IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1675 of 2010 UMESH SINGH S/O- BASUDEO SINGH, R/O- VILLAGE DHAKNIBIGHA, P.S.- MAKHDUMPUR, DISTRICT- JEHANABAD. Versus THE STATE OF BIHAR For the petitioner : Mr. Krishna Prasad Singh, Sr. Advocate Mr. Jharkhandi Upadhyay, Advocate For the State : Mr. Shyam Bihari Singh, APP ------------- 4 25.01.2011 After having heard both sides, this Court is satisfied that the matter requires consideration on the point of sentence. Rule confined to the question of sentence only. Learned A.P.P. waives notice on behalf of the State. With the consent of the parties, the application is being disposed of at the admission stage itself. Petitioner herein is aggrieved by judgment and order dated 25.2.2009 passed on Cr. Appeal No. 12 of 2003/23 of 2001 (Umesh Singh and Anr versus State of Bihar and Anr.) whereby the appeal preferred on behalf of the petitioner and one another co-convict was considered and rejected. On account of a dispute with regard to fishing, the occurrence had taken place on 3.10.1997. As per the prosecution case, the informant had gone to the nearby pond for fishing. The petitioner and another co-accused arrived there armed with lathi. They abused the informant (P.W. 5). It is the allegation that petitioner assaulted the informant (P.W. 5) by lathi which caused injury on his left hand/wrist. It is further the allegation that another co-accused Maheshwar Singh also assaulted with lathi on his back. Petitioner, therefore, was - 2 - charged under diverse sections of the Indian Penal Code including Section 325 of Indian Penal Code. In order to prove the charge(s), the prosecution examined as many as eight witnesses. Learned Trial Court by judgment and order of conviction dated 28th April, 2001 passed in Tr. No. 113/2001 found and held him guilty under Section 323 and 325 of Indian Penal Code and sentenced to undergo R.I. for 03 months and 01 year respectively. Aggrieved by the said judgment and order of conviction, petitioner preferred appeal which was considered and rejected. Learned Appellate Court on reappraisal of the evidence found in paragraph nos. 12 and 13 that the prosecution case has been supported by P.W. 1, 2, 3 and 4 and the informant (P.W. 5). Learned counsel for the petitioner, referring to paragraph 13 of the Appellate Court judgment, submits that the Doctor (P.W. 7) found injury on the left arm which was subsequently found to be grievous as the informant had sustained fracture of humerous. .Referring to the prosecution case as culled out in paragraph 2 of the Trial Court’s judgment, it is submitted that on a very trivial issue, the offence is said to have been committed. It is submitted that admittedly, there was no preplanning for the occurrence. Going by the prosecution case, it can be submitted that it all happened on the spur of the moment. Learned counsel further contends that the petitioner was not found previously convicted in any offence. At the time - 3 - of recording conviction, he was assessed 25 years of age. It is thus contended that regard being had to the age, his antecedent and the circumstances in which the offence was committed, the petitioner deserved to be dealt with in terms of Section 360/361 of the Code of Criminal Procedure. It is submitted that the Trial Court has committed illegality in not allowing him to be released in terms of the aforesaid provisions. It is also submitted that the occurrence in the present case has taken place on 3.10.1997 and trial consumed more than four years. For all these four years, he had to undergo the ordeals of trial which is a shade of punishment. Learned A.P.P., on the other hand, submits that the prosecution has been able to prove the case beyond shadow of reasonable doubt by the oral and documentary evidence. There is concurrent findings of guilt recorded by the two Courts below. It is further submitted that the petitioner was found responsible for causing fracture of left humerous of the informant (P.W. 5) and as such the trial Court has not committed any illegality in not releasing him in terms of the provisions contained under Sections 360/361 of the Cr.P.C. and/or the provision of the Probation of Offenders Act. I have considered the submissions made on behalf of the parties and perused the materials on record. Prosecution case gives an impression that the occurrence had taken place on a very trivial issue. Informant wanted to fish which was - 4 - objected to by the accused persons whereafter the allegation is that the accused persons including the petitioner assaulted him (P.W. 5) by means of lathi. It is further seen from the evidence of the doctor (P.W. 7) that the informant received fracture in his left wrist. This is further evident from the Trial Court judgment that at the time of recording conviction, the petitioner was found aged about 25 years. It is also deciphered from the record that the trial in the present case consumed more than four years. Thereafter the appeal of the petitioner remained pending for more than six years. The informant has received grievous injury caused by the petitioner. The Trial Court, therefore, did not permit him to be dealt with in terms of provisions of Section 360 of the Cr.P.C. and/or the provisions of Probation of Offenders Act. In my view, no illegality can be found with the said order of conviction. However, considering the fact that the occurrence had taken place on the spur of the moment and that the petitioner was at the time of occurrence, fairly young age and also the fact that the trial consumed more than four years and he was made to undergo rigours of the trial for all these years, this Court is satisfied that petitioner deserves a lenient view insofar as quantum of sentence is concerned. Accordingly, while upholding the judgment and order of the learned Trial Court, the sentence awarded under Section 325 IPC is reduced to R.I. for six (06) months. Other part/condition(s) of the sentence shall remain intact/untouched. - 5 - With this modification in sentence, the revision application is dismissed. pkj (Kishore K. Mandal, J)