Page No.# 1/7 vs The State Of Assam
2024 Latest Caselaw 8314 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 13 November, 2024

                                                                          Page No.# 1/7

GAHC010131682013




                                                                   2024:GAU-AS:11079

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Crl.Rev.P./383/2013

            RATUL BHUYAN
            S/O SRI KUSHARAM BHUYAN R/O NARAYANPUR GAON MOUZA-
            MORONGI P.S. GOLAGHAT DIST. GOLAGHAT, ASSAM.

            VERSUS

            THE STATE OF ASSAM


Advocate for the Petitioner   : MR.B BORA, MR.T J MAHANTA,MR.A BHATTACHARYA,MS.P
BHATTACHARYA

Advocate for the Respondent : , PP, ASSAM,MR.S R BORUAH,MR.D CHAKRABARTY


                                     BEFORE
                    HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

Date : 13-11-2024

                               JUDGMENT & ORDER (ORAL)

1. Heard Ms. P Bhattacharyya, learned counsel for the appellant. Also heard Mr. B Sarma, learned Addl. PP, Assam and Mr. D Chakraborty, learned counsel for the respondent No.2.

2. The present criminal revision petition is filed assailing the judgment and order dated 09.03.2010, passed in GR Case No.16/2009 by the learned Chief Judicial Magistrate, Golaghat convicting the Page No.# 2/7

accused petitioner under section 341/342/325/354 IPC and sentenced to pay a fine of Rs.500/- in default simple imprisonment for 15 days and also RI for one month for offence under section 342 IPC and also RI for three months under section 354 IPC and RI for one year and fine of Rs.500/- under section 325 IPC.

3. The further challenge is the appellate judgment passed in Crl. Appeal No.14/2010 dated 03.07.2013 whereby, the learned Sessions Judge, Golaghat modified the judgment and sentence by maintaining the sentence under section 341/342 IPC and acquitting him from the charges under section 354 IPC and altering conviction under section 325 IPC to under section 323 IPC. The sentence was accordingly modified to imprisonment for three months with fine of Rs.500/-.

4. The prosecution case in a nutshell is that on 04.01.2009 at around 4.30 pm, when the mother of the informant, namely, Geeta Das (victim) was on her way back home from the paddy field, the petitioner herein, Sri Ratun Bhuyan, assaulted her by means of a bamboo stick when her mother, resulting in fracture of her right hand.

5. To bring home the charges, the prosecution examined as many as six witnesses including the Medical Officer and the Investigating Officer. The accused was examined under section 313 Cr.P.C. In his 313 statement, the accused had denied the incriminating materials found against him and wished to adduce evidence and examined himself as DW-1.

6. After appreciation of the evidence, the learned trial court had convicted the petitioner as recorded hereinabove.

7. On appeal, the learned Sessions Judge re-appreciated the Page No.# 3/7

evidence in details and came to the conclusion as recorded hereinabove and modified the sentence.

8. Feeling aggrieved by the aforesaid judgment, the present revision petition is preferred by the petitioner.

9. Ms. P Bhattacharyya, learned counsel for the petitioner, at the outset, submits that she is not arguing the matter on merit of the conviction and shall confine her submission in the appeal only in respect of the order of sentence.

10. The learned counsel contends that the accused appellant has not been convicted previously for any offence and he is a first time offender. According to her, the accused and the petitioner are neighbours and the dispute arose out of some previous litigations between them. Therefore, in the aforesaid backdrop, the learned trial court ought to have considered granting benefit of provision of the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) to the accused, however, no reason has been cited and proper considerations were also not made for grant or rejection of benefit of such beneficial legislation.

11. According to the learned counsel, the accused is having a right of consideration under the Act, 1958 and therefore, the right of the petitioner has been violated. According to the learned counsel for the petitioner, the learned Appellate Court did not invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C while sentencing the accused appellants and the Trial court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving benefit of such provision.

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12. Mr. Chakrabarty, learned counsel appearing for the informant submits that it is an admitted position that both the accused and the victim are neighbours, and that there were some litigations between them earlier and the issue of the fight was also very trivial in nature. Therefore, in his usual fairness he submits that he had no objection if the case of the petitioner is considered under the Act, 1958 by upholding the decision passed by the learned court's below.

13. The learned Addl. PP Mr. B Sarma, also fairly submits that the accused is having a valuable right for proper consideration under the Act, 1958, however, the learned Trial court has mechanically rejected such prayer taking note of the nature of the offence.

14. I have given my anxious considerations to the arguments advanced by the learned counsel for the parties.

15. This court after perusal of the materials available on record has also not found any patent error or illegality in passing the judgment. Therefore, without going into the merits of this case any further, this court will now deal with the entitlement of the petitioner of the benefit under the Act, 1958.

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 Page No.# 5/7

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.

17. 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 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 with the court whether to release the offender in exercise of power under section3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

18. 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.

19. Now in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

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20. This court after perusal of the judgment, is of the opinion that the learned Sessions Judge did not make any considerations under the Act, 1958, inasmuch as, such consideration is a right of the accused and duties of this court. A court may not grant benefit in the given facts of a case, however, consideration must be given. At the same time, the learned trial Court though exercised its discretion under the Act, 1958, however it did not cite any reason for rejection of such benefit. In the considered opinion of this court, such is a failure of exercise of jurisdiction by the learned trial courts below.

21. In the case in hand, the offence was committed in the year 2009. The parties are admittedly neighbors. The nature of offence cannot also be said to be heinous in the given circumstances of this case. It is also on record that there was previous enmity before lodging of the FIR. It is also asserted by the learned counsel that the petitioner has not committed any similar nature of offence or to say any offence prior to the incident or during pendency of this petition till date. The learned counsel for the respondent has also submitted that his clients are not aware of any criminal activities of the petitioner. This court also had considered that the accused petitioner has suffered for last 15 years litigating in the court and faced prolonged trial, appeal and revision.

22. Considering the above stated facts and without entering into the merits of the judgments impugned and considering the relevant provisions and settled propositions of law and the period lapsed from the date of incident and also the evidence of PW-2 and DW-1 that there were certain altercations between them as regards a trivial issue of keeping a cow in the field. Materials are there that the occurrence took Page No.# 7/7

place without any premeditation of mind and that the punishment awarded for the offences are maximum one year. In the aforesaid factual circumstances, this court is of the considered opinion that this is a fit case where the benefit of provisions of Probation of Offenders Act, 1958 should be provided to the accused petitioner by this court in exercise of its revisonal power. Accordingly, for the reasons recorded hereinabove, the appellant namely, Ratul Bhuyan is benefitted under the provision of Probation of Offenders Act and sentence is modified to that effect and it is provided that instead of sending him to jail, he should be given the benefit of section 4 of the Probation of Offenders Act, 1958.

23. Accordingly it is directed that the petitioner will file two sureties to the tune of Rs.20,000/- along with personal bond before the learned trial court i.e., the learned Chief Judicial Magistrate, Golaghat and undertake to the effect that the petitioner shall maintain peace and good behaviour during the period of one year from today. The aforesaid bond be filed by the petitioner within a period of 2 months from the date of this judgment.

24. With the aforesaid, the revision petition stands allowed.

JUDGE

Comparing Assistant