Kula Singha and Anr. Vs State of Assam

the judgment and order dated 11-02-2013 passed by the learned Addl. District & Sessions Judge, Hojai at Sankardev Nagar in Crl. Appeal No. 53(N)/2012, upholding the judgment and order dated 06-06-2012 passed by the learned Judicial Magistrate First Class, Hojai at Sankardev Nagar in GR Case No. 849/2005, convicting the petitioner, herein, under Section 325 IPC. It is to be noted that the learned Appellate Court had modified the sentencing of the petitioner, herein, by the learned Trial Court and modified sentence was to the effect that the petitioner, herein, was to suffer rigorous imprisonment for one year and to pay fine of Rs. 6000/- (Six Thousand), in default, to suffer rigorous imprisonment for further 02 (two) months under Section 325 IPC and imposition a fine of Rs. 500/- (Five Hundred), in default, to suffer simple imprisonment for 07 days under Section 341 IPC.

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The prosecution case in brief is to the effect that on 09-10-2005, informant Smti. Rani Devi had lodged an FIR before the Officer-in-Charge, Hojai Police Station, inter-alia, alleging therein that at about 01:00 pm of the same day, the petitioners, herein, had an altercation with her husband Nabin Singha with regard to some old dispute. It was alleged in the FIR that the petitioner, herein, had dragged away her husband to a nearby field and one of the petitioners caught him by the hand and other started beating him by a iron rod causing serious injuries in his person, rendering her husband unconscious. It was stated that initially her husband was taken to the Nagaon CHC for medical treatment and thereafter, on instruction of Doctors, was shifted to Nagaon Hospital for treatment.

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On receipt of the said FIR, the police registered Hojai P.S. Case No. 307/2005 under Section 341/325/34 IPC against the petitioners, herein. On conclusion of the investigation,

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the police laid charge-sheet against the petitioners, herein, under Section 341/325/34 IPC. On the petitioners appearing in the matter, in pursuance to the summons issued to them, a charge under Section 341/325/34 IPC was framed against them. On the charges being read over and explained to the petitioners, they having pleaded not guilty and having claimed to be tried, a trial ensued. During the trial, the prosecution had examined of 04 (four) witness including the informant as PW-2.

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On conclusion of the trial, the learned Trial Court, on appreciating the evidences coming on record was pleased vide judgment and order dated 06-06-2012 to convict the petitioners, herein, under Section 341/325/34 IPC. On such conviction, they were sentenced to undergo simple imprisonment for 02 (two) years along with fine of Rs. 1000/- (One Thousand), in default, to undergo simple imprisonment for further 07 (seven) days for the offence under Section 325 IPC. For the offence under Section 341 IPC, the petitioners, herein, were directed to pay fine of Rs. 500/- (Five Hundred), in default, to undergo simple imprisonment for further 07 (seven) days.

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The petitioners, herein, being aggrieved by their conviction vide judgment and order dated 06-06-2012, assailed the same by way of instituting an appeal being Crl. Appeal No. 53(N)/2012 before the learned Sessions Judge, Hojai at Sankardev Nagar. The case was transferred to the court of learned Addl. District & Sessions Judge, Hojai at Sankardev Nagar for disposal. The learned Appellate Court upon appreciating the evidences coming on record, proceeded vide judgment and order dated 11-02-2013 to uphold the conviction of the petitioners, herein, by the learned Trial Court. However, the learned Appellate Court proceeded to modify the sentencing of the petitioners by the

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learned Trial Court and passed a modified sentence in the matter as noticed, hereinabove.

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The petitioners being aggrieved have instituted the present proceeding.

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I have heard the learned counsel for the parties and also perused the materials available on record. The learned Trial Court upon appreciating the evidences coming on record in the matter had held that the evidence of the PW-1 and PW-2 were consistent

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and cogent, clear, plausible and believable. Basing on the same, the learned Trial Court had drawn the following conclusions:

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“..............Both of them categorically deposed that on the day of occurrence near the house of the informant, the accused persons wrongfully restrained the victim by holding his hand and assaulted him with a rod on head and the left hand causing grievous injury. Defence could not demolish the testimony of the P.Ws except by giving some suggestions. The defence although tried to bring a fact to the fore that the son of the informant is a thief so only as a means of revenge this false case was instituted against the father and the son, but in fact this matter remained not proved. The defence could not discharge their burden to prove the new fact brought by them. P.W.3 who happens to be an independent witness corroborated the version of the P.W.1 and P.W.2 to the extent that on that day he heard that accused assaulted the victim and he clearly saw him lying on earth receiving serious injuries on head and hand. The medical evidence is worth believing and the opinion of the doctor supports the prosecution case. There is no reason at all to disbelieve the prosecution case. So considering the entire evidence on record I am of the considered opinion that the accused persons have wrongfully restrained the victim and assaulted him badly with a rod causing severe injury on his head and left arm.

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From the he above appraisal, appreciation of evidence on record, and the application of law, I find that the prosecution has become successful to establish the offence u/s. 341/325/34 I.P.C. against the accused persons beyond all reasonable doubts and therefore, therefore they are convicted U/S. 341/325/34 I.P.C”

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Having drawn the said conclusions convicting the petitioners, herein, under Section

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341/325/34 IPC, the learned Trial Court proceeded to pass the following directions with

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regard to the sentencing of the petitioners on their such conviction:

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“...........Heard the accused persons on the points of sentencing. They submitted that they are very poor and are entrusted with the responsibility of feeding their family. They pleaded for mercy. Considering the nature, gravity and manner of committing the offence I do not deem it a fit case to release the convicts under probation Eventually after taking into consideration the entire aspects both the accused are sentenced to undergo simple imprisonment of two (2) years U/S. 325 I.P.C. and fine of Rs. 1000/-i/d. S.I. for 7 days and fine of Rs.500/- U/S. 341 LP.C. id. S.I. for 7 days.”

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On perusal of the conclusions drawn in the matter by the learned Trial Court, in the

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light of the evidence coming on record during the trial, this Court finds that the said conclusion suffers from no infirmity. The evidences of PW-1 and PW-2 as adduced during

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the trial were not dislodged by the petitioners, herein, during their cross-examination. Accordingly, the conviction of the petitioners, herein, by the learned Trial Court would not mandate any interference.

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The petitioners, herein, being aggrieved by their conviction by the learned Trial Court had assailed the same before the leaned appellate court. The learned appellate court, on appreciating the evidences coming on record, was pleased to uphold the conviction of the petitioners, herein, by the learned Trial Court. The learned Appellate Court on appreciating the evidences coming on record had concluded that the same to be

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the trustworthy. The learned Trial Court, however, modified the sentencing of the appellants in the following manner:

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“(16) Thus the sentence passed by the Ld. Trial Court is modified to undergo rigorous imprisonment for one year and a fine of Rs. 6000/- i.d. R/1 for 2 months U/S 325 1.P.C. and a fine of Rs. 500/-i.d. S/1 for 7 days U/S 341 I.P.C.”

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I have considered the conclusions drawn by the learned Trial Court as well as by the learned Appellate Court vide impugned judgments and find that the same are

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supported by the evidences coming on record. This Court finds that the learned Trial Court as well as the learned Appellate Court had appreciated the evidences coming on record during the trial in its proper perspective and no infirmity is found with regard to the conclusions so drawn in the matter. Accordingly, this Court is of the considered view that the conviction of the petitioners, herein, under Section 325/ 341/34 IPC would not mandate any interference.

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Having drawn the above conclusions, this Court finds that the learned Trial Court vide judgment and order dated 06-06-2012, while considering the sentence required to be passed in the matter against the petitioner, herein, had only by considering the nature, gravity and the manner of committing offence by the petitioners, herein, refused to extend to them the benefit of the Probation of Offenders Act, 1958. The learned Appellate Court had also not considered as to whether the benefits under the Act of 1958 is mandated to be extended to the petitioners, herein.

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On appreciation of the matter, this Court finds that the learned Trial Court had refused to extend to the petitioners, herein, the benefit of the Act of 1958 only by considering the nature of the offence alleged against the petitioners.

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It is settled position of law that for the purpose of exercising discretionary power under the Act of 1958 the court is to consider the circumstances of the case, the nature of the offence as well as the character of the offender. The court while considering the nature of the offence must take a realistic view of the gravity of offence, the impact which the offence had on the victim. This Court finds that the offence committed by the petitioners, herein, was so committed on 09-10-2005, around 20 (twenty) years had

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lapsed since the date of the said incident. The materials brought on record does not reflect that the petitioners, herein, were involved in similar nature of offences either prior to the institution of the FIR in the matter against the petitioners and/ or they were involved in similar offence during the pendency of the proceeding after institution of the FIR on 09-10-2005. The petitioners, are also found to have been litigating in the matter before the learned Trial Court, thereafter before the Appellate Court and presently before this Court in this revision petition during the last about 20 (twenty) years.

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In view of the above reasons, this Court is of the considered view that this is a fit case where the benefit of the Act of 1958 is required to be extended to the petitioners, herein, by this Court, in exercise of its revisional powers. Accordingly, for the reasons noticed hereinabove, the petitioners are granted the benefit under the Act of 1958 and the sentence modified to the effect that instead of sending the petitioners to the jail, they should be given the benefit of the Section 4 of the Act of 1958. However, the fines as imposed upon the petitioners by the learned Trial Court vide judgment and order dated 06-06-2012 is not interfered with.

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As such, it is directed that the appellant, herein, will file 02 (two) sureties to the tune of Rs. 10,000/- (Ten Thousand) each along with a personal bond before the learned Additional District & Sessions Judge, Hojai at Sankardev Nagar and undertake to the effect that the appellant shall keep peace and good behaviour during the period of 06 (six) months from the date of filing of such bond. The aforesaid bond shall be filed by the appellant within a period of one month from today along with deposit of the fine amount as awarded by the learned Trial Court .

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With the above observations and directions, the present appeal stands disposed of.

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Registry to send back the TCR forthwith along with a copy of the present order for

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information and necessary action.

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JUDGE

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Comparing Assistant

Kula Singha and Anr. v. State of Assam

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Kula Singha and Anr. v. State of Assam

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