Crl.A. 321/2003 BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. K. Bhattacharjee, learned counsel for the appellants. The State is rep resented by Mr. BS Singha, learned Addl PP. 2. The appellants challenge the judgment dated 23.6.2003 in Sessions Case N o.8/2001 rendered by the learned Sessions Judge, Sonitpur, Tezpur, whereby, the appellants were found guilty under Section 436/149 of the IPC and were sentenced to R.I. for 5 years and fine of Rs.500/- each and in default, to undergo R.I. f or another one month. 3. The prosecution case is that on 22.3.2000 at about 8-30 A.M. the accused accompanied by 15/20 other persons trespassed into the house of the respondent No.2 Baneswar Dey and damaged the cut and standing bamboos. Thereafter the tresp assers set on fire the two Bhoral (Granaries). Attracted by the cries of the w ife (PW-6) and the daughter (PW-2) of the respondent No.2, the villagers rushed to the place of occurrence and doused the fire, before it could engulf the dwell ing house and other household articles. After the PW-1 lodged the Ejahar , a po lice case was registered but the police gave a final report in that case. Aggrie ved, the respondent No.2 filed a complaint case numbered as C.R. 82/2000 and aft er recording the deposition of the complainant (respondent No.2) and examination of 3 witnesses, the cognizance of the complaint was taken by the learned Addl C hief Judicial Magistrate. Thereafter since the offence under Section 436 IPC is exclusively triable by the Court of Sessions, it was committed to the competent Court. 4. The trial Court framed charge against all the 3 accused under Section 43 6/149 IPC. When the appellants denied the charge, the case was put to trial in c ourse of which, 7 witnesses were presented by the prosecution whereas the defenc e did not present any witness. 5. The respondent No. 2 Baneswar Dey was examined as PW-1. He stated that h e is residing in his own house at Rangajan village for last about 40 years. At t he time of the incident he was away at his cultivation field about a mile away f rom his dwelling house. At about 12 noon he was informed that his house was set on fire and on rushing back he saw that the granary and his kitchen were gutted by fire. He was informed by his daughter Gita Bala Dey (PW-2) that Naiman, Saima n and Abir along with few others had set fire to the granary and the kitchen as well as the cut bamboos gathered for fencing his land boundary. 6. PW-2 Gita Dey was an eyewitness of the occurrence. According to her the 3 accused trespassed into their house at about 9 A.M. She saw accused Saiman sta nding with bow and arrows while accused Abir had a lathi in his hand. Then accus ed Naiman set fire to the granary and the kitchen by using bamboo stick with inf lammable thatched head. She and her mother appealed to the accused to spare the kitchen and the granary but no heed was paid by the appellants. On hearing the c ries of PW-2 and her mother, the villagers came rushing and they extinguished th e fire with the help of a water pump. She stated that Motiram Narah (PW-3), Dule n Sinte (PW-4) and Bharat Payeng (PW-5) and other villagers had helped to exting uish the fire. 7 PW-3 was the VDP Secretary of Rangajan village and saw the appellants de stroying the cut bamboos gathered in the compound of the respondent No.2. On bei ng questioned by the Court, PW-3 stated that the 3 accused persons had set fire to the stacked bamboos. 8. PW-4 Dulen Sinte is a co-villager who rushed to the place of occurrence seeing the fire in the house of the informant. He along with other co-villagers extinguished the fire with a water pump. He did not, however, see the persons wh o had set fire to the bhoral . 9. PW-5 is Bharat Payeng who too helped in extinguishing the fire. He learn t from PW-2 that the 3 appellants had set fire to the granary and the kitchen. In his cross-examination, the witness stated that there was a long pending land dispute, between the appellants and the informant, Baneswar Dey. 10. PW-6 Pokhibala Dey is the third eyewitness in the case. She saw the 3 ac cused trespass into their house compound and damaging the standing and 300 stack ed bamboos. She also saw the appellant Naiman setting fire to their thatched roo f kitchen by using a lighted bamboo stick. Her protest to Naiman was not heeded by the trespassers. She stated that at the time of the incident, her husband and sons were away from the house and she along with their daughter (PW-2) and gran d son were present in their house at the time of occurrence. 11. PW-7 was the I.O. in the case. He gave a final report in the police case because after which, the complaint case came to be filed. 12. Mr. K. Bhattacharje, the learned counsel submits that the evidence of ey ewitness Gita Dey (PW-2) should be disbelieved as she stated that 100/150 people had trespassed into their house along with the 3 accused. He further submits th at the second eyewitness Pokhibala Dey (PW-6) did not ascribe any specific role, to two of the accused i.e. Saiman and Abir. 13. Mr. BS Singha, learned Addl PP, however, submits that gutting of the Bh oral is clearly established as it is testified by the PW-1 that, the Bhoral ( granary) was completely gutted and the dwelling house could be saved only becaus e, of the intervention of the co-villagers who helped to douse the fire with a w ater pump. 14. It appears from the evidence of the PW-2 Gita Dey that she saw all the 3 accused trespassing into their house. She clearly stated about the individual r ole played by each of the 3 accused. Her evidence is supported on all material p articulars, by her mother (PW-6), who too was present in the house at the time o f the incident. Although this witness stated that about 100/150 people had gathe red, she obviously had taken into account the co-villagers who had gathered afte r seeing the fire and merely because she had stated about the presence of such l arge numbers, I feel that her testimony can’t be discarded as indeed, being a vi llage area, the gathering of the co-villagers in large numbers, can’t be ruled o ut. That apart, PW-3 who is an independent witness had stated that he saw all th e 3 accused setting fire to the cut bamboos stacked in the compound of responden t No.2. The testimony of PW-6, who is the other eyewitness, also confirms the in volvement of the 3 accused with the burning of the kitchen and the granary. 15. Having perused the evidence on record and more particularly, the evidenc e of PW-2, PW-3 and PW-6 which are found to be reliable and trustworthy, I am of the view that there is no scope to disturb the guilty finding rendered by the l earned Sessions Judge. Accordingly, the conviction of the 3 accused appellants i s upheld. 16. In so far as the sentence is concerned, the evidence shows that there is a long pending land dispute between the informant and the appellants and it fur ther appears that cut bamboos were stacked to give boundary fencing of the land occupied by the informant. The PW-1 stated that half of the 400 tins of paddy i n the granary house were destroyed through fire. According to the informant, he suffered a loss of Rs.30,000 -40,000/- due to the fire mischief. 17. Considering the backdrop of the pending feud and the loss suffered by th e respondent No.2, I feel that the interest of justice will be better served by increasing the fine amount to compensate the loss suffered by the informant and corresponding reduction of the sentence. Accordingly, while upholding the convic tion, the sentence is reduced to R.I. for 3 years (instead of 5 years) and fine amount is enhanced to Rs.15,000/- (instead of Rs.500/-) for each of the accused. In default of payment of fine, the accused will suffer further R.I. for 6 month s. On realization of the fine, the same be given to the respondent No.2 Baneswar Dey, to compensate the loss suffered by him. Benefit of set off be given to the appellants.. 19. The Appeal accordingly is disposed of with the above modification of sen tence. Send down the LCR.