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1996 DIGILAW 124 (GAU)

STATE OF TRIPURA v. SWAPAN DEY

1996-06-20

N.G.DAS

body1996
JUDGEMENT Accused Swapan Dey has appeared in person. It has been explained to him that he has been found guilty for commission of offence under S. 326, IPC and that he may be sentenced to undergo life imprisonment or to suffer rigorous imprisonment for a period of ten years. On hearing this, the accused Swapan Dey has at first stated that he was not at all involved in this case and he being acquitted by the trial Court married and two children have also born to him by this time. It is further stated that his old mother is alive and he has got no property for the maintenance of his family. It is submitted that he earns his livelihood by cultivating lands of others on Barga system. Hence, if he is sent to jail, his family will be finished. 2. After the submission of the accused, Mr. M. Kar Bhowmik, learned counsel for the accused has submitted that a period of seventeen years has passed away after commission of the offence and the accused by this time has become father of two children. So his case may be considered. In support of his contention, Mr. Kar Bhowmik has referred to a decision of the Supreme Court in the case of Pashora Singh v. State of Punjab (1993 AIR SCW 490) and submitted further that the Supreme Court also took a lenient view on the agony of the accused and the period which elapsed. In that case the Supreme Court considered the period already undergone by the accused. But so far as this case is concerned, it does not appear that the accused viz. Swapan Dey suffered any period of imprisonment. 3. Mr. Kar Bhowmik has also placed reliance upon the two decisions of this Court. One is a decision in the case of Md. Chuti S. K. alias Naban Ali v. State of Assam, reported in (1985) 2 GLR (NOC) 9 and the other decision in the case of Naorem Indrakumar Singh v. State of Manipur reported in (1985) 1 GLR (NOC) 2. In the former decision the Court took a lenient view considering the poverty of the accused and the act having been committed due to some perversity and that there being in all probability partial penetration only. This was a case of rape and hence the facts are different from the facts of the present case. In the former decision the Court took a lenient view considering the poverty of the accused and the act having been committed due to some perversity and that there being in all probability partial penetration only. This was a case of rape and hence the facts are different from the facts of the present case. In the later decision namely, (1985) 1 CTLR (NOC) 2, learned Judge held that under S. 235, Cr. P.C., it is the duty of the Court to hear the accused on the question of sentence even though he was found guilty of an offence so that an appropriate sentence in the facts and circumstances of the case may be imposed. It was also observed by the learned Judge in this case that the provision takes note of a new penological direction indicating that the end of Criminal Law is not to endure retributive justice. Social compulsions of the situation must be taken note of. So also all the past, present and future circumstances of the accused. 4. Mr. S. Roy, learned counsel appearing on behalf of the prosecution contends that in awarding the sentence it should also be taken in view the manner of brutality in which the deceased was killed and that the young lady at the threshold of her youth lost her husband. 5. It is submitted by the learned counsel for the accused that a considerable period has already elapsed after the commission of offence and on that ground, the accused should get some consideration. It cannot also be lost sight of that the deceased who died was a youngman and on account of this brutal murder, a young lady has also become husbandless. It has also been stated above that the record does not show that the accused had to suffer any period in jail. 6. Considering all the facts and circumstances and in view of my finding of facts, I convict the accused Swapan Dey under S. 326, IPC and sentence him thereunder to suffer rigorous imprisonment for three and a half years and also to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for further six months. The period undergone during enquiry, investigation and trial, if any, shall be set off. Fine money, if realised, be paid to Smt. Swapna Dutta, wife of the deceased Narayan Dutta. 7. 1,000/-, in default to suffer rigorous imprisonment for further six months. The period undergone during enquiry, investigation and trial, if any, shall be set off. Fine money, if realised, be paid to Smt. Swapna Dutta, wife of the deceased Narayan Dutta. 7. Learned counsel for the accused has made a prayer to consider the accused under S. 360 of Cr. P.C. Considering the facts and circumstances of the case, I am of the view that this is not the case where the accused can get the benefit under S. 360 of Cr. P.C. Order accordingly.