High Court
Case Details
Crl.A. 124/2004 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 31.3.2004 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No.57/2003 convic ting the accused appellant under Section 341/325 IPC and sentenced him to underg o rigorous imprisonment (’RI’ for short) for 3 (three) years and to pay a fine of Rs.500/- (Rupees five hundred) only, in default, to undergo RI for 1 (one) mo nth. For the offence under Section 341 IPC, sentenced to undergo RI for another 1 (one) month.
Legal Reasoning
2. eard Mr. BJ Dutta, learned Addl. PP, Assam appearing for the respondent State. Heard Mr. SC Biswas, learned counsel appearing for the appellant. Also h 3. The prosecution case, in brief is that on 23.12.2002, one Sri Lakhikanta Das of village Borpukhuripar lodged an FIR with the Officer-in-Charge (’O/C’ fo r short), Jamuguri Police Station contending that on that day itself at about 12 -10 PM his son Sri Prasanta Das was assaulted with an iron rod by Sri Banamali H azarika (the accused) and as a result of the assault, Prasanta Das got grievous injury on his person, hence, prayed to take necessary action in this regard. 4. On receipt of the FIR so lodged, the O/C, Jamuguri PS registered a case being Jamuguri PS Case No.100/2002 under Section 341/325/307 IPC against the ac cused appellant and started investigation into the occurrence. After completion of the investigation, police submitted charge sheet under Section 341/325/307 IP C against the accused person. During the course of investigation, police could n ot apprehend the accused and therefore, charge sheet was submitted showing him a s absconder. However, on 28.5.2003, the accused surrendered before the learned t rial Court. After submission of charge sheet, the learned Chief Judicial Magistrate 5. (’CJM’ for short), Sonitpur, Tezpur transferred the case record to the court of learned Additional CJM, who finding the case to be exclusively triable by the Co urt of Sessions committed the same to the Court of learned Sessions Judge, Sonit pur. 6. ramed charges against the accused appellant under Section 341/325/307 IPC. Learned trial Court after perusal of the materials available on record f During the trial, prosecution examined as many as nine (9) witnesses, in 7. cluding two Investigating Officers, the informant and the doctor. Defence case i s of complete denial. Defence did not adduce any evidence. Admittedly, there is no eye witness to the occurrence. The learned trial Court did not find the accus ed guilty of committing offence under Section 307 IPC, but considering the evide nce adduced by the prosecution witnesses and other materials available on record , found the appellant guilty of committing offence under Sections 341/325 IPC an d hence convicted and sentenced him accordingly as indicated hereinabove. At the time of passing the judgment and order of conviction and sentence, the learned trial Court had also taken into consideration the fact that the accused was stil l a student and that he had appeared in the matriculation examination. 8. In the present case in hand, I do not find any infirmity and illegality in the judgment and order passed by the learned trial Court. The learned trial C ourt has rightly convicted and sentenced the accused appellant and therefore, th e same is not liable to be interfered with. 9. At this stage, Mr. Biswas, learned counsel appearing for the appellant h as submitted that the occurrence took place in the year 2002 and both the partie s are from the same area and at present they are living peacefully. Hence, it is submitted that after 11 (eleven) years of the incident, if at this stage the ac cused is sent to jail, bitterness once again will grow up between the parties. M r. Biswas has submitted that having regard to the age, character and antecedent of the accused appellant, it is expedient that the accused appellant ought to ha ve been dealt with as per the provisions of Section 360 of the Code of Criminal Procedure or Section 3 and 4 of the Probation of Offenders Act, 1958 (’1958 Act’ for short). But the learned court below neither discussed anything for not gran ting the benefit of Section 360 CrPC nor have recorded any reason as to why the benefit of 1958 Act could not be extended to the appellant. 10. g for the appellant. I have considered the submission of Mr. Biswas, learned counsel appearin The conditions precedent for invoking the provision of Section 4 of the 1958 Act are; if 1. the accused person is found guilty of having committed an offence not pu nishable with death or imprisonment of life and no previous conviction is proved against the offender, 2. the court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the characte r of the offender, it is expedient to release him on probation of good conduct, and the accused in such an event enters into a bond with or without sureties 3. , to appear and receive sentence when called upon during such period not exceedi ng 3 years as the Court may direct, and in the meantime to keep the peace and be of good behaviour. 11. In Rajbir -vs- State of Haryana reported in AIR 1985 SC 1278, the Apex C ourt allowed the appellant the benefit of the 1958 Act, though he was convicted under Section 323 IPC and sentenced to undergo imprisonment for 6 (six) months. 12. In the present case in hand, the occurrence took place on 23.12.2002. Mo re than 11 years have been elapsed in the meantime, however, no untoward inciden t between the families occurred in the meanwhile. The appellant is all along on bail. Nothing has been brought on record to show that he has misused the benefit of such order or he has not been maintaining good conduct. It is also submitted that both the accused appellant and the informant are from the same area and at present they are maintaining good relation. The Apex Court in AP Raju -vs- Stat e of Orissa reported in 1995 Suppl. (2) SCC 385 in a similar situation had exten ded the benefit of Section 360 CrPC and released the appellant therein on enteri ng into a bond with one surety to keep good conduct and be of good behaviour, ke ep peace for a period of one year from the date of execution of such bond. Keeping in view the facts and circumstances of the case as narrated abov 13. e as well as the decisions rendered by the Hon’ble Apex Court, in my considered opinion and for the ends of justice, instead of sending the accused appellant to jail at this stage as directed by the learned trial Court, it will meet the end s of justice if he is released on probation under Sections 3 and 4 of the 1958 A ct. 14. The appeal is accordingly partly allowed by maintaining the conviction a nd modifying the sentence imposed upon the appellant by the learned trial Court. 15. The appellant, Sri Banamali Hazarika is directed to appear before the Ch ief Judicial Magistrate, Sonitpur, Tezpur, within 90 days from today and the app ellant, thereafter, be released on his entering into a bond for a sum of Rs.1,00 0/- (Rupees one thousand) only with one surety of the same amount, to appear and receive sentence when called upon for a period of 3 (three) years from the date of his release on probation and in the meantime to keep peace and be of good be haviour. In case of violation of condition of the bond, the appellant shall be c alled upon to serve the sentence. It is further provided that the conviction of the appellant will stand protected under Section 12 of the 1958 Act. 16. Send down the lower court records forthwith.