Haranath Chatterjee Vs. State of West Bengal - Court Judgment

Excerpt:
- ashim kumar banerjee, j.1. one mobarak mia along with his wife boarded down from a truck in front of a cycle repairing shop belonging to one ashim chatterjee in rampurhat in the district of birbhum on may 25, 1982. as soon as mobarak and his wife came down from the truck the accused haranath caught hold of mobarak and snatched rs. 238/- from his possession and started assaulting him. to save himself mobarak took shelter in the shop room of ashim. haranath started destroying the shop. ashim requested mobarak to leave the shop which he did. ashim then closed his shop and went to his house. he, however, came out from his house on an alarm raised by a minor boy that his shop was set on fire. he along with the headmaster of the local school lakshman chandra saha went to the place of occurrence and found his shop being burnt out. in the process his adjoining shop belonging to adinath dutta was also burnt. on a query made by him he came to know (that) haranath chatterjee set his shop on fire. on his complaint the police started a criminal case and haranath was arrested. he faced a trial after framing of charges inter alia, under sections 379, 436, 427 and 323 of the indian penal code.2. at the time of trial the prosecution could not produce mobarak and as such the allegation of theft could not be proved. the accused was acquitted from the charge of theft. the prosecution produced as many as seven witnesses including the complainant himself. the complainant corroborated what he had said before the police earlier as recorded above. p.w. 2 being an adjoining owner of a shop deposed that mobarak came to his shop and complained that he was robbed of rs. 238/- and was also assaulted by haranath. subsequently, haranath went to his shop and purchased a cigarette and matchbox. he stated that he would set the shop of ashim on fire. immediately after lighting a cigarette by the matchstick he set the shop of ashim on fire. he also warned others present at the locale that in case they would try to extinguish the fire, they would also be assaulted. being afraid of that p.w. 2 closed his shop and went inside and watched the incident from his verandah. p.w. 4, an adjoining shop owner almost corroborated what p.w. 2 had said. p.w. 3 deposed that while he was sitting in verandah of the library, he found the accused to set ashim's shop on fire by a matchstick, as a result whereof, the shop of adinath was also destroyed. p.w. 5 was also an eye-witness to the incident. however, his deposition was disbelieved by the learned judge. p.w. 6 and p.w. 7 were the police officers who investigated the incident.3. the learned judge although acquitted the accused from the charge of theft sentenced him under section 436 read with 427 of the indian penal code for ten years. hence, this appeal by the accused.4. mr. supriyo roy chowdhury, learned counsel in support of the appeal contends that once the root cause for such alleged fire could not be proved in absence of mobarak, the learned judge should not have held the accused guilty of charges under section 436 read with section 427 of the indian penal code.5. mr. roy chowdhury, learned counsel appearing for the appellant has pointed out infirmities in depositions. according to him, the shop of p.w. 4 was at a quite distant place from the place of occurrence and it was not possible for him to watch the incident from his verandah. mr. roy chowdhury has also commented on the discrepancy with regard to informant of the incident, as according to him, the complainant initially did not mention before the police that a minor boy informed him about the incident. such evidence came up for the first time at the time of trial. mr. roy chowdhury has also commented on the credibility of the evidence given by p.w. 2 and p.w. 4. according to him, it was quite unnatural for the said witness to watch the said incident as a silent spectator without helping the fire to be extinguished.6. mr. abdus salam, learned counsel appearing for the prosecution while opposing the appeal contends that once the incident was proved through eye-witness, whose evidence could not be shaken in cross-examination, the learned judge was right in holding the accused guilty of the offence.7. on a combined reading of the depositions we find that the eye-witnesses consistently stated that they had seen haranath setting the shop on fire, even p.w. 5 whose evidence was disbelieved by the learned judge, corroborated such statement. who informed the de facto-complainant is not much relevant herein. once the incident was proved through eye-witness, minor discrepancy in evidence would not absolve the accused from the charges brought against him.8. it is true that the allegation of theft could not be proved as mobarak could not be produced as witness. such infirmity on the part of the prosecution already resulted in acquittal of the accused from the charges, inter alia, under sections 379 and 323 of the indian penal code. that however, does not by itself warrant acquittal from the charge of setting the shop on fire and thereby causing loss and damage which was witnessed by several witnesses who consistently deposed proving the said incident.9. the appeal thus fails and is hereby dismissed.10. the sureties are directed to produce the accused before the court below. let the lower court records along with copy of the judgment be sent down.11. the prayer for stay of operation of this judgment and order is considered and refused.12. urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.tapas kumar giri, j.13. i agree.