Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 101 (GAU)

Simanta Chiring v. State Of Assam

2020-01-30

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. A. Roshid, learned counsel for the accused/petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State respondent. 2. By this petition filed under Sections 397/401 read with Section 482 Cr.P.C., the accused/petitioner has challenged the legality and correctness of the judgment and order, dated 28.02.2011, passed by the learned Additional Sessions Judge, FTC No. 1, Tinsukia in Criminal Appeal No. 28(3)/2010, whereby partly allowed the appeal by setting aside the conviction and sentence under Section 448 of the IPC and by affirming the conviction and sentence under Section 353 of the IPC, passed by the learned SDJM (M), Sadiya in G.R. Case No. 143/2006. 3. The prosecution case, in a nutshell, is that the Sub-Divisional Animal Husbandry and Veterinary Officer (SDAHVO), Sadiya lodged an FIR on 29.12.2006 with the Officer-in-Charge of Sadiya P.S., alleging that the accused/petitioner demanded preparation of his monthly salary bill to one Shri Khanindra Baruah, Accountant of the informant''s office. As Shri Baruah refused to prepare the monthly salary bills, the petitioner used criminal force and attempted to assault him by showing gestures as well as by throwing hard paper weight and also threw out a type machine within the office. Sri Baruah, however, saved himself by coming out of the said office. The petitioner even followed him to the outside of the office with a ruler and a scale. Based on the aforesaid FIR, Sadiya P.S. Case No. 85/06 under Sections 448/353/427 of the IPC was registered and after completion of investigation, the police laid a charge-sheet against the petitioner. 4. During trial, the learned Magistrate explained the offence as charge-sheeted to the accused/petitioner, to which he pleaded not guilty and claimed to be tried. After completion of evidence of the prosecution side, the statement of the petitioner was recorded under Section 313 Cr.P.C. The petitioner pleaded innocence and declined to examine any witness in defence. Thereafter, on hearing the arguments of both the sides and appreciation of the evidence on record, the learned Magistrate convicted and sentenced the petitioner, as stated above. 5. Aggrieved, the petitioner preferred an appeal before the Court of learned Sessions Judge, Tinsukia against the aforesaid judgment and order passed by the learned SDJM (M), Sadiya, which was registered as Criminal Appeal No. 28(3)/2010. 5. Aggrieved, the petitioner preferred an appeal before the Court of learned Sessions Judge, Tinsukia against the aforesaid judgment and order passed by the learned SDJM (M), Sadiya, which was registered as Criminal Appeal No. 28(3)/2010. The learned Sessions Judge transferred the case to the Court of the learned Additional District and Sessions Judge, FTC No. 1, Tinsukia for disposal and accordingly, after hearing the arguments advanced by the learned counsel for both sides and consideration of the evidence available on record, partly allowed the conviction and sentence passed by the learned SDJM (M), Sadiya by acquitting the petitioner of the charge under Section 448 of the IPC and affirming the conviction and sentence passed under Section 353 of the IPC, as stated above. 6. Mr. A. Roshid, learned counsel for the petitioner, submits that the learned trial Court as well as the Appellate Court failed to appreciate the facts that all the witnesses examined in the case were interested as P.Ws 1 and 2 were in dominating position as the petitioner No. 1/informant was the head of the office, where the alleged occurrence took place and P.W. 2 was the Accountant under him. Mr. Roshid, however, submits that the learned Court below failed to consider the most vital aspects of the case that the petitioner, who was a Grade IV employee of the said office, demanded preparation of his salary bills which P.W. 2 refused to prepare as he was already transferred to Lahowal and accordingly released from the said office. Mr. Roshid further submits that the learned trial Court as well as the learned Appellate Court, without assigning any good and legally acceptable strong reasons, refused to grant the benefit of Sections 3 / 4 of the Probation of Offenders Act, 1958. Mr. Roshid, therefore, vehemently submits that unless the petitioner is acquitted of the charge under Section 353 of the IPC, at least the benefit of the aforesaid provisions of the Probation of Offenders Act should be extended to him, in the backdrop of the facts of the case. 7. Mr. Mr. Roshid, therefore, vehemently submits that unless the petitioner is acquitted of the charge under Section 353 of the IPC, at least the benefit of the aforesaid provisions of the Probation of Offenders Act should be extended to him, in the backdrop of the facts of the case. 7. Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State respondent, submits that as the alleged occurrence had taken place in the year 2006 and by this time more than 14 years have elapsed and on the other hand, as the offence under Section 353 of the IPC prescribes maximum punishment of imprisonment for 2 years and further, Section 4 of the Probation of Offenders Act requires only undertaking to maintain good conduct for 2 years, this provision can well be applied to the case. 8. I have given due consideration to the above arguments of both sides and perused record. 9. Section 349 of the IPC defines the term ''Force''. The expression criminal force is defined in Section 350 and what is assault is defined in Section 351. Therefore, before an act can amount to assault within the meaning of Section 351 of the IPC, it is necessary that a gesture or preparation should be made by the person who would cause another to apprehend that the person is about to use criminal force to him then and there. 10. A scrutiny of the evidence of P.W. 1, Dr. Hemanta Doley, the Veterinary Assistant Surgeon, Sadiya has supported the allegation made in the FIR, vide Ext. 1 and P.W. 2, Sri Khanindra Baruah, the Accountant of his office has corroborated the evidence of P.W. 1/informant. P.W. 3 Sri Santiram Chetry, an independent witness to the alleged occurrence has also corroborated the evidence of P.W. 1 and P.W. 2 in material particulars. A close scrutiny of their (P.W. 1, 2 and 3) evidence, it is revealed that the petitioner, who was a Grade IV employee of the office of the S.D.V.O., Sadiya (P.W. 1) was transferred to Lahowal by the competent authority and accordingly, he was released from the said office at Sadiya. But he did not join at the new place of posting at Lahowal and demanded P.W. 2, that his pay bills should be prepared at Sadiya office. However, as P.W. 2 Mr. But he did not join at the new place of posting at Lahowal and demanded P.W. 2, that his pay bills should be prepared at Sadiya office. However, as P.W. 2 Mr. Baruah, the accountant, refused to do so, the petitioner prevented him from discharging his official duty by threatening to assault him. The petitioner vandalised the table of P.W. 2, threw the paper weight at him and also threw out the manual type machine, which was placed on his table. The petitioner even went to the extent of following P.W. 2, when he, in order to save himself, rushed out of the office. Within the definition of public servant defined in Section 21 of the IPC, the petitioner, who was in service on pay of the Government and entrusted with doing public duty on the relevant day of the occurrence, was not an employee of the informant''s office on the day of occurrence as he had already been released from the said office on transfer to Lahowal. 11. On perusal of the impugned judgment and order it is seen that the learned Courts below did not comply with the provisions of Section 3/4 of the Probation of Offenders Act without assigning any satisfactory reason. It is noticed that the accused/appellant was declined the benefits of the Probation of Offenders Act. Section 4 of the said Act empowers to release a person on probation of good conduct, subject to conditions that the offence is not punishable with death or imprisonment for life. The Section presupposes release on probation meaning thereby postponement of the sentence after conviction. In the instant case, the accused/appellant committed the offence on 29.12.2006, that is, about 13 (thirteen) years ago due to nonreceipt of his salary, although he was not entitled to get salary from the informant''s office by reason of his release on transfer, which provoked him to behave violently. There is no evidence that the accused/appellant is a habitual offender and that he was previously convicted. Therefore, this Court is of the considered opinion that the learned Courts below ought to have extended the benefits of Section 4 of the said Act postponing the sentence after conviction. 12. There is no evidence that the accused/appellant is a habitual offender and that he was previously convicted. Therefore, this Court is of the considered opinion that the learned Courts below ought to have extended the benefits of Section 4 of the said Act postponing the sentence after conviction. 12. Accordingly, it is provided that the accused/appellant shall be released on probation of good conduct for a period of 1(one) year, on executing a bond subject to the condition that if he fails to maintain good conduct during the aforesaid period, he shall receive the sentence and undergo the punishment awarded as above. 13. With the above direction, the revision stands disposed off. 14. Send back the L.C.R.