Rinku Sarkar vs State Of Tripura

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Heard Ms. Sarama Deb, learned counsel appearing for the petitioner as well as Mr. S Debnath, learned Addl. PP appearing for the State.

This is a revisional petition under Section 397(1) read with Section 401 of the CrPC from the judgment of conviction and the order of sentence dated 23.03.2016 delivered in the Criminal Appeal No. 23/2015 whereby the petitioner has been convicted under Section 341 read with Section 34 of the IPC and directed to undergo imprisonment for seven days and also convicted under Section 325 read with Section 34 IPC and directed to undergo simple imprisonment for ten days and to pay a fine of Rs.1,000/-, with default stipulation by modification of the order of sentence dated 03.08.2015 passed in pursuance to the judgment of conviction dated 03.08.2015 in case No. PRC 976/2010. It has been further directed that the sentences shall run concurrently.

The genesis of the prosecution case can be located in the complaint filed by one Amiya Biswas, PW1, revealing that on 05.09.2010 at around 2.30/2.45 p.m. (afternoon) the petitioner, along with two others attacked Sushen Biswas, the younger brother of the informant, and assaulted him by a bamboo stick over different parts of his body. Resultantly, Sushen Biswas suffered severe bleeding injuries on his person and, thereafter, he was sent to the GBP Hospital, Agartala for treatment. The complaint was registered as Airport PS case No.41/2010 under Sections 341/325/34 IPC.

On completion of investigation, the police report was filed sending up the petitioner and others to face the trial. The Chief Judicial Magistrate, West Tripura, Agartala transferred the case to the court of the Judicial Magistrate, First Class, who framed the charges under Section 341 read with Section 34 of IPC and under Section 325 read with Section 34 IPC, to which the petitioner had pleaded not guilty and claimed to be tried. As many as 10 witnesses were examined by the prosecution and two documents including the injury report (Exbt.-2) were introduced.

In order to defend themselves, the petitioner and the other co-accused adduced three witnesses, DWs 1, 2 & 3 and introduced in the evidence eight documentary evidence, including some prescriptions and cash memos of the medicines. Thereafter, the petitioner and others were examined under Section 313 CrPC to have their response in respect of the incriminating materials. The petitioner reiterated his stand of innocence and claimed that he has been falsely implicated in the case.

On appreciation of the evidence, the Judicial Magistrate, First Class, West Tripura, Agartala, Court No.1 delivered the judgment of conviction under Section 341 read with Section 34 IPC and under Section 325 read with Section 34 IPC. The trial judge has observed that since the accused persons were not below the age of 21 years at the time of commission of the crime, they are not entitled to the benefit of the provisions of Section 4 and Section 6 of the Probation of Offenders Act, 1958 read with Section 360 CrPC. Accordingly, in terms of the conviction they were sentenced to suffer imprisonment for one month and to pay fine of Rs.5,000/-with default stipulation for commission of offence punishable under Section 341 read with Section 34 IPC and imprisonment for one year and to pay a fine of Rs.4,500/- with default stipulation for commission of offence punishable under Section 325 read with Section 34 of the IPC.

The said judgment dated 03.08.2015 delivered in PRC 976/2010 was challenged in an appeal being Crl.A.23/2015 filed under Section 374(3) CrPC in the court of the Sessions Judge, West Tripura, Agartala by the petitioner. By the judgment dated 23.03.2016, the Sessions Judge affirmed the conviction, on re-appreciation of the evidence.

However, he reduced the sentence in the following terms:

a. Simple imprisonment for seven days for commission of offence punishable under Section 341 read with Section 34 IPC as they wrongfully restrained the victim; and

b. Simple imprisonment for ten days for committing offence punishable under Section 325 read with Section 34 IPC and shall also pay a fine of Rs.1,000/-with default stipulation.

The Sessions Judge has declined to extend the benefit of Section 4 of the Probation of Offenders Act read with Section 360 of CrPC. The appellate court has observed that on consideration of the testimonies of PWs 1, 4, 5, 6, 7 & 8 it has been clearly established that the petitioner had assaulted PW3 by lathi.

PW9, the Doctor who treated the injured has opined that injuries were caused by a blunt object. Thus, the Sessions Judge has refused to interfere with the finding of conviction but moderated the imprisonment in the manner, as stated above.

On appreciation of the evidence, this Court does find that the reasons as provided by the Sessions Judge are cogent and no interference is called for in the findings. However, while denying the benefit of Section 360 of CrPC both the courts below have committed a serious mistake by considering the age of the petitioner, in particular, to be above 21 years of age. The incident took place in the month of September, 2010 and when the petitioner was examined under Section 313 CrPC on 22.04.2013 his age was 22 years. It clearly indicates that, in absence of contrary evidence, the petitioner was below 21 years of age and as such, he is entitled to get the benefit of the Probation of Offenders Act, 1958.

Section 6 of the Probation of Offenders Act has laid restrictions on imprisonment of the offenders under 21 years of age. When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to undergo imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the transaction in committing the offence and the antecedent of the offender, it would not be desirable to deal with him under section 3 or section 4 of the Probation of Offenders Act, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

In Daulat Ram Vs. State of Haryana, AIR 1972 SC 2434 the apex court has laid down the object of incorporating Section 6 of the Probation of Offenders Act. The apex court has enunciated the law that this particular provision is engrafted to ensure that juvenile offenders are not sent to jail for offences which are not so serious as to warrant imprisonment for life, with a view to prevent them from contamination due to the contact with hardened criminals in the jail. Therefore, the provision should be liberally construed keeping in view the spirit embodied therein.

True it is that a specific legislation, in the meanwhile, has come in the form of Juvenile Justice (Care and Protection) Act, 2000 which has been further overhauled to form the Juvenile Justice (Care and Protection of Children) Act, 2015 where a specific provision has been provided particularly to deal with the juvenile offenders but these provisions for offenders have not been repealed or amended and are still in the statute. Having regard to that provision, this court is inclined to grant the benefit of Section 4 of the Probation of Offenders Act to the petitioner, read with Section 5 of the said Act.

Hence, the sentence as awarded by the Sessions Judge shall remain inoperative on condition of good conduct for a year from the date when the petitioner shall submit a bond in that regard. However, if the petitioner is found to have breached the conditions of the bond of good conduct, he has to suffer the said imprisonment and for that purpose the report of the Probation Officer shall be considered as the basis. The trial court, on the basis of the said report, shall compel the petitioner to suffer the sentence as imposed by the appellate court.

This is, however, subject to payment of Rs.5,000/-as compensation to the victim.

The bond of good conduct for a period of one year under surveillance of the Probation Officer shall be submitted in the trial court supported by one surety who will assure the court that whenever the petitioner's appearance would be required before the trial court, he will produce him, or else he would deposit a sum of Rs.25,000/-. The said amount would be liable to be forfeited, following the due process, in the event of the petitioner's disobedience to appear before the Court.

Such bond shall be submitted before the court by 15th February, 2020 along with the compensation of Rs.5,000/-. It is made absolutely clear that the bond of good conduct shall not be accepted unless the compensation of Rs.5,000/- is deposited in the trial court. The trial court shall transmit the said amount to the victim as compensation. If the bond as aforesaid is not submitted the petitioner shall undergo the sentence.

Having observed thus, this revision petition is partly allowed to the extent as indicated above.

Send down the LCRs forthwith.