Lakhu Chanda VsThe State of Tripura

U.B. Saha, J.—By this criminal revision petition, the convict petitioner has challenged the judgment and order dated 23-12-2004 passed by the learned Addl. Sessions Judge, North Tripura, Dharmanagar in Criminal Appeal No. 19(4) of 2004 whereby and whereunder the learned Addl. Sessions Judge upheld the order of conviction u/s 448 /323 , IPC passed by the learned Judicial Magistrate, first class, Dharmanagar on 30-9-2004 in G.R. case No. 141 of 2004 and modified the sentence passed relating to the offence u/s 323 , IPC to the extent to suffer R.I. for three months instead of six months and also maintained the order of sentence to pay Rs. 1000/- relating to commission of offence u/s 448 , IPC. Heard Mr. D.C. Roy, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. P.P. for the State respondent.

The prosecution case, in short, is as follows:

Smt. Bakul Barua (P.W. 1) lodged a complaint that on 19-5-2004, at noon, the accused petitioner used slang language to her at Ration shop and, thereafter, on that day, in the evening, at about 2 p.m. came to her tea stall at Kanchanpur market and assaulted her by fist and blows on her chest and back etc. and also tried to outrage her modesty. When she raised alarm, neighbouring people came for her help and the accused-petitioner fled away. Again, on 20-5-2004, at about 3-30 p.m. he used slang language to her at Kanchanpur market.

At the commencement of the trial, the accused-petitioner was examined u/s 251 , Cr.P.C. reading over the substance of accusation to the accused-petitioner when he pleaded not guilty and claimed to be tried.

The prosecution examined as many as nine witnesses to prove its case including the official witnesses.

The learned trial Court after conclusion of the trial found the accused-petitioner guilty for committing offence u/s 323 /448 , IPC and consequent thereto, passed the order of sentence for commission of offence u/s 323 , IPC to suffer R.I. for six months and for commission of offence u/s 448 , IPC, to pay a fine of Rs. 1000/-, i.e., to suffer imprisonment for one month. In default of payment of money, both the sentences shall run concurrently. Fine money, if realized from the accused-petitioner, shall be deposited to the Treasury by challan.

Being aggrieved by the aforesaid order of conviction and sentence passed by the learned Judicial Magistrate, First Class, Dharmanagar, North Tripura in G.R. case No. 141 of 2014, the accused petitioner preferred an appeal before the learned Addl. Sessions Judge, North Tripura, Dharmanagar which was registered as Crl. Appeal No. 19(4) of 2004.

The learned Addl. Sessions Judge after hearing the parties and considering the evidence on record passed the impugned judgment and order which is the subject-matter of the instant revision petition.

Mr. Roy, learned counsel for the accused-petitioner while arguing the revision petition would contend that the alleged incident took place in May, 2004 and by this time, almost nine years already elapsed. Thus, the petitioner is not raising any question regarding the order of conviction maintained by the learned appellate Court, but urging for modifying the sentence passed by the learned appellate Court to pay a fine only in place of suffering imprisonment.

Mr. Debnath, learned Addl. P.P. also conceded to the submission of the learned counsel for the petitioner.

This Court has considered both the judgment of the learned trial Court as well as appellate Court. It appears from the record that the learned appellate Court considered the judgment of the learned trial Court and noted inter alia,

xxx

So, considering all aspects of the case it reveals that the judgment and conviction of the learned Court below should be upheld and accordingly upheld. But considering the sentence imposed on the accused it appears that the offence punishable u/s 323 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extent Rs. 1000/- or both. But the learned Court below after due consideration of the provisions of Section 360 of Cr.P.C. has discussed at para 13 of the impugned judgment sentenced the appellant to suffer rigorous imprisonment for six months. In my considered opinion it reveals that considering the facts and circumstances of the case and also considering that it is a first offence the rigorous imprisonment for six months is to some extent harsh and the same should rigorous imprisonment for three months only the learned Court below also imposed sentence of fine of Rs. 1000/- for committing offence punishable u/s 448 of the Indian Penal Code. Offence punishable u/s 448 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 1000/- or with both. So, it reveals that the offence punishable u/s 448 of the Indian Penal Code is punishable with imprisonment or fine or both. The learned Court below considering the entire facts and circumstances imposed a fine of Rs. 1000/- only without imposing fine as well as imprisonment. So, I find that no interference is deserved in respect of the sentence awarded by the learned Court below for committing offence punishable u/s 448 of Cr.P.C. imposing fine of Rs. 1000/- only.

In the result, the appeal is partly allowed,. The conviction of the appellant for committing offence punishable u/s 448 /323 of the Indian Penal Code is maintained but sentence for committing offence punishable u/s 323 of the Indian Penal Code is modified to the extent to suffer rigorous imprisonment for three months only. The sentence awarded by the learned Court below imposing fine of Rs. 1000/- (Rupees one thousand) only for committing offence punishable u/s 448 of the Indian Penal Code is maintained. The appellant is directed to surrender before the trial Court immediately to serve the sentence imposed on him.

As a revisional Court, this Court has also the duty to reassess the evidence on record and accordingly, this Court has considered the evidence of P.W. 1, the informant-victim who deposed on oath that she has got one tea stall at Kanchanpur market. On 19-5-2004, at about 12.00 a.m. she went to a Fair price shop to bring some goods and at that time, the accused-petitioner used slang language to her and thereafter she came back to her tea stall and on that day, at about 2.00 p.m., the accused came to her tea stall and assaulted her by fists and blows and also pressed her breast. She raised hue and cry and on hearing her alarm, the neighbouring persons came to her shop. At that relevant point of time, her husband was also present in her tea stall and due to assault, she lost her sense and she was shifted to Kanchanpur hospital where she regained her sense. She further deposed that subsequently on 21-5-2004, she lodged written ejahar to OC, Kanchanpur PS. and the said ejahar was written by P.W. 7, Matilal Nath. In her evidence, she also identified her signature in the ejahar which was marked as Exbt. I and she also identified the accused-petitioner in the dock. In her cross, she has explained the reasons for causing delay in preferring the ejahar.

P.W. 2 Pulak Barua is the husband of P.W. 1 who corroborated her evidence.

P.W. 3 Bapan Das in his evidence specifically stated that on 19-5-2004 at about 2 p.m., he was preparing some foods in his shop. At that time, he heard some hot altercation between the informant P.W. 1 and the present accused-petitioner.

P. W. 4 Chitta Ranjan Sana also corroborated the evidence of the aforesaid witness so far as altercation between the P.W. 1 and the accused-petitioner is concerned and this witness also stated that after hearing hue and cry, he proceeded towards the tea stall of the informant (P.W. 1) and on arrival there, he found some persons gathered there including the accused-petitioner and he could know that the accused-petitioner had assaulted the informant.

Thus, from the evidence of P.Ws. 3 and 4, it is established by the prosecution that the accused-petitioner was found in the tea stall of the informant by the prosecution witnesses.

P.W. 5 Tarani Hrishidas is the star witness of the prosecution who was present in the tea stall of the informant at the relevant time of occurrence and found that the accused-petitioner had assaulted the informant by fists and blows and due to assault, the informant fell down on the earth. Then he came back to his shop.

P.W. 8 Dr. Dipak Rudrapal is the medical officer who had examined the informant on 20-5-2004 and found some injuries on her person which according to him were simple in nature.

In view of the aforesaid evidence, it can be easily said that the prosecution has established its case and both the learned trial Court as well as appellate Court has rightly found the accused-petitioner guilty for commission of offence u/s 323 /448 , I.P.C.

Now let us examine whether the sentence of imprisonment can be converted into sentence of fine. In

B.C. Goswami v. Delhi Administration, : 1974 Cri LJ 243

, the Apex Court discussed what should be the proper sentence for an offence and while discussing their lordships observed, inter alia, "Now question of sentence is always a difficult question, requiring as it does, proper balancing of various considerations which weigh with judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence, it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby the offender a hardened criminal."

The aforesaid case of

B.C. Goswami ( : 1974 Cri LJ 243) (supra)

was subsequently followed by the Apex Court in the case of

Ramesh Kr. Gupta v. State of Madhya Pradesh, : AIR 1995 SC 2121: (1995 Cri LJ 3656)

wherein the sentence of imprisonment was reduced to the period already undergone, in a case where the accused was sentenced under the Prevention of Corruption Act.

As Mr. Roy, learned counsel for the petitioner in his usual fairness did not raise any question about the conviction. From the record, it appears that admittedly, by this time, nine years already elapsed and the accused-petitioner is on bail. Thus, in view of the decision of the Apex Court in

B.C. Goswami ( : 1974 Cri LJ 243) (supra)

it would not be proper on the part of this court to send the petitioner to jail for suffering sentence of imprisonment passed by the learned trial Court and modified by the appellate Court relating to the offence u/s 323 , I.P.C., rather it would meet justice if the sentence of imprisonment is modified to a sentence of payment of a fine of Rs. 5,000/- for commission of offence u/s 323 , I.P.C. Accordingly, it is ordered.

The order of payment of fine money of Rs. 1,000/- passed by the trial Court and maintained by the appellate Court relating to the offence u/s 448 , I.P.C. is not interfered with.

The fine money shall be deposited within a period of one month from today. If the accused-petitioner fails to deposit the fine money within the aforesaid period, then he shall suffer sentence as passed by the learned appellate Court.

If the fine money is not deposited within the stipulated period, then the petitioner shall surrender before the learned trial Court just after completion of one month. If the accused-petitioner does not surrender as stated supra, then the trial court shall take all necessary steps for taking him into custody to serve out the sentence as passed by the appellate Court.

As the petitioner is on bail, his bail bond shall stand discharged after deposit of the fine money.

Fine money, if realized, shall be sent to the victim (P.W. 1) instead of depositing the same to the Treasury as ordered by the trial Court and maintained by the appellate Court. In the result, the instant revision petition is partly allowed.

Send down the L.C. records.