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1998 DIGILAW 97 (GAU)

Safiqur Rahman Laskar v. State of Assam

1998-04-06

A.K.PATNAIK

body1998
This is a revision under section 401 of the Code of Criminal Procedure, 1973 against the judgment and order dated 13.9.90 of the learned Additional Sessions Judge, Cachar at Silchar in Criminal Appeal 33(3)/85 partly allowing the appeal and sentencing each of the four petitioners to fine of Rs.100/- in default to undergo rigorous imprisonment for 7 days for the offence under section 427, Indian Penal Code and further sentencing each of the 4 petitioners to fine of Rs.200/- in default to undergo rigorous imprisonment for 10 days for the offence under section 323, Indian Penal Code. 2. The facts briefly are that the 4 petitioners along with 5 other persons were prosecuted for the offences under sections 147/447/427/354/323, Indian Penal Code, The prosecution case briefly was that at about SAM on 22.4.82 the accused persons armed with Huja, Lathi, Lenja, etc. formed an unlawful assembly and trespassed into the homestead of the informant Manubala Das and caused damage by breaking the fencing, pulling out the thatch and cutting the banana and betel nut plants and took away some articles from her house and caused a loss of Rs. 1,000/- to her. The informant, her son Bhajan Das and her daughter Rekharani Das tried to resist the accused persons, but were beaten by the accused persons. When Manubala Das, Bhajan Das and Rekharani Das raised alarm, neighbours came and rescued them from the accused persons. The defence case on the other hand was of denial of the prosecution story. Their further case was that they got decree for eviction against Bhajan Das in connection with the seedling-bed which was contiguous to the homestead of Bhajan Das and while the accused persons were ploughing the seedling-bed Bhajan Das along with other associates attacked them with intention to dispossess them and criminal case was instituted in which Bhajan Das and others were convicted. 3. By judgment dated 1.8.85 of the learned Addl.. Chief Judicial Magistrate in CR No.994 of 1992, out of the nine accused persons eight were convicted under sections 147/447/427/323, Indian Penal Code and two accused persons were also convicted under section 354, IPC. Aggrieved, the eight convicted accused persons filed Criminal Appeal No. 33 (3) 85 and by judgment dated 13.930, the learned Addl.. Chief Judicial Magistrate in CR No.994 of 1992, out of the nine accused persons eight were convicted under sections 147/447/427/323, Indian Penal Code and two accused persons were also convicted under section 354, IPC. Aggrieved, the eight convicted accused persons filed Criminal Appeal No. 33 (3) 85 and by judgment dated 13.930, the learned Addl.. Sessions Judge, Cachar, Silchar acquitted four out of the eight convicted accused persons of all charges and set them at liberty and also acquitted two out of eight accused persons convicted for the offence under section 354, IPC. In respect of the four petitioners, however, the learned Addl.. Sessions Judge maintained the conviction under sections 427/323, IPC while acquitting them of the remaining charges and sentenced them of a fine of Rs.100/- each, in default to undergo rigorous imprisonment for 7 days for the offence under section 427, IPC and to a fine of Rs.200/- each, in default to undergo rigorous imprisonment for 10 days for the offence under section 323, Indian Penal Code. 4. Mr. SA Laskar, learned counsel appearing for the petitioners, contended that the conviction of the four petitioners under section 323, Indian Penal Code by the learned Addl. Sessions Judge was not justified as there was absolutely no proof of any injury having been suffered by any persons. Mr. Noor Mohammad learned Public Prosecutor, Assam, on the other hand, referred to the impugned judgment of the learned Addl. Sessions Judge to show that the conviction under section 323, Indian Penal Code was based on the evidence of the three witnesses who suffered injuries as well as the Doctor. I have carefully gone through the impugned judgment of the learned Addl. Sessions Judge and I find that he has taken into consideration the evidence of PW 1, the informant who has stated that when she objected to the breaking of the fence by the accused persons, she was assaulted with a stick on her right leg by Safiqur and Matiur gave a stick blow on her chest. PW 1 has also stated that her son Bhajan was assaulted with a stick by Alia and Rejan and her daughter was dragged out of the house by her hair and assaulted with a stick on the courtyard. The learned Addl. Sessions Judge has also considered the evidence of Rekharani Das, the daughter of PW 1. PW 1 has also stated that her son Bhajan was assaulted with a stick by Alia and Rejan and her daughter was dragged out of the house by her hair and assaulted with a stick on the courtyard. The learned Addl. Sessions Judge has also considered the evidence of Rekharani Das, the daughter of PW 1. She was examined as PW 2 and she stated that her mother was assaulted by Safiqur and Matiur with a stick and when her mother fell down she and her brother went to save her, they were chased by Alia, Rejan, Habibur and Moinul and thereafter she went inside the house but she was dragged out by accused Alia and Rejan to the courtyard and beaten. Learned Addl. Sessions Judge has also considered the evidence of Bhajan Das, the son of the informant who was examined as PW 3. Thus the story of assault by the petitioners on PW 1, PW 2 and PW 3 has been corroborated by each other's evidence. The Doctor, PW 7 has further stated that he examined. PWs 1,2 and 3 on 22.4.82 and he found abrasion and tenderness on the different parts of their bodies. It is thus clear that there was sufficient evidence that PWs 1, 2 and 3 had suffered injuries on their persons and that the said injuries were caused by the petitioners. The first contention of Mr. Laskar that the conviction of the four under section 323, Indian Penal Code is not maintainable has no merit and is accordingly rejected. 5, It was next submitted by Mr. Laskar, learned counsel for the petitioners that the offence under section 427, Indian Penal Code has not been established against the four petitioners as the property alleged to have been damaged by the four petitioners belonged to them, i.e. accused/petitioners. Learned Public Prosecutor, Mr. Noor Mohammad, on the other hand, contended that this contention has been negatived by the learned Additional Sessions Judge in the impugned judgment. On a perusal of the impugned judgment, I find that the learned Additional Sessions Judge came to a finding that the accused persons were the landlords of the land in question and accordingly held that the offence of criminal trespass under section 441, Indian Penal Code was not established against the accused persons. On a perusal of the impugned judgment, I find that the learned Additional Sessions Judge came to a finding that the accused persons were the landlords of the land in question and accordingly held that the offence of criminal trespass under section 441, Indian Penal Code was not established against the accused persons. But he also came to the finding on the basis of the evidence of DW 1 that the disputed land was seedling-bed which was situated contiguous South to the homestead of Bhajan Das and that a fencing was erected by Bhajan Das. Learned Addl. Sessions Judge has also taken note of the fact that the DW 1 has admitted in his evidence that the homestead of Bhajan Das along with the seedling-bed is within the wakf property. He has further found that on 22.4.82 the four accused/petitioners, namely Safiqur, Matiur, Alia and Rejan broke the boundary fencing and cut some plants. There was therefore clear evidence on record to show that the four petitioners broke the boundary fencing erected by Bhajan Das, PW 3 and cut some plants. The contention of Mr. Laskar that the property that was damaged by the accused persons belonged to the accused persons was contrary to the evidence on record and is not tenable. 6. Mr. Laskar finally submitted that under the peculiar facts and circumstances of the case, particularly when the petitioners had been sentenced to fine only, the learned Addl. Sessions Judge should have released the four petitioners on probation of good conduct in accordance with the provisions of section 360. CrPC but instead, the learned Addl. Sessions Judge imposed sentence of fine Rs.200/- each without taking recourse to the provisions of section 360, CrPC with the objective to award compensation to the victims. According to Mr. Laskar, section 361, CrPC makes it abundatly clear that the Court will have to record special reason for not dealing with the accused persons under section 360, CrPC and the reason that he was not taking recourse to section 360, CrPC for awarding compensation to the victims was not at all a reason germane to the provisions of section 361, CrPC. Mr. Mr. Noor Mohammad, learned Public Prosecutor, vehemently contended that since the petitioners had been found to be guilty of assaulting two women PWs 1 and 2 also of pulling hair of PW 2 and dragging her out into the courtyard, this is not a fit case in which the petitioners should be released on probation under section 360 CrPC. 7. In the case of Bishnu Deo vs. State of WB, AIR 1979 SC 964 , the Supreme Court dealt with the purport of sections 360 and 361, Criminal Procedure Code, and has held that in the said provisions there is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country, and it is only where the personality of the offender as revealed by his age, character, antecedents and other circumstances indicated that the offender beyond reform or redemption that the Court would be justified by special reasons not to deal with the offender under section 360, CrPC. Paragraphs 25 and 27 of the said judgment of the Supreme Court in the case of Bishnu Deo vs. State of WB (supra) are quoted herein below : "25. Apart from section 354 (3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is section 361. Section 360 of the 1973 Code re-enacts, in substance, section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under 21 years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age character or antecedents of the offender, and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of section 360 wherever it is possible to do so and to state 'special reasons' if it does not do so. In the context of section 360, the 'special reasons' contemplated by section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and section 354 (3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. 27. 'Special reasons', we may, therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, which reference to contemporary ideas in the fields of criminology and connected sciences. Special reasons are those which leads inevitably to the conclusion that the offender is beyond redemption having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment, etc. I will not attempt to catalogue any 'special reasons'. Special reasons are those which leads inevitably to the conclusion that the offender is beyond redemption having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment, etc. I will not attempt to catalogue any 'special reasons'. I have said enough and perhaps more than what I intended, to indicate what according to me should be the approach to the question. Whatever I have said is but to supplement what my brother Krishna Iyer has already said in Rajendra Prasad vs. State of UP (AIR1979SC916)." 8. In the instant case, the only reason recorded by the learned Additional Sessions Judge in the impugned judgment for not taking recourse to section 360, CrPC is to award compensation to the victims, namely, Manubala Das, her son and daughter. The amount of compensation that has been awarded is a fine of, Rs.100/- under section 427, Indian Penal Code for each of the accused persons , and a fine of Rs.200/- for each of the four accused persons under section 323, Indian Penal Code which works out to an amount of Rs. 1,000/- for the three victims, i.e. about Rs.333/- for each of the victims. The evidence on record clearly indicates that the four petitioners/accused behaved the way they did on account of a civil dispute with PWs 1,2 and 3 and there is a lingering animosity between the two parties on account of the said civil dispute. In my considered opinion, instead of awarding the meagre compensation of Rs.333/- for each of the three victims, interest of justice would he better down served if the four petitioners/accused are bound by a bond under section 360, CrPC to keep peace in the area and be of a good behaviour for a period of one year. Such an order would not only be a deterrent on the four petitioners from acting violently in future towards the three victims but may also reform them and serve the object for which sections 360 and 361 of the Code of Criminal Procedure have been enacted. 9. Such an order would not only be a deterrent on the four petitioners from acting violently in future towards the three victims but may also reform them and serve the object for which sections 360 and 361 of the Code of Criminal Procedure have been enacted. 9. In the result, instead of sentencing the four petitioners to fine, I direct that each of the four petitioners be released on his entering into a bond for a sum of Rs.500/- with one surety of like amount to appear and receive the sentence when called upon during the period of one year and in the meantime to keep the peace and be of good behaviour. 10. The revision is allowed to the extent indicated above.