Calcutta High Court (Appellete Side)
Sayed Matleb Ali & Ors vs State Of West Bengal on 5 February, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
Item no. 241
Aloke/AB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 89 of 1997
SAYED MATLEB ALI & ORS.
Versus
STATE OF WEST BENGAL
For the appellants : Mr. Aslam Khan, Advocate
For the State : Mr. Arun Kr. Maiti, Ld. A.P.P.
Mr. Madhusudan Sur, Ld. A.P.P.
Mr. Manoranjan Mahata, Advoate
Heard on : 05.02.2018
Judgement on : 05.02.2018
Joymalya Bagchi, J.:
At the outset Mr. Khan, learned counsel for the appellants submits death certificate of appellant no. 1 Saiyed Matlub Ali. The death certificate is placed on record. In view of the aforesaid fact, appeal against appellant no. 1 stands abated.
2
The appeal is directed against the judgement and order of conviction and sentence dated 27.02.1997 passed by the learned Assistant Sessions Judge, 2nd Court, Contain in Sessions Trial Case No.IX/July/96 convicted the appellant No. 1, Sayed Matlub and appellant no. 2 for commission of offence punishable under Section 436 of the Indian Penal Code and sentencing each of them to rigorous imprisonment for eight years with fine of Rs.2,000/- each in default to further rigorous imprisonment for one year each and also convicting the appellant no. 3 and appellant no. 4 for the offence punishable under Section 323 of the Indian Penal Code and sentencing each of them to simple imprisonment for one year and fine of Rs.1,000/- each in default to further simple imprisonment for six months each.
The prosecution case, as alleged against the appellants is to the effect that on 09.02.1995 at around 6.30 a.m. appellants along with other accused persons entered the house of Islam Khan (P.W. 2). They assaulted Islam and his mother Fuljan Bibi. Kalu (P.W. 8) assaulted Khairunnesa Bibi (P.W. 7) was assaulted and the miscreants outraged the modesty of his wife Saleha Bibi (P.W. 3). It was also alleged that appellant nos. 1 and 2 sprayed water mixed with chili power on the eyes of the de facto complainant and they looted away the articles from his house. Thereafter the accused persons set the house on fire. On the complainant of the de facto complainant, Pataspur P.S. Case No. 10/95 09.02.1995 under Sections 147/149/379/354/325/323/342/436/506 of the Indian Penal Code was registered. In conclusion of investigation charge-sheet was filed and the case 3 was committed to the Court of Sessions and transferred to the Court of the learned Assistant Sessions Judge, 2nd Court, Contai for trial and disposal.
Charges were framed under sections 147/149/379/354/325/323/342/436/506 of the Indian Penal Code against the appellants and other accused persons. They pleaded not guilty and claimed to be tried.
In course of trial prosecution examined 10 witnesses and exhibited a number of documents to prove its case. The defence of the appellants was one of innocence and false implication. It was their specific defence that appellant no. 1 was the patta holder of the plot of land and no document had been exhibited to show that de facto complainant resided in the said plot of land. On the date of occurrence, appellants were assaulted by the de facto complainant and his associates and a counter case being Pataspur P.S. Case No. 11/95 dated 09.02.1995 had been registered against them. In order to probabilize such defence, the accused persons examined the investigating officer of Pataspur P.S. Case No. 11/95 dated 09.02.1995 as DW 1 who was incidentally the investigating officer of this case also.
In conclusion of trial, the trial Judge by impugned judgment and order dated 27.02.1997 convicted and sentenced the appellants as aforesaid. However, 4 the other accused persons have been acquitted of the charges levelled against them.
Mr. Khan, learned counsel appearing for the appellants submits that the trial court ought to have tried the case and counter case one after another. Although the appellants have been convicted in this case. The counter case has not been put up for trial till date. It is further submitted that there is no documentary evidence to corroborate the oral version of the witnesses that P.W. 2 resided at the plot wherein patta had been granted to appellant no. 1. The evidence of the prosecution witnesses are at variance to their earlier versions before the police as well as in the first information report and with regard to the manner and course of the incident, the trial Judge ought not to have relied on such inconsistent version of the aforesaid witnesses to record a finding of guild against the appellants while acquitting the other accused persons. Hence, he prayed for acquittal of the appellants.
On the other hand, Mr. Maity with Mr. Sur, learned counsels for the State argued that the evidence of the independent witness, P.W. 6 which corroborates the evidence of P.W. 2 and his family members with regard to the fact that the appellant nos. 1 and 2 set fire on the dwelling house of P.W. 2. The roles of appellant nos. 1 and 2 have been consistently narrated by the said witnesses. The allegations of physical assault on P.Ws. 7 and 8 are also supported by medical evidence. Hence, appeal is liable to the dismissed. 5
P.W. 2 is the de facto complainant in the instant case. He deposed that the appellants and other accused persons came in a body and sprayed water with chili powder in his eyes with the help of a clyster pipe and fell burning sensation. Thereafter appellant no. 1 directed appellant no. 2 to set his dwelling house on fire. Accordingly, his house was set on fire. He lodged complaint with the police which was treated as first information report marked as exbt. 1. He stated that his house was constructed 12-13 years ago. He was examined by doctor. His wife and mother-in-law were also treated by the doctor. He suffered loss to the tune of Rs.3,500/- to 4,000/-. In cross-examination, he admitted that he could not show paper with regard to the construction of his dwelling house on the plot of land. He could not state the number of the plot of land where the dwelling house was situated. Accused Matleb lodged FIR against him, Saleha Bibi and others for outraging modesty, theft and setting fire on the dwelling house. They were enlarged on bail and the case is pending for trial. He could not say which portion of the house was set on fire.
P.W. 1 is the father-in-law of P.W. 2. He deposed that there was scuffling in the house of the de facto complainant Islam Khan between the de facto complainant and the accused persons. The de facto complainant had constructed his house on the vested land. Matleb told Jahangir to set the house on fire and Jahangir set the house on fire with a lighted match stick. He saw Jahangir to carry a trunk on his head from the place of occurrence. In cross-examination, he 6 admitted that he could not remember whether he stated to I.O. that accused Matleb told the Jahangir to set the house on fire. He could not remember whether he stated to I.O. that Jahangir set fire in the house of Islam with the help of match stick.
P.W. 3 is the wife of P.W. 2. She is a deaf and dumb lady and she replied to the questions put to her by way of signs and gestures. She deposed that Jahangir had set fire on the house with the help of match stick and had taken away articles.
P.W. 4 is a local witness. He deposed that incident took place in the house of P.W. 2. He came to the place of occurrence and found that the house of de facto complainant, P.W. 2 was burnt into ashes. In cross-examination, he stated that the dwelling house of Islam had been constructed ten years ago.
P.W. 6 is another local witness. He stated that accused persons had come to the place of occurrence around 6.30 to 7 a.m. They came with lathi in their hands. Accused Matleb told Jahangir to set the house on fire. Accused persons assaulted Fuljan Bibi and others. In cross-examination, he stated that accused Matleb had filed first information report against them and the case is pending. He was arrested in connection with that case.
7
P.W. 7 is the mother-in-law of P.W. 2. She stated that the occurrence took place around 6.30 a.m. She was in the house. Accused Matleb assaulted her with lathi. Accused persons assaulted Islam and he fell down on the ground. They sprayed saline water with chili in the eyes of Islam. Accused Jahangir set the house on fire. She was taken to hospital for treatment.
P.W. 8 deposed that the house of Islam is behind his house. Accused Matleb told Jahangir to set the house of Islam on fire. Jahangir set the house on fire with the help of a match stick. Accused persons assaulted Salena Bibi with lathi. Accused Raosan Malik assaulted him with lathi and he sustained injury. In cross-examination, he stated that he could not say whether accused Matleb got 8 decimals of land from the Government by patta. The distance of the house of Matleb Khan is at a distance of 20 cubits from the house of Islam Khan.
P.W. 9 is the medical officer who treated Khairunesa Bibi (P.W. 7), Islam Khan (P.W. 2), Fuljan Bibi, Sk. Kalu (P.W. 8) at Pataspur Block Primary Health Centre on 09.02.1995. He proved the injury reports marked as exbts. 2, 2/A, 2/B and 2/C. In cross-examination, he stated that no name of assailants was stated in the injury report of Fuljan Bibi. Injury report of Islam could not have been caused by lathi. The swelling of Islam Khan is so negligible that it cannot be mentioned with measurement.
8
P.W. 10 is the investigating officer in the case. He was attached to Pataspur P.S. On 09.02.1995 he received the written complaint from P.W. 2 and drew up formal FIR marked as exbt. 3. He took up investigation of the case and visited the place of occurrence and recorded the statement of the witnesses under Section 161 Cr.P.C. and prepared sketch map with index marked as exbt. 4. He seized alamats which were half burnt straw and half burnt bamboo. The said alamats were identified in court. He seized the injury reports and filed charge- sheet. In cross-examination, he stated that P.W. 1 did not state to him that Matleb told Jahangir to set the house of de facto complainant. He also did not state to him that the house of Islam Khan was set on fire by lighted match stick by Jahangir. He admitted that there were similar contradictions between the evidence of P.Ws. 6, 7 and 8 in court and their previous statements to him during investigation.
The aforesaid witness was again summoned as D.W. 1 as he was the investigating officer of the counter case being Pataspur P.S. Case No. 11/95 dated 09.02.1995 which had been registered by appellant no. 1 against P.W. 2 and others.
The documentary evidence on record shows that the incident occurred at plot no. 1229, J.L. 49 of Kasba Pataspur, P.O & P.S. -Pataspur, J.L. No. 5. 9
From the aforesaid plot P.W. 10 had seized half burnt straws and one half burnt bamboo. It is also admitted that a counter case being Pataspur P.S. case no. 11/95 was registered at the behest of appellant no. 1 against P.W. 2 and other witnesses on self same allegations of assault and mischief by fire. It is trite law that case and counter case are to be tried by the self same Judge one after another. No effort was made by the trial court to follow such procedure and the trial court proceeded with the trial of the present case against the appellants while the other case registered at their behest is still pending for trial. Such procedure ought not to have been adopted by the trial court and both the case ought to have been tried one after another, more particularly when the trial court had held that the incidents alleged in both the cases occurred about the same time and place.
I have considered the evidence on record with regard to the allegation of setting the dwelling house of P.W. 2 on fire. It is true that all the prosecution witnesses have in unison deposed that P.W. 2 had a dwelling house at the place of occurrence. However, no documentary evidence has been placed on record to support such contention. On the other hand, it has been probabilised by the appellants that appellant no. 1 had been given patta in respect of the said land and they had lodged a counter case with regard to the assault and mischief by fire by P.w. 2 and others.
10
In this backdrop it is pertinent to note that no burnt household articles were seized at the place of occurrence. Only some burnt straws and a half burnt bamboo stick was seized by P.W. 10 during investigation. In the absence of seizure of any burnt household articles from the place of occurrence it is difficult for me to come to a firm conclusion that a dwelling house was burnt at the place of occurrence. Mr. Maity with Mr. Sur for the State argued that appellant no. 2 had been seen carrying away a trunk from the place of occurrence and, therefore, no household articles were seized, I am unable to accept such contention. There is no evidence of recovery of household articles from the appellants and the charge of theft against them has failed.
Hence, I am unable to accept the version of the State that as the household articles had been stolen from the place of occurrence, no burnt household articles were found by the investigating agency. On the other hand, the version of the appellants that P.W. 2 did not have any dwelling house on the aforesaid plot of land is probabilized from the fact that no burnt household articles had recovered from the place of occurrence.
Coming to the issue as to who set the structure on the aforesaid plot on question on fire. I find that the version of the prosecution witnesses are at variance to the first information report as well as the earlier statements recorded by the police during investigation. Specific roles of appellant nos. 1 and 2 had not been stated by the said witnesses either in the FIR or in their statements before police. Hence, the contradictory versions of the said witnesses making the 11 appellant nos. 1 and 2 solely responsible for the incident does not inspire confidence and I am inclined to extend the benefit of doubt to the them particularly when the other accused persons have been acquitted in this case. There has been alleged that all the accused persons conjointly set the house on fire.
Prosecution witnesses sought to make out a new case during trial that the appellant no.1 had exhorted appellant no.2 to set the house on fire and thereafter the appellant no.2 had put the house on flames by lighting a matchstick. The aforesaid version was neither stated in the first information report nor before the police officer (P.W.10) during investigation.
On the other hand, the appellants have brought on record that there was a counter case wherein they had alleged that P.W.2 and others had set the structure standing on the plot of land on fire. Although the said counter case has not been proved, but in the light of the contradictory versions coming from the mouths of the prosecution witnesses during trial, I am of the opinion that it would be unsafe to rely on such evidence to come to a finding that the appellant no.2 had set the house on fire at the bidding of appellant no.1.
Coming to the allegations of assault on P.Ws.2, 7 and 8, I note that no injury was found in the eyes of P.W.2 although it is alleged that the appellants had sprayed water sprinkled with chilly in his eyes. P.W.2 in deposition had not specifically named any appellant as his assailant. Injury on P.W. 8, as per 12 version of P.W. 9 was negligible and name of the assailants had not mentioned in the injury reports.
Accordingly, I am inclined to extend the benefit of doubt to appellant nos.3 and 4 with regard to the assault on P.Ws. 2, 7 and 8 in the instant case.
The appeal stands abated against appellant no.1.
Conviction and sentence imposed upon the appellant nos.2, 3 and 4 are set aside. They shall be discharged from their bail bonds after six months in terms of Section 437A of the Code of Criminal Procedure.
The appeal is allowed.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.)