Crl.A. 126/2009 BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. JM Choudhury, learned senior counsel appearing for the appellants and Mr. BB Gogoi, learned Addl PP appearing for the State. 2. This appeal is presented against the judgment dated 9.6.2009 in Sessions Case No.47(K)/2003 rendered by the learned Additional Sessions Judge(FTC), Rang ia, Kamrup, whereby all the accused appellants have been convicted under Sectio n 147/436 IPC. Additionally, the accused appellant Yakub Ali has also been convi cted under Section 323 IPC. For their conviction under Section 147, the appellan ts have been sentenced to 1 year R.I. and for their conviction under Section 43 6 IPC, they have been sentenced to 7 years R.I. with fine of Rs.2000/- and in de fault, to RI for 6 months. Separate sentence of 6 months R.I. is given to Yakub Ali for his conviction under Section 323 IPC. 3. The prosecution story, as revealed by the FIR, is that on 2.10.1997at a bout 12-30 noon, while the informant Syed Khairul Hussain (PW-1) was raising a b amboo fencing over his land, the accused in a group armed with dagger, lathi etc . attacked the informant. The accused No. 1 attacked Syed Khairul with a dagger and the other accused broke the bamboo fencing and threw it away. They also set fire to a dwelling house of the informant. The Kamalpur PS Case No. 129/2007 was registered under Section 147/148/326/427/436 IPC and the criminal process was s et in motion. After the investigation was complete, all the 6 (six) accused were charge sheeted and the case was committed for trial in the Court of the learned Additional Sessions Judge, FTC, Kamrup. Formal charge under Section 147/323/427 /436 IPC was framed against the accused, but they pleaded not guilty and accordi ngly, the case was put to trial. 4. The prosecution examined 7 (seven) witnesses whereas no evidence was add uced by the defence and in their respective statement under Section 313 CrPC, th e accused denied their involvement with the case. 5. PW-1 Syed Khairul Hussain is the informant and aneyewitness of the case. He stated that on 2.10.1997 while he was fencing the boundary gate with bamboo, the accused armed with lathi and dagger came in a group and broke and threw the bamboo fencing erected by the witness. Accused Yakub Ali assaulted PW-1 with a dagger and hearing the cries of the injured witness, PW-3 Musstt. Rukia Begum an d PW-4 Syeda Suraiya Begum came to the place of occurrence and attended to the i njuries of the witness. PW-1 testified that the accused Abed Ali then set fire t o one of his thatched dwelling house. In his cross-examination, PW-1 admitted th at there was a litigation between him and the accused persons over the plot of l and, where the thatched house was standing. 5.1. PW-2 Syed Mustafa Ali is the village Gaonburah who stated that the incid ent arose out of a Marpit (mutual fight). When he reached the place of occurre nce he saw the injuries on the head of the informant Khairul. He also stated tha t the Ek-chalia dwelling house of Khairul Hussain was burnt. As the Gaonburah of the village, the PW-2 ordered both the parties to leave the place of occurren ce. 5.2. PW-3 Musstt. Rukia Begum claims to be an eyewitness of the incident. She saw accused Yakub Ali hitting Khairul on the head with a dagger and accused Abe d Ali setting fire to the house. She and PW-4 Syeda Suraiya Begum rushed to assi st the injured Khairul. This witness testified that the hut was burnt by accused Yakub Ali, Latif Ali, Miraz Ali and Muzamil Hussain. 5.3. The third eyewitness of the case is PW-4 (Syeda Suraiya Begum). She stat ed that while Khairul was giving bamboo fencing on their land, the accused arriv ed at the place of occurrence and Yakub Ali injured Khairul on the head by a dag ger. Then accused Abed Ali took out a match box and burnt out the thatched hous e . The witness stated that she used to reside in that burnt house and Bed, Chai r, Alna , Gorrej Almirah and many other household articles was totally burnt du e to fire. 5.4 PW-7 Md. Khorson Ali is the ASI at Kamalpur Police Station and was entru sted with the investigation of the case. He visited the place of occurrence and found a thatched house burnt by fire. He seized half burnt bamboo, a handful o f half burnt straw, two pieces of half burnt bamboo kami and some stone chips from the place of occurrence. A seizure Exhibit-4 was proved by the Investigatin g Officer. In his cross-examination, the witness admitted that he has mentioned the place of occurrence as the disputed land but had not mentioned the parties to the dispute. 5.5. PW-5 Dr. Anil Chandra Rabha had attended to the injured PW-1 at the Kama lpur Public Health Centre on 2.10.1997. The three injuries noted by him were fou nd to be simple in nature and caused by blunt weapon. 6. Assailing firstly the conviction under Section 436 IPC, Mr. JM Choudhury , learned senior counsel submits that conviction under this Section can only be when a dwelling house is set on fire and since the thatched Ek Chalia structur e was not a dwelling house, the conviction under Section 436 IPC cannot be susta ined. Referring to the seizure list (Ext.-4), the learned senior counsel contend s that nothing in the nature of burnt or half burnt bed, chair, furniture and Go drej Almirah was recovered from the ruins of the burnt structure and as such the evidence given by PW-4 (Syeda Suraiya Begum) that the thatched structure was he r residence, is submitted to be false. By referring to the seizure made by PW-7, the learned counsel shows that since only half burnt bamboo and half burnt stra w were seized by the police, the burnt structure cannot be considered a dwelling house in the absence other burnt household articles. 6.1. The learned counsel refers to the evidence of PW-1 to project that the w itness was placing fencing around the lands under litigation, between the inform ant and the accused party and accordingly Mr. Choudhury submits that the accused cannot be considered to be in an unlawful assembly, as they had gone to their o wn land and cannot be said to be guilty of a riotous assembly. 6.2. In so far as the conviction of accused appellant Md. Yakub Ali under Sec tion 323 IPC is concerned, the learned counsel submits that there is discrepancy in the evidence of witnesses and accordingly the conviction of Yakub Ali under Section 323 IPC should not be sustained. 7. It conspicuously appears from the seizure list (Ext.-4) of burnt article s recovered from the place of occurrence that normal household articles like bed , furniture, Godrej Almirah (half burnt or damaged), were not found at the place of occurrence. What was seized were pieces of half burnt bamboo and some half b urnt straw. In the absence of any household articles (either damaged or burnt) a mongst the seized articles from the burnt structure, I am of the considered view that the burnt Ek-chalia structure was not a dwelling house. The claim of the PW-4 that she used to reside in that structure and that her bed, furniture, aln a and Godrej almirah got burnt is found to be an untruthful version of the incid ent. Accordingly, since Section 436 IPC applies to burning of a dwelling house, considering the improbability of the burnt structure being used as a dwelling ho use by anyone, it is held that the conviction under Section 436 IPC was wrongly ordered for the appellants. Accordingly, their conviction and sentence under Sec tion 436 IPC is set aside and quashed. 8. In so far as the conviction under Section 147 IPC is concerned, the evid ence of PW-1 shows that the land around which he was placing bamboo fencing on 2 .10.1997 was under litigation between the informant and the accused party. There fore, the presence of the accused over what they claim as their own land cannot be described as non-legitimate presence. If PW-1 was trying to raise bamboo fenc ing over the accused’s lands and the land was admittedly under litigation, the a ccused cannot be held to be forming an unlawful riotous assembly. Accordingly, t heir conviction under Section 147 CrPC is found to be unjustified and the same i s quashed. 9. On the conviction of the accused appellant Md. Yakub Ali under Section 3 23 IPC, it appears from the injury report given by the Doctor (PW-5) that the in formant suffered several blunt weapon injuries. All the 3(three) eyewitnesses ha d stated that Md. Yakub Ali had given the blows on Khairul Hussain. Their testim ony corroborates each other on this aspect and found to be truthful. In such cir cumstances, the accused Yakub Ali’s conviction under Section 323 IPC is upheld. 10. In view of the foregoing , the conviction of the accused appellants unde r Section(s) 147/436 IPC are interfered and are quashed. However, the conviction of Md. Yakub Ali under Section 323 IPC is sustained. 11. It is pointed out by Mr. BB Gogoi, learned Addl PP that the appellants w ere granted bail by this Court on 7.12.2009. Therefore, it appears that the accu sed Yakub Ali has been in jail for about 182 days and since he has already spen t 6 months in custody, he is not required to suffer further incarceration for hi s conviction under Section 323 IPC. It is ordered accordingly. 12. The Appeal stands allowed to the extent indicated above. 13. Send down the LCRs.