High Court
Case Details
Crl.A. 288/2005 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) Heard Mr BM Choudhury, learned counsel appearing for the accused appellant. Also heard Ms B. Bhuayn, learned Additional Public Prosecutor, Assam for the respondent State. 2. This appeal is directed against the Judgment and Order dated 25. 11.2005 passed by the learned Ad-hoc Additional Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No. 116/2004 convicting the accused appellant under Sect ion 323/34 IPC and sentencing him to undergo rigorous imprisonment (RI for short ) for 6 (six) months and to pay a fine of Rs. 1,000/-( Rupees one thousand) onl y, in default, to undergo RI for 2 (two) months.
Legal Reasoning
The prosecution case in brief is that on 12.11.2000 at about 9.3 3. 0 P.M. one Shri Madhab Kalita when returned to his house, his brother Uddhab Kal ita asked him about some of their household matter and called another brother Go binda Kalita. Then Gobinda Kalita arrived with a dao in his hand and dealt a cu t blow on the head of Madhab Kalita. The injured Madhab resisted the assault by raising his hands. In the meantime, the accused appellant Uddhab Kalita assaul ted him with an iron rod and dealt blow on his neck, from back side and also dea lt blow upon his eyes and head. Hearing the cry of the injured, the wife of Madh ab Kalita and other family members came out and then accused assaulted them also and thereafter they fled away. The injured Madhab Kalita went to the nearby Pol ice Reserve immediately after the occurrence and informed the matter to the poli ce. On the next day brother-in-law of the injured lodged an FIR before the Offic er Incharge (O/C for short), Tezpur Police Station. 4. Accordingly, on the basis of the FIR so lodged a case was regist ered and injured were sent to the Gauhati Medical College Hospital (GMCH for sho rt) for treatment. After completion of the investigation, I.O. submitted the cha rge sheet against the three accused persons i.e Uddhab Kalita (appellant herein ), Mukul Kalita and Gobinda Kalita under sections 448/323/324/326/307/34 IPC. On e of the accused Gobinda Kalita declared absconder, and in the course of trial, another accused Mukul Kalita expired and the case against him was dropped. Only accused Uddhab Kalita faced the trial. The learned trial court finding prima fa cie case against the accused appellant framed charges under sections 448/34, 323 /34, 324/34, 326/34 and 307/34 IPC. The charges so framed being read over and ex plained to the accused, he pleaded not guilty and claimed to be tried. 5. During trial, prosecution examined as many as 12 (twelve) witnes ses including the Medical Officer and the Investigating Officer. On completion of the prosecution witnesses, the statements of the accused person was recorded under section 313 CrPC, wherein he has simply denied his involvement in the cas e. 6. Learned trial court considering the oral as well as documentary evidence on record, found the accused guilty under section 323/34 IPC. While ho lding the accused guilty as thus, the learned trial court observed as follows:- (cid:28)In their certificates the doctor (PW 10) has opined that the injury is simple and caused by blunt weapon but the doctor did not opine that the injury w as dangerous to life. No vital organ was cut as a result of injury. So from the evidence of the MO an offence u/s 323 IPC can only be made out. There is no any specific evidence in the mouth of the injured persons nor in the circumstances t hat accused assured the intention to kill the injured Madhab and Ila. Had they s uch intention they could have succeed because the injured Madhab was alone at th e time of occurrence and he could have been easily murdered if so intended by th e accused persons. But the evidence on record shows that after attacking the inj ured persons, the accused went out from their house leaving them in injured cond ition, so evidence on record is highly insufficient to attract the offence u/s 3 07 IPC. Learned Addl. Public Prosecutor also conceded to the point. (cid:29) However, observing as thus, learned trial court convicted the accused appellant under section 323/34 IPC. 7. To attract section 34 IPC two ingredients are indispensable (i) the criminal act (consisting of a series of acts) should have been done not by o ne person but by more than one person, (ii) doing of every such individual act c umulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all the accused persons. Hence an act, wh ether overt or covert, is indispensable to be done by a co-accused to be fastene d with the liability under the section. But if no such act is done by a person, even if he has a common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In the insta nt case, the prosecution has failed to prove the ingredients of section 34 IPC i n respect of common intention of accused Uddhab Kalita (the appellant) with accu sed Gobinda Kalita and Mukul Kalita in causing the injuries on the injured Madh ab Kalita in furtherance of the common intention of all the accused and hence, t his court held the accused Uddhab Kalita committing an offence under section 323 IPC only. 8. In view of what is stated above and on consideration of the reco rd of the case, I consider that there is no sufficient ground for interfering wi th the impugned judgment and order passed by trial court below. 9. At this stage, Mr Choudhury, learned counsel appearing for the p etitioner has submitted that the accused appellant is a Government employee. The accused appellant and the injured are all from the same family. There is no mat erial on record to indicate that the accused appellant had any previous convicti on and in absence of such evidence, he may be treated as first offender. The occ urrence took place on 12.11.2000 and they are living peacefully for last 10/12 y ears. No untoward incident took place in the meantime. If after about 12/13 year s of the occurrence, the appellant is sent to jail again, bitterness would crop up between the two families and therefore, considering all, he may be given the benefit of section 3, 4 and 12 of the Probation of Offenders Act, 1958 ( 1958 A ct for short) the appellant being a Government servant. Mr Choudhury has further submitted that having regard to the age, character and antecedent of the accuse d appellant, it is expedient that the accused appellant ought to have been dea lt with as per the provisions of section 360 CrPC or section 3 and 4 of the 1 958 Act. 10. l for the appellant. I have considered the submission of Mr Choudhury, learned counse 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 punishable with death or imprisonment of life and no previous conviction is pro ved 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, t he Apex Court 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. It was also held therein that though the appellant was convicted, in v iew of the direction that he be released on probation of good conduct, it should not affect his service as a Government servant. 12. In the case in hand, the sentence imposed is RI for only six (6) months and fine of Rs.1,000/- (Rupees one thousand) only. Admittedly, the appel lant is a Government servant and the appellant as well as the injured are from t he same family. The incident took place in the year 2000, however, no untoward i ncident between the families occurred in the meanwhile. There is also no materi al on record to indicate that the accused appellant had any previous conviction. In the absence of such evidence this Court treats him as a first offender. The appellant is thus entitled to the benefit of probation under section 3 of the Ac t taking into consideration of the circumstances of the case, the nature of the offence and the character of the offender. Keeping in view the facts and circumstances of the case as narra 13. ted above as well as the decisions rendered by the Hon’ble Apex Court, in my con sidered opinion and for the ends of justice, if the accused appellant is not sen t to jail at this stage, it will meet the ends of justice if he is released on p robation under section 3 and 4 of the 1958 Act. . 14. The appeal is accordingly partly allowed by maintaining the conv iction and modifying the sentence imposed upon the appellant by the trial court below. 15. The appellant is directed to appear before the Chief Judicial Ma gistrate, Sonitpur at Tezpur within 90 days from today and the appellant be rele ased on his entering into a bond for a sum of Rs. 1,000/-(Rupees one thousand) o nly with a 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 behaviour. In case of violation of condition of the bond, appellant shall be called upon to serve the sentence. It is further provided that the conviction of the appellant in the above case w ill stand protected under section 12 of the 1958 Act. .16. 17. The appeal accordingly stands disposed of. Send down the lower court records forthwith.