Crl.A. 117/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. T Islam, learned counsel appearing for the appellant. Also heard Mr. B S Sinha, learned Addl. Public Prosecutor for the State. 2. This appeal is presented against the judgment and order dated 11.2.2003 in Sessions Case No.37 (DM) 2002 rendered by the learned Sessions Judge, Darrang , Mangaldoi, whereby the accused/appellant has been convicted under Section 436 of the I.P.C. and has been sentenced to suffer rigorous imprisonment for 5 years and also to pay a fine of Rs.1000/- and in default, further rigorous imprisonme nt for 3 months. 3. The case set up by the prosecution, as revealed by the FIR lodged by Smt i Jaymati Deka (PW.1) is that on 14.1.2002 at about 9 P.M. on the evening of the ’Uruka’ festivity, while Jaymati Deka was alone at her house, the accused came to her house and threatened her with a spring knife to have sexual intercourse. On resistance by the informant, the accused tried to force her when Jaymati Deka somehow pushed away and rushed inside house and bolted the door. The accused th en kicked the door and threatened that if the informant does not come out of the house, he will set the house on fire. Soon thereafter the informant found her c ook-shed catching fire and she heard the accused making good his escape. On alar m being raised by the informant, the co-villagers came and extinguished the fire . She also stated that at the time of the incident, her 6 years old daughter was sleeping inside the house. The FIR further reveals that after the two ’Raij Mel ’’ (Village Meetings) failed to resolve the dispute because of absence of the ac cused, a decision was taken thereafter to lodge an FIR on the arson incident of 14.1.2002. 4. On FIR being lodged on 19.1.2002, the Mangaldoi P S Case No.19/2002 was registered and the investigation of the case was entrusted to Sub-Inspector Bhub aneswar Bhuyan who was presented as PW.5 in the trial. According to the Investig ating Officer, he visited the place of occurrence and seized the burnt straw fro m the half burnt roof of the house and on finding evidence against the accused/a ppellant charge sheet was filed against him under section 436 of the IPC. 5. PW.1 Smti Jaymati Deka testified that the accused/appellant attempted to rape her by threatening her with a spring knife but as she rushed inside her ho use and bolted the door, the accused threatened to set the house on fire if she does not come out of the house. Soon thereafter she saw the thatched roof catchi ng fire and she heard the accused/appellant running away. When she raised alarm, the villagers gathered and Jagannath (PW.4), Kamaleswar and others extinguished the fire. In her evidence she further stated that village ’bichar’ were schedul ed on two different dates but the accused did not attend the bichar and accordin gly she had lodged the FIR on 19.1.2002. PW.1 further stated that on 7.5.2002 after the accused was released on bail, he visited the house of Jaymati Deka (PW.1) carrying a ’dao’ and threatened her and her husband (PW.2) with dire consequences. 6. PW.2 Hiteswar Deka, who is the husband of the PW.1 Jaymati Deka testifie d that at about 9:30 P.M. on the ’Uruka’ night while he was at the Bhelaghar ( Community Kitchen), he learnt of the fire in his house and on rushing back, he s aw that half of the thatched roof of his house got destroyed through fire before the fire could be extinguished. He also stated that his wife immediately told t hat it was the accused/appellant who set fire to the roof. The witness testified about the absence of the accused/appellant in the village bichar on two dates a nd the decision taken thereafter to lodge the FIR. PW.2 also corroborated his wi fe that the accused after getting released on bail on 7.5.2002, had threatened t o kill him and his wife. 7. PW.4 Jagannath Deka is a witness who reached the place of occurrence eve n while the roof was on fire. He along with others helped to extinguish the fire by pouring water. The witness testified that it was a straw roofed house and ha lf of the roof was burnt. He did not himself see the accused setting the roof on fire but testified that PW.1 Jaymati Deka had informed him about the accused se tting fire to the roof. 8. No witness was presented from the side of the defence and in his examina tion under section 313 of the CrPC, the accused denied his involvement with the charge. 9. It is contended by Mr. Islam, learned counsel for the appellant that alt hough the arson incident happened on the night of 14.1.2002, the FIR was lodged only on 19.1.2002 and therefore it is contended that the prosecution version is not believable. But on the point of delay, it is submitted by the learned Public Prosecutor that in this case by calling of village bichar attempts were made for resolving the dispute without involving the police and only when the accused failed to attend the village bichar, a decision was taken thereafter to lodge the FIR. Accordingl y Mr. Sinha submits that there is no basis to reject the prosecution case as the delay in lodging the FIR has been sufficiently explained. 10. It appears that the issue of delay in lodging the FIR has also been disc ussed and considered by the learned Trial Court. The circumstances under which t he accused set fire to the roof of the house are clearly presented by the PW.1 a nd the version projected by her is corroborated by the evidence of PW.4 who is a n independent witness and who helped to extinguish the fire. Even the husband of PW.1 testifies that his wife had immediately informed him after he rushed back to his house that, it was the accused who fled away after setting the house roof on fire. 11. It is also seen from the evidence of PW.1 and PW.2 that the accused/ app ellant after getting released from bail on 7.5.2002 went with a dao to the hou se of Jaymati Deka and her husband Hiteswar Deka and threatened both of them wit h dire consequences. 12. The motive for which the accused had set fire to the roof of the PW.1’s house is also reflected from the evidence of the PW.1 who resisted a rape attemp t of the accused. 13. Considering the above circumstances and particularly the evidence of PWs .1, 2 and 4, I am of the opinion that the involvement of the accused with the cr ime has been clearly established and there is nothing for this Court to take a d ifferent view, than the one taken by the learned trial Court. 14. In so far the quantum of sentence which is contended to be on the higher side, I find that the learned trial Court took into account the character and a ntecedent of the accused and the fact that he threatened the witnesses in the ca se with dire consequences after he secured bail. Thereafter the Court opined tha t the accused does not deserve any leniency and should be sentenced to suffer ri gorous imprisonment for 5 years and to pay a fine of Rs.1000/- for being convict ed under section 436 of the IPC. I have also considered that the maximum sentenc e prescribed under section 436 of the IPC has not been awarded and a lesser term of rigorous imprisonment has been imposed. Therefore only because the accused/a ppellant has to take care of his mother and unmarried sister, I am of the view t hat his antecedent does not warrant any leniency only because, minimal damage wa s caused by the fire. 15. For the foregoing reasons, I do see no merit in this appeal and the same is hereby dismissed. Consequently the impugned judgment stands affirmed. 16. Send down the LCR.