Abdul Rafique (Md.) vs State of Assam

A.C. Upadhyay, J.—The learned Additional Sessions Judge (FTC), Karimganj, by its judgment and order dated 20.9.2006, passed, in Session Case No.91 of 2004, convicted the accusedappellant under Section 436 IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000/ in default, to suffer simple imprisonment for a period of one year.

The prosecution case, as unfolded at the trial, may be stated, in brief, as follows

On 21.4.2002 at about 1 A.M. in the morning, when Musstt Joitun Bibi (PW1) was sleeping in her house, the accused Md. Abdul Rafique trespassed into the compound of her house, woke her up from sleep. Thereafter, the accused set the house of PW1 on fire. As a result of which, the house of PW1 including all her household goods were completely destroyed in fire, causing thereby a loss of about Rs.3000/. When the PW1, raised hue and cry, local residents of the area gathered at the place of incident, whereupon the accused fled away from the scene of occurrence. PW1 stated that lodging of the FIR was delayed as she had to remain busy to take care of her shelter as she became house less and helpless when her house was gutted by fire.

The FIR lodged by PW1 at Nilambazar Out Post under Karimganj Police Station was registered and investigation of the case was launched. The Investigating Police Officer (I.O) on completion of the investigation, submitted charge sheet against the accused under Section 436 IPC.

The learned Sessions Judge on receipt of the case for trial, framed charge under Section 436 IPC against the accused. On reading over and explaining the charge, the accused pleaded not guilty. The prosecution examined as many as seven (7) witnesses, including the Investigating Officer, during trial. On completion of the recording of the prosecution the accused was examined under Section 313 CrPC. In his examination aforementioned, the accused denied that he had committed the offence alleged. The defence plea of the accused is that of total denial. The accused declined to adduce evidence in defence.

The accused however, took the plea that the complainant had borrowed a sum of Rs.3,000/ from the accused and when the amount was demanded she filed this present case, falsely implicating him, for the commission of the alleged offence. On conclusion of the trial, the learned Sessions Judge, convicted and sentenced the accusedappellant as aforesaid giving rise to this appeal.

We have heard Mr. A.M. Bora, learned counsel appearing for the appellant as well as Mr. S. Das, learned Addl. P.P.

In order to appreciate the grounds of appeal and the arguments advanced by the learned counsel for the appellant as well as learned Addl. P.P., it would be apposite to cull out the evidence on record including the testimony of important witness of the prosecution.

The prosecution case revolve round the evidence adduced by the eye witnesses, PW1, Musstt Joitun Bibi, who is also the victim of the incident. At the time of the occurrence, PW1 was sleeping with her daughter PW4, Musstt Husna Begum. The evidence of PW1 reveals that on the date of occurrence at about 2.30 A.M. to 3 A.M. in the wee hours, on being called by the accused, she woke up from sleep. The accused asked her to open the door of her house. As soon as she opened the door, the accused put her house on fire. As a result of which, her said house including all articles kept inside were burnt down causing her loss of Rs.3,000/.

PW1 stated that she somehow managed to come out of her house taking her younger daughter Hasna Begum (PW4) with her to save their life. When she raised hulla, neighbouring people came to the place of occurrence and tried to put out the fire. However, they did not succeed to do so. PW1 further clarified that after her only house was burnt down, she became helpless and thus failed to file a written ''Ejahar'' before the Police Station immediately. The defence counsel crossexamined the witness thoroughly but failed to elicit anything substantial in support of the defence. In her crossexamination, PW1 clarified that she gave her daughter Husna Begum (PW4) in marriage to accused before the incident, but Husna could live with him only for a year. PW1 denied the defence suggestion that the accused did not set her house on fire and she had falsely implicated the accused for the commission of offence, when the accused had demanded Rs.3,000/ taken by her on loan.

PW4 Musstt Husna Begum, the daughter of PW1, fully corroborated the evidence of PW1 in material particulars regarding the incident that took place on the relevant date and time. PW4 stated that the accused came and called her initially and asked her to open the door, but she did not reply. However, her mother on hearing the call of the accused opened the door.

The evidence of PW1 and PW4 clearly depicted that the accused came to the residence of the first informant, (PW1) woke them up, and after they woke up, set the house on fire. PW4 corroborates the claim of her mother PW1, that the accused put the dwelling house on fire as a result of which the house with all the articles were burnt down and that on hulla being raised by them the nearby people also came to the P.O. PW4 specifically indicated in her deposition that the accused put the fire in the dwelling house with the help of a safety match.

PW4 only gives a more detailed description as to the manner in which the dwelling house was set on fire, by the accused. PW4 also says that the neighbours were told about the incident which corroborates the claim of PW1 on material particulars. During crossexamined PW4 says that though she got married with the accused four years prior to the incident, she could live with him for only six months with him, and thereafter, she returned to her mother''s house.

According to PW4, there were aluminium utensils, three deksis and 8/10 other utensils in the house and all the utensils were completely burnt down in the incident. She does not support the claim of her mother (i.e. PW1) that one iron ''kerahi'' was not destroyed in the incident but she does support the claim of her mother PW1 that their cooking apparels and utensils etc. were destroyed by the fire. This omission in our view, is too minor to effect the prosecution''s case in adverse manner.

PW4 further stated that one Anil Deb, who resided on the adjacent South of her house, while Moinuddin resided on the adjacent North and the said Moinuddin came to the P.O. after the incident. PW 4 clarified that the roof of her house is at a height of about 5/6 cubits from the ground which makes it possible for a man with average height to lit fire on the roof directly. According to the PW4, the night was a dark one and after being called by the accused she and her mother lighted a lamp. Though as mentioned earlier, PW1 does not say anything in her deposition supporting the claim of PW4, that a lamp was lighted at the time of opening the door of the house, however, considering the facts and circumstances, since the incident took place at 2.30/3.00 hours of the night and that it was a dark night, we do not find anything unusual for PW1 to light up a lamp at the time of opening the door of the house. We find no reason to disbelieve the testimony of PW4 though PW1 did not say so in so many words in her deposition. Though the said lamp was not seized by police, but PW4 herself saw the accused putting the house on fire after taking match from his pocket. According to PW4 the accused put fire on the Western side of the house and fled away. She denies the defence suggestion that the accused did not put the house on fire and that she had deposed falsely. It is apparent from the depositions of PW1 and PW4 that PW4 was married to accused Md Abdul Rafique, four years prior to the incident but their married life was very short, they lived together only for 6 (six) months and this fact is not challenged by the defence during the cross examination of PW1 and PW4. So, we do not find any reason to doubt the veracity of the claims of PW1 and PW4 that PW4 was residing with her mother PW1 at the time of the incident. The natural shelter of a daughter is the house of her parents when her conjugal life is disoriented.

PW2 Samarendra Deb and PW3 Subadh Chandra Das claim themselves to be neigbours of the victims i.e. of PW1 and PW4. The evidence of PW2 reveals that at about 1.30/2.00 hours of the night, when he was sleeping in his house, heard hulla out side PW2, came out of the house and saw the house of PW1 Joytun Bibi on fire. He made vain attempt to put out the fire, but the house burnt down completely. He met PW1, her daughter PW4 and other villagers at the place of occurrence and he came to know from PW1 and PW4 that it was the accused, who set fire at their dwelling house.

On the other hand, the evidence adduced by PW3 shows that on the night of occurrence at about 2.00/2.30 hours he heard hulla from the place of the occurrence, situated at the Eastern side of his house, but he did not come out of the house during the night. On the next day he saw that the house of PW1 had been burnt down and PW1 told him that on the previous night at the relevant time the accused burnt down her only dwelling house. Thus both PW2 and PW3 claim that PW1 (and also PW4) told them about the incident which corroborates the claims of PW1 and PW4 that the neighbours were told about the incident.

The evidence of PW2 and PW3 also reveal that the I.O. seized some burnt piece of bamboo and some burnt thatch from the place of occurrence in their presence vide Ext 1 seizure list, wherein Ext 1(1) and Ext 1(2) are the signatures of PW2 and PW3 respectively.

Md. Rejak Ali (PW5) stated that he did not know either Joytun Bibi or the accused Md. Rafique Ali. However, PW5 stated that she was called by Joytun, he could see the house of Joytun on fire. PW5 also proved the seizure of burnt pieces of bamboo, wood etc. of the house of Joytun. This witness was declared hostile and cross examined by the prosecution counsel.

PW6 is Syed Moinul Haque (Moyna) is the writer of the ejahar. He supports the claim of PW1, victim informant on the fact when he says that on 27.4.2002 on being asked by PW1, he wrote the ejahar (i.e. Ext2), according to her version and as told by her. PW6 also pointed out that it was mentioned in the ''ejahar'' also that as she had to remain busy with the after effect of the incident, she could not file the ejahar on time. PW6 proved Ext 2(1) as his signature in Ext2 as the writer thereof and says that PW1 victim gave her thumb impression in Ext2 in his presence.

The defence stand as revealed during the examination of the accusedappellant U/S 313 CrPC is animosity for asking the victim to pay the loan amount of Rs.3,000/. There is no iota of evidence which could primafacie establish that the first informant had taken a loan of Rs.3,000/ from the accused.

Though the prosecution witnesses were thoroughly crossexamined by the defence counsel nothing could be elicited to dislodge the prosecution version. We do not find any reason to discard the forthright testimony of the eye witnesses and the victims of the incident, namely, PW1 and PW4.

The evidence of PW7, I.O Md. Alimuddin Choudhury shows that on 27.4.2001 when he was serving as ASI at Nilambazar Out Post, i/c of the O.P. Kanti Bhusan Deb received the ejahar of this case from informant Joytun Bibi (PW1), made a GD Entry No.520 dated 27.4.2002, thereon and sent the same to Karimganj P.S., for registration of a case. He also proved Ext 2 (2) as the signature of i/c of the OP Kanti Bhusan Deb in Ext 2 ejahar, which is known to him. PW7 also confirmed the claim of PW1, the victim as well as PW6 ejahar writer that victim was rendered helpless after her house was burnt in the incident for which she failed to file the ejehar in time. Thus, the delay in filing of the ejahar has been properly explained.

On careful evaluation of the entire evidence on record, we find that the prosecution has been able to establish the charge under Section 436 IPC against the accused beyond all reasonable doubt. We do not find any ground to interfere with the conclusion arrived at by the learned trial Court. However, keeping in view of the facts and circumstances and further considering the fact that the accused is in custody for nearly six years, we are of the considered view that the ends of justice would be met by imposing sentence up to the period which is already undergone by the accusedappellant in jail custody.

Let the accused appellant be released forth with unless he is required to be detained in connection with any other case.

Accordingly, the appeal is partly allowed with the above modification of sentence imposed on the accused. Send back the LCR together with the copy of this judgment and order.