Aswind Kumar @ Asbind Kumar vs State of Bihar

Mr. Aditya Kumar Trivedi, J.—Heard learned counsel for the appellants as well as learned APP for the State.

Both the appellants namely, Aswind Kumar @ Asbind Kumar and Arwind Kumar @ Arbind Kumar have preferred the instant appeal against the judgment of conviction and sentence dated 07.03.2002 passed by Presiding Officer, FTC-Nawada in Sessions Trial No. 196/2002/350/89 whereby and where under, they both have been found guilty for an offence punishable under Sections 323 IPC and sentenced to undergo RI for a month.

Learned counsel for the appellants has submitted that for the occurrence committed in the shop of appellant, case and counter case was drawn up. Prosecution, who was an accused in the counter case approached the appellants and then thereafter parties Patna High Court agreed upon to compromise both the cases but cunningly, the prosecution succeeded in getting the case compromised where under they stood as accused and got acquittal and then thereafter contested the present litigation. Witnesses, more particularly, the so alleged injured during course of cross-examination had admitted that fact. In the aforesaid background, it has also been pleaded that the learned lower court though had found the appellants guilty for an offence punishable under Section 323 IPC but sentenced them to undergo RI for a month which should not have in the background of aforesaid factual situation which, the learned lower court also perceived. So, confining their prayer on that very score, it has been submitted by the learned counsel for the appellants that having absence of preconviction stigma against the appellants, both be allowed to avail the liberty in terms of Section 3 of the Probation of Offenders Act.

Learned APP does fairly concede to.

In the aforesaid facts and circumstances of the case, maintaining conviction under Section 323 of the IPC, the sentence so inflicted by the learned lower court, his hereby, modified in terms of Section 3 of the Probation of Offenders Act and for that appellants are directed to appear before the learned lower court to hear the same.

With the aforesaid modification in sentence, the instant appeal is disposed of.

The learned lower court will notice both the appellants in order to execute the requirements in terms of Section 3 of the Probation of Offenders Act.