Subhash Das vs State of Tripura

S.C. Das, J.—This criminal appeal is directed against the judgment and order of conviction and sentence dated 02.07.2011 passed by learned Addl. Sessions Judge, Khowai, West Tripura, in connection with Sessions Trial Case No. S.T.14(WT/K)2010. Learned Addl. Sessions Judge found the accused-appellant, Subhash Das guilty of committing offence punishable under Sections 447 and 436 of IPC and sentenced him to suffer RI for three months for commission of offence punishable under Section 447 of IPC and further sentenced him to suffer RI for seven years and to pay a fine of Rs. 25,000/-, in default of payment, to suffer further SI for six months under Section 436 of IPC.

Heard learned counsel, Mr. H.K. Bhowmik for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.

Prosecution case is that on the intervening night of 28.11.2009 and 29.11.2009 at about 12.30/1.00 AM the poultry farm huts, belonged to the informant, Subrata Chanda (PW1) situated in the western side of his dwelling house, were set to fire and as a result two poultry farm huts, one empty and the other with 303 numbers of broiler chicks were burnt and thereby the informant suffered a loss of Rs. 1.00 lakhs.

3.1. It is the case of the prosecution that on the night of incident itself at about 2.05 AM the informant, Subrata Chanda (PW1) over telephone informed the incident to Kalyanpur P.S. and accordingly SI, Sankar Lal Purkayastha (PW7), who is the I.O. of the case, made GD Entry No. 1034 and thereafter SI Sankar Lal Purkayastha went to the house of PW1 and received a written FIR from PW1 at about 8.30 AM and he started investigation at the spot.

3.2. It is the case of the prosecution that on 28.11.2009 in the morning the accused came to the house of the informant and intended to purchase 2/3 broiler chicks on credit but the informant Subrata Chanda (PW1) refused to give the same on credit since the earlier transaction of the accused was not good. Since the informant refused to sell chicks on credit the accused got irritated and left his house.

3.3. It is the definite case of the prosecution that hearing the noise of chicks in the poultry huts, the informant (PW1) and his mother (PW4) Smt. Laxmi Rani Chanda woke up from their sleep and when they came out they found the accused fleeing away through the gaps of the boundary fencing, with the flame of the burning huts.

On the basis of the FIR lodged by Subrata Chanda (PW1), Kalyanpur P.S. Case No. 67 of 2009 under Section 436 of IPC was registered against accused-appellant Subhash Das and after investigation charge sheet was submitted under Sections 447/436 of IPC.

4.1. Cognizance was taken on the basis of the police report and after commitment of the case to the Court of Sessions, learned Addl. Sessions Judge framed charge against the accused on 22.07.2010 for commission of offence punishable under Sections 457 and 436 of IPC to which the accused pleaded not guilty and claimed to be tried.

Prosecution examined seven witnesses, namely PW1, Subrata Chanda, PW2 Bidhu Shil, PW3 Pirendra Shil, PW4 Smti. Laxmi Rani Chanda, PW5 Smti. Sandhyarani Das, PW6 Smti. Usha Rani Das, PW7 Sankar Lal Purkayastha.

After closure of the prosecution evidence, the accused was examined under Section 313 of CrPC and in his turn accused declined to adduce any defence evidence. Defence case is that of denial of the prosecution case.

Learned Addl. Sessions Judge at the conclusion of trial found the accused-appellant, Subhash Das guilty of committing offence punishable under Sections 447 and 436 of IPC and sentenced him as stated hereinbefore. Hence this appeal.

Learned counsel, Mr. Bhowmik appearing for the accused-appellant has submitted that PW1, the informant Subrata Chanda and his mother PW4, Laxmi Rani Chanda, are the only witnesses who stated that they have found the accused fleeing away through the gaps of the boundary fencing. According to them, many people gathered in the house after the incident but there is no evidence of any neighbouring people to corroborate PWs 1 and 4 that they found the accused fleeing away. He has also submitted that it was quite unnatural for PWs 1 and 4 to see the accused from his back while going out through the gaps of the boundary fencing. PWs 2 and 3 are the seizure witnesses and they did not corroborate PW1 and PW4. PWs 5 and 6 stated nothing. It was quite unnatural that the accused after setting fire to the poultry farm huts was waiting till coming out of PWs 1 and 4 from the dwelling hut to get himself identified by them. He has also submitted that the accused is the next door neighbor of the informant and in the FIR it is clearly stated that there was strain relation between the accused and the informant and so the possibility that because of the strain relation the accused has been involved falsely cannot be ruled out. It is also submitted that the FIR was received at 0830 hrs. whereas the GD Entry was made at 0205 hrs. on the intervening night of 28.11.2009 and 29.11.2009 which makes the entire prosecution case doubtful. He has also submitted that though PWs 1 and 4 stated that 303 numbers of poultry chicks were burnt but PWs 2, 3, 5, 6 and 7 did not utter a single word that they found any burnt chick in the gutted poultry farm huts and that makes the prosecution case totally doubtful.

Learned Addl. P.P., Mr. Debnath on the other hand has submitted that the incident occurred at midnight and PWs 1 and 4 came out of their hut after hearing sound of chicks while the poultry farm huts were in flame. The accused is their next door neighbour. They found the accused fleeing away through the gaps of the boundary fencing. The identification of accused as alleged by PW1 is corroborated by the statement of PW3 who has found the informant, i.e. PW1 crying, saying that accused-appellant, Subhash Das has caused the fire incident. So this evidence is enough to hold that the accused set fire to the poultry farm of the informant and thereby the informant suffered a huge loss. He has also submitted that Exbt.4, the copy of GD Entry No. 1034 proved the fact that on the night of incident itself the informant informed the P.S. about the incident and the name of the accused. So, there is no element of doubt in the prosecution case and the learned Addl. Sessions Judge rightly held the accused guilty of the charge and the judgment and order of conviction and sentence shall be maintained.

PW1 Subrata Chanda, the informant lodged the FIR in writing on 29.11.2009. He has proved his signature at the bottom of the FIR, marked as Exbt.1. The FIR was received by PW7, the I.O. himself on 29.11.2009 at about 08.30 hrs. and on his return to P.S. at about 09.40 hrs. he registered it as Kalyanpur P.S. Case No. 67 of 2009 under Section 436 of IPC. The endorsement made by PW7 in the FIR is proved as Exbt.1/1. The contents of the FIR have not been proved. However, have a glimpse to the contents of the FIR wherein the informant, i.e. PW1 stated that he maintains a poultry farm in two-huts in his house and that the accused on many occasions intended to purchase chicks from the informant on credit but since the informant refused to sell on credit he had serious dispute with the accused. On 28.11.2009 in the morning at about 8.00 AM the accused came to his house and intended to purchase 4/5 chickens on credit but he refused and therefore the accused set fire to his farm huts at about 1.00 AM of the night and as a result about 300 chickens and two farm huts of broiler were completely gutted, as a result of which he sustained a loss of Rs. 1.00 lakh.

9.1. PW7, the I.O. of the case in his deposition stated that at about 2.05 AM of the night (intervening night of 28.11.2009 and 29.11.2009) he received a telephone call at P.S. from Subrata Chanda that the poultry farm of Subrata Chanda at his house was in flame due to setting fire by one Subhash Das and he entered the fact in G.D. Entry No. 1034. A copy of that G.D. has been proved as Exbt.4. The said GD No. 1034 reads as follows:

".............

This time received a telephonic call over PS telephone where a male voice introducing himself as Sri Subrata Chanda S/O Lt. Suresh Chanda of vill. Khas Kalyanpur, Ward No. 2, seeking immediate police presence thereto, anxiously reported that, due to arsoning and setting fire blaze to his poultry shed there, by one of his neighborhood namely Subash Das, both the poultry shed of his own is burning. Considering nature and credibility of the information and necessity of urgent movement thereto in order to verify and to take necessary actions in this respect, self S.I. S.L. Purkayastha along with ASI Sukumar Das and staff with Govt. vehicle of the P.S. took rush departure for the caller indicated point instructing duty officer to intimate the point to the Sub Station, Fire service, Kalyanpur accordingly."

9.2. This G.D. Entry shows that on the night itself immediately after the occurrence the informant informed the P.S. about the incident and he has also alleged that the accused set fire of his poultry farm huts. The G.D. entry shows that it was made at 2.05 AM and immediately after making the G.D. entry, PW7 left for the place of occurrence, i.e. the house of the informant, Subrata Chanda. Prescribed form of FIR which is proved by PW7 and marked as Exbt.3 shows the distance of the house of the informant from Kalyanpur P.S. as 5 KM. Whereas the FIR, i.e. Exbt.1 has been received by PW7 at 8.30 AM on 29.11.2009. If G.D. Entry was made at 02.05 hrs on the night of 29.11.2009 and immediately thereafter PW7 left for the house of the informant it cannot take more than one hour even by foot to reach the house of the informant from P.S. It is quite surprising that PW1, i.e. the informant did not utter a single word that he informed the P.S. on the night of the occurrence itself over telephone and on that night police came to his house. He however stated that a fire brigade vehicle came but it could not enter into the narrow passage to his house. PW5 stated that she heard the sound of marching of TSR personnel at night at about 2.30 AM. PWs 1 and 4, i.e. the son and the mother nowhere stated that on the night of occurrence itself police came to their house and investigated the case. It is also quite surprising to note that on 29.11.2009 at about 0345 hrs PW7 prepared a seizure list in the house of the informant and seized one piece of burnt bamboo, one match box, one broken bottle with smell of kerosene, etc. articles. If PW7 was already there in the house of the informant at 0345 hrs on 29.11.2009 i.e. on the night of occurrence itself, why the FIR of PW1 was not taken before the seizure list was prepared by PW7. It makes the entire prosecution case quite doubtful. Since PW1 nowhere stated that on the night of occurrence itself he over telephone informed the P.S. about the incident, the GD Entry No. 1034 cannot be treated as an FIR. The subsequent FIR received by PW7 at 8.30 AM seems to be a statement made by PW1 after the investigation was started by police. While the police reached the place of occurrence and started investigation, seized materials on the spot, any statement subsequent to such starting of investigation is hit by Section 162 and cannot be treated as FIR. The entire prosecution case therefore seems to be quite confusing about the sequence of incident and the action taken by police.

PW1 in his deposition stated that at about 11.30 PM he cleaned the broiler huts and thereafter he went to his bed. His mother first woke up hearing noise of chicks in the broiler huts and on her call he woke up and went out of the dwelling hut. It was about 12.30/1.00 AM, and coming out of the hut he found the broiler hut containing 303 numbers of broiler chickens were under flame. He also found accused Subhash Das fleeing away towards western side through the hole created by the accused at the time of taking entry into house. His house was surrounded by bamboo made fencing and the accused entered in the house breaking the said fencing towards western side. He has also stated that the accused left his house bending himself and even then he could recognize him due to the light of the flame of the burning huts.

PW4, mother of the informant stated that she woke up hearing noise of the chickens in the broiler huts and she called her son Subrata and alongwith him she came out and saw that in the boundary adjacent to the farm made of bamboo was broken and they noticed that accused Subrata Das was going out through the broken boundary fencing. There was electric light in their house and moreover the light of the flame was there and thereby she could identify the accused. Due to the fire 300 numbers of broiler chickens were burnt and two huts were also burnt.

According to PWs 1 and 4, after the incident neighbourers rushed to their house. PWs 2 and 3 are the witnesses to the seizure of the articles but PW2 stated that on 29.11.2009 at about 4.00 PM the seizure list was prepared and he signed in the seizure list. He also proved the seized alamats, i.e. burnt piece of bamboo, one match box and one broken bottle. He stated that he went to the house of the informant after hearing the cry on the night of occurrence but none told him how the fire was broken out.

PW3 stated that the seizure list was prepared on 29.11.2009 at about 3.00 PM and he also proved the seized materials and he further stated that on the night of occurrence he went to the house of the informant and found the informant crying, addressing Pradyut Das, brother of accused Subhash Das, saying that Subhash Das has caused the fire and damaged the broilers.

PWs 5 and 6 stated nothing incriminating at all.

Learned Addl. P.P. tried to put reliance on the evidence of PW3 but PW3 also nowhere stated that he was told by the informant, i.e. PW1 that the informant found accused fleeing away from the house after setting fire. PWs 2 and 3 did not utter a single word that there was any gap found in the boundary fencing of the informant through which the accused alleged to have entered and escaped. PWs 1 and 4 have specifically stated that they found the accused going out through the gaps of the boundary fencing and they have found the backside of the accused through the flame of the burning hut. No other witness corroborated them. It was quite natural for PWs 1 and 4 to inform the neighbourers who rushed to their house if they at all found the accused fleeing away from their house through the gaps of the boundary fencing. PWs 2, 3, 5 and 6 are the only four neighbouring witnesses examined by the prosecution and they have not corroborated PWs 1 and 4 at all. The statement of PW3 that he found the informant crying and saying to Pradyut Das, brother of accused Subhash that Subhash has caused the fire may be a statement suspecting Subhash for the previous incident and that statement cannot be said to be an incriminating statement supporting the informant that the informant found the accused fleeing away from their house through the gaps of the boundary fencing.

PWs 1 and 4 stated that 303 numbers of chickens were burnt in the incident. PW7, the I.O. of the case visited the place of occurrence on the night itself so far as the seizure list is showing that at about 03.45 hrs. he prepared the seizure list in the spot, but he neither seized a burnt chicken nor stated a single word that he has found any burnt chicks/chickens in the burning huts. Though I.O. has stated that he seized a bottle with smell of kerosene but PW1 in his deposition clearly stated that a broken bottle was seized having no smell. If any chicks/chickens were burnt in the alleged incident, I.O. would definitely mention in his evidence that he found the burnt chicks or chickens in the burnt farm huts. PWs 2 and 3 also did not say anything that they found burnt chicks/chickens in the burnt huts.

From the evidence of all the prosecution witnesses it appears that the broiler farm huts of the informant were burnt on the night of occurrence. Might be somebody set it to fire but it has to be proved that the accused set it to fire and thereby the mischief was caused to the informant.

For all these glaring infirmities in the prosecution case, stated above, I am of the considered opinion that the prosecution case is doubtful and therefore the accused is entitled to get benefit of doubt. Accordingly, the appeal is allowed and the accused-appellant is acquitted from the charge leveled against him on benefit of doubt.

Send back the L.C. records along with a copy of the judgment.