Shri M. Pandi vs State

Toufique Uddin, J.—This is an application under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, directed against judgement dated 31.01.2013 in Criminal Appeal No. 2 of 2011 passed by the Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair and the judgement dated 5.2.2008 in GR Case No. 2671/03 u/s 325 of Indian Penal Code passed by the Judicial Magistrate First Class-II, Port Blair. In the background of the case, the fact, in brief, is as follows:

The present petitioner is a permanent resident of these islands working as Mazdoor in the Electricity Department, Andaman and Nicobar Administration and residing at the address given in the cause title.

A complaint was lodged that on 21.07.2003, at about 9.00 am, when the complainant was repairing the fencing of his house, the petitioner and his wife came there and started abusing and when the petitioner requested not to use filthy language, the petitioner got angry and assaulted the complainant with blow on his face breaking one tooth of lower jaw and the wife of the petitioner assaulted the complainant with a danda. A charge sheet was filed after investigation under sections 325/323/504/34 of the Indian Penal Code against the petitioner and his wife.

On hearing of both sides, charges were framed under sections 325/323/504/34 of the Indian Penal Code. The contention of the charges were read over and explained to the accused persons who pleaded not guilty and claimed to be trial.

To contest the case, the prosecution examined seven witnesses, while none was examined on the side of the accused persons. However, the accused persons were examined u/s 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross examination and reply given by the accused persons at the time of examination u/s 313 of Code of Criminal Procedure is denial of offence with a plea of innocence.

On trial, the learned Judicial Magistrate First Class-II, Port Blair acquitted the accused Laxmi by judgement dated 5.2.2008 but convicted the present petitioner for commission of offence u/s 325 of the Indian Penal Code and sentenced him to suffer simple imprisonment for a period of three months and also to pay fine of Rs. 500/- in default to undergo simple imprisonment for a period of 10 days.

Against the judgment dated 5.2.2008 passed by the learned Judicial Magistrate First Class-II, the accused filed a Criminal Appeal being No. 02 of 2011 before the learned Court of the learned Sessions Judge at Port Blair which was later transferred to the Court of learned Additional Sessions Judge at Port Blair. The learned Additional Sessions Judge at Port Blair by way of impugned judgment dated 31.01.2013 upheld the judgment dated 05.02.2008 passed by the learned Judicial Magistrate, First Class-II, Port Blair.

Being aggrieved by and dissatisfied with the judgment and order dated 05.02.2008 and 31.01.2013 passed by the learned Judicial Magistrate First Class-II, Port Blair and the learned Additional Sessions Judge at Port Blair respectively, the present revision has been preferred on the ground that the judgments are bad in law and facts.

It was contended that the learned courts below failed to appreciate the improvement made by the prosecution during trial and failed to appreciate that there were major contradictions and discrepancies in the evince of each witnesses, the learned courts below failed to appreciate the contradiction in the testimony of PW-1 and PW-2. The PW-1 in examination in chief deposed that the incident took place on 21.07.2003 at about 9.00 am. On the date of incident Shanmugam i.e. PW-2 called him to erect railing and accordingly he went there and talked with the appellant/accused as he protested in erecting railing and all on a sudden appellant/accused assaulted from back with danda. As a result, he fell down and thereafter appellant/accused gave a blow on his mouth, as result four tooth got uprooted, whereas PW-2 in his chief stated that he along with labour and Pitchai i.e. complainant went to the plot to erect fencing and it was 8.30 am at that time Pitchai i.e. complainant had talked with appellant/accused''s wife and in the meantime the appellant/accused assaulted from back with danda, as a result Pitchai i.e. complainant fell down and thereafter appellant/accused gave a blow on his mouth.

The learned courts below failed to appreciate the contradiction in the testimony of PW-3 and PW-4. PW-3 in his examination in chief stated that while he alongwith other labours engaged in clearing garbages at that time appellant/accused asked to stop work at that time the appellant/accused and complainant fought together over the self same issue. The appellant/accused assaulted complainant with a lathi (lakdi) from his back also assaulted on mouth, as a result complainant''s tooth got uprooted. Whereas PW-4 in his examination in chief stated that the incident took place on 27.07.2003 and he had not witnessed any incident on 21.07.2003. The appellant/accused came and told to call the owner of the land. Then Shanmugam (PW-2) called the complainant and soon as complainant arrived, there was quarrel between complainant and appellant/accused and all on sudden the appellant/accused assaulted complainant from back with danda, as a result Pitchai i.e. complainant fell down and thereafter appellant/accused gave a fist blow on his mouth as a result complainant''s tooth got uprooted.

The learned courts below failed to appreciate the contradiction in the testimony of PW-3 and PW-7. PW-7 stated that he visited the spot on the same day i.e. 21.07.2003 and from the place of occurrence seized two piece of broken balli and one broken tooth under the cover of panchanama in present of two witnesses namely K. Shanmugam and M. Mukaiya i.e. PW-2 and PW-3 respectively, whereas PW-3 in his examination in chief stated that on the next day police came and took his signature, further stated that he cannot say why police took the signature.

It has to be seen if the impugned judgments suffer from any material irregularity and calls for any interference or not.

Section 325 of the Indian Penal Code reads as under:

Section 325: Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The learned lawyer of the appellant argued in terms of the so-called discrepancies mentioned by the appellant as above and submitted that the prosecution could not prove the case beyond reasonable doubt. Further he submitted that regarding the number of teeth, there are contradictory evidence and further over date of incident there was contradiction even. Last but not the least contention of learned defence lawyer is that if at all the prosecution case is thought to be proved (which appellant does not admit) still then, the findings of both the courts below cannot be sustained as the learned courts below did not consider the case in the light of section 360 of Code of Criminal Procedure or under the provisions of Probation of Offenders Act, 1958 since because the alleged offence was first one and there was no previous conviction of the present appellant.

His other contention is that the appellant is a quite young man, having family and he is a group ''D'' government employee. So, a lenient view may be taken and he should be released on probation if at all the Hon''be Court thinks that the appellant is guilty of commission of the said offence.

Learned lawyer of the State strenuously argued that this is a fit case where there is no scope for any interference. He further argued that both the Courts below came to a concurrent finding and as such there is nothing to warrant any interference. The learned lawyer of the State, of course, left the question of treatment of the present appellant under the provisions of the Probation of Offenders Act, 1958 to the discretion of the Hon''ble Court.

Admittedly the wife of the present appellant was acquitted.

To appreciate the case from a better angle, some relevant pieces of evidence be taken into consideration.

The FIR lodged on 21.07.2003 at 9.00 am has a mention that the complainant went to his house at Nayagoan and found that fencing of the land was damaged in some places. When he was repairing fencing of his house, Pandi and his wife Smt. Laxmi came out from the house and started abusing him, and when he requested them for not using filthy languages Pandi got angry and assaulted the complainant by giving a blow on his face resulting in fall of one tooth of lower jaw of the complainant. In the meantime, Pandi''s wife Laxmi assaulted the complainant with a danda.

PW-1 was the defacto complainant. He stated that on the date of incident, Pandi gave a blow on his mouth, as a result his four teeth fell. In cross-examination he has stated that in FIR Pandi gave him blow on the face, as a result his four teeth got uprooted. So there is contradiction in the evidence about the number of tooth. But the doctor''s evidence shows that a single tooth was missing. So, it is clear at least one tooth got uprooted.

PW-2, PW-3, PW-4 all corroborated the fact of unleashing blow, resulting in fall of tooth of the complainant. It may be, there are discrepancies as pointed out by the learned lawyer of the appellant in regard to some pieces of evidence. But those were not so vital as to demolish the prosecution case as a whole. The incident took place on 21.07.2003 and the witnesses started deposing in the year 2005 i.e. about after lapse of almost two years. Witnesses are human being. It is quite expected that a minute piece of action may not be recollected and reproduced after such period. Some minor discrepancies go to suggest the truth of the incidence. There is no iota of evidence that the prosecution witnesses were either biased or interested or had any animosity in falsely implicating the accused person.

It is fact that the history of injury was not given by the victim before the doctor. But, it is not the case of the appellant that otherwise the defacto complainant sustained injury resulting in loss of his tooth.

The judgments of the courts below appear to be speaking ones and rightly they have held the accused guilty. But, I find that the judgment of the Trial Court simply mentioned that the case is not fit to proceed in accordance with section 360 of the Code of Criminal Procedure and under sections 3/4 of the Probation of Offenders Act, 1958. But why he has not extended such benefit to the accused has not been stated in the judgment. Similarly, I find from the judgment of the Criminal Appeal No. 02 of 2011 that the learned Additional Sessions Judge also did not discuss properly the question of release of the accused on probation.

It cannot be gainsaid that the legislature in their wisdom passed such reformatory act for application in deserving case.

Learned lawyer of the appellant cited before me a good number of decisions which are as follows:

1 V.R. Murthy Vs. State,

Amrti Ch.Roy v. State - [2002] 2 Crimes 254

State of Karnataka Vs. Muddappa,

4 Halappa and Others Vs. State of Karnataka,

Radha Raman Sarkar Vs. State of West Bengal,

Gulzar Vs. State of M.P.,

Anil Kumar Biswas and Others, Nakari Ghosh Vs. State of West Bengal and Another , Anil Biswas and Others,

Ramadas Maroti Thakur another v. State of Maharashtra another - [2005] 1 BomCR (Crl) 629

Hansa Vs. State of Punjab,

The learned lawyer of the appellant contended that the appellant should be released on probation in the light of the decision, referred to above.

From the 313 examination sheet, it appears that the appellant was aged about 49 years at the material point of time of commission of offence. He also has a family. There is no record put up before the court to establish that the appellant had any bad antecedent or any previous conviction. So, it is not proved that the appellant had a blemished antecedent. But yet both the learned courts below refused to extend the benefit of the Probation of Offenders Act without assigning any cogent reason. Not only keeping in view of the spirit of the decisions referred to above, but also considering the mandate given by the statues, I am of the opinion that both the learned courts below ought to have extended the benefit of Probation of Offenders Act to the accused or should have dealt him u/s 360 of the Code of Criminal Procedure.

Accordingly, the revision stands allowed in part and the impugned order of the trial court be modified as under:

The learned Judicial Magistrate First Class-II is directed to take necessary action in terms of section 4 of the Probation of Offenders Act, 1958.

The applicant shall be released on probation for a period of one year on execution of a bond for maintaining good behavior and peace to the satisfaction of the learned Court below. His sentence of imprisonment and fine shall remain suspended presently but in case of any adverse report, during such period of one year, he shall be called upon to serve out the sentence.