught fire and Rakeba and her other inmates were outside the house. They stated nothing to me.......” Similarly, PW5(Nasiruddin Mullick) another hostile witness, in his evidence stated, “Hearing halla I came on the road in front of the house of Rakeba Bibi where many others were also present. I found that the house caught fire. I do not know how the house caught fire. I know nothing except that.” Likewise, PW6(Ali Ahsan Mallick) another hostile witness in his evidence stated, “In the month of June, 1998, the house of Rakeba Bibi caught fire. I was not present at that time, but I returned home at about 11/11.30 a.m. I found that thatched house of Rakeba caught fire....” In a nut-shell, we find that even the aforesaid 3 hostile witnesses, who tried to shield the accused persons by suppressing the role played by the accused persons, did not deny the fact that the house of the complainant Rakeba Bibi caught fire on the said date and this part of their evidence was not even challenged by the defence. The I.O. PW11(Brojagopal Chowdhury) seized seven pieces of burnt or partly burnt articles from the house of the complainant at about 12.45 hours as described in the Seizure-list(Ext.3). In other words, even when viewed from the evidence of hostile witnesses, we find that there is not even an iota of doubt that the house of the Complainant indeed got burnt on 22.6.98 as stated in the FIR. Therefore, now the question arises, how the house of Rakeba Bibi got burnt, and who are the culprits? To find an answer to these questions, we must turn to the witnesses who were the victims of assault and arson and other eye-witnesses to the occurrence.

In this category, the deceased Rakeba Bibi widow of late Abu Tahar – and the complainant in this case - who died on 26-11-98 as mentioned above, just 5 months and 4 days after the incident was undoubtedly the star witness of this case. But, unfortunately, this Court could not get the benefit of recording her evidence in open Court during the trial. Next in this category are her two daughters-in-law namely PW8(Khodeja Bibi w/o Sk. Mustakim) and PW10(Jahanara Bibi) who were present in the house of the complainant at the time of incident. Therefore, it would now be pertinent to scrutinize the evidence of these two witnesses one by one.

PW8(Khodeja Bibi) in her evidence stated, “Rakeba bibi was my mother-in-law. Sk. Mustakim of village Dhanadanga is my husband. Myself, my husband, Jahanara and her husband Sk. Habil used to reside in the same house with Rakeba bibi. Our said house was a mud built thatched roof chala ghar. I know the accused persons who are my co-villagers. The witness identifies the accused persons on dock.

The incident happened about seven years ago at about 8.30 a.m. Myself, Jahanara and Rakeba were in the house at that time. The accused persons at that time entered into our house. There was no male member in the house and the accused persons told us to go out from the house. We refused. Accused Hukum Ali assaulted me by fists and blows. Sk. Asraf assaulted Jahanara by fists and blows. The accused persons threatened Rakeba Bibi. Janu Mallik told that as we did not leave the house the house should be set (on) fire. Accused Sk. Asraf poured kerosene oil on the cow dung cake and put fire on it and then withthe help of that cow dung cake set fire in the house. The roof of the house caught fire immediately. The roof and other household articles were burnt into ashes. We were in the house still then and were waiting for the male members of the family. We stood at a distance on the road. Then when no male member came we went to Chowhatta and by bus went to Labpur hospital and then to Labpur police station. Myself and Jahanara went to hospital and P.S. We were admitted in the hospital and stayed there for four days. Police came to the hospital and I narrated the incident to police.

The defence inspite of a lengthy cross examination of this witness, failed to demolish any portion of her evidence. Her evidence regarding her being assaulted, can not be disbelieved as even the Dr. Anupurba De (Mukherjea) PW12, who examined her on 22.6.98 at 12 hours at Labpur Rural Hospital found the following injuries on her person:-

“ 1) Swelling on over left side of the head and

2) Abression mark 1”x 1” on the left side of the head.

Weapons used manually fist and blows. According to the patient she was assaulted by Bhojali. All other body system was O.K.”

Now PW10 (Jahanara Bibi w/o Habil Sk.) is the second surviving victim of assault and arson. She in her evidence narrated the incident in the following words, “The incident took place on 7th of Asar 1405 B.S. on Monday when myself, my mother-in-law Rakeba bibi and my ja Sobeda bibi only were present in our house and male members were absent. Male members of our family had gone away to work. At about 8 a.m. the accused Asrab, Sk. Mozambel, Khodat, Mojadat, Sk. Jakal, Sk. Riazuddin, Hukum Ali, Sk. Bhulu, Janu Mallik, entered our house armed with lathi and told us to get out of the house. We protested that it is our house and why should we go away. We protested them that the male members members of our family are not in the house. Then they said that this (these) people will not go out easily and the house should be set on fire after pouring kerosene oil. Thereafter, the accused persons poured kerosene oil on two cow dung cakes and threw the same with fire. After they set on fire and hearing our hue and cry many people came there. The accused Asraf assaulted me with a lathi on my hand. They mercilessly beat my Ja Sobeda bibi. Though many people came, but none came forward to put the fire off out of fear of accused persons. As a result or the fire our house was burnt and household articles also (got) burnt. after the assault, we went to hospital. Myself and my ja and mother-in-law went to the hospital. We were treated in the hospital. We were interrogated by the I.O. at the hospital. Today the accused persons named by me are present in Court (identifies).” Thus we see that both PW8 as well as PW10 corroborated the fact that it was the accused Asraf who assaulted PW10. Since this witness was assaulted on the hand by a lathi, she is supposed to get injuries on her hand and any ornaments worn on the said hand is likely to get damaged. The Dr. Anupurba De (Mukherjea)(PW12), who examined this witness on the same day of incident, in her evidence stated, “On examining Jahanara Bibi, I found one abrasion mark 1”/1/2” on left hand with pain and swelling on the same area. There was no active bleeding and nature of injury was simple.” Therefore the evidence of this victim also cannot be disbelieved. The I.O. who seized some burnt articles from the house of the complainant on 22.6.98 at about 12.45 hours, seized as item No.1 of the S.L. (Ext3) one ghee coloured broken part of partly burnt Shankha (a type of ornamental bangle worn by married women). This may be the broken piece of Shankha worn either by PW10 or may be PW8. Seizure of part burnt items like one iron handle (item No.2), burnt portion of straw (item No.4), burnt piece of K. Oil lamp (item No.7) tends to show that the thatched roof of the house and household articles also got burnt in the fire ignited by the accused persons as indicated by these two victim witnesses. Therre may be some insignificant discrepancies in the evidence of the two victims of assault i.e. PW8 and PW10 regarding time, length of the period of assault etc.. but their evidence if found satisfactory on account of corroboration by medical evidence as well as seizure of alamats from the P.O. such discrepancies deserve to be ignored.

Hon'ble SC in Bhoginbhai v. State of Gujarat, AIR 1988 SC 753 = 1983 Cri.L.J. 1096 observed, “Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—

Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.”

Ld Advocate for the accused persons submitted that in FIR the names of the two victims is not mentioned and even the name of accused Reajuddin finds no place in the FIR. As per FIR the complainant fell down unconscious and as such she might not have witnessed assault on her two daughters-in-law. Hon'ble SC in Sstate of M.P. v. Surbhan, AIR 1996 SC 3345 observed, “The FIR cannot be used as substantive evidence or corroborating a statement of third party, i.e. P.W.2 FIR cannot be used to corroborate the evidence of PW2. It can be used either to corroborate or for contradiction of its maker.” The maker of FIR in this case is dead. Yet we find that the name of the accused Reajuddin finds its place in the body of the FIR, at the left side margin below near the names of other 8 accused persons as well on the reverse side of the formal FIR. Hon’ble Kerala H.C. in Mani v. State of Kerala,1987 observed, “A first information report is not, and need not be, a catalogue of all information that may be in the mind of the informant. Several fat ors would determine what would be said and what would be missed. The dimensions of perception, the sense of importance or unimportance of events in the mind of the maker of the statement, his own state of mind, his views of relevancy and irrelevancy would all form the backdrop in which the state made will have to be considered. A first information report is not an encyclopedia of the entire prosecution case , but only a starting point that alerts the investigating machinery into the process of probe the result of which will be evaluated y the Court. Therefore, no fault can be found with the first information report about a murder case lodged by a witness because the informant did not mention the injuries sustained by one of the witnesses in the course of the same transaction.” A similar view was taken by Hon’ble SC in Rattan Singh v State of H.P., AIR 1997 SC 768 wherein Hon’ble SC observed, “It is settled law that FIR are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.”

Now coming to the pleading of the ld Advocate for the accused persons, that the present FIR is the second FIR, I have already observed that this is incorrect as there is no cogent evidence regarding existence of any prior FIR. But assuming that there was any such FIR, still the prosecution case can not be rejected merely on such grounds when it is established otherwise to the satisfaction of the Court. Hon'ble SC in one such case upheld conviction of the accused persons inspite of established factum of existence of a prior FIR.

In State of Orissa v. Dibakar Naik, 2002 Cri.L.J. 2826 (Para 4), Hon'ble SC recorded some crucial facts. “......PW1 made over the written report to the said officer in charge who advised him to score that portion of the report which related to the phone message and also to delete the names of some of the accused persons. His signature was obtained on blank papers. He was directed to proceed to the spot where the police accompanied by chowkidar reached. Some of the accused persons were arrested and again as per direction of PW36, PW1 wrote the FIR dictated to him because the earlier report had been destroyed by Prusty Babu.” Hon'ble SC in the said case further observed, “In State of H.P. v. Lekh Raj and another (2000(1) SCC 247) this Court held, “ The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and on the animus of the witnesses. The hypertechnicalities of figment of imagination should not be allowed to divert the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position, interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilisation and the realities of life. The values of life which are a common feature of the present system. Such erosion cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.

Regarding non-seizure of the torch light, used by the witness to see the occurrence, it was held in Balo Yadav & others v. State of Bihar (1997(5) SCC 360 that such an omission cannot be considered as a lapse on the part of investigating officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case.

Much has been made out by the High Court for the alleged failure of PW1 to disclose the name of the accused persons to PW10 and PW13. Non mentioning of the names of the accused is factually not borne out and even if accepted would not render his testimony unacceptable. Post event conduct of witnesses varies from person to person as different people react differently under different situations. PW1had lost his wife in a most ghastly crime committed by the culprits. He apprehended danger to his life and was under shock. PW10 and PW13 did not ask him about the names of the persons involved in the crime nor did he think it proper to disclose such names. Under such circumstances, no adverse inference could be drawn against PW1 making his testimony doubtful or unbelievable.”

Ld. Advocate for the accused persons suggested to PW8 (Khodeja Bibi) that they lived in the house as permissive possessors, to which she replied, “We do not reside there as permissive possessor. It will be false if it is alleged that we reside there as permissive possessors.” I fail to understand how did this question benefit the accused persons. But this suggestion confirms that the complainant and her daughters-in-law were indeed residing in the house in question. Therefore, when the accused persons believed that the victims were in permissive possession of the house, and they desired them to vacate the house and move away, the Court is spared the trouble of finding the motive behind the criminal action taken by them to get the house vacated by first threatening them to vacate, followed by assault by terrorizing them and when even the assault failed to achieve the desired end, they set the house on fire. In this case, keeping in view the distance of the P.O. from the P.S. being 10 ¼ kms the FIR which was lodged just 2 hrs and 45 minutes after the incident, was lodged with due promptness ruling out all chances of manipulation. The accused persons chose that point of time for action when on account of absence of the male members of the family in the house, they expected least resistance from the women-folk present in the house.

It was submitted before me that the husbands of these two living victims did not either came to depose in Court or made any complaint to the P.S. This is really a funny submission like the act of a drowning person trying to catch hold of a straw as because, firstly, in State case, private witnesses not named in the Charge-sheet have nor right to depose in Court on behalf of the prosecution and secondly, the incident having taken place in their absence, their evidence was not at all important or significant.

Now we are left with the evidence of only PW3 (Md. Abul Khariul Ali Khan) is a formal witness who merely recorded the formal FIR (Ext.2) and proved the same in the Court. Therefore, in view of the aforesaid reasoning, I have no doubt left in mind that the prosecution has been able to establish the guilt of the 9 accused persons for the offences u/Secs.147/436/323/427/149 IPC beyond all reasonable doubts and accordingly, they are found guilty and convicted for the aforesaid offences. These accused persons being members of an unlawful assembly committed offences of assault, arson in the house of the complainant in prosecution of their common object. Therefore, all the five points are decided in favour of the prosecution and against the 9 accused persons. Hence, it is

O R D E R E D

that the nine accused persons namely 1) Sk. Asraf, 2) Mojadat Sk. 3) Mojammel Sk., 4) Khodadat Sk., 5)Hukum Ali, 6) Sk. Bhulu, 7) Sk. Jakai, 8) Reajuddin and 9) Janu Mallick are found guilty and convicted of having committed offences u/Secs.147/436/323/427/149 IPC. Their bail bonds stands cancelled and they are taken into Judicial custody. Issue warrant of imprisonment at once. Fix 30.01.08 for 235(2) of the Cr.P.C. on the question of sentence.

(Harjinder Singh)

Additional District and Sessions Judge,

First Court, Suri, District: Birbhum.

30.1.2008 Examination of the convicts u/s235(2) of the Cr.P.C. :-

The convict Sk. Asraf on being asked on the question of sentence stated that he is innocent. He stated that he is 55 years of age. He further submits that he has one son and four daughters, out of which 2 are married and 2 are minors. He further submits that the complainant party after loosing many cases falsely implicated them in this case. He prays for mercy.

The convict Mojadat Sk. On being asked on the question of sentence stated that he is innocent. He submits that he is 55 years of age and submits that he has two sons and two daughters and all of them are minors. He prays for mercy.

The convict Mojammel Sk. On being asked on the question of sentence stated that he is 60 yrs. Of age and that he is a sick person. He also submits that he has two sons and one daughter. According to him, his daughter is married and two of his sons are convicts in this case. He prays for mercy.

The convict Khodadat Sk. On being asked on the question of sentence stated that he is 49 years of age. He submits that he has 5 daughters, all of them are minors. He further submits that at the time of incident, he was at the house of his father-in-law, at Gangarampur village. He prays for mercy.

The convict Hukum Ali on being asked on the question of sentence stated that he is 26 years of age. He submits that he has one son and one daughter aged about 7 months and 2 ½ years respectively. He also submits that he is completely innocent. He further submits that both his brothers and his father are convicts in this case. He prays for mercy.

The convict Sk. Bhulu on being asked on the question of sentence stated that he is 22 years of age and he submits that at the time of incident, he was aged about 11/12 years. He further submits that he was granted bail as because he was minor. But the CR.M. No.3295 of 99 disposed on 21st September, 1999 by the Hon'ble High Court is available with the case-record and from the said order it is not reflected that the convict was released on bail on account of his minority. He also submits that he is innocent.

The convict Sk. Jakai on being asked on the question of sentence stated that he is 30 years of age. He further submits that he has one son and one daughter, aged about 12 years and 16 years respectively. He submits that he is innocent and has been falsely implicated in this case.

The convict Reajuddin on being asked on the question of sentence stated that he is aged about 45/46 years and he submits that he is completely innocent. He further states that he has two daughters and one son aged about 10 years,14 years and 9 years respectively.

The convict Janu Mallick on being asked on the question of sentence stated that he is 74 years of age. He submits that his house is far away from the P.O. and that he did not know anything regarding the incident.

Heard the submissions of the Ld. Advocate for the accused persons and Ld. Additional P.P. It was submitted by convict Sk. Asraf that after losing several cased the complainant filed this case against them. But from order dt. 9.1.08 I find that it is the accused persons who lost the T.S. Case No.34/03 filed by them before the Civil Court.

As regards the age of the two convicts Hukum Ali @ Sk. Kajal and Sk. Bhulu @ Jahangir, from the Magistrate's Calender accompanying the L.C.R. At the time of commitment, I find that these two convicts were aged about 25 years and 18 years respectively at the time of incident. No plea was raised, regarding their minority or juvenile status during the trial till date. Yet, keeping in view the plea raised today, I am of opinion that sentncing part of these two convicts should be deferred and they should be given further opportunity to prove the fact that they were, indeed, minors as claimed by them on the date the incident took place. As regards the other convicts, the sentencing aspect should proceed according to law.

Keeping in view the fact that the offence u/s 436 of the I.P.C. is punishable with imprisonment for life, there is no question extending the benefit of the Probation of Offenders' Act to the remaining 7 convicts, particularly when the victims of their crim are weaker section of the society. In my opinion, sentence of R.I. for 1 year for the offence u/s 147 I.P.C. and R.I. for 6 months for the offence u/s323 I.P.C., and R.I. for 7 years for the offence u/s.436 I.P.C. and a fine of Rs.5000/- i.d., to suffer additional simple imprisonment for 10 months would suffice the end of justice.

Hence, it is,

O_R_D_E_R_E_D

that the question of sentencing in respect of convict Hukum Ali @ Sk. Kajal and Sk. Bhulu @ Jahangir is deferred to 5.2.08 to allow them an opportunity to produce relevant documents before this Court to prove that they were juveniles/miners on the date the crim was committed. So far as the remaining 7 accused persons now convicts are converned, they namely, 1) Sk. Asraf, 2) Mojadad Sk., 3) Mojammel Sk, 4) Khodadat Sk., 5) Sk. Jakai, 6) Reajuddin and 7) Janu Mallick who were found guilty and convicted for the offences u/Secs. 147/436/323/427/149 I.P.C. 29.01.08 are hereby sentenced to suffer R.I. for 1 year each for the offence u/s.147 I.P.C., R.I. for 6 months each for the offence u/s 323 I.P.C. and R.I. for 7 years each and a fine of Rs.5000/- each in default to suffer additional S.I. for 10 months each for the offence u/s.436 I.P.C. The offence u/s.427 I.P.C. is a minor offence of the offence under Sec.436 I.P.C. no separate sentence for the sentence for the same is passed. All the sentences shall run concurrently. The period of detention of the convicts in Judicial custody shall be set off from the period of sentence imposed against these 7 convicts.

The seized alamats shall be destroyed 6 months after the expiry of the period of appeal. The entire fine amount, if realised, shall be paid as compensation u/s.357 Cr.P.C. in 50% share each to the two victims namely, 1) Khodeja Bibi w/o Sk. Mustakin and 2) Jahanara Bibi w/o Habil Sk. of village Dhandanga, P.S. Labpur.

Let operative part of this order be sent to them at once.

Let certified copies of the judgement be given free of cost to each one of the convicts.

Let a copy of this judgement be sent to the Disstrict Magistrate, Birbhum, Suri u/s.365 of the Cr.P.C. Request Copying Department accordingly.

Sd/- H. Singh

Additional Sessions Judge,

1st Court, Birbhum, Suri

30.01.08.