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Judgment
H.C. Mishra
Heard Learned Counsel for the Petitioners and Learned Counsel for the State. Petitioners are aggrieved by the Judgment dated 21.9.1999 passed by learned Additional Sessions Judge, Pakur, in Cr. Appeal No. 267 of 1989 / 14 of 1990, whereby the Judgment of Conviction and Order of sentence dated 28.7.1989, passed by Sri Nand Kishore Gupta, learned Judicial Magistrate, 1st Class, Pakur, in G.R. Case No. 187 of 1986 / T.R. No. 386 of 1989, convicting and sentencing the petitioners for the offence u/s 323 IPC, was maintained by the learned Appellate Court below.
From perusal of the Judgments passed by the Courts below, it appears that there is allegation against the petitioners to have assaulted and taken away some cash of the informant Birju Lal Hansda on 1.6.1986. On the basis of the FIR lodged by informant Birju Lal Hansda, Pakuria PS. Case No. 29 of 1986 was instituted for the offence u/s 341, 323, 379 and 34 of the IPC and investigation was taken up. After investigation, the police submitted the charge-sheet against the petitioners and the petitioners were ultimately, charges were framed against them for the offence u/s 323/34 and 379 of the IPC, and they were put to trial.
It appears from the Judgments passed by the Courts below that 13 witnesses were examined by the prosecution in course of trial, some of whom were declared hostile, but the fact remains that informant and some other witnesses have supported the case. It appears that no evidence was adduced by the defence. The court below on the basis of evidence brought on record, acquitted the accused for the offence u/s 379 IPC, but found the petitioners guilty for the offence u/s 323 of the IPC and convicted them for the same and upon hearing on the point of sentence, petitioners were sentenced to undergo R.I. for six months each by the Judgment and Order dated 28.7.1989 passed by Shri Nand Kishore Gupta, learned Judicial Magistrate, 1st Class. Pakur. The said Judgment was maintained by learned Appellate Court below by Judgment dated 21.9.1999 passed in Cr. Appeal No. 267 of 1989/ 14 of 1990.
From perusal of the Judgments passed by the Courts below, it is apparent that there was nothing on the record to show that the petitioners were not the first offenders, still the petitioners were not given the benefit of Section 360 of the Cr.P.C. From perusal of the Judgments, passed by the Courts below, I find that since the informant and some witnesses had supported the allegation of assault against accused persons, the Court below has rightly convicted the petitioners for the offence u/s 323 of the IPC, but in view of the fact that there was nothing on record to show that the petitioners were not the first offenders, there was reason for denying the petitioners of the benefit of Section 360 of the Cr.P.C., and they ought to have been given the said benefit.
Accordingly, the Order of sentence dated 28.7.1989 passed against the petitioners by the Trial Court below in G.R. Case No. 187 of 1986 / T.R. No. 386 of 1989, is hereby, set-aside and the petitioners are given the benefit of Section 360(3) of the Cr.P.C. and they are directed to be released after due admonition.
Accordingly, the petitioners are directed to appear in the Trial Court below for receiving the admonition within a period of two months from today and upon getting the admonition, they shall be released. If the petitioners fail to appear in the Court below within the given time, the Court below shall issue process compelling the attendance of the petitioners and shall release them after due admonition. After getting the admonition from the Court below, the petitioners shall stand discharged from the liabilities of their respective bail bonds. With this modification of sentence, this revision application stands dismissed. Let the Lower Court Records be sent back forthwith.