AFTAB UDDIN BORBHUIYA Vs. STATE OF ASSAM

JUDGEMENT

(1.) I have heard Mr. L.R. Mazumdar, learned Amicus Curiae for the convict/appellant and also Mr. K. Munir, learned Addl. P.P. Assam, for the respondent. By the judgment and order dated 12.2.04 rendered by the learned Sessions Judge, Hailakandi in Sessions Case No. 34/ 2003, the appellant being convicted u/s 436 IPC and sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 10,000/-, in default to undergo 6 months imprisonment, has preferred this appeal under Section 374(2) of the Code of Criminal Procedure.

(2.) Briefly stated, the prosecution case is that on 5.7.2000, an ejahar was lodged by one Nurul Haque Laskar with the O.C., Hailakandi P.S. alleging that in the previous night at about 9.30 P.M., the accused Aftab Uddin, out of previous grudge and enmity, set fire on their dwelling house. The accused was seen and identified by some witnesses through the focus of torch light while he was leaving the place of occurrence after committing the crime. There were two other persons with the present accused who committed the alleged offence. A crime being Hailakandi P.S. Case No. 176/2000 was registered u/s 436 IPC and on completion of investigation the I.O. submitted the charge-sheet against the accused. The offence being triable exclusively by the court of Sessions, it was committed under the existing provisions of law and a case being Sessions Case No. 34/2003 was registered. On perusal of the materials collected by the prosecution, the learned Sessions Judge, Hailakandi framed charge against the accused under the aforesaid Section of law. On being read over and explained, the accused pleaded not guilty and demanded trial. The prosecution examined 5 witnesses including the informant and the I.O. The accused examined no witness for his defence. The learned trial court having found the accused appellant guilty convicted and sentenced him as mentioned earlier.

(3.) The learned Amicus Curiae submits that the conviction and sentence was awarded by the learned trial court on the basis of evidence of PW 2, 3 and 4 who deposed before the trial that they saw the appellant along with two other persons running away from the place of occurrence and all the said witnesses could identify the appellant through the flash of the torch light. He submits that the aforesaid prosecution witnesses are not eye witnesses. The prosecution failed to examine any eye witness who actually saw the act of setting fire on the house of the informant. Moreover, as submitted by him, PW 2 and 3 are related and interested witnesses and no reliance could be put on their evidence. According to him, PW 2 is also distantly related to the informant. The ejahar was lodged by the informant due to old grudge and dispute over a cultivable plot of land. The sum and substance of the submission is that there is no cogent and reliable evidence, not to speak of evidence of eye witness, to convict the appellant and the prosecution failed to prove the charge beyond reasonable doubt and as such he is entitled to get the benefit of doubt and an order of acquittal.