Crl.A. 360/2002 BEFORE HON’BLE JUSTICE MR. H.N. SARMA This Criminal Appeal is directed against the judgment and order of convi ction of the appellant by the learned Addl. Sessions Judge(Ad hoc) in Sessions C ase No. 55/2001 dated 30.9.02 convicting him under Section 436 IPC and sentenci ng to undergo R.I. for seven years with fine of Rs. 1,000/-, in default further S.I. for 3 months u/s 429 IPC sentencing him to undergo R.I. for two years with fine of Rs. 500/-, in default S.I. for 3 months u/s 427/506 IPC sentencing to p ay fine of Rs. 200/-, in default S.I for 1 month. 2. Heard Mr. S.C. Biswas, learned counsel for the appellant and Mr. B. Gogoi, learned Addl. Public Prosecutor for the State. 3. In brief, the prosecution case is that on 21.6.2001 at about 6 p.m. at Shrigouri village under Badarpur P.S. in the district of Karimganj the a ccused who is the younger brother of the first informant came to his house and d emanded a huge amount of money from him but the informant not being able to prov ide the amount, the accused became enraged and caused damage to the electric lin e, calling bell, etc. of the house besides rebuking the first informant with fi lthy language. At the time of leaving the house of the first informant, the accu sed threatened him that he would cause damage to the cow-shed by setting fire th erein. On the same night the accused set fire to the cowshed of the first inform ant, as a result of which, his cowshed was burnt to ashes and two calves were di ed. The informant could identify the accused in the light of the fire which brok e out in the cowshed. The informant also saw the accused was running away from t he place of occurrence. Upon receipt of the information, the same was registered as FIR No. 111/2001 under Sections 436/427/506/429 IPC at the Badarpur Police S tation against the accused. 4. Upon registration of the case, the wheel of investigation was set into motion. The I/O visited the place of occurrence, seized materials, arreste d the accused, recorded the statement of the witnesses and after completion of t he investigation and having found a prima facie case submitted charge sheet agai nst the accused/appellant. The case being exclusively triable by the court of se ssions, was committed to the court of Sessions Judge, Karimganj, wherein Session s Case No. 55/2001 was registered. 5. Upon perusal of the materials submitted by the I/O under S. 173 Cr. P.C. and upon hearing both the sides, the learned Sessions Judge framed ch arges against the accused u/s 436/427/506/429 and on being explained the accused denied the same and claimed to be tried. During the course of hearing prosecuti on examined as many as six witnesses including the informant and the I/O whereas defence examined none. The defence of the accused is of total denial. 6. At the end of the trial, the trial judge on the basis of the mat erials available on record convicted and sentenced him in the manner indicated a bove vide judgment and order dated 30.9.2002. 7. Challenging the impugned judgment learned counsel for the appell ant submits that there is no iota of evidence to rope the accused on the charged sections and the accused has been convicted on the basis of misappreciation of evidence and materials on record. The learned P.P. however referring to the evid ence and materials on record supports the impugned judgment. 8. Now let us examined how far prosecution has been able to prove c harges leveled against the appellant as required under the law. In order to arri ve at such a finding, let us now examine and scrutinize the evidence of the PWs examined by prosecution. PW 1 is a neighbour of the informant. In his deposition he stated that on the da te of occurrence at about 6.P.M. he heard noise from the house of the informant about the incident of fire and going to the place of occurrence he found that th e cowshed of the informant was set on fire, as a result of which 2 calves died d ue to burn injury. The inmates of the house of the informant referred the name o f the accused involved in the occurrence. Police came to the spot at that time a nd seized half burnt materials vide Ext- 1 wherein he put his signature vide Ext - 1(1). During cross he admitted that after the cowshed was completely burnt he arrived at the place and he had not stated before the police that anybody has stated be fore him that the accused Basutosh was involved in the occurrence. PW 2 is one Dr. Dilip Kumar Baruah, who was serving as Asst. Veterinary Surgeon. He conducted postmortem examination on the dead bodies of the cubs and submitte d his report. As per his report the calves were died due to shock resulting from burned injuries. PW 3 is the brother of the accused who is the star prosecution witness. In his d eposition he stated that on the date of occurrence while he was sleeping, hearin g burning sound of bamboo he woke up and saw that his cowshed was set on fire an d he raised hue and cry. Coming out of the house he saw that his brother Basutos h Dev, the accused, was running towards the northern side of the cowshed and he recognized him in the light of fire. Along with him his younger brother, mother and his wife came out of the house. His brother Bidan Dev also saw that two ca lves were burnt to death and as a result of fire and he sustained loss of Rs. 15 000 to Rs. 20000. He further stated that the accused stayed with him in the same house but he left the place one month prior to the occurrence and till date he did not return. He also stated that on the date of occurrence in the evening at about 6.P.M. the accused came to his house and demanded some money and on being refused he got agitated and damaged the calling bell, electric line and at the t ime of leaving his house he threatened that if he did not pay the money he would kill PW 3 and his house would be set on fire. He lodged the FIR vide Ext- 3 wh erein Ext- 3(1) is his signature. Upon receipt of the FIR the I/O re corded his statement and also seized materials vide Ext- 1 and 1(1) is the seizu re list. In cross he stated that he is the eldest of the three brothers and he i s looking after the family property, that the accused was staying at different p laces and he did not know about the whereabouts of the accused. He further state d that the accused was apprehended by police and he was bailed out by the mother . After coming out of bail, the accused is now staying in his house and also hav ing his mess there and there is no disturbances at his house. He admitted that b efore the occurrence he had doubt that the accused had mental derangement and he was examined by the doctor and while he was in jail he was treated by the jail doctor as he could not learn from the jail staff. He denied the suggestion that while his cowshed was caught fire at that time he did not see that the accused w as running from the and to that extent he gave false statement. He further state d that as the accused was running away from the burning cowshed and for that rea son he suspected that the accused set the cowshed on fire. PW4 is the mother of the accused and the informant. Her evidence is of not much helpful to the prosecution as she has not stated material relating to the charge s leveled against the accused. PW 5 is the cousin brother of the informant, He deposed inter alia that on the d ate of occurrence at about 1 A.M. while he was sleeping, he woke up hearing hue and cry outside his house and coming out he saw that the cowshed of the first in formant was burnt and people assembled. PW 3 and 4 also went to the place of occ urrence. Police seized materials vide seizure list (Et- 1) and materials Ext- M 1 was seized in his presence. PW 5 was not cross examined by defence. PW 6 is the I/O who investigated the case. In his deposition he stated that on t he date of occurrence on 22.6.06 he was serving as S.I. of police of Badarpur P. S. and after receipt of the FIR from the informant PW 3 vide Ex- 3 and on being entrusted him with the duty of investigation he investigated the case. He visite d the place of occurrence, drew a sketch map vide Ext- 4 and seized materials fr om there. He recorded the statement of the witnesses and upon completion of inve stigation he submitted charge sheet against the accused vide Ex- 5 wherein Ex- 5 (1) is his signature. In cross he denied that the accused was mentally deranged at the time of occurrence. In his cross he admitted that PW 1 did not state that the family members of the informant referred to the name of the accused involve d in the burning incident. He further admitted that PW 3 in his statement had no t stated before him about the threatening given by the accused that he would kil l PW 3, if he did not pay money to him. The circumstances that appeared against the accused in course of examina tion of PWs were put before the accused while he was examined under S. 313 Cr. P .C. to which he denied. He however stated that while he was in jail he was treat ed in the Silchar Medical Hospital and GMC for his mental illness. 9. On the basis of the aforesaid materials more particularly relying on the evidence of PW 3 , the learned trial judge held that he charges leveled a gainst the accused were not proved and consequently the accused was convicted wi th which he was charged and sentenced accordingly. 10. Scrutiny of the statement of the PWs transpire that none of the witnesses have seen as to who set fire on the cowshed of the informant. In fact it is only PW 3 who stated to have seen the accused running away from the burnin g cowshed when he came out of his house along with his wife Lila Dey and brother Bidhan Dey but they were not examined by prosecution. PW 1 also has not seen t he occurrence but he presumed that as the accused had seen him running away from the burning cowshed while he came out of his house he saw that it should be the accused only who set fire on the cowshed. PW 2 the Asst. Veterinary Surgeon has deposed about the cause of death of two calves. PW 4 mother of the victim and t he informant has not stated anything regarding the fire incident but she spoke s omething about the incident that took place in the evening at about 6 P.M. on th e date of occurrence when the accused came to the house of the first informant h e demanded some money. The offences of PW 4 even remotely do not connect the acc used with the offence with which he is charged. PW 5 is the seizure witness. 11. Upon scrutiny of the evidence it is found that only remote evide nce to connect the accused with the charges levelled are the statements of PW 3, the informant. Even if the statement of the PW 3 is believed in full that would not be sufficient to rope the accused either under Sections 506 or 436 IPC. Th ere is no iota of evidence as regards threatening given by the accused sufficien t enough to attract the ingredients of S. 506. In fact except PW 3 none of the w itnesses supports the prosecution case in the manner it has been alleged. 12. In view of the above discussions, I allow the appeal and hold th at prosecution has hopelessly failed to bring home the charges leveled against t he accused in the instant case. Consequently the conviction and sentence imposed upon the accused stands set aside and quashed. The accused is set at liberty f orthwith if not connected with any other case. The accused is discharged from th e bail bond. 13. Registry is directed to transmit the LCR forthwith.