1. This appeal is directed against the judgment of conviction and sentence dated 06.06.2016 passed by the learned Sessions Judge, Dharmanagar, North Tripura in case no. S.T. (T-1) 24 of 2015 whereby the appellants had been convicted and sentenced to suffer rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 3,000/- in default to suffer further R.I. for 3 months for committing offence punishable under Section 457 of the IPC and, also had been sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 10,000/- in default to suffer further R.I. for 10 months for the offence punishable under Section 436 of the IPC. The appellants had been further sentenced to suffer simple imprisonment for 2(two) months for committing offence punishable under Section 426 of the IPC.
2. Heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Additional PP appearing for the respondent.
3. The prosecution case was launched on the basis of a complaint lodged by one Parina Bibi, stating inter alia that on 13.11.2014 at about 7.00 pm, she and her son Sunam Uddin was in their house situated at South Panisagar. At that time, the appellants had suddenly entered into their house and ransacked their house by breaking the windows and doors of her house by way of kicking. It was further alleged in the complaint that the appellants had broken some expensive furnitures and looted some clothes and golden ornaments and cash of Rs. 50,000/-. It was also alleged that while the appellants were leaving, they sat their dwelling hut on fire.
4. On receipt of the said complaint, the Officer-in-Charge of Panisagar police station had registered an FIR vide Panisagar PS case no. 68 of 2014 under Sections 457/380/436/427/34 IPC. Accordingly, investigation had commenced and the appellants were arrested. In course of investigation, the investigating officer recorded the statement of the available witnesses and, on completion of investigation, the investigating officer submitted charge sheet against the appellants. Being committed, the learned Sessions Judge, Dharmanagar, North Tripura had taken up the trial.
5. The learned Sessions Judge has framed charge against the appellants under Sections 457/426/436/34 of the IPC to which the appellants pleaded not guilty and claimed to be tried. To establish the charge, the prosecution had examined as many as 6 witnesses. After completion of the trial, the appellants were examined under Section 313 Cr.P.C. when the appellant denied all the incriminating evidences and claimed to be tried.
6. The learned Sessions Judge had formulated the following points for decision of the case, which are as under:
(i) Whether on 30.11.2014 at 7 pm the accused persons in furtherance of common intention committed house trespass in the hut of the informant Mst. Parina Bibi situated at Panisagar for the purpose of committing an offence?
(ii) Whether the accused persons on the aforesaid date, time and place in furtherance of common intention had set eastern viti dwelling hut of Mst. Parina Bibi which was used as a human dwelling on fire?
(iii) Whether the accused persons committed mischief by causing damage to the house and goods of that house of Mst. Parina Bibi value of which would be Rs. 2,000/-?
On consideration of evidence and materials on record, the learned Sessions Judge had convicted and sentenced the appellants, as afore-stated.
7. At the time of hearing, Mr. Raju Datta, learned counsel appearing for the appellants, at the very outset has tried to persuade this court with his submission that the appellant no.1, namely, Ramakanta Das had lodged a complaint with the Officer-in-Charge of Panisagar PS against the husband and younger son of the complainant, Mst. Parina Bibi stating inter alia that his daughter, Lipi was kidnapped by the husband and younger son of Mst. Parina Bibi, complainant of the instant case.
To substantiate his submission, in this regard, Mr. Datta, learned counsel has drawn my attention to the cross examination of PW-1 and PW-2 wherein said Mst. Parina Bibi as PW-1 stated that “My husband was taken by police and as such he remained absent. On the previous day of the incident, police arrested my husband”. PW-2, being the son of the complainant stated in his cross-examination that “There was allegation that my brother had taken the Hindu girl Lipi but I am not sure whether my brother actually had taken that Hindu girl. Out of fear we concealed ourselves and we did not think even to go to the neighbouring people for shelter”.
Mr. Datta, learned counsel has further submitted that the complainant of the instant case lodged a false information to save themselves from the allegation which the appellant no.1 had lodged with the police station that his daughter, Lipi was kidnapped by the husband and younger son of the complainant. Mr. Datta, has further submitted that there was no eye-witness to the incident and the allegations were levelled only on the basis of the statement made by the complainant, Mst. Parina Bibi and her son, as such, the charge framed against the appellant and the conviction and sentence, as declared by the learned trial court is not sustainable and is liable to be quashed.
7. On the other hand, Mr. S. Ghosh, learned Additional PP has submitted that there is no reason to dis-believe the evidence of eye-witnesses to the incident who are PW-1 and PW-2
8. On the basis of the aforesaid submission, I have considered the evidence and materials brought on record.
9. PW-1, Mst. Parina Bibi is the complainant. She deposed that about 1 years back one day at about 7.00 pm while she and her son was in their house, suddenly Ramakanta Das, Ananta Das, Santosh Das, Sailendra Das, Pintu Das, Narugopal Das, Ratan Das along with others total more than 25 persons entered into her hut and put off the electrical bulb and started to ransack her dwelling hut. Out of fear from the back door of her hut, she and her son fled away to escape and kept themselves concealed beside a wall about 10 feet away. She further deposed that she could identify 9 persons and, accordingly, she could mention the name of 9 persons. This witness further deposed that the above mentioned persons also put fire in the eastern viti of her house and after half an hour when police and fire service came, she came out and noticed that they had taken away cash of Rs. 50,000/- and also taken away golden ear ring and some silver ornaments. PW-1 further deposed that about 7 days earlier from the date of incident, one of her sons Enamuddin fled away with one Hindu girl earlier. From that date a specific case was registered against her son and, as such, he fled away and the said incident took place as a revenge of that incident. She further deposed that in order to force her husband to bring out the girl and her son Enam Uddin, police had detained her husband. During that period, police used to visit her house frequently. However, police could not recover Rs. 50,000/- from the appellants.
9.1. In her cross-examination, PW-1 stated that she ran away raising cry and subsequently she did not raise alarm. She further stated that neighbouring people did not enter into her house out of fear. According to her, house of one Ayub Ali is in the northern side of her house and house of Ibrahim Ali is situated to the south of her house. On the east side of her house is the house of one Mayna Miah and on the west side of her house is Mohurram Ali. She further stated in her cross-examination that she did not see them taking entry into her house. She further stated that due to suddenness of the incident, she failed to apply her mind to inform the Pradhan, etc. A suggestion was made to her that since the parents were the supporters of BJP and the complainant being the supporter of CPI(M), a false complaint was lodged against the appellants.
10. PW-2, Sunam Uddin, is the son of PW-1. He deposed that about 1 years back at about 7/7.30 pm when they were in their western viti hut, suddenly they heard hue and cry raised by Gautam Das, Pintu Das, Ratan Das, Sailendra Das, Narugopal Das, Ramakanta Das, Kulesh Das, Ananta Das and Santosh Das along with others. They entered into the said viti hut by breaking the door. The other persons also started to break the other huts. At that time, he alongwith his mother had managed to come out through the back door of the kitchen and watched the incident from behind a mud wall situated about 10 cubits away. The appellants also broke the electrical bulb of the house and when they left, they put fire on their western viti hut. This witness further deposed that about 2/3 days earlier of the incident, police came to their hosue in search of his brother, who had fled away and till date of his deposition, his said brother did not return. He further deposed that police had arrested his father.
10.1. In cross-examination, PW-2 stated that the appellants had damaged the electric bulb, electric switch etc. subsequently and, after they concealed themselves, the outside lighted bulb was broken.
11. PW-4, Amir Ali deposed that at the time of the incident, he was ill and he could not come out of his house.
12. PW-5, Mohibuddin, deposed that he did not see the occurrence and he went to the house of the complainant when fire was almost extinguished.
13. PW-6, Radha Kishore Debbarma is the investigating officer. He deposed that being endorsed, he took up the investigation, arrested the appellants and on the basis of the statement of the witnesses recorded under Section 161 Cr.P.C., seized some articles and portion of burnt pieces of articles by preparing seizure list which were marked as Exhibit MO-1.
13.1. In his cross-examination, PW-6 has categorically stated that during his investigation, neither the complainant nor her son i.e. PW-1 and PW-2 stated to him that they had kept cash of Rs. 50,000/- being the sale proceed of three cattle. He further stated that no witnesses stated to him that the informant had sold out any cattle and he did not investigate what articles were actually kept in the house, which were burnt. Thus, he could not assess the actual loss suffered by the informant due to the burning. He further stated in his cross-examination that on perusal of the case diary, it is clear that he did not investigate to ascertain whether actually the complainant was possessing cash of Rs. 50,000/- in the place of occurrence. He further deposed that his investigation was totally silent as to whether there was any cattle in the house of the complainant and whether the complainant had sold out the cattle and actually what amount was received by selling those cattle.
14. I have scanned the evidence on record. From the statement of PW-1 and PW-2, who have claimed to be the eye-witnesses to the incident, in my opinion, they are not the eye-witnesses at all. PW-1 and PW-2 had categorically stated in their examination-in-chief that when they heard hue and cry, they were inside their eastern viti hut and at that time, the door was closed from inside. They have specifically stated that out of fear, both PW-1 and PW-2 had fled away through the back door of the said hut and took shelter behind a mud wall which is about 10 cubit away. From their evidence, it has come to light that the appellants had entered into the hut by breaking the door of the said hut. In that situation, in my opinion, before the door was broken PW-1 and PW-2 had fled away from the room, it would hardly be possible for the complainant to identify the persons who actually attacked the hut for the reason that they have stated in their evidence that around 25 persons had attacked their house. PW-1 and PW-2 have further stated that the attackers also had broken the electric bulb. Further, PW-1 and PW-2 have improvised the story, which is evident from the deposition of PW-6, the Investigating Officer, where he has stated in his cross-examination that neither PW-1 nor PW-2 during his investigation had disclosed to him that there was cash of Rs. 50,000/- inside their hut which was the sale proceed of cattle. The I.O. has further stated that during his investigation, none of the prosecution witnesses have stated to him that PW-1 and PW-2 had sold any cattle.
15. It is also apparent from the evidence that the daughter of the appellant no.1, was kidnapped by the younger son of the complainant, Mst. Parina Bibi and, for that reason there was serious enmity bet
Please Login To View The Full Judgment!
ween both the families. The husband of the complainant was also arrested and the younger son of the complainant has been absconding till today. 16. As I have stated earlier, since both PW-1 and PW-2 have stated in their evidence that they were inside the hut and the door of the hut was closed from inside and after hearing hue and cry, they fled away from the hut and took shelter behind a mud wall which is about 10 cubit away and, the appellants entered into the hut by breaking the door of the hut, in my opinion, there was serious suspicious circumstances about the truthfulness of the story that they have identified the actual assailants amongst the said group of attackers. It is settled proposition of law that suspicion howsoever grave cannot take the place of proof. The offence has to be established beyond all reasonable doubt. 17. In the light of the above discussion, in my considered view, the prosecution has failed to establish the case beyond reasonable doubt and, the appellants are entitled to be acquitted on the benefit of doubt. Accordingly, the appellants are acquitted from the charge levelled against them. It is informed that all the appellants are on bail. As such, they are discharged from their respective bail bond and the sureties are also discharged. 18. With this observation and direction, this appeal stands allowed. Send down the LCRs forthwith.