Gauhati High Court
Binoy Chakma vs State Of Tripura on 7 March, 2007
Equivalent citations: 2007CRILJ2834, 2007(3)GLT119
JUDGMENT A.B. Pal, J.
1. I have heard Mr. Nepal Majumder, learned Counsel for the convict appellant Shri Binoy Chakma and Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. R.C. Debnath, learned Counsel for the State respondent.
2. This Criminal appeal has arisen from the judgment dated 3-9-2004 of the learned Additional Sessions Judge, Kamalpur, North Tripura in Session Trial 3 (NT/KMP) 04 whereby the appellant herein has been convicted under Section 436 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 7 years.
The prosecution version in brief is that on 7-4-2001 at about 4 p.m. a group of miscreants under the leadership of one Benoy Jamatia (absconder) and Benoy Chakma (the appellant herein) raided the village Kamala Asram and tried to assault the villagers who fled away in fear. The miscreants then set on fire. The huts of the villagers causing damages to the tune Rs. 20,000/-. On 13-4-2001, after about six days, one Kirti Bhusan Chakma (PW 1) came to Raishyabari Police Station and lodged the first information report about the said occurrence whereupon Raishyabari P.S. Case No. 2/2001 under Section 436/34 of the Indian Penal Code (for short I.P.C.) was registered.
3. During the course of the investigation the villagers of Kamala Ashram whose houses were burnt by the miscreants were examined. Though Benoy Chakma could be taken into custody, Benoy Jamatia managed to abscond. Other miscreants could not be identified and brought to book. The proceeding against Benoy Jamatia was adjourned sine die and upon taken cognizance on the charge-sheet submitted by the investigator, the learned trial Court, proceeded to hold a full dressed trial. The only charge against the convict appellant herein was framed by the learned Additional Sessions Judge under Section 436, IPC to which he pleaded not guilty.
4. During the course of trial, the learned trial Court examined 5 witnesses including the Investigating Officer, Dhan Kumar Kalai (P.W. 5). All other (4) four witnesses are the villagers of Kamala Ashram whose houses were set on fire. The defence however, were adduced no evidence. The trend of suggestions given during cross-examination were to build up a defence case that the villagers who were jume cultivators, used to set on fire their own huts at the time of shifting from one place to another. These suggestions could not be taken at face value by the learned trial Court for the reason that ho where in their deposition the witnesses admitted that they were engaged in shifting cultivation or that they used to set on fire their own huts. It would rather appear from their deposition that they were the villagers of Kamala Ashram at the time of occurrence and they continue to be so when they had given deposition before the learned trial Court. Placing reliance on the four eye-witnesses and other materials placed on record, the learned trial Court had no hesitation to record of finding that the appellant was one of the miscreants responsible for setting on fire the houses of the villagers of Kamala Ashram. Accordingly, the conviction and sentence have been recorded and imposed as noticed above.
5. Mr. Nepal Majumder, learned Counsel for the convict appellant argued that the eyewitnesses have left several contradictions in their deposition with respect to the time of occurrence as well as the nature of the hut damaged by fire. As there was good number of miscreants they could not definitely say who actually set on fire the huts of the villagers. According to Mr. Majumder, the allegations made by the informant as well as other witnesses would go to show that the miscreants raided the village and tried to assault the villagers indicating thereby that their main object was not to commit arson. It would be seen from the totality of the facts and circumstances that the alleged offenders tried to teach a lesson to the villagers who were not obeying their orders. It was, therefore, incumbent on the prosecution to show that with definite precision who were really responsible for committing the offence of arson. Though Section 34 of the Indian Penal Code has been pressed into service in order to tie up the convict appellant herein, there is nothing to show definitely that the appellant was one of the persons for setting on the fire the huts of the villagers, Mr. Majumder argues.
6. Learned Counsel for the State respondent on the other hand, advanced a strong submission that there exist no good reason to disbelieve the statement of the four eyewitnesses whose version corroborate each other and the credibility of their statements being implacable, the learned trial Court rightly convicted and sentenced the accused. That the other culprits could not be brought to justice cannot be a ground to take a lenient view about the convict appellant.
7. Apart from consideration of the rival submissions of the learned Counsel noticed above, I have carefully gone into the evidence of the witnesses as well as other materials including the First Information Report which unmistakably bring the prosecution story that a group of miscreants under the leadership of Benoy Jamatia and Benoy Chakma raided the village Kamala Ashram, tried to assault the villagers who fled away to save themselves and then set on fire the huts of the poor villagers. It has also been brought on record that the State Government had to compensate the villagers by granting them Rs. 2500/- per family. Admittedly, Benoy Jamatia and Benoy Chakma only could be identified by the villagers as would appear from the First Information Report though in the statement before the Court none of the witnesses uttered the name of Benoy Jamatia. Record would show that Benoy Jamatia had absconded and other miscreants could not be identified. As a result, Benoy Chakma the appellant herein had to be proceeded against and all the witnesses stated in definite terms about his presence and participation in the alleged occurrence. Thus, the upshot of the above discussion is that the prosecution case about involvement of the convict appellant stands on terra firma and therefore the findings of the learned trial Court do not call for any interference from this Court.
8. The Judgment impugned however, would show that the appellant had been in custody since 29-11-2003, a period of more than 3 years by now. Mr. Majumder, learned Counsel for the appellant would make a final submission that if the conviction is upheld by this Court, the sentence imposed may be modified and reduced considering the nature of the properties burnt and that none of the villagers were physically assaulted eventually. After going through the entire case record and considering the submission of Mr. Majumder, I am inclined to take a lenient view to hold that the ends of justice would be met if the sentence is reduced from 7 years to 5 years from which the period spent in custody during investigation and trial shall be set off.
9. For the reasons and discussion aforementioned, this Criminal appeal does not call for any interference and, therefore the same is dismissed, providing however, that the period of sentence shall be reduced to 5 years under Section 436 of the Indian Penal Code. As already stated above, the period spent in custody during investigation and trial shall be set off. Appeal dismissed.