(S), SIVASAGAR

IN THE COURT OF SUB DIVISIONAL JUDICIAL MAGISTRATE

Present: Shri B. Kshetri, AJS,

Sub Divisional Judicial Magistrate (S),
Sivasagar.

PRC. Case No. 435 of 2018 u/s 294 IPC' 435 IPC

State of Assam ......ComPlainant

.VS.

Smti. Mun Moni Das... " ' accused person'

Mr. Bijoy Buragohain APP, for the State.

Mr. N. M. Baruah for the accused,

Particulars of the r:ase:

Charge framed on: 25'02'2019.
Evi dence recorded on: 20.04.2079, 23.07'20L9, 2L'09'20L9'
Argument heard on: 05.11.2019.
Judgment delivered on: 06.11'2019.

JUDGMENT

under section
1. This case was registered on 09-11-2018, at Gaurisagar Police station,
on a First
2g4, 427,435 of the Indian Penal Code, 1860 (in short "the IPC"), based
Das against
Information Report (in short "the FIR") filed by one smti. Pronoti
accused person Smti. Mun Moni Das.
2. prosecution case in brief is that on 09.11.2018, one Smti. Pronoti Das lodged an

FIR with o/c Gaurisagar PS alleging inter-alia that on that day at about
9:30 a'm'

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 Case No. PRC 435/2018

her neighbour/the accused person burst firecrackers at her courtyard while the
mattress of the informant was hung near the coufiard of the Informant. The
firecrackers fell on the mattress of the informant and as a result the mattress and
a cloth was burnt. While the informant came out of her house and seeing her
mattress burning she asked as to who had burnt the same and then the accused
came out of her house and told that she had burnt the same. The accused also
insulted the informant to be "Mad". Hence the case.
3. Based on the FIR, the Officer-In-charge of Gaurisagar Police Station registered the
case no. 246 of 2018, for commission of an offence punishable under section 294,
427,435IPC against the accused person Smti. Mun Moni Das'
4. During the course of investigation, I/O visited the place of occurrence, drew sketch
map of the place of occurrence, recorded statement of witnesses, seized one
.,ketha" (quilt), prepared the seizure list, issued notice to the accused person and

released her on bail, After completion of investigation, a charge-sheet was filed for
an offence under section 294,506,427,435IPC against the accused Smti' Mun
Moni Das.

5. On receipt of the case record for dlsposal, summon was issued to the accused
person. In pursuant to the court-process, the accused person appeared before the
court and she was allowed to go on bail, Copies of relevant documents were
furnlshed to the accused person. She pleaded not guilty to the charge uls294lPC,
435 I.P.C. only as framed, read over and explained to her by my learned
predecessor-i n-office.

6, prosecution examined the informant Smti, Pranati Das as PW 1, Sri Gunaram Das

as pW-2, Smti, Rupjyoti Das as PW-3 and Investigating Officer ASI Lala Ali as
PW-

4. After closure of prosecution evidence statement of the accused person u/s 313
Cr. P.C was recorded. Accused person declined to adduce evidence.
7. I have heard oral arguments of the learned counsels for both the sides and gone
through the case record.
B. Point for determination are:
i, whether the accused person on 09.11.2018 at about 9:30 a.m.
being the adjacent neighbour of the informant committed mischief

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 Case No. PRC 435i2018

by fire crackers which is an explosive substance intending thereby

to cause or knowing it to be likely that she would thereby cause
on the
damage to the quilt of the informant which was hung outside

1'..iGi--'-'-- coufiard of the informant and which is valued more than { 100/-?
'q{:\
whether the accused person on the same date, place and time
,. t'tt'
,r-;!' ." ( .. r ,
t
.-25 \ ii,
i',,!. ..';I
it.,
\ia..j.
',nl uttered an obscene word (Pagoli) from the courtyard of the accused
li;i -;"' i??
\i',*j&,''
1l ,,/ 9.
to the informant and thereby caused annoyance to others?
Decision and the reasons thereof :

10, pw-1 Smti. pranati Das is the informant in this case who in
her evidence deposed
9:30 a'm'
that accused is her neighbour. she deposed that on 09.11.2018 at about
over heap
while she was at her house she saw the mattress kept at her courtyard
then the
of bricks burning. When she asked as to who had set fire on her mattress,
She called
accused from her house replied that she had set fire on the mattress.
met the
her aunt Anamika Das who came and saw the mattress burning. Accused
told
mother-in-law of the informant while she was coming from the cattle field and
"Mad", Thereafter
that she had set fire on the mattress. Accused also termed her as
she lodged the FIR vide exhibit-1.
of the
11. In her cross-examination, PW-l deposed that at the time of occurrence son
accused was at her house. she deposed that "ketha" is made
of old and waste
said "ketha"' She
clothes. She denied the suggestion that she has been using the
the suggestion
denied the suggestion that "ketha" was not set on fire' she denied
this case falsely.
that as the son of the accused was bursting flrecrackers she lodged
12. PW-2 is the husband of the informant of this case. He deposed
that the incident

place in the year 2018. He was away from his house' His son Nayan Niloy
Das
took
He came
went to his work place and stated that accused set fire on their mattress.
to his house. His wife shown him the half burn mattress. Accused was altercating
Thereafter he
with his wife and threatened that she would set fire in future also.
and took photographs
asked his wife to lodge this case. Police came to their house
of the half burn mattress.
half an
13. In his cross-examination, PW-z deposed that he reached his house after
and his son
hour of the occurrence. on the day of occurrence school was closed

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 Case No. PRC 435/2018

was at his house. He denied the suggestion that accused did not threaten
that she
was not set
would set fire in future also. He denied the suggestion that mattress
as the son
on fire. He denied the suggestion that they quarreled with the accused
of the accused was bursting crackers'
14, pW-3 knows the informant as well as the accused as they are
her neighbors. She

deposed that the incident took place in the month of November 2018. On
the day

of occurrence at about 9:30 a.m. while she was cleaning her balcony, she heard
noise of bursting firecrackers outside of her house. She saw from her balcony that
kept
informant was shouting that accused had set fire on her "ketha" which was
under sun light inside her campus. Informant came running to her house
and

requested her to visit her house. Informant was crying. She went with the
informant to her house and saw the "ketha" of the informant burning. Accused was
altercating with the informant and stated that informant is a beggar as she
use

.,ketha". She asked the parties not to quarrel. Thereafter the informant lodged the

FIR.

15. In her cross-examination, pW-3 deposed that accused was bursting firecrackers in
her campus. The house of the informant and accused is separated by a bamboo
fencing. The "ketha" was kept hanging in the bamboo fencing. She did not see
accused setting fire in the "ketha" of the informant'

16, pW-4 being the investigating officer in his evidence deposed that on
09.11.18, he

was posted at Gaurisagar P,S. as ASI. On that day, the informant Smti. Pranati
Das

lodged an FIR. Then O/C Gaurisagar P.S. registered the FIR vide Gaurisagar P.S
Case No. Z46lt8 under section 294, 427, 435 IPC and endorsed the onus of
investigation on him. He recorded statement of the informant at the P,S. as she
was available there. Thereafter on the same day itself he went to the place of
place of
occurrence, recorded statement of witnesses, drew sketch map of the
occurrence. He also seized one "ketha" from the house of the informant and
prepared the seizure list. He handed over the seized "ketha" to the informant on
her zimma. He issued notice to the accused person under section 4l Cr. P.C.
On

them
16.11.18 accused person appeared before him at the P'S. He interrogated
and released them on bail. After completion of investigation he filed the charge-

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 Case No. PRC 435/2018

sheet under section 2g4,506,427,435IPC. He marked the sketch-map as Ext'2

and Ext.2 (1) as his signature. He marked the seizure list as Ext,3 and Ext.3
(i) as
his signature. He marked the charge-sheet as Ext.4 and Ext.4 (1) as his signature'

ffi
17. In his cross-examination, PW-4 deposed that he seized the "ketha" from the

courtyard of the informant which was kept lying on bamboo fencing. He did not
mention the portlon of burn in Ext.3. The burn ar[icles were made of old and torn
clothes. The value of the seized "ketha" was not assessed by him.

\#-! 18. In view of the above evidence on record, I

determination.
proceed to decide the points for

IPC, the prosecution ls

19. point No. (i):- For proving the offence under section 435 of
required to Prove the followlng:-
(i) that the accused caused the destruction of some property, or some change
in such property or in the situation thereof;
(it) that the above act destroyed or diminished the value or utility of such

property, or affected it injuriously;

(iii) that the accused did the act intending or knowing that he was likely to cause
loss or damage to the Property;
(iv) that the causing of such damage or injury was wrongful;
(v) that the mischief was caused by fire or some explosive substance;
(vi) that the damage caused thereby to property amounted to { 100i- or more/
or, if the property in question is agricultural produce to { 10/- or more;

23. The accused person took defence that she has been implicated falsely as her son

was bursting firecrackers at her courtyard. The evidence of the PW-2 does not

bear much significance. He disclosed that during the incident he was not present.

After returninq from his workplace, he was shown the half burnt quilt by his wife.

pW-3 was at her house at the tlme of the alleged occurrence. In the case at hand

informant (PW-1) is the star witness. In the FIR it was alleged that on the date of

occurrence accused was bursting firecrackers at her (accused) courtyard and the

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 6 Case No. PRC 435/2018

mattress of the informant was hung at the couftyard of the informant. It was

further alleged that flames of firecrackers flew on the mattress and thereby the

mattress was burnt. From the evidence of the informant (PW-1) it appears that
d-',iPL
lE{ .i;:. ,,i,. quilt was kept lying at her coutyard over the heap of bricks, Admittedly informant

\?i r.*,' ,',; and other witnesses did not see the accused setting fire on the quilt of the
\e .,t' informant. The informant in her evidence remained silent that flames of

firecrackers flew on her quilt which was kept at her coufiard and thereby the quilt

was burnt. As the accused was alleged to have been bursting firecrackers at her

coutyard it is seen that there was no plausible motive on the part of the accused

to commit the alleged act of arson to the informant's quilt.

24. Moreover the witnesses particularly the informant (PW-l) remained silent about

the value of quilt on which accused allegedly set fire. Moreover the I/O in his

evidence admitted that value of the alleged burnt quilt was not assessed by him.

Therefore, in my view, in absence of any speciflc assessment on the value section

435 IPC cannot be attributed upon the accused person.

25. From the above evidence on record, it appears that allegation against the accused

person is based upon suspicion only. In a criminal trial there is no room for "May

have". Prosecution requires to prove the case of "Must have" in all probabilities.

In view of the above, this point is decided in the negative.

26. Point No. (ii):- In order to secure a conviction the provision under section 294IPC

requires two particulars to be proved by the prosecution, Firstly, the offender has

done any obscene act in any public place or has sung, recited or uttered any

obscene songs or words in or near any public place, and secondly has so caused

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Sub Divisional ludicial Maoistrate (S). Sivasaoar Continued.....at oaoe 7
 Case No. PRC 435/2018

annoyance to others. In order to satisfy the

test of obscenity, the words uttered

in the minds of its hearers'

must be capable of arousing sexually impure thoughts

27, Now let us go through the evidence as

to whether there is any ingredient to

constitute an offence uls 294IPC. It is not stated either in the FIR or in the
dtq:-,
,*
,5i
I
. '1 statement of the informant and other witnesses before
the I/o as to what words
l(,. :- i
ir It .i in the FIR that
\i
+*, ,iti were used while alleging an offence uls 294IPC' The averment
''su-Y
\r-.

accused insulted the informant saying her

"Mad" is not enough to constitute an

the slang/obscene words

offence under section 2g4lPC.It is necessary to state
Annoyance is the glst of the
uttered by the accused which is lacking In this case.
positive proof of annoyance, there
offence under section 294 andin the absence of
of the informant (PW-1)
could be no offence under section 2g4IPC, The evidence
Hence' I am of the view
is silent as to causing annoyance to her by the accused'
point is decided
thatthere is no ingredient of any offence uls294IPC. Hence this

in the negative.

28. Considering all aspect of the fact and circumstances

of the case, I am of the

the accused person and

opinion that prosecution failed to prove the charge against
u/s 435 IPC, 294IPC and
hence the accused person is acquitted from the charge

set at libertY fofthwith.

29. Bail bonds executed by the accused person and

surety are extended for next 6

months as per section 437 (A) of Cr' PC'

case is disposed of on contest'

30. Judgment is pronounced in open court. The
6th day of November' 2019'
31. Given under the hand and seal of this court on this

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Sub Divisional ludlcial Magistrate (S),
Sivasaqar
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 8 Case No' PRC 435/2018

,r'.f,h.'" ''
' APPENDIX

if-( -,
'i$ii'
;,i..r,,on witnesses:

1. P.W.1- Smtl' Pranati Das

Z. P.W'2- Sri Gunaram Das
3. P.W'3- Smti' RuPjYoti Das
4. P.W.4- ASI Lala Ali (I/O)

Defence Witnesses:

None

Prosecution Exhibits:

1. Exhibit 1- F.I.R.
2, Exhibit 2- Sketch MaP
3. Exhibit 3- Seizure list
4. Exhibit 4- Charge-sheet

Defence Exhibits:

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