Bijoy Krishna Das Vs Debangshu Chakraborty and 3 Ors.

2. The appellant, herein, by way of instituting the present appeal under Section 378(4) of the Criminal Procedure Code, 1973, has assailed the Judgment and Order dated 16.07.2013, passed by the Court of learned Sessions Judge, Karimganj in Crl. A. No. 3(2)/2012, acquitting the respondents, herein, who were convicted by the learned Judicial Magistrate First Class, Karimganj, vide judgment and order dated 04.04.2012 in G.R. Case No. 120/2010.

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3. The appellant, herein, had lodged an FIR against the respondent Nos. 1 to 4, herein. The said FIR so lodged ended in a Final Report, which being objected to by the appellant, herein, lead to an enquiry being conducted in the matter by the learned Judicial Magistrate, First Class, Karimganj. Accordingly, on completion of such enquiry, learned Trial Court took cognizance of the offence under Sections 447/341/379/34 IPC against the respondents, herein. The appellant, herein, in the trial examined 3 witnesses. The respondents were thereafter examined under Section 313 Cr.P.C.

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4. On conclusion of the trial, the learned Trial Court, proceeded to consider the evidences coming on record and on such consideration, the learned Trial Court vide judgment and order dated 04.04.2012, was pleased to convict the respondents, herein, under Sections 447/379/34 IPC and sentenced them to undergo Simple Imprisonment for 2 (two) months each and to pay a fine of Rs.500/-, each, for the offence under Sections 447/34 IPC, in default, to undergo Simple Imprisonment for another 15 (fifteen) days. The Trial Court further sentenced the respondents, herein, to suffer Simple Imprisonment for 6 (six) months each for the offence under Sections 379/34 IPC. The sentences of imprisonment imposed were directed to run concurrently.

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5. The respondents, herein, being aggrieved by the conviction and sentence passed by the Trial Court, assailed the judgment and order dated 04.04.2012 before the Court of learned Sessions Judge, Karimganj by way of instituting a Criminal Appeal being Crl. A. No. 3(2)/2012. The Appellate Court on appreciating the evidences coming on record was pleased vide judgment dated 16.07.2013, to interfere with the judgment and order passed in the matter by the learned Trial Court and by holding that the prosecution had failed to prove the case against the respondents, herein, beyond all reasonable doubt, proceeded to acquit the accused, i.e., the respondents, herein, from the charges framed against them and they were set at liberty.

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6. Being aggrieved by the said decision of the Appellate Court, the appellant had instituted the present appeal. Along with the present appeal, the appellant had instituted a Special Leave Petition, being Crl. L.P. No. 29/2013. This Court vide order dated 02.09.2014, on consideration of the matter was pleased to grant special leave to the appellant, herein, to institute the present appeal. Accordingly, the present appeal came to be registered.

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7. I have heard the learned counsel for the parties and also perused the materials coming on record.

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8. Having noticed the manner in which the present appeal was instituted, this Court for the purpose of adjudication of the matter would refer to the offence alleged against the respondents, herein.

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9. The appellant, herein, had lodged on 07.02.2010 an FIR and had alleged therein that at about 2:30 AM of the same day, the present respondents had trespassed into his land, situated at Bibekanda Road, Karimganj and had decamped with 5 (five) Quintals of rod and 30 (thirty) Bags of cement along with other articles by threatening the Watchman, Dhananjoy Das.

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10. In the trial the appellant had himself deposed as PW1. In his deposition, the appellant, herein, had deposed that his Watchman, Dhananjoy Das resides with his family on a plot of land, belonging to the appellant, near E. & D. Colony. He further deposed that on the intervening night of 07.02.2010/08.02.2010 at around 2:30 AM to 3:00 AM, he had

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received a call from his said Watchman and he was informed that some persons had committed theft of 5 (five) Quintals of rod as well as 30 (thirty) Bags of cement. On receiving the said information, PW1 further deposed that he had telephoned Susanta Shyam, his relative and also proceeded to the place of occurrence. On reaching the place of occurrence, he met Susanta Shyam and his Watchman, Dhananjoy Das along with his other family members and people of the locality, who had gathered there. At this stage, he deposed that his Watchman had disclosed that the present respondents along with others were responsible for the theft and the same was so done after threatening his Watchman with dagger.

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11. During the cross-examination of the PW1, i.e., the appellant, herein, he had deposed that T.S. No. 14/2010 was pending in the Court of learned Munsiff and he was arrayed as Defendant No. 7, therein. He had further deposed that in the written statement filed in the said suit, he had not cited about the existence of the said house, watchman, as well as the theft as alleged in the matter, although, the said written statement was filed after the incident had occasioned.

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12. Dhananjoy Das, the Watchman of the appellant, herein, had deposed as PW2 and in his deposition, he had stated that he was engaged as a watchman by the appellant, herein, and on the fateful night at around 2:30 AM, on hearing sound, he had come outside with torch and noticed about 8-10 persons were involved in removing cement and rod kept in the premises by the appellant, herein. He further deposed that he could recognize the respondents, herein. PW2 also deposed that the accused persons had threatened him by showing dao and Bhujali (Dagger) and had thereafter removed 30 (thirty) Bags of cement and 5 (five) Quintals of rod by handcart. PW2 further deposed that after the accused persons had left the premises, he had raised an alarm in the matter and had also telephoned the appellant, who was contended to have reached the place of occurrence at around 5:00 AM.

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13. Susanta Shyam was examined as PW3, and he deposed that he had received a call from the appellant, herein, that there was a theft in the house of the appellant situated at E. & D. Colony. Upon receiving the said call, he deposed that he reached the place of occurrence, wherein PW2 informed him that the present respondents had removed 4-5 Quintals of rod as well as 25-30 bags of cement by handcarts. He had further deposed that

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the appellant, herein, had reached the place about 30 minutes, thereafter. In his cross, PW3 had deposed that the PW2 had informed him that the accused persons had used two nos. of handcarts for removing the rod and cement from the premises of the appellant, herein.

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14. The deposition of the PW2, who was the sole eye witness to the whole incident, is found not to have been shaken even after lengthy cross-examination was done by the defence and the same brings on record commission of offence by the respondents, herein, under Sections 447/379 IPC.

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15. The depositions of the PW1 and PW3 goes to reveal that they had derived the knowledge of the matter from PW2 and the same also can be held to be trustworthy. The evidences coming on record when examined, the charges framed against the respondents under Section 341 IPC cannot be said to have been established against the respondents, herein.

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16. Having noticed the above conclusions with regard to the depositions of the evidences coming on record in the trial, this Court would now examine the judgment and order dated 04.04.2012 passed by the learned Judicial Magistrate, First Class, Karimganj in G.R. Case No. 120/2010.

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17. The learned Trial Court upon appreciation of the evidences coming on record had proceeded to conclude that the charges framed against the respondents, herein, under Sections 447/379/34 IPC stood established against them beyond reasonable doubt. The said conclusions as drawn by the learned Trial Court in the considered view of this Court is not erroneous and is fully supported by the evidences coming on record during the trial.

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18. Having drawn the above conclusions, the learned Trial Court had proceeded to examine as to whether the provisions of Section 360 Cr.P.C. as well as the provisions of Sections 3 and 4 of the Probation of Offenders Act, 1958 would be permissible to be applied in respect of the present respondents. On an examination of the matter by drawing a conclusion that the respondents, herein, having committed theft in that house at night and such act being not acceptable, proceeded to deny extension of the benefit of probation envisaged under the provisions of the said Act of 1958 to the respondents, herein. On

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drawing the said conclusions, the Trial Court proceeded to sentence the respondents, herein, to suffer Simple Imprisonment for 2 (two) months and to pay a fine of Rs.500/- each, for the offence under Sections 447/34 IPC, in default, of payment of fine, to undergo further imprisonment for a period of 15 (fifteen) days. The Trial Court further sentenced the respondents, herein to suffer Simple Imprisonment for 6 (six) months each, for an offence under Sections 379/34 IPC. The sentence of imprisonment was directed to run concurrently.

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19. Being aggrieved, the respondents, herein, as appellants had instituted an appeal, being Crl. A. No. 3(2)/2012 before the Court of learned Sessions Judge, Karimganj, assailing the judgment and order dated 04.04.2012 passed by the learned Trial Court. The appellate Court upon appreciating the evidence coming on record during the trial, as well as the conclusions drawn by the Trial Court, proceeded vide Judgment and Order dated 16.07.2013, to draw the following conclusions.

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“7. While perusing the evidence on record, it is seen that only the PW2 who claiming himself as chowkidar under the complainant adduced evidence implicating the accused persons deposing that he saw the accused taking away 5 Quintals of rod and 30 bags of cement from the schedule house and land of the complainant. He deposed to have seen 8 to 10 numbers of persons were taking away the said articles and out of them he could only indentify four persons named, the accused persons. He further deposed that at that time his mother and wife were also staying with him. The matter was reported to the complainant. Under such circumstances a question may come as to why his mother and wife were not examined to corroborate his evidence. PW3 is a reported witness. The learned Court below seems to have totally relied upon the testimony of PW2 the chowkider. Head he been an eye witness of the alleged occurrence of theft he ought to have followed the accused persons to see where the stolen articles were stored. In the absence of any such evidence and also non recovery of any seized materials by the I/O during investigation shakes out the root of the prosecution case. As it is disclosed in the evidence that after the commission of alleged theft on his raising alarm people of the neighbourhood arrived to the place of occurrence and the matter was informed to them. Under such circumstances, non

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examination of any such neighbouring people and also any of the family member of the Chowkider the PW2 for further corroboration, it is difficult to put complete reliance upon his sole testimony especially in view of the fact that at the material time there had been a pending civil litigation in which the complainant was a contesting defendant, which the learned Court below failed to take into consideration and explicitly relied upon the testimony of PW2 the chowkidar only having corroboration by the reported witnesses.”

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20. Basing on the said conclusion as drawn in the matter, the learned Appellate Court proceeded to hold that the prosecution had failed to prove the case against the respondents, herein, beyond all reasonable doubt and accordingly, proceeded to acquit the respondents, herein, from the charges framed against them by the learned Trial Court.

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21. A perusal of the conclusions of the learned Trial Court, extracted herein above, would go to reveal that the learned Trial Court had proceeded to acquit the respondents, herein, on the ground that the PW2 had deposed that he had seen 8-10 persons taking away the articles but only 4 of the accused persons could be identified by him, i.e., the present respondents. The learned Appellate Court further held that although the PW2 had deposed that at the relevant point of time his mother and wife were also staying with him, however, his mother and wife were not examined by the appellant, herein, to corroborate the evidence adduced by PW2. The appellate Court further held that if PW2 was an eye witness of the alleged occurrence of theft, he ought to have followed the accused persons to see where the stolen articles were stored. Accordingly, it was held that in absence of examination of relevant witness and also non recovery of any seized material by the Investigating Officer during investigation, the case of the prosecution stood shaken. The learned Trial Court further noticing the evidence of PW2, wherein he had deposed that on his raising alarm after the commission of the alleged theft, people of the neighbourhood had arrived at the place of occurrence and the matter was informed to them, held that no neighbor was examined by the appellant in the matter to corroborate the evidence adduced by PW2. Accordingly, the Appellate Court held that it was difficult to put complete reliance on the sole testimony of the PW2 as at the material time, there was pending a civil litigation in which the informant, i.e,

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the appellant, herein, was a contesting defendant. It held that the learned Trial Court had failed to take into consideration the said aspects of the matter and only by relying on the testimony of PW2, which was held to be corroborated by the reported witnesses, proceeded to convict the respondents, herein.

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22. On a perusal of the conclusions drawn by the learned Trial Court, this Court finds that the same are not sustainable. It is a settled position of law that it is not the quantity of witnesses, but the quality of the evidence adduced by a witness that is relevant. As noticed hereinabove, the evidence adduced by the PW2 could not be dislodged by the respondents, herein, during his cross-examination, by them. The evidence adduced by PW2 is direct. The PW2 had deposed that there were around 8-10 persons involved in the offence, however, he could only identify the present respondents, who were stated to be residents of the neighbourhood of the place of occurrence. The pendency of the civil proceeding in the considered view of this Court would have no application with regard to the appreciation of the evidence adduced by the PW2. The conclusion of the learned Appellate Court that the PW2 ought to have followed the accused persons to see where the stolen materials are stored, in the considered view of this Court is not normal course of action expected to be taken by a person, in such circumstances, moreso, when it is in the evidence of the PW2, that the accused persons were armed with dagger and dao. The PW2 under fear of his life cannot in the normal course be expected to follow the accused persons after they had decamped with the materials from the place of occurrence.

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23. In view of the above conclusions drawn by this Court as well as the conclusions drawn with regard to the evidence adduced by the PW2, hereinabove, this Court is of the considered view that the judgment dated 16.07.2013 passed by the learned Sessions Judge, Karimganj in Crl. A. No. 3(2)/2012 cannot be sustained and accordingly, the same stands set aside.

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24. The interference made with the judgment of the Appellate Court would have the effect of reviving the judgment and order dated 04.04.2012 passed by the learned Trial Court along with the conviction of the respondents, herein and the sentence as awarded to them by the learned Trial Court. As noticed, hereinabove, this Court has already concluded that the

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conviction of the respondents, herein, under Sections 447/379/34 IPC, by the Trial Court was not erroneous. Accordingly, the said conviction of the respondents under Sections 447/379/34 IPC is maintained.

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25. Having drawn the above conclusions, this Court would now consider as to whether the respondents, herein, are entitled to be extended with the benefit under the provisions of the Probation of Offenders Act, 1958 (hereinafter, referred to as the Act of 1958). This Court finds from the judgment of the learned Trial Court that the learned Trial Court had considered the said aspect of the matter, however, by noticing the nature of the offence committed by the respondents, herein, had proceeded to deny extension of the benefits under the Act of 1958 to the respondents herein.

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26. The provisions of Section 4 of the said Act of 1958 being relevant is reproduced herein under for ready reference :-

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“4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

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Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

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(2) Before making any order under sub-section (1), the court shall take into

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consideration the report, if any, of the probation officer concerned in relation to the case.

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(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one Page 12 of 18 year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

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(4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

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(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”

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Reading of the aforesaid provision of the Act, 1958, it appears that the power is discretionary and the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. It is thus imperative for the Court while considering the nature of the offence to take a realistic view of the gravity and the impact which the offence had on the victim. This power is vested with the Court when any person is found guilty of the offence committed, not punishment with death or imprisonment for life. Thus, if the Court thinks that having regard to the circumstances of the case including the nature of the offence and the character of the offender,

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benefit may be extended to the accused.”

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27. The Hon’ble Supreme Court in the case of Sitaram Paswan Vs. State of Bihar, reported in (2005) 13 SCC 110 had drawn the following conclusions :-

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“8. Section 4 of the Probation of Offenders Act empowers the Court to release a convicted person on his entering into a bond with or without sureties on probation when he is found guilty of committing of any offence not punishable with death or imprisonment for life.

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Relevant portion of Section 4 of the Probation of Offenders Act, 1958 reads thus:

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‘Section 4 Power of Court to release certain offenders on probation of good conduct- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the Page 10 of 18 meantime to keep the peace and be of good behaviour.’

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For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the

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nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India.”

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28. A Co-ordinate Bench of this Court in the case of Ratul Bhuyan Vs. State of Assam (Crl. Rev. P. No. 383/2013) noticing the decision of the Hon’ble Supreme Court in the case of Sitaram Paswan (Supra) had drawn the following conclusion :-

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“16. It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon'ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard.

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In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon'ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The hon'ble Apex Court opined that while exercising the discretionary power under the Act 1958, the court is to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the hon'ble Apex Court that the benefit available to the

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accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word 'may' clearly indicates that the discretion is vested Page 14 of 18 with the court whether to release the offender in exercise of power under section 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

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It was further held by the hon'ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.”

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29. A perusal of the said decisions noticed, hereinabove, it is well settled that the Act of 1958 is a milestone in the progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Further, the Court for the purpose of application of the provisions of the Act of 1958 to the accused has to consider the circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court is required to take a realistic view of the offence along with the impact which the offence had on the victim.

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30. In view of the above position, this Court upon examination of the materials coming on record finds that the offence was committed during the intervening night of 07.02.2010/08.02.2010 and the respondents thereafter were involved in litigation since then initially in the Trial, thereafter, the appeal and presently in the instant appeal. It is also appears that the respondents, herein, have not committed any offence of similar nature, i.e., that they do not have past criminal records. Accordingly, this Court is of the considered view that the respondents, herein, are entitled to be extended with the benefit of the provisions of the Act of 1958.

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31. In view of the above discussion, this Court while maintaining the conviction of the respondent Nos. 1, 2, 3 & 4 in terms of the Judgment and Order dated 04.04.2012 passed by the Court of the learned Judicial Magistrate First Class, Karimgnaj in G.R. Case No. 120/2010, the respondents are granted the benefit of Probation under the Probation of Offenders Act,

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1958 and accordingly, their sentence is modified and instead of sending them to jail, they should be grant the benefit under Section 4 of the Act of 1958.

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32. Accordingly, it is directed that each of the respondents shall file two sureties to the tune of Rs.20,000/- each, along with personal bond before the learned trial Court i.e., the learned Judicial Magistrate, First Class, Karimganj and undertake to the effect that the respondents shall maintain peace and good behaviour during the period of one year from today. The aforesaid bond be filed by the respondents within a period of 1 (one) month from the date of this order.

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33. With the above observations and directions, the present criminal appeal stands allowed.

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JUDGE

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Comparing Assistant

Bijoy Krishna Das v. Debangshu Chakraborty and 3 Ors.

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