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2012 DIGILAW 924 (CAL)

Gobinda Mondal v. State

2012-10-04

Toufique Uddin

body2012
JUDGMENT Toufique Uddin, J. 1. This appeal arises out of an order of conviction under Section 342 of the Indian Penal Code and sentence of rigorous imprisonment for one year passed by the learned Additional Sessions Judge, 2nd Court, Alipore, South 24 Paraganas on 31.7.85 in Sessions Trial No. 3(3) of the 1985 while arising out of Magrahat P.S. Case No. 21(1) of 1983. 2. The fact behind this appeal in short is that on 10.1.83 at about 9.30 A.M. one Sri Ashoke Mondal, the brother of the appellant was apprehended by the local people while committing theft in the shop of one Tarapada Purokait. The complainant one Panchu Ram Purokait, the Pradhan of Gram Panchayet of Village Bagaria with others settled the dispute and Asoke Mondal gave an undertaking in writing that he would not commit any such offence henceforth. The further allegation is that the appellant asked the said Prodhan viz. Panchu Ram Purokait to return him the aforesaid bond which his brother gave but the said Prodhan refused to oblige him and as a result, the accused/appellant took away one Swapan Purokait, the son of Panchuram Purokait and confined him at his residence. Thereafter, the said Pachuram Purokait lodged a written complaint with Mograhat P.S. and with the help of the Police, Swapan Purokait was recovered from the house of the accused/appellant. 3. On the receipt of the said complaint, the Police started Mograhat P.S. case No. 21(1)/83 against the accused/appellant. After completion of investigation, the Police submitted charge-sheet under Section 342/506 and 364 of the Indian Penal Code against the accused/appellant and other. The case was committed to the to the Court of Sessions and thereafter the learned trial court on hearing of both sides, framed charges against the accused person under Section 342/364 of the Indian Penal Code. The contents of the charges were read over and explained to them when they pleaded not guilty and claimed to be tried. 4. To contest this case, the prosecution examined as many as 12 witnesses while none was examined on the side of the defence. However, the accused person was examined under Section 313 of the Code of Criminal Procedure. 5. 4. To contest this case, the prosecution examined as many as 12 witnesses while none was examined on the side of the defence. However, the accused person was examined under Section 313 of the Code of Criminal Procedure. 5. On hearing of both the sides, the learned trial court convicted the appellant and sentenced him to suffer rigorous imprisonment for one year after allowing him the privilege of set off under Section 428 of the Code of Criminal Procedure and other accused was acquitted. 6. Being aggrieved by and dissatisfied with the impugned judgment, the present appellant has preferred this appeal mainly on the ground that the prosecution version at the trial is not consistent with the story given in the first Information Report. The prosecution introduced embellishment at different stages causing serious doubt about the prosecution case. Further, the learned Judge erred in not drawing an inference to the prosecution case for non-examination of Tarapada Purokait from whose shop the alleged theft was committed on 10.1.83. 7. Now, the point for consideration is if the impugned judgment suffers from any infirmities and calls for any interference or not. 8. It was contended by the learned counsel for the appellant that there was some infirmities in the case so far as witnesses are concerned and the impugned judgment is not sustainable. 9. On the other hand, the learned counsel for the State strenuously argued that there is no scope to interfere with the findings of the learned court below. 10. I have carefully examined the materials on record and considered the submissions of the learned counsel for both the parties. 11. The commission of theft in the village is the germane of this case for confinement of the son of the defacto complainant. The PWs 1, 2, 3 and 4 are all eye-witnesses. Unequivocally, they stated that the accused took away the son of the defacto-complainant. He was untraced for some time and, ultimately, on the disclosure by the accused, the father of the victim got frightened and rushed to the Police and at the intervention of the Police, the boy was recovered from the house of the appellant. There appears to be no contradictions which could have been taken under Section 145 of the Evidence Act from the I.O. The totality of the evidence leads me to only conclusion that the guilt has duly been proved. There appears to be no contradictions which could have been taken under Section 145 of the Evidence Act from the I.O. The totality of the evidence leads me to only conclusion that the guilt has duly been proved. The evidence was given in the same line by the eye-witnesses. The accused was asked question as regards the offences but he took the simple alibi that he was innocent. Nowhere in the cross-examination it transpires that the incident had not any link with the commission of theft in the house of a neighbour committed by the appellant which lead to the confinement of the son of the defacto-complainant by the appellant in his house. This was the motive. Therefore, I am of the opinion that the prosecution has been able to prove the case beyond all reasonable doubts. 12. In this regard, I like to put a note on the regard that no previous conviction is seen to have been proved against the accused person. Further, the accused was aged about 42 years at the relevant point of time. It is a mandatory provision that in such type of cases, the court has to record as to why relevant provision of the reformatory law as embodied in the probation of Offenders’ Act has not been extended. The learned counsel for the appellant cited before me one decision as reported in 2000 Supreme Court Cases (Cri) 1500 wherein it was held that in a case of theft under Section 379 IPC it is the mandatory duty cast on the court to record in its judgment, specific reasons for not granting benefit of Section 360 of the Code of Criminal Procedure to an accused where it could have dealt with the accused. There the Hon'ble Apex Court maintained the conviction but allowed the appellant to be released on probation of good conduct. Here, in this case, the same principle could have been applied by the learned trial court. 13. Be that as it may, it appears from the 313 Examination of the appellant that his age in 1995 was 42 years. So, by now, he is nearing 70. 14. The present case is of term imprisonment. The appellant appeared to be althrough on bail since 1985. There appears to be no document or evidence that ever he misused the privilege of bail. 15. So, by now, he is nearing 70. 14. The present case is of term imprisonment. The appellant appeared to be althrough on bail since 1985. There appears to be no document or evidence that ever he misused the privilege of bail. 15. Therefore, considering the gamut of the case, I am of the opinion that the judgment is sustainable in law but the sentence is required to be altered in terms of Section 428 of the Code of Criminal Procedure. The substantial part of the sentence was for rigorous imprisonment for one year. The LCR shows that during pre-trial investigation, the appellant was in custody for a period of about 4 months. If at this stage, he is sent behind the bar, perhaps there will not be proper justice in consideration of age of the present appellant. Rather, I am of the opinion that if the substantial part of the sentence is reduced to the period already undergone during the pre-trial investigation stage, the ends of justice will be served. 16. Accordingly, the appeal succeeds in part and the judgment dated 31.7.85 is modified to the extent that the substantive part of the sentence shall be reduced to the period already undergone as aforesaid. Upon appropriate Application (s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.