Nazrul Kabir vs The State Of West Bengal & Anr.

Ajay Kumar Gupta, J.:

By filing this Criminal Revisional application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (In short ‘Cr.P.C.’), the petitioner/convict challenged the correctness, legality and propriety of the Judgment and Order dated 31.03.2015 passed by the Learned Additional Sessions Judge, Uluberia, Howrah in Criminal Appeal No. 5 of 2013, whereby the Learned Judge partly affirmed the Judgment and Order of conviction and sentence dated 20.06.2013 passed by the Learned Judicial Magistrate, 1^st Court, Uluberia in G.R. Case No. 425 of 2006 (T.R. No. 681 of 2006).

The facts of the case are that on 13^th May, 2003, the three accused (Abu Sufiyan, Fazlul Kabir, and Nazrul Kabir) allegedly came to the de facto complainant’s house, abused him and his family, and tried to damage the meter house being newly constructed. When they protested, Nazrul Kabir, the present petitioner, assaulted the complainant's son, Kazi Sarmad, with fists, blows and a lathi on his nose, causing bleeding injuries, requiring referral to Kolkata Medical College Hospital.

Based on a written complaint, an FIR being Bagnan PS Case No. 84/06, dated 15.02.2006, was registered under Sections 323/325/34 of IPC. Accused persons were arrested and produced before the Learned ACJM, Uluberia on 23.05.2006 and they were released on bail on the same day.

After culmination of investigation, the investigating agency submitted charge sheet being No. 84/06 dated 17.07.2006 under Sections 323/325/34 of IPC against the accused persons and cognizance was taken on 31.07.2006. Thereafter, the case was transferred to the Court of the Learned Judicial Magistrate, 1^st Court, Uluberia, Howrah for disposal.

Finally, after examination of seven witnesses on behalf of the prosecution and several documents which were also produced to establish the case against the accused persons, the learned Magistrate, finally held three accused persons i.e. Abu Sufiyan, Fazlul Kabir and Nazrul Kabir guilty for committing an offence punishable under Sections 325/34 of IPC and sentenced them to undergo simple imprisonment for a term of two years each and to pay fine of Rs. 1,000/- each, in default, to suffer further simple imprisonment for two months more.

Being aggrieved by and dissatisfied with the said conviction and sentence, they challenged the same before the learned District Judge, Howrah, who transferred the case to the Learned Additional Sessions Judge, Uluberia, Howrah for its disposal, resulting in registration of a Criminal Appeal being No. 5 of 2013.

After hearing the respective parties and on perusal of the materials on record, the learned Judge was pleased to set aside the conviction and sentence of two convicts, namely, Abu Sufiyan and Fazlul Kabir. However, the conviction and sentence of the present petitioner was affirmed. Hence, this application.

Learned counsel appearing on behalf of the petitioner submitted that the present petitioner was standing on the same footing as the other two accused persons. The allegations made by the de facto complainant against the three accused persons are similar. He specifically stated in the FIR as well as while deposing evidence that a bleeding injury was caused due to assault by relatives without specific name. No specific role was attributed against any of the accused persons. The learned Judge, while assessing the evidence, did not consider that the present petitioner and the other two accused persons were placed in similar circumstances, thereby causing a serious error in facts and law, while passing the impugned judgment and order. The learned Judge acquitted two accused persons and declared the present petitioner guilty, based on subsequent aggregated evidence adduced by the P.W. 3.

It was further submitted that the learned Judge failed to appreciate that the prosecution has miserably failed to establish its case beyond all reasonable doubt regarding the factum that the petitioner herein caused bleeding injury to the victim, i.e. PW 3. The learned Judge further ignored the vital medical document, i.e. Exhibit 2. When the Medical Officer treated him on emergency duty, he disclosed that the injury was caused due to assault by relatives without specifying the name of the assailant. No specific role was attributed against any of the accused persons. The learned Judge should have given similar privilege to the present petitioner since no specific role was attributed to him. Accordingly, the judgment and order impugned is liable to be set aside.

Learned counsel further submitted that the learned Trial Court, while awarding sentence, did not consider the age of the accused persons and their relationship with the alleged victim. The petitioner and the de-facto complainant’s family are the close relatives. There were no previous antecedents against the present petitioner. Therefore, the present petitioner should have been allowed pardon under Sections 3 and 4 of The Probation of Offenders Act, 1958. The said privilege can be awarded, when an accused is convicted for the first time for an offence punishable with imprisonment for not more than two years or with fine or with both under the IPC or any such law.

He relied upon a judgment in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand^{11.(2004) 7 SCC 659;}, where the Hon’ble Apex Court granted the benefit of Probation by directing him to execute a bond for a particular period for good behaviour. He further relied three unreported judgments passed by the Hon’ble High Court at Calcutta as under: -

On the other hand, none appeared on behalf of the opposite parties despite several opportunities. Accordingly, the matter was heard ex parte.

Heard the submissions made by the learned counsel appearing on behalf of the petitioner and upon perusal of the record, this Court finds that the petitioner has been convicted under Sections 325/34 of IPC by the Learned Trial Court, and the said conviction has been affirmed by the Learned Appellate Court.

P.W.3, being the injured person, clearly implicated the petitioner while deposing evidence. He was the injured person, and his evidence could not be shaken or rebutted at the time of cross-examination by the defence. Evidence of the injured person is direct evidence since he is the person who had specifically named the petitioner as the assailant. P.W. 3, Samard Nawaz, saw that the accused persons were damaging the meter house. When he objected, the accused persons assaulted him with fists, blows and kicks, and the present petitioner gave a severe blow on his nose causing him to sustain bleeding injuries. Due to such assault, he fell and became senseless.

P.W.3 was treated by the Doctor (P.W.6). He spoke about the nature of injury sustained by P.W. 3 and corroborated the evidence of other prosecution witnesses. P.W. 3 sustained grievous injury on his nose due to assault by the petitioner.

It is well settled law that when the evidence of the doctor supports the nature of injuries suffered by the victim, the basis for declaring conviction is unimpeachable. Therefore, the conviction and sentence awarded against the petitioner and the concurrent findings of the Trial Court and Appellate Court under Sections 325/34 of IPC is, accordingly, found correct and genuine. Consequently, this court is not inclined to disturb the concurrent findings of the courts below.

The submission that survives for consideration is one confined to sentence. The petitioner has been sentenced to simple imprisonment for two years and to pay a fine of Rs. 1,000/-, in default, to suffer further simple imprisonment for two months.

Section 4 of the Probation of Offenders Act, 1958 empowers a Court, where a person is found guilty of having committed an offence not punishable with death or imprisonment for life, to release him on probation, for good conduct, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, in lieu of sentencing him at once to imprisonment. The offence punishable under Section 325 of IPC does not attract the statutory bar under the Act, since that bar operates only in respect of offences punishable with death or imprisonment for life.

Learned counsel has placed reliance on State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand (Supra), where the accused stood convicted under Sections 324/452 read with Section 34 of IPC arising out of an altercation between neighbours over a trivial dispute concerning a drain. The incident was more than ten years old by the time the matter reached the Hon'ble Supreme Court. Noting that the parties were educated, distantly related, and that the occurrence had taken place in a sudden fit of anger, the Hon'ble Supreme Court held it to be a fit case for extending the benefit of probation, directing the accused to be released on executing a bond for one year for good behaviour, rather than being made to undergo the sentence of imprisonment. The parallel with the facts at hand is apposite: here too, the parties are near relatives, the occurrence arose out of a sudden altercation rather than any premeditated design, there is nothing on record to suggest antecedents against the petitioner, and the incident dates back to 13.05.2003, a period of over two decades having elapsed since.

Reliance placed on three decisions of this Court, namely, Dharmaraj Singh (Supra), Jagabandhu Biswas (Supra), and Ashok Chakraborty @ Khokan (Supra) lend further support to the aforesaid proposition.

Having regard to the circumstances of the present case, and being guided by the approach of the Hon'ble Supreme Court in Jagmohan Singh Kuldip Singh Anand (Supra), this Court is satisfied that this is a fit case for extending the benefit of probation under Section 4 of the Probation of Offenders Act, 1958. The object of the Act is reformative rather than retributive, which is best served here, given the familial relationship between the parties, age of the petitioner, the sudden nature of the occurrence, the absence of antecedents, and the considerable lapse of time since 2003, rather than by subjecting the petitioner, at this distance of time, to incarceration.

Accordingly, C.R.R. No. 1355 of 2015 stands partly allowed. CRAN 3 of 2015 (Old No. CRAN 4448 of 2015) and all connected applications, if any, are also, thus, disposed of.

Interim order, if any, stands vacated.

The petitioner shall be directed to execute a bond of peace and good behaviour for a period of two years to the satisfaction of the Learned Trial Court within a month from the date of passing this order.

In the event the petitioner fails to do so, the Trial Court shall take appropriate steps to apprehend the petitioner and execute the sentence awarded by the Trial Court in the present case in accordance with law.

Let a copy of this judgment together with Trial Court Records be forwarded to the Learned Trial Court for information and taking necessary effective steps as aforesaid.

All parties shall act on the basis of server copy of this judgment duly downloaded from the official website of this court.

Urgent photostat certified copy of this judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal formalities.