Full Judgment
S.N. Phukan, J.
1. Four accused appellants namely Jagananda Barman, Pushpadhar Sinha, Badal Chowdhury and Subal Chowdhury were charged by the learned Sessions Judge, Dhubri in Sessions Case No. 118(D) of 1984 under Sections 147/436/149 IPC. The learned Court found all the accused persons guilty and convicted them accordingly. All the accused persons were sentenced to rigorous imprisonment of five years and fine of Rs. 500/- each under Section 436/149 IPC and rigorous imprisonment of one year under Section 147 IPC Hence this appeal.
2. On 9-4-83 at about 3 p.m. Officer-in-charge of Chapor Police Station filed the first information report stating that on 8-4-83 at about 8 p.m. a mob forming an unlawful assembly with deadly weapons attacked the village Charuabakhara and set fire to the houses of villagers and as a result 65 houses were gutted by fire. In the first information report the names of accused or the witnesses were not mentioned. O.C. himself took up investigation and submitted charge sheet.
3. The O.C. was examined by the learned trial Court as PW-6 and Mr. Mazumdar had drawn my attention to his statement that at that time the Assam agitation was going on and setting fire to houses of different communities took place. Mr. Mazumdar has also taken me through the evidence on record and his main contention is there is absolutely no identification that the present accused appellants set fire to the houses.
I have also heard Mr. Goswami, learned Public Prosecutor.
4. I have gone through the evidence on record and I find that PWs 1 to 5 were the alleged eye witnesses. PWs 1 to 4 have stated that a mob of 10 to 12 hundred people armed with deadly weapon like lathi, bow, narrow gun and dao etc. came to the village. All these witnesses have stated that seeing the mob they fled away out of fear. From the evidence it is clear that setting fire to the houses took place after the PWs left the place. I am, therefore, unable to accept the prosecution story that the present appellants took part in the crime of arson. The Some of the witnesses have stated that gun was fired and PW-3 has specifically stated that he was hit by bullet on his right leg. But no medical evidence is available on record though PW-5 identified accused Badal in the Court. This identification has no value as there was no test identification parade. That apart out of 1100 or 1200 persons he could recognise only a (sic) and this statement is not acceptable. I am, therefore, of the opinion that the prosecution has failed to prove the charges against the accused appellants.
In the result appeal is allowed by setting aside the impugned judgment and order. They are discharged from the liabilities of the bail bonds.