Crl.A. 14/2006 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.K.SHARMA Ranjan Gogoi, J This appeal has been filed against the judgment and order dated 31.12.2005 passed by the learned Ad-hoc Addl. Sessions Judge, Kamrup in Sessions Case No. 207(K)/05 by which the two accused/ appellants have been convicted und er Section 447/436 IPC. For the offence under Section 447 IPC, the accused/ appe llants have been sentenced to undergo simple imprisonment for three months where as for commission of the offence under Section 436 IPC the accused/ appellants h ave been sentenced to undergo R.I. for life and to pay a fine of Rs. 2000/-, in default, to suffer simple imprisonment for one year more. 2. The prosecution case in short is that the two accused/ appellant s along with four others had stolen the roof of the ’pam’ house of the first inf ormant Jayanta Haldar (P.W.3) and that on 8.7.2003 they had torched the remainin g part of the roof of the ’pam’ house which was completely burnt. The FIR contai ning the aforesaid allegations was lodged before the Officer-in-Charge of Pragjy otishpur Police Station on 9.7.2003 at about 2.45 p.m. On the basis of the afore said FIR, police registered a case i.e. Pragjyotishpur P.S. Case No. 54/2003 u/s 143/379/436/447 IPC. 3. P.W.6, Pradeep Kr. Ghosh had investigated the offences alleged, on completion of which, the two accused/appellants along with the four other acc used persons were chargesheeted under Section 143//379/436/447 IPC. The offence alleged under Section 436 IPC being exclusively triable by the Court of Sessions , the learned Judicial Magistrate, Kamrup, Guwahati by order dated 16.6.2005 com mitted the case for trial to the Court of Sessions at Kamrup, Guwahati. 4. In the Trial Court separate charges under Section 143/379/436/44 7 IPC were framed against each of the six accused including the two accused/ app ellants. The accused/ appellants having pleaded not guilty to the charge levelle d, the prosecution examined seven witnesses in support of its case. The defence did not lead any evidence. However, the statements of the accused/ appellants we re recorded under Section 313 Cr.P.C. At the conclusion of the trial, while the four other accused were acquitted of all the charges, the two accused/ appellant s were acquitted of the charge under Section 143 and 379 IPC. They were, however , convicted for the offences under Section 436 and 447 IPC. Having been sentence d in the manner indicated above, this appeal has been filed. 5. Mr AL Mondal, learned counsel for the appellants has, at the out set, submitted that he would not be challenging the legality of the conviction o f the two accused/ appellants under Section 436/447 IPC and would be confining h is argument only on the sentence imposed under Section 436 IPC. 6. Notwithstanding the above, to satisfy our conscience we have loo ked into the materials on record as well as the judgment and order passed by the learned Sessions Judge which has been challenged in the present appeal. Our rea ding of the evidence and consideration of the materials on record indicates that there are two eye witnesses to the occurrence i.e. P.W.1, Krishna Das and P.W.2 , Prane Haldar. Both the witnesses have clearly testified that on the date of oc currence while they were engaged in fishing they could see the two accused/ appe llants setting the ’pam’ house of P.W.3 on fire. According to the two witnesses, both the accused/ appellants were known to them from before and they could clea rly identify both of them while they were engaged in the crime. The evidence of P.W.1 and 2 is to the further effect that they had informed P.W.3 i.e. the owner of the ’pam’ house of the incident. The said evidence is corroborated by P.W.3. According to P.W.3, in the following morning he had gone to his ’pam’ house to find the same gutted by fire. The learned Trial Court while considering the evid ence of P.W.1 and 2 had also taken into account certain minor contradictions tha t had appeared in the evidence of the two witnesses and on such consideration ca me to the conclusion that such contradictions do not effect the substance of the statements made by the two witnesses in Court. We are, therefore, of the consid ered view that the conviction of the accused/ appellants under Section 436 and 4 47 IPC is not vitiated by any illegality which would require our interference. 7. Coming to the main contention urged on behalf of the accused/ ap pellants, we have noticed that under Section 436 IPC the punishment that is cont emplated is imprisonment for life or imprisonment of either description for a te rm which may extend to 10 years as well as fine. The accused/ appellants have be en sentenced to undergo R.I. for life. A reading of the judgment passed by the l earned Trial Court does not indicate any special feature of the case on the basi s of which the maximum punishment prescribed i.e. imprisonment for life has been imposed. In such a situation, the appellate Court has been called upon to decid e as to whether the facts of the case and the circumstances surrounding the culp ability of the two accused/ appellants would require any modification of the sen tence imposed. 8. Whenever alternative punishments are prescribed for a criminal o ffence it becomes the duty of the Court to judiciously consider which of the alt ernative punishments should be imposed. In this regard, the relevant circumstanc es surrounding the commission of the crime have been understood to be relevant f or deciding on the quantum of punishment. The said question received an elaborat e consideration of the Apex Court in Gurmukh Singh -vs- State of Haryana, report ed in (2009) 15 SCC 635 wherein the Apex Court had laid down that the following factors which are illustrative in character and definitely not exhaustive should be taken into account by a Court while considering the measure of punishment fo llowing the conviction of an accused: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/ knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several da ys; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force w ith which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of na ture to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members of close relations; (m) The conduct and behaviour of the accused after the incident. Whether the acc used had taken the injured/ the deceased to the hospital immediately to ensure t hat he/ she gets proper medical treatment ? 9. In the present case, the house which was set on fire was a ’pam’ house of the first informant (P.W.3) which was located around the cultivated la nd of the first informant. It was not a regular dwelling house of the first info rmant. The evidence and the materials on record and the finding of the learned T rial Judge in this regard would indicate that the arrangements for accommodation in the said ’pam’ house were makeshift arrangements where the first informant a nd his family members may have taken rest/ shelter while working on the land. Bo th the accused/ appellants are middle aged persons having their respective famil ies. There is neither any evidence of any criminal background of the accused/ ap pellants nor any material to show that they were involved in other criminal inci dent (s). The materials on record would also go to show that after the ’pam’ hou se of the first informant was set on fire the accused/ appellants had attempted to control the fire. There is also no evidence of any previous enmity between th e accused/ appellants and the first informant or his family members. In a situat ion where Section 436 IPC has prescribed a maximum punishment of life imprisonme nt and there being no minimum punishment prescribed, as the expression may exte nd to ten years appearing in Section 436 IPC has to be understood in contradist inction to the expression not less than ten years , we are of the view that in the present case the punishment of life imprisonment imposed on the accused/ app ellants is not justified. At the same time, we are of the view that the punishme nt of five years’ R.I. would meet the ends of justice. 10. We, therefore, uphold the conviction of the accused/ appellants under Section 436/447 IPC but modify the sentence imposed by the learned Trial C ourt to R.I. for five years. The sentence of fine is maintained. The accused/ ap pellants will naturally be entitled to the benefit of set off of the period of s entence already undergone in accordance with the provisions of the Code of Crimi nal Procedure. 11. With the aforesaid modification of the sentence, the appeal is d ismissed.